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Home My WebLink About06/25/2001 BAKERSFIELD Sue Benham, Chair David Couch Jacquie Sullivan Staff: Trudy Slater REGULAR-MEETING NOTICE , LEGISLATIVE AND LITIGATION COMMI'I-I'EE of the City Council- City of Bakersfield Monday, June 25, 2001 1:00 p.m. City Manager's .Conference .Room, Second Floor - City Hall, Suite 201 1501 Truxtun Avenue, Bakersfield, CA AGENDA 1. ROLL CALL 2. ADOPT APRIL 23, 2001 AGENDA SUMMARY REPORT 3. PUBLIC STATEMENTS 4. DEFERRED'BUSINESS A. REVIEW AND DISCUSSION RELATING TO PERMITS .FOR VENDORS CONDUCTING SALES FROM *PORTABLE CONCESSION STANDS IN CITY PARKS B. REVIEW AND RECOMMENDATION 'REGARDING PUBLIC ACCESS TELEVISION 5. NEW BUSINESS A. REVIEW AND RECOMMENDATION RELATING TO SKATEBOARD RESTRICTIONS IN THE AREA OF OLD TOWN KERN B. DISCUSSION, REVIEW AND RECOMMENDATION REGARDING TOBACCO SELF SERVICE DISPLAY ORDINANCE C. DISCUSSION REGARDING LEAGUE OF CALIFORNIA CITIES ANNUAL MEETING D. REVIEW AND RECOMMENDATION RELATING TO PROPOSED TAXICAB ORDINANCE REVISIONS E. STAFF REPORT AND COMMITTEE RECOMMENDATION REGARDING REVISION TO CHAPTER 5.32 OF THE MUNICIPAL CODE RELATING TO MASSAGE ESTABLISHMENTS IN ORDER TO CONFORM WITH STATE LAW 6.COMMITTEE COMMENTS ,. FILE: BAKERSFIELD ,~lan Tandy, Cit~lanager Sue Benham, Chair Staff: Trudy Slater David Couch Jacquie Sullivan AGENDA SUMMARY REPORT LEGISLATIVE AND ;LITIGATION ,COMMITFEE Regular Meeting Monday, April 23, 2001 1:00 p.m. City Manager's Conference Room 1. ROLL CALL Called to order at 1:05 p.m. Members present: Couneilmember Sue Benham, Chair Councilmember David .Couch Councilmember Jacquie Sullivan 2. ADOPT FEBRUARY 26, 2001 AGENDA SUMMARY ,REPORT City Attorney Bart Thiltgen explained .the agenda summary reflected that'Mr. Thielsher had indicated the organization was a 501 (c)(3) organization when what he believed was intended was that the paperwork was ready to make application but the organization-had not yet received 501(c)(3) designation from the Federal Government. Adopted as clarified. 3. PUBLIC STATEMENTS None. 4. DEFERRED BUSINESS -A. REVIEW AND RECOMMENDATION REGARDING 'PUBLIC ACCESS TELEVISION Administrative Analyst Trudy Slater referred to the handout Committee members had received earlier from 'Mr. Mason relating to his response to Committee' qUestions from the previous meeting. Mr. Mason indicated his belief that the City Council could require Bakersfield's cable companies to provide access, referencing county franchises. City Attorney Thiltgen indicated the'lack of a requirement for the City Council to establish a public access channel. 'The City has contracts with both Cox Communications and Time- Agenda Summary Report DRAFT Legislative and Litigation Committee April 83, ~001 Page ~' Warner of long duration. The Oity cannot unilaterally change those cOntracts[ it would take agreement on the part of all par~ies to do so. The cable companies have a right to control their output. He sees Mr. Ma$on's requests as negotiations be~een two private parties. Oommittee members agreed that information previously requested from Mr. Mason had not been adequately provided. Other issues of concern included public.access abuses, telling the cable companies how to "do it," and requesting st~ff to provide information requested from Mr. Mason. Oommittee Ohair Benham directed staff to contact five jurisdictions.(Fresno, Ventura Oounty, Ftedding, Ridgecrest and Sacramento) to ascertain their public access policies. She indicated she wanted to. bring finality to the issue and was happy with what Oity staff had done so far. The item will be reviewed again at the June 2~ Oommittee meeting. $, NEW BUSINESS A. REVIEWAND REOOMMENDAllON REGARDING ANNOUNCING OLOSED SESSION ACTION Committee Member David Couch explained '[hat'he would like to-report out Council actions from closed sessions by Council member rather than a group vote (i.e., 5-2). Discussion ensued on What was and was not reportable, what returns to the City Council agenda and what does not, and whether the public action is a ratification of what happens in closed session. City Attorney Bart Thiltgen explained that some actions arenot reportable by law and other actions are. Only votes passing an actien are reported; those thatfail are not reported. The decision to report by Council member name, on .reportable actions, is a policy to be decided by Council and .is not a legal-issue. 'Committee Chair Sue Benham agreed with Committee Member Couch that once the discussion is .finished-there is no reason _to keep-the voting by members a secret. Committee Chair Benham and Committee member Couch asked for a majority Committee report be:prepared for Council action to reflect a policy on reporting out closed sessionaction by Council member, explaining the issues, and including abstentions .or conflicts of interest. The City Attorney was directed to prepare a memorandum describing the pros and cons of the issue. Committee member Sullivan felt that there was a need to review the pros and cons of the issue before action was taken. B. REVIEW AND RECOMMENDATION REGARDING STANDARDIZATION OF PUBLIC NOTICE FORMAT City Clerk Pam McCarthy explained the handouts distributed to the Committee referencing standard noticing policies and illustrating actual examples as printed in the Bakersfield .Californian, an adjudicated paper of general distribution for the ~Bakersfield area. Discussion Agenda Summary Report Legislative and Litigation Committee April 23, 2001 Page 3 ensued relative to costs incurred relative to 1/Sth page display~ads as well as the numerous types of public notices required and provided by the City's different departments. Committee-Member Couch suggested that all written public notices feature the City of BakerSfield "squiggle." Committee Member Sullivan suggested that the use of the squiggle on .by the Redevelopment Agency would imply the City rather than the separate Redevelopment Agency. Staff was directed to recommend to Council a policy requiring the Bakersfield "squiggle" on all written City-public notices. 6, COMMI3'TEE COMMENTS None. 7. ADJOURNMENT- The meeting .adjourned 'at 2:45 p.m. Staff Attendees: Administrative Analyst Trudy Slater, City Clerk Para McCarthy; City Attorney Bart Thiltgen, Deputy City Attorney Alan Daniel Other Attendees: Becky Kaiser, DeVictor Mason, James Burger, Denny Ao (L&L~.010423,MIN.wpd) MEMORANDUM May 31, 2001 TO: LEGISLATIVE AND LITIGATION COMMITTEE SUE BENHAM - Chair DAVID COUCH ~~ JACQUIE SULLIVAN FROM: GINNY GENNARO, DEPUTY CITY ATTORN SUBJECT: AMENDMENT TO BAKERSFIELD MUNICIPAL CODE SECTION 12.56.240 Section 12.56.240 of the Bakersfield Municipal Code governs sales in City parks by non-profit organizations, contracts with independent contractors at permanent concession stands and permits for vendors conducting sales from portable concession stands. Last year, Recreation and Parks demolished all permanent City park concession stands and terminated all affiliated contracts. As such, there is no need for an ordinance to govern City permanent park concession stands. At the July 19, 2000 City Council Meeting, City Council adopted a Resolution establishing a moratorium on the issuance of permits for vendors conducting sales from portable concession stands in City parks pursuant to 12.56.240 (B) and (C). The purpose of the moratorium was to give staff an opportunity to send out Requests for Proposals (RFPs) to govern portable concession stands within all City parks. The goal was to contract with a limited number of vendors to present a uniform and consistent way of dealing with concessions in City parks, address health and safety concerns, and eliminate any ambiguity and fairness involved in the current structure of the "first come first serve" process. In order to allow time for Staff and Council to discuss how best to proceed and consider appropriate ordinance revisions, a moratorium was placed into effect. The moratorium did not impact current permittees; rather, it applied only to new permit applications under 12.56.240 (B) and (C). Unfortunately, there was not much response to the RFP. In the meantime, the moratorium is set to expire in July. Therefore, Staff is requesting a revision to the existing ordinance to address the concerns mentioned above. The changes requested will eliminate commercial activity in City parks unless the applicant is a non-profit entity, or, a vendor that contracts with the City. In addition, the proposed changes clarify that City- sponsored events are exempt from the regulations, as well as vendors that contract with the City at a City-sponsored event. The proposed revisions do not have any affect on entities which provide free food, or clothing, or do not solicit fees. S:\PARKS\MEMOS\LegLitCommittee.Amend 12.56.240.wpd LEGISLATIVE AND LITIGATION COMMITTEE SUE BENHAM - Chair DAVID COUCH JACQUIE SULLIVAN May 31, 2001 Page 2 The following is how Staff proposes that Bakersfield Municipal Code section 12.56.240 read: (a redline-strikeout version of the ordinance follows): 12.56.240 Sales and fees--Regulations. A. Except as provided in subsection B only vendors with city contracts, or nonprofit organizations which have tax-exempt status through the Internal Revenue Service or the State Franchise Tax Board, are permitted to conduct sales, collect fees, or otherwise solicit funds in city parks; and then, only under the following conditions: 1. A special events permit is granted and a city business license is obtained; 2. Sale of food, drink, or clothing is approved by the Kern County Environmental Health Department through a temporary health permit obtained by th applicant and a copy of which is furnished by the applicant to the Director of Recreation and Parks prior to the event taking place. 3. All sales are conducted from non-permanent structures which are removed each night by park closing hours. B. This section does not apply to the sale of items by City at city sponsored events or, to vendors that contract with City to provide services at city sponsored events. Red-line version: 12.56.240 Sales and fees-Regulations. A. Except as provided in subsections B ~'~ "' ~' "-; .... *;^- ly ~eb! o, ,,, ,., ,.,, ,, ,,o o~,..,,,.,, ,, on db~ ~iiiii!~b~tt'a~[S~ehar-it-abte or nonprofit organizations which have tax-exempt status through the Internal Revenue Service or the State Franchise Tax BoardLare permitted to conduct sales, collect fees, or otherwise solicit funds in city parksLand then~only under the following conditions: 1. A special events permit is granted and a city business license is obtained; 2. Sale of food, drink, or clothing ~ ~i!Kern County!E~i~b~e~;t~l::iiHealth Department · ~ ' ...... :" ~' .... :~ by'~ S:\PARKS\MEMOS\LegLitCommittee.Amend 12.56,240.wpd LEGISLATIVE AND LITIGATION COMMITTEE SUE BENHAM - Chair DAVID COUCH JACQUIE SULLIVAN May 31, 2001 Page 3 %~lL.,y (;111~.a IL ~11Cill ~;~ LI I~ ~11~1 IL 0 I ~0~1101~lllL~ L~ ~L~II I I I~1[I I M~I LI I I~1 I1 ~, ~ v~, ~, ,~ ~, ~ v,~ ~ c~py ~, ~,,,~ ,~ ,, ,~ ~,, ~,~, ~~"::" ~l.i~l;l~..' '~-'~ .... not '-~-'~ ~: .... ~:-'~ ' '"~' -~" .... ':' .... ' '~ ~racad~no '~ 'ty .... :-~ snag~r ~' pe 't be ,,,a ~o,~,,~, ouv,, r~; o,,~,, -~':~ ~ ......... ~-" require ....... ' ~ - '~ ~ ~:"" ~"~-- per . ~,uu,i ,M ~ , ~Nu.~ .~ ,~, ,,~u.,,~X ;RSUrSRCG ~v~M~ ~ lu J~ ~F" ~M the S:\PARKS\MEMOS\LegLitCommittee.Amend 12.56,240.wpd LEGISLATIVE AND LITIGATION COMMITTEE SUE BENHAM - Chair DAVID COUCH JACQUIE SULLIVAN May 31, 2001 Page 4 If acceptable to the Committee, first reading of the ordinance would be presented at the June 27th CitY Council meeting. GG:alj cc: Bart J. Thiltgen, City Attorney Trudy Slater, Administrative Analyst Stan Ford, Recreation and Parks Director Allen Abe, Assistant Recreation and Parks Director Jane Gardner, Recreation and Parks Business Manager S:\PARKS\M EMOS\LegLitCommittee.Amend 12.56.240.wpd CONFIDENTIAl . PROTECTED M £ M O R A N D U M ~Y ATTORNEY-CLIE~NT AND ATTORNEY WORK-PRODUCT PRIVILEGES June 6, 2001 TO: LEGISLATIVE AND LITIGATION COMMITTEE SUE BENHAM - Chair DAVID COUCH JACQUIE SULLIVAN FROM: ALAN D. DANIEL, Deputy City Attorney SUBJECT: PUBLIC ACCESS TELEVISION CONTACT WITH THE VARIOUS CALIFORNIA CITIES Over the past few weeks, the City of Bakersfield, thr°ugh the City Clerk's office, contacted the cities of Redding, Fresno, Ridgecrest, Sacramento and Ventura, and requested information concerning their Public Access Television rules, their franchise agreements, if any, and other information concerning public access. After several contacts, we received information from Redding, Fresno, Ridgecrest and Sacramento. Ventura was also contacted several times, however, nothing has been received. Please note Sacramento has no franchise agreements. They have a cable television commission. We did receive information from Sacramento concerning their Channel Use Agreement. The Channel Use Agreement is a contract between the Sacramento Metropolitan Cable Television Commission and the Sacramento Community Cable Foundation, doing business as Access Sacramento. Within the terms of this Agreement, an indemnification can be found, along with substantial insurance requirements ($1 million in commercial general liability, $1 million in automotive liability, workers' compensation at statutory limits, and employer's liability of $1 million per accident). The Channel Use Agreement states in Clause 2.06 that the grantee shall take reasonable efforts to assure that all users shall not use any resources or benefits granted under the Agreement for commercial purposes. In Section 3.03, it lists the community programming restrictions which include that the users will agree in writing not to produce or distribute any material designed to promote the sale or use of commercial products, services, or entities; .... any obscene material;.., or libelous or slanderous material. The Channel Use Agreement is 21 pages long and contains numerous other provisions to protect the grantor. Many of these provisions closely follow the limitations set forth in the Time Warner Agreement which KCPA-TV has refused to sign. S:\COUNCIL\MEMOS\Leg & Lit Public Access TV 3.wpd LEGISLATIVE-AND LITIGATION COMMITTEE June 6, 2001 Page 2 The City of Redding's material includes its franchise, and in Clause 6, it states the grantor (which is the City) may delegate to an independent, non-profit entity, such as a commission, board, or non-profit Corporation, the authority to manage any resources and other considerations provided by the grantee... The Franchise Agreement also states the grantee will provide approximately 680 square feet space in its facility for use as a Public Access studio, office and work area. Thus, in Redding's Franchise Agreement, there are certain responsibilities placed on the grantee which are not present in the City of Bakersfield's franchising arrangement. The City of Fresno also has its Franchise Agreement and related ordinances set forth in the Municipal Code of Fresno, and in Section 6-210(5) it states that the cable television system shall provide at least one channel for those educational and Public Access uses now or hereafter required by the Federal Communications Commission for systems operating in the top 100 markets. Once again, this Franchise Agreement contains terms which are not in the City of Bakersfield's Franchise Agreement. The City of Ridgecrest also supplied pages from the Ridgecrest Municipal Code that address the cable TV franchise agreements. Section 3-5.6.602 speaks to Public Access and states that the grantee shall furnish at least one Public Access channel for public, educational, or governmental use upon reasonable request to grantee. 'It then goes on to describe when the Public Access channel can be used by the grantee in the absence of use by the grantor. It further states that at grantor's option, grantor or grantor's designee, may establish such rules and regulations concerning use of said access channel. In all the instances set forth above, the arrangement between the City and the franchisee was governed by the Franchise Agreement between the City and the franchisee. In only one i.nstance was a third party designated to run the cable television Public Access channels, and that was in Sacramento where there was no Franchise Agreement. Even in the Sacramento case, any user of the Public Access channel would have to provide complete indemnities and insurance to the Sacramento Community Cable Foundation doing business as Access Sacramento. S:\COUNCIL\MEMOS\Leg & Lit Public Access TV 3.wpd LEGISLATIVE AND LITIGATION COMMITTEE June 6,2001 Page 3 This information reaffirms our offices' previous position which was that the relationship between the City and the franchisee is governed by the Franchise Agreement, and additional terms and conditions cannot be unilaterally imposed, and that the Warner TV contract requiring insurance and indemnities from KCPA-TV was not unusual. BJT/ADD:cy ~~-~~ Attachments cc: Bart Thiltgen, City Attorney Trudy Slater, Administrative Analyst City Manager S:\COUNCIL\MEMOS\Leg 8, Lit Public Access TV 3.wpd NJ INTRODUCED ~y COUNCIL~N Onig . 9 pIN CS or T iE CI?Y Or RSSNO, . ~NDING ORDINANCE NO 6922 WHICH / F · · , GRANTED TO ~ Pd~SN9 CASLE TV CO. XNC. T~Z NONEXCLUSX~ P~NC~i~Sm ~ TO C0~$TRUCT, OPE~TE, AND ~INTAIN A CO--UNITY ~NA TELEVISION SYSTEM WITHIN SAID CITY. THE COUNCIL OF THE CITY OF ~SNO DOES ORDAIN AS FOLLOWS: SECTION l. This ordinance consolidates Ordinance No. 6922, adopted by the Council of ~he City of Fresno on December l, 1966, with its subsequent ~en~ents (contained In Ordinance No. 69-23-A, 'eS'receive March 16, 1969, Ordnance 75-82, Ordinance 76-28, and Ordinance 77-21), and.further ~ends Ordinance No. 6922 to effectuate the terms and conditions set forth in the ~emorandum of Understanding executed by the City and McClatchey Newspapers, Inc., and adopted by the Council on April 14, 1981, as par~ of ~esolution 81-145. SECTION 2. Whenever in ~hts ordinance the words or phrases -'-:--. hereinafter tn this section defined are used, they shall have the respective meanings assigned ~o ~hem in the following definitions; and words or phrases no~ hereinafter tn this section defined, bu~ which are defined tn an~ ~ranchise Document, as herein defined, shall have the same meanings herein, as so defined in such Franchise Doc~en~ (unless, in the giVen 'instance, the context wherein ~hey are used shall clearly import a different meaning): (a) 'Grantee" shall mean Fresno Cable TV Limited, ~ a California corporation. (b) "Franchise doc~en~s" shall mean and shall incl,~de all of the following: (1) article XIII of the Char~er of the City of Fresno. (2) Chapter 6, Article 2, of the Fresno Municipal Code. -1- {3) The Notice Inviting Offers and Applications ~or CATV Franchise, dated April 14, 1966. (4) The Instructions to Offeror-Applicants for CATV Franchise, issued pursuant to the afore- said notice, and with respect to any offer and application submitted by Grantee for the franchise granted hereunder. (5) The Form of Offer and Application for CATV Franchise, and any such Offer and Application submitted by Grantee for the franchise granted hereunder. (6] The ~otice of Receipt by City of Offer and Appl~cation for Franchise and Intent to Consider Same, pertaining to any such offer and application submitted by Grantee. (7) The written Acceptance of CATV Franchise, of Grantee. (8) Resolution 77-332 (All conditions specified therein have been satisfied.) (9) This ordinance. (10) Resolution 81-4.5. (11) Any and all documents which are referred to, defined, or described in any of the foregoing. as "franchise documents." (c) "Gross revenues" shall include both "gross basic subscriber receipts" and "gross ancillary service receipts." "Gross basic subscriber receipts" shall mean any and all compensation and other consideration received directly or Indirectly by the Grantee fro,, subscribers in payment of the regularly furnished monthly service of the cable television sys6em in the transmission of broadcast television, radio signals and original ~ cablecast programming of the grantee~ "gross ancillary service receipts" shall mean the gross revenues derived from ancillary, ser~,ice~ ~f:er twenty-four months of operation wi=h respect to each such ancillary service. Gross revenues shall not include installation fees charged to individual subscribers or users, sale of Guide (TV program magazine), refundable deposits on converters/descramblers provided to subscribers or users, advertising revenues or any taxes on the services furnished by the Grantee imposed directly on any subscriber or user by any state, county, municipal or other governmental unit. (d) 'Isolated Subscriber" shall mean any subscriber located'in a fr~nch~s~ area wh° is situated outside a' connecting range 'Of not to exceed three hundred feet from a transmission cable maintained or required to be maintained by Grantee, and with respect to whom Grantee is authorizes to make an additional charge for extending any transm~ssion cable to within connecting range of such subscriber. SECTION 3. The franchise authoriz~ng and permitting the Grantee to do all things described by the franchise documents is hereby granted to Fresno Cable TV Limited, a California corporation, the successor in interest of Fresno Cable TV Co., Inc. SECTZON 4. The term of the franchise is extended for fifteen years from the end of the current term (at 12=00 noon on December 31, 1989), and shall end at the hour of 12=00 noon on December 31, 2004 ' SECTION 5. Grantee shall pay to the city during the term'hereo~, semilannual periodic ~ayments, which shall be computed for the period [rom January 1, through June 30 of esch year, and for the period from July 1 through December 31 of each year, which payments shall be made on or before the fi~teer~th day of January and August next following each such respective per~od, in an amount equal to five percent ($%) of the grantee's gross revenues received during such s~x month per~od. ~f, however, the City's Petition ~or Special Relief to the Federal Communications Commission (hereinafter "FCC"), requesting approval of a franchise £~:e of five percent (5%) rather than three percent (3%), is denie~, and if franchise fees are not deregulated by the FCC, then the City shall refund to Grantee the excess two percent (2%) paid to the City by the Grantee. The five percent (5%) fee shall be payable to the City commencing May 1, 1981, the date on which grantee filed with the City a confirmatio~ of the consummation of the sale and transfer of all of the issued and outstanding capital stock of Fresno Cable TV Limited to McClatchy Newspapers. SECTION 6. On December 31, 1996, the City shall have the right, to r~open the franchise fee provision upon six months' prior notice from the City'to the G~antee that'such renegotiation is requested. If the City and the Grantee are unable to negotiate the franchise fee provision, the' fee shall the~ be subject to arbitration by a panel of three under the Rules and Procedures of the AmeriCan Arbitration Association, the City selecting one of the three arbitrators, the Grantee the second arbitrator., and the two arbitrators selecting a ~ird. The decision of the arbitration panel as to the franchise fee applicable to the remainder of the term of the franchise shall be binding on the City and the Grantee. Notwithstanding anything contained in the foregoing, the rkght to renegotiate the franchise fee provision shall not prevent the extension of the term of the franchise to 12:00 noon on December 31, 2004. SECTION 7. Unless and until any of the same be changed in the manner prescribed in Section 6-212 of the Fresno Municipal Code, the rates and charges which may be payable by the subscribers of the system for the installation (including all labor and materials) of such signal wire, or so-called "drop cables," or Other service connection (including all apparatus and equipment) as may be necessary to afford to such subscribers the reception of all programs from the coaxial cable distribution system of the Grantee, and to provide the complete services of such system to such subscribers, shall be as follows: o I Connection and Relocation Charges (May be reduced or waived by Grantee) First Outlet (TV or FM) $20.00 Additional TV Outlets (each) 10.00 Additional FM Outlets (each) 10.00 Relocation of existing outlet 15.00 Other Char~es DelinqUent'Account Collection Charge 7.50 SECTION 8. Unless and until any of the same be changed in the manner prescribed in Section 6-212 of the Fresno Municipal Code, the rates and charges which shall be payable by the subscribers to the system of the Grantee, for affording to such subscribers the reception of all programs from said system, and for providing .to such subscribers the complete services of such system, shall be as follows: Monthly ~ates - Residential First TV Outlet $ 8.50 FM-only Outlet· 6.95 Additional TV Outlets (each) 3.00 ..::... Additional FM Outlets (each) 2.00 ' ' ' ~onthly ~ates - Commercial Rates for apartments, hotels, motels, condominiums, institutions will be negotiated, but will in no case exceed per unit residential rates. SECTION 9. If the Grantee sells any of the issued and out- standing shares of Fresno Cable TV Limited, or substantially sells the assets of said corporation at a profit, calculated in conformity with generally accepted accounting principles,.the Grantee shall pay to the City ninety percent (90%) of five percent (5%) or four and one-half percent (4.5%) of any profit derived from any such sale; provided, however, that this provision shall.not apply to any involuntary sale required by any regulatory, governmental or judicial order requiring McClatchy Newspapers (hereinafter "McClatchy") to sell any portion, up to the whole thereof, of its interest in Fresno Cable TV Limited; provided, further, that this provision shall not ap~ly to any sale or transfer of any shares of the con.on or preferred stock of Fresno Cable TV Limited, up to a maximum of ten percent (10%) of the issued and o6tstanding common and preferred st, ar=s, to any exist shareholder cf McClatc . SECTION 10. In addition to the access requirements co~tained in Fresno Municipal Code Section 6-210, the Grantee shall make ' available to the City access channels for nonprofit, non-revenue- producing data transmission services, applicable to the public and subscribers generally, which are cost effective or of benefit to the City or otherwise in ~he public interest. McClatchy shall make available to the City such access channels as'the City certifies need therefor, up to a maximum of five percent (5%) of the available operating channel capacity of the cable television system. Until the' City certifies need for such City access channels, the Grantee shall be free to u~cilize all such channels for ~ts own~ use. By way of example, but not by way of limitation, the type of City service for which it is contemplated the City shall have such channel access is a service such as meter reading. ~f any such City service requires hookup of nonsubscribers or nonusers of the cable televis~on system, the additional~costs')of construction, installation, operation and maintenance of such hookups for City access channel purposes'~hall be performed'-by the Grantee or its contractors so as to maintain the required high standards of construction,-installation, operation and maintenance of the system. SECTION 11. This ordinance shall become effective and in full force and effect at 12:01 a.m.'on the thirty-first day after its passage. CLERK'S CERTIFICATION STATE OF CALIFORNIA COUNTY OF FRESNO ) ss. ... CITY OF FRESNO ) I, JACQOELINE L. RYLE, City Clerk of the City of Fresno, certify that the foregoing ordinance was adopted by the Council of the City of Fresno, at a regular meeting held on the~ day of ~ Au..Ust , 1981. JACQUELINE L. RYLE City Clerk By Deputy HCM: jes 8/7/81 (Rev.) ~OVSD ~s ?o ~-o~ CITY ~TTORNEy'$ OFFICE -6- I, -=.=.OViD_':;G :-OR T=-- GR~k:Ti::G OF F.=j-_':C~iISES FOR CC:-LMUNiTY O~ u M.S CO~;-DITIONS, A ,, Li:'IITATIONS 'UNDER W.~iCH A C=L~-;CZL CF r.'-'~ C---' OF FF.~S;;O DOES ORDAr.; A'~ FOLLOWS: e~st~, in .=articular, in Fresno, ="d in ~e =--~sao me~ro.=c!i~.~.n a ea, a.-.d -r : ~-kr.-ughcu= ~he -Unite~ S=a:es of A.T. erica and tZ-.e '-'o.-Id, a wides.tread and ever-~.ncreasing devotion == =_~ '-.=-n~_n _ u=cn television viewinT, and the · "~ :'~= i= is generally known and .h_ Co'-'-.cil so _in ' = c_s "~a~ '_'~ _ has been devaiooed with =soec such =e!evisicn viewing and ~e =e!evision indus=~-f, a ---.kni_-.u an= "rust ~ providinc a form. of m-s : o~ .~ a ~e ~ers o= .oecple '-i.h bet:~_r television e .~= n _ e of viewing tl~an is cbt '..a=i_ by inaividua! =_-n-= . a~d whi-_n is co~--only k.~.own as a U:r~"ni'-2 An:_r_-._ Television $'!s=am, and more b-; '-he initials cf C-~T';, b-z which =.he s=-~ shall be h_re- .~:i~_:a.--f, :~ *----.~, :cZes ::~ui:3, or .:h r . -"-_i: e.-e:-.ed, c:.-.::olle~, o: =a£nca~-.~e~: e~c:.us£ve!~, C£~-v. ~oes .-.co £n~er_~e:e -~i~.~ ~e use by. ~rafltee. or _--emov~ a.nv pro.ue_-~.i~ o.~ ~ra:'.:ee ',;he."., £n .opinion of ~-.e Direr=or cf Public Works of the Ci~.7, · __ r ..!- conair, ionS, ~'~e same is .-equire~- by -~ason of t a~' - . --? s= ·6 vacation,.r-= ~e'~a' }- or cons=ruction, cnanco or-s_ ~.ao'!!, sl-~e.-..~ .f s"..-ee" .r .= :-_ "i power line, signal line, ~ ans c a= ~ facil£=ies, - men~s., by go'.'e-_-n, men=a! a-e-. .~c~es' whethe-J acC-lng ~.,:.~ a gove_.-nmen=a: or a~.-rou-~._!_-.~ a~-~. ca, ac!='..', o-- e.nv. tirol:ed to =o'~ement of ~u!Id£.-.g$, urb~-. r- .- _ the City shall unae~s.ke :o c-=~a- '- a!~- such to be located benea~--h t~he surface of=eh ground~ c a- ee shall in all ca~=~ have privilege, "' -' . =o su.~jec" =,e corres.=cndi~.g cbliga~io.-.s, _ . .= r-'_, gran. ~ i.n a · herein ~rov!~-e~= a.n~ no~hin~, hereunder shall he ~.eeme~ a tak~-ng o~ ~--e Drooe_-=?. . o_~ a. ra.n"~,.__ and g.-an~ee shal! be e-ntitle~ -_~ no urch r~. hereunder. Da , ~ (8] Grantee shall, wi=hou~ charge, all subscriber services of irs system, including nul~p!e cunnec=ion ~. to all public and non-profit ~riva=e schools, City police ~d fare · -- r~- ~a' on centers, and such other buildings ~'~ned ~r coz=rolle~ by the City, w~ch shall fr== rime =o ir- be designated by the C.~.O. 9rovided, =hat such buildings shall be 'iota=ed -he franc s~ a ea ~c ki _ r ' ' ~Pmll be wi~in a c0~ec=ing range of zc= to exceed 300 fee= of a transmission c~le o~ke=~ise =aintaLned or =equired-to be main- =ained by'grantee 'o, ~e se~;ice of paying, sub- r' __- ~ a- =-, provide~, fur=her,. ~ha= the C~=v or azZ such ~ub!ic or p:iva=a schools shall ~ay =o grantee ~ ' .e costs of all labor ~nd ~teria!s' =ui=iple .= - se~ice, or for ex=ending - ' i.m cabla to w~=hin connecting range such buiid~ng. (J) Unless c=her&ise ~:ovi~ed in ~y given ~ns=ance, ~= tO be c in '~i=ing, may ex=end anZ =~e so prescribed for =we (2) addi=icnal . ri:.~a of nc= t= exceed ninety (90) days each. CITY OF RIDGECREST PHONE 760-371-3700 100 WEST CALIFORNIA AVENUE · RIDGECREST, CALIFORNIA 93555.405~. May 2, 2001 Pamela McCarthy, CMC City Clerk City of Bakersfield 1501 Truxtun Avenue Bakersfield CA 93301-5201 RE: Cable TV Franchise- PEG Access Enclosed are the pages from the Ridgecrest Municipal Code that' address the Cable TV Franchise. .I I checked with Cindy Braem-Johnson, Director of Administrative Services, about a separate franchise agreement and she told me that it Was as it appears in the Municipal ' Code. The City is Currently studying the agreement as it come up for renewal later this year, I believe in late fall. Cindy did tell me that they are looking very carefully at the PEG access language for the renewal document as it seem to be a "hazy" area, Hope that this helps you. If, later on, yOu would like to see what our City Attorney comes up with for the franchisee agreement renewal dOcument, 'I'd be happY'to send you a copy. Sincerely, ,.. . ~ ~ Rita Gable ~ Deputy City Clerk Enclosure REVENu~ AND FINANCE § 3-5.6A02 3-5.504 Fees. Any grantee of a utility franchise shall pay to the City a franchise fee based on the gross annual receipts of the grant in the maximum amount permitted under the Franchise Act. Such payment shall be made by the grantee at such times and in such manner as is set forth in the franchise ordinance. Division 6. Cable Television Service Part 1. General 3-5.6.101 Requirements. No person shall operate a community antenna television system within the City without first securing a franchise as required by this Division. 3-5.6.102 Definitions. For the purposes of this Division, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. (a) "Basic Cable Service" shall mean any service tier which:' includes the retransmission of local broadcast signals. (b) "Broadcast signal" shall mean a television or radio signal that is transmitted over the air to a wide geographic audience and is received by a Cable Communications System off. the-air or by microwave. (c) "Cable Communications System or CATV System" shall mean a facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video program- ming and which is provided to multiple subscribers 325 P, zv. Ord. Supp. 12/89 REVENUE AND FINANCE § 3-5.6.102 3-5.6.102 CITY OF RIDGECREST ORDINANCES within a community, but such term does not include: (1) pole, or the first undergrounding of cables is initiated, a facility that serves only to retransmit the television after Preliminary engineering (strand mapping) and signals of one or more television broadcast stations; (2) after all necessary permits and authorizations have a facility that serves only subscribers in one or more been obtained. multiple unit dwellings under common ownership, con- (j) "Commence operation" shall mean that time and date trol or management, unless such facility or facilities when operation of the Cable Communications System is uses any public right-of-way; (3)a facility of a common considered to have commenced which shall be when carrier which is subject, in whole or in part, to the sufficient distribution facilities have been installed so provisions of Title 11 of the Cable Communications as to permit the offering of full service to at least ten Policy Act of 1984, except that such facility shall be (10%) percent of the dwelling units located within the considered a cable system (other than for purposes of service area. Section 621 (c) of the Cable Communications Policy Act of 1984) to the extent such facility is used in the (k) "Council" shall mean the governing body of the City of transmission of video programming directly to Ridgecrest. subscribers; or (4) any facilities of any electric utility (1) "FCC" shall mean the Federal Communications Corn- used solely for operating its electric utility systems, mission and any legally appointed or elected successor. (d) "Trunk cable" is that CATV line used to transport (m) "Franchise" shall mean the nonexclusive rights signals and is used to provide signal for the distribution granted pursuant to this Chapter to construct and operate cable, a Cable Communications System along the public way (e) "Distribution cable" is that CATV line used to provide within all or a specified area in the City. Any such signals to the subscriber tap. authorization, in whatever form granted, shall not mean and include any license or permit required for the (f) "Tap" is that device which acquires signal from privilege of transacting and carrying on a business distribution line and interconnects the system to a within the City as required by other ordinances and laws customer drop. of the City. (g) "Drop" is that CATV line used to feed a signal to the (n) "Franchise agreement" shall mean an agreement customers location and TV receiver, between Grantor and Grantee, approved by resolution of (h) "Channel" shall mean a portion of the electromagnetic the Council, containing the specific provisions of the frequency spectrum which is used in the. Cable Com- franchise granted, including any referenced munications System and which is capable of delivering specifications, franchise applications and other related a television channel (as television channel is defined material within such agreement. by the Federal Communications Commission by (o) "Franchise fee" shall mean the fee paid by Grantee to regulation). Grantor in consideration of the use of public streets and (i) "Commence construction" shall mean that time and right-of-way. date when construction of the Cable Communications System is considered to have commenced, which shall be ~- when the. first strand or cable is connected to a utility 326 Rev. Ord. Supp. 12/89 Rev. Ord. Supp. 1 2/89 3-5.6.102 CITY OF RIDGECREST ORDINANCES REVENUE AND FINANCE § 3-5.6.102 (p) "Franchise territory" shall mean that portion of the City (t) "Initial service area" shall mean the area of the City defined in the Franchise Agreement for which a which will receive service initially, as set forth in the franchise is granted. Franchise Agreement. (q) "Grantee" shall mean any person receiving a franchise (u) "Installation" shall mean the connection of the Cable pursuant to this chapter and the Franchise Agreement Communications System from feeder cable to sub- and its lawful successor, transferee or assignee, scribers' terminals and the provision of service. (r) "Grantor or City" shall mean the City of Ridgecrest as (v) "Person" shall mean an individual, partnership, represented by the City CoUncil or any delegated association, organization, corporation or any lawful commission acting within the scope °fits jurisdiction, successor, transferee or assignee of said individual, partnership, association, organization or corporation. (s) "Gross annual revenue" shall mean all cash, goods, services, credits, property of any kind or nature, or other (w) "Subscriber" shall mean a member of the general public consideration received directly by a Grantee arising who receives broadcast programming distributed by a from or attributable to the sale or exchange of cable Cable Television System and does not further distribute services by Grantee within the City in any way derived it. from the operation of its system within the City, in- (x) "Potential~subscriber" shall mean a member of the cluding, but not limited to, basic service, monthly fees, general public who has access to becoming a subscriber. optional service or pay cable fees, installation and reconnection fees, local advertising revenues, leased (y) "Public access channel" shall mean any channel where any member of the general public or any noncom- channel fees, and converter rentals, merciai organization may be a user, without charge, on Gross annual revenues will also include any of the a first come, first served, nondiscriminatory basis, in aforementioned revenues received directly by an accordance with the terms of the Franchise Agreement. affiliate, subsidiary, parent or other entity in which Grantee has a financial interest, that directly and ex- (z) "Reasonable notice" shall be written notice addressed to clusively relates to the CATV system operation, provided Grantee at its principal office or such other office as that the gross annual revenues of such entities, in- Grantee has designated to Grantor as the address to cluding Grantee, will not include revenue which has al- which notice should be transmitted to it, which notice ready been accounted for in calculating gross annual daysShall priorbe certifiedto thatanddayp°Stmarkedin which then°t partyleSs thangivingtensuch(10) revenues, notice shall commence any action which required the Gross annual revenues shall not include any taxes, fees giving of notice. In computing said ten (10) days, or tariffs on services furnished by Grantee imposed Saturdays, Sundays and holidays, recognized by upon any subscriber or user by the State, City or other Grantor, shall be excluded. governmental unit, converter deposits, refunds to subscribers by the Grantee, revenue from the sale, (aa)"School" shall mean any educational institution exchange or cablecast of any programming developed including primary and secondary 'schools, colleges and for community use or institutional users. Nor shall it universities, beth public and private. include revenues for services which are provided at cost. R~v. Ord. Supp. 12/89 REVENUE AND FINANCE § 3-5.6.205 § 3-5.6.201 CITY OF RIDGECREST ORDINANCES (bb) "Service area" shall mean the entire geographic area 3-5.6.202 Grant. If Grantor shall grant to Grantee a franchise pursuant to this chapter to construct, operate, within the Franchise Territory. maintain and reconstruct a Cable Communications System (cc) i'Street" shall include each of the. following which have within the Franchise Territory, the franchise shall constitute been dedicated to the public or hereafter are dedicated to both a right and an obligation to provide the services ora Cable the public and located within the City limits: streets; Communications System as required by the provisions of this roadways; highways; avenues; lanes; alleys; side- chapter and the Franchise Agreement. walks; easements; right-of-way and similar public property and areas. 3-5.6.203 Franchise Territory. Grantor may grant a franchise for all or any defined portion of the City. The Part2. Grant Service Area shall be the entire territory defined in the Franchise Agreement. The Initial Service Area is that portion 3-5.6.201 Franchise Application. .~ of the Franchise Territory scheduled to receive initial service, (a) Applicants for a franchise shall submit to Grantor as maybe stated in the Franchise Agreement. written applications utilizing the standardized format provided by Grantor, at the time and place designated by 3-5.6.204 Use of Public Streets and Ways. For the purpose of Grantor for accepting applications, and including the operating and maintaining a Cable Communications System designated application fee. This section shall apply to a in the Franchise Territory, and subject to the provisions of the Grantee seeking renewal of a franchise provided, division, Grantee may erect, install, construct, repair, however, that the Grantor may waive the requirement to replace, reconstruct, and retain in, on, over, under, across, provide'any information that is unnecessary due to and along the public streets and ways within the Franchise Grantee's status as a renewing franchise. Territory such wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attach- (b) An application fee in the sum of three thousand ments, and other property and equipment as are necessary ($3,000.00) dollars, which shall be valued in 1987 and appurtenanttotheoperation of the Cable Communications dollars, and certified or cashier's check, or money System. Prior to the construction or alteration, however, order, to pay the costs of studying, investigating, and Grantee shall in each case file plans with the appropriate otherwise processing such application, and which shall Grantor agencies and local utility companies, and comply be in consideration thereof and not returnable or refund- with the Division. able in whole or in part except to the extent that such fee exceeds' the actual costs incurred by Grantor in study- 3-5.6.205 Duration. lng, investigating, and otherwise processing the ap- plication. Grantee shall also, in addition to the (a) The term of a Franchise Agreement and all rights, franchise application fee, reimburse the City for the cost privileges, obligations and restrictions pertaining of publication of the ordinance within a newspaper of thereto shall be fifteen (15) years, commencing on the general circulation that complies with the City's general effective date of the Franchise unless terminated sooner as hereinafter provided. The effective date of the statute requirements. Franchise shall be the date of adoption of the resolution approving a Franchiss Agreement by Grantor. Said 3.30 Rev. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 § 3-5.6.206 CITY OF RIDGECREST ORDINANCES REVENUE AND FINANCE § 3.5.6.209 resolution shall not be adapted until Grantee has signed one (1) person or entity. Any such transfer, occurring the Franchise Agreement. without prior approval of Grantor, shall constitute a failure (b) The franchise shall terminate without further action by to comply with this chapter. Grantor at the end of the term; provided however, that 3-5.6.208 Franchise Renewal. The procedure for considering, Grantor, at or before the end of the term, retains the granting or denying renewal o£any franchise granted pursuant to exclusive power to grant an extension, or a renewal of this chapter or any previous cable television ordinance shall be the franchise to Grantee. Any decision as to renewal consistent with the procedures set forth in the Cable Communi- shall be made in accordance with, this Division. cations Policy Act of 1984, Section 626, 47 U.S.C. Section 546 (1985). '3-5.6.206 Franchise Nonexclusive. A franchise granted 3-5.6.209 Franchise Fee. pursualnt to this chapter is non-exclusive. Grantor specifically reserves the right to grant, at any time, such additional (a) A Granteeofa franchise hereunder shallpay to Grantor an franchises for the City as it deems appropriate. Such annual Franchise Fee in an amount to equal five (5) per- additional franchise grants shall be enacted with the same or cent of total gross revenues, but in no event shall the fee be similar Franchise Agreement terms and conditions insofar more than authorized by applicable Federal or State l~w as to exclusion of unfair advantages or business conditions, and such payment shall be in lieu of any occupation tax, license tax or similar levy. The time of computation of the Franchise Fee shall commence on September 1, 1993 or on 3-5.6.207 Transfer of Ownership or Control. the effective date of the franchise, whichever is later. (a) A franchise and its assets granted hereunder shall be a Grantor shall be £urnished annually with a statement by a privilege to be held in personal trust by Grantee. It certified public accountant reflecting the total amounts of cannot be sold, transferred, leased, assigned or disposed Gross Annual Revenues as described in this division. of in whole or in part, either by forced or involuntary sale or by voluntary sale, merger, consolidation .or (b) No acceptance of any payment by Grantor of the Franchise otherwise, other than to an entity controlling, controlled Fee shall be construed as a release or as an accord and by or under common control with Grantee, without the satisfaction of any claim Grantor may have for further or prior written consent of Grantor. Such consent by additional sums payable as the Franchise Fee under the Grantor shall not be unreasonable withheld provided, chapter or for the performance of any other obligation of however, the proposed transferee must 'agree in writing Grantee. to comply with all provisions of this chapter and (c) Payment due Grantor under this provision shall be com- establish to the satisfaction of Grantor its financial and puted monthly or quarterly, for the preceding month or technical capability. Notice shall be provided, but no quarter. Each monthly or quarterly payment shall be due such consent shall be required for transfer in trust, and payable no later than sixty (60) days after the last day mortgage or other hypothecation in whole or in part to of the month or quarter. Each payment shall be accompa- secure an indebtedness of Grantee. hied by a brief report showing the basis for the computa- (b) If Grantee is a corporation, prior approval of Grantor tion. shall be required in the event of a transfer of forty (40%) (d) If any Franchise Fee payment is not made on or before the percent of the voting stock within a one (1) year period to dates specified herein, Grantor may impose a late penalty. Such penalty shall be equal to the payment due times ten . (10) percent for each month payment is not made. 333 Rev. Ord. Supp. 9/93 P,~v~ Ord. Supp. 12/89 I~VENUE AND FINANCE § 3-5.6.2!0 § 3.§.6.210 CITY OF RIDGF. CREST ORDINANCES , (2) Grantee's construction or improvement schedule is 3-5.6.210 Termination. delayed longer than the schedule contained in the (a) The franchise may be terminated, or liquidated damages Franchise Agreement and after giving. Grantee the may be assessed, in the event the Council finds, alter no- same' due process hearing as provided for in subsection (b) below, Grantor finds that the delay is tice of hearing that: not excusable. (1) Grantee falls to comply with any material provisions of this chapter or any Franchise Agreement executed a. If Grantor determines that Grantee has failed pursuant to this chapter. Termination proceedings shall to comply with any material provision or only be commenced through a public hearing process schedule as provided for in subsection (a) affording due process as defined in subsection (b) below, above and, in the case of a request for termi- if, after thirty (30) days from written notification from nation has failed to cure any material breach Grantor stating the specific grounds upon which as provided for in subsection (a)(1) above, the Grantor relies, Grantee fails to correct the stated vio. City Administrator shall place a request for lation. In the event the stated violation is not reason- termination or liquidation damages upon a ably curable within thirty (30) days, the franchise shall regular Grantor meeting agenda for a public not be terminated or revoked if Grantee provides, hearing. The City Administrator shall cause within the thirty (30) days, a plan, satisfactory to the notice to be served upon Grantee, at least ten City Administrator, to remedy the violation and con- (10) days prior to the date of such meeting, a tinues to demonstrate good faith in seeking to correct written notice of this intent to request such the violation. It shall not be a failure to comply with a termination or liquidated damages, and the material provision of this franchise for' Grantee to time and place of the meeting, notice of which comply with any law, rules and regulations of the Fed- shall be published at least once, within a period eral or State government or any Federal or State reg- of ten (10) to fourteen (14) days before such ulatory commission or agency havingjurisdiction over meeting in the newspaper of general. Grantee's operations. The Council's finding ofmateri- circulation within the Franchise Territory. ality is subject to a de novo review by a court of com- 'b'.At the public hearing noticed pursuant to sub, petentjurisdiction, section (a)(1) above, Grantor shall hear any .persons interested therein, and shall · determine, in its discretion, whether or not any 'failure, refusal or neglect by Grantee was with just cause. c. If such failure, refusal or neglect by Grantee was with just cause, Grantor, subject to any applicable Federal or State law, shall direct Grantee to comply with any such requirement, limitation, term, condition, rule or regulation or correct any action deemed cause for termi- 334 Rev. Ord. Supp. 9/93 Rev. Ord. Supp. 12/89 § 3-5.6.210 CITY OF RIDGECREST ORDINANCES REVENUE AND FINANCE § 3-5.6.302 nation within such time and manner and upon thereof, that such noncompliance con- such terms and conditions as are reasonable, tinues. d. If the Grantor shall determine such failure, (b) IfGrantee files a written objection to the penalty with the refusal or neglect by Grantee was without just Council, then Grantee and Grantor shall' conduct cause, then Grantor may, subject to any arbitration in accordance with the commercial rules of applicable Federal or State law, by resolution, arbitration of the American Arbitration Association. declare thatthefranchiseofsuchGranteeshall Any decision by the arbitrators shall be a final be terminated and bonds forfeited unless there judgment which may be executed upon or enforced in be compliance by Grantee within such period accordance with applicable ]aw in any court having as Grantor may fix, or may levy liquidated jurisdiction thereof. The fees for the arbitrator shall be damages as follows: shared equally by Grantor and Grantee, but the costs of 1. For failure to complete system'in~prove- arbitration which shall be the same costs which would be ment in accordance with this chapter or taxable had the dispute been brought in the Superior Court Franchise Agreement thereunder, a of Monterey County and reasonable attorney's fees shall Grantee shall pay Grantor five hundred be prorated among Grantor and Grantee in proportion to ($500.00) dollars per day for each day, or any ward made by the arbitrator. part thereof, the deficiency continues. 3-5.6.211 Establishment of Franchise Requirements. 2. For failure to test, analyze and report on Grantor may from time to time, by resolution, establish or the performance of the'system in a timely modify appropriate Cable Communications System and manner following a written request pur- service requirements for future franchises, provided that said suant to this chapter, a Grantee shall pay to action does not grant Cable Communications System and Grantor fifty ($50.00) dollars per day for service requirements that allow for less than the current level each day, or part thereof, that suih non- of requirements for technology application, franchise area compliance continues, and service standards. 3. For failure to provide the aggregate num- bet of services specified in the Franchise " Part3. Reg~lsation of Franchise Agreement, Grantee shall pay to Grantor one hundred ($100.00) dollars per day for ' 3-5.6.301 Regulatory Authority. Grantor shall exercise each day, or part thereof, that such non- appropriate regulatory authority under the provisions of this compliance continues. Division and applicable law. 4. For failure by Grantee to comply with 3-5.6.302 Systems and Services Review. operations, maintenance of technical standards, performance guidelines or (a) Grantor and Grantee shall hold a Cable Communica- any other material requirements of the tions System and services review session on or about the franchise, Grantee shall pay to Grantor f'h"r.h anniversary date of the Franchise Agreement. Sub- fifty ($50.00) dollars for each day, or part sequent Cable Communications System review sessions 336 337 Rev. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 3-5.6.302 CITY OF RIDGECREST ORDINANCES REVENUE AND FINANCE § 3-5.6.401 shall be scheduled by Grantor every five (5) years 3-5.6.303 Annual Review of Performance. thereafter. (a) Grantee shall conduct performance tests in accordance (b) The purpose of these review sessions shall be to evaluate with the requirements of Section 76.610 through 76.619, or the performance of Grantee within the provisions of this any successor section, of the Federal Communication · Commission's rules, regulations or guidelines, as those chapter, requirements may apply or be amended from time to (c) Grantor shall be entitled to measure the performance of time. Grantee not only against the literal compliance with the · written requirements of this franchise, but also against (b) Within ninety (90) days after the end of each calendar the reasonableness of the methods employed by the year, Grantee shall make available if requested by Gr. antee to meet such requirements. Granter, a summary report which attests to the perform- ance of the physical plant of the Cable Communication (d) Topics for discussion and review at the Cable~ Communi- System; as to compliance with subsection (a) above. cations System and services review sessions may in- clude, but not be limited to, services provided, applica- Part4. General Financial and Insurance Provisions tion .of new techr~ologies, Cable Communications System performance, programming, subscriber complaints, 3-5.6.401 Construction Bond. user Complaints, rights of privacy, amendments to the franchise, undergrounding processes, developments in (a) Prior to the commencement of any construction work by the law and regulatory changes. Either Grantor or Grant~e, Grantee shall file with Grantor a construction Grantee may select additional topics for discussion at bond in the amount specified in the Franchise Agreement in favor of Grantor and any other person any review session, who may claim damages as a result of the breach of any (e) Not later than sixty (60) days after the conclusion of each duty by Grantee assured by such bond. Cable Communication System and services review ses- sion, Grantor shall issue findings including specifical- (b) Such bond as contemplated herein shall be in the form ly a listing of any cable service not then being provided appr.o.ved by Grantor. to the subscribers that are considered technically and (c) In no event shall the amount of said bond be construed to economically feasible. Grantor and Grantee shall then limit the liability of Grantee for damages. enter negotiations regarding the provision of such ser- vices. Negotiations shall be initiated upon written notice (d) Grantor, at its sole option, may waive this requirement given by the City or Grantee to the other and shall be con- and permit consolidation of the construction and with cluded within six (6) months from each five (5) year the performance bond provided for in this Division. anniversary date. (e) Notwithstanding the provision of subsections (a), (b) and (f) At each review session, in reviewing the performance (c) above~ no construction bond will be required of for Grantee, it is the intent of Grantor that the CATV Grantee for rebuilding or extension of an existing. Cable Syste. n shall at the end of this franchise, be in the same Communication System unless such rebuilding or ex- technological position relative to other CATV franchises tension is projected to cost in excess of one hundred. of similar size. thousand ($100,000.00) dollars, in which event a con- 338 3,39 Rav. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 § 3-5.6.402 CITY OF RIDGECREST ORDINANCES REVENUE AND FINANCE § 3-5.6.404 struction bond in an amount to be agreed upon by the · its officers, boards, communications, agents, and parties may be required. . employees from any and all claims, suits, judgments for damages in any way arising out of or through or 3-5.6.402 Performance Bond. alleged to arise out of or through the acts or omission of Grantor, its servants, employees or agents. Such (a) In addition to any construction bond set forth above, indemnification shall cover such claims arising in tort, Grantee shall, at least thirty (30) daYs prior to the com- contract, violation of statutes, ordinances or regulations mencement of operation of the Cable Communications or otherwise. If any such claims shall arise, Grantee System, file with Grantor a performance bond in the shall tender the defense thereof to Grantor provided, amount specified in the Franchise Agreement in favor however, that Grantee in its sole discretion may of Grantor an'd any other person who may be entitled to participate in the defense of such claims at its expense. damages as a result of any occurrence in the operation or termination of the Cable Communications System 3-5.6.404. Insurance. operated under the Franchise Agreement', and includ- lng the payment required to be made to Grantor (a) Grantee shall maintain throughout the term of the hereunder~ franchise insurance in amounts at least as follows: (b) Such bond as contemplated herein shall be in the form (1) Worker's Compensation Insurance. In such approved by Grantor. coverage as may be required by Worker's Com- pensation Insurance and safety laws of the State of (c) In no event shall the amount of said bond be construed to California and amendments thereto. limit the liability of Grantee for damages. (2) Comprehensive General Liability. Comprehensive 3-5.6.403 Indemnification. general liability insurance, including but not limited to, coverage for bodily injury and property (a) Grantee shall, by acceptance of the franchise granted damage shall be maintained at the sum(s) specified herein, indemnify, defend and hold harmless Grantor, in the Franchise Agreement. its officers, boards, communications,-agents, and em- ployees from any and ali claims, suits, judgments for (3) Comprehensive Automobile Liability. Comprehen- damages in any way arising out of or through or alleged sire automobile liability including, but not limited to arise out of or through the acts or omissions of Grantee, to, non-ownership and hired car coverage as well as its servants, employees or agents. Such indemnification owned vehicles with coverage for bodily injury and shall cover such claims arising in tort, contract, viola- property damage shall be maintained at the sum(s) tion of statutes, ordinances or regulations or otherwise, specified in the Franchise .Agreement. If any such claims shall arise,. Grantor shall tender the (b) Grantee shall furnish Grantor with copies of such defense thereof to Grantee provided, however, that insurance policies or certificates of insurance. Grantor in its sole discretion may participate in the defense of such claims at its expense. (c) Such insurance polices provided for herein shall name Grantor, its officers, boards, commissions, agents, and (b) Grantor shall, by acceptance of the franchise granted employees as additional insureds without offset to herein, indemnify, defend and hold harmless Grantee, Grantor's policies as respects to all operations of the P~v. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 § 3-5.6.501 CITY OF RIDGECREST ORDINANCES REVENUE AND FINANCE § 3-5.6.505 named insurance and shall contain the following (b) Construction of the Cable Communication System and endorsement: service need not be provided where power and telephone utilities are not available. It is hereby understood and agreed that this insurance policy may not be cancelled by the surety or the intention (c) As required in .the Franchise Agreement, Grantee shall not to renew be stated by the surety until thirty (30) days provide a detailed construction plan indicating progress after receipt by Grantor by regi.stered mail of written schedule, area construction maps, test plan, and notice of such intention to cancel or not renew, projected dates for offering service. In addition, Grantee Shall update this information for Grantor on a monthly (d) The minimum amounts set forth in the Franchise basis, showing specifically whether schedules are being Agreement for such insurance shall not be construed to limit the liability of Grantee to Grantor under the met and the reasons for any delay. franchise issued hereunder to the amounts of such (d) Failure to begin construction within one (1) year after insurance. ~ award of the franchise shall be grounds for franchise termination, at the option of Grantor. Part 5. Design and Construction Provision~ 3-5.6.504 Remedies for Delay in ConstrUction. Grantor 3-5.6.501 System Design. The Cable Communication Sys- may, in accordance with the procedures set forth in this tern shall be constructed in accordance with any design Division, at its sole option apply any or all of the following requirements contained in the Franchise Agreement. remedies in connection with delays in Cable Communication System construction: 3-5.6.502 Geographical Coverage. Grantee shall design and (a) Reduction in the duration of the franchise on a month-to- construct t}'e Cable Communication System in 'such a manner month'basis for each month of delay exceeding six (6) as tO have the eventual capability to pass .by every single- months. family dwelling unit, multiple-family dwelling unit, school and public agency within the Franchise Territory. Service (b) Forfeiture of construction bonds or assessment of mone- shall be provided to subscribers in accordance with the tary.damages up to the maximum limit, if any, specified schedules and line extension policies specified in the in the Franchise Agreement for delays exceeding one Franchise Agreement. Cable Communication System con- year. struction and provision of service shall be non.discrimina- (c) Termination of the franchise for delays exceeding tory, and shall not delay or defer service to any section of the eighteen (18) months, without just cause. Franchise Territory on the grounds of economic preference. 3.5.6.505 Undergrounding of Cable. The undergrounding 3-5.6.503 System Construction Schedule. of cable is encouraged. Cables shall be installed underground (a) Grantee shall comply with the requirements of the Cable at Grantee's cost where existing utilities are already under- Communication System construction schedule con- ground. Previously installed aerial cable shall be placed tained in the Franchise Agreement. underground or relocated in concert, with other utilities, when such utilities may convert from aerial to underground ' construction. 342 343 Rev. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 § 3-5.6.506 CITY OF RIDGECRES'I~ ORDINANCES REVENUE AND FINANCE § 3-5.6.508 3.5.6.506 -New Development Undergrounding. In cases of permits required, providing such grant and subsequent new construction or property development where utilities are construction by Grantee shall not unduly interfere with to be placed underground, upon request by Grantee, the the use of such streets and that proposed construction developer or property owner shall give Grantee reasonable shall be done in accordance with the pertinent notice of the particular date on which open trenching will be provisions of the ordinances of Grantor. available for Grantee's installation of conduit, pedestals or - vaults at the developer's expense and laterals to be provided at (c) All transmission lines, equipment and structures of the Cable Communications System shall be so installed and Grantee's expense. Grantee shall also provide specifications located as to cause minimum interference with the as needed for trenching, rights and reasonable convenience of property owners Costs of trenching and easements required to bring service and at all times, shall be kept and maintained in a safe, to the development shall be borne by the developer or property adequate and substantial condition, and in good order owner; except that if Grantee fails to install its conduit, and repair, Grantee shall, at all times, employ ordinary pedestals or vaults, and laterals within five (5)'working days care and shall install and maintain in use commonly of the date the trenches are available, as designated in the accepted methods and devices for preventing failures notice given by the developer or property owner, then should and accidents which are likely to cause damage, the trenches be closed after a five (5) day period, the cost of new injuries, or nuisances to the public. Suitable barricades, trenching is to be borne by Grantee. flags, lights, flares or other devices shall be used at such times and places as are reasonably required for the 3-5.6.507 Undergrounding at Multiple.Dwelling Units. In safety of ali members of the public and as required by cases of multiple dwelling units serviced by aerial utilities, Grantor, any pole or other fixtures placed in any public Grantee shall make every effort to minimize the number of way by Grantee. shall bo placed in such a manner as not individual aerial drop cables, giving preference to under- to interfere with the usual travel on such public way. grounding of multiple drop cables between the pole and (d) Grantee shall, at its own expense, restore any damage or dwelling unit. disturbance caused to the public way as a result of its 3-5.6.508 Street Occupancy. operations or construction on its behalf. (a) Grantee shall utilize existing poles, conduits and other (e) Whenever, in case of fire or other disaster, it becomes necessary in the judgment of Grantor to remove any of facilities whenever possible, and shall not construct or Grantee's facilities, no charge shall be made by Grantee install' any new, different, or additional poles, conduits, against Grantor for restoration and repair, unless such or other facilities whether on public property or on acts amount to gross negligence by Grantor. privately-owned property until the written approval of Grantor is obtained, which approval shall not be (f) Grantee shall have the authority to trim trees on public unreasonably withheld. . property at its own expense as may be necessary to protect its wires and facilities, subject to the supervision and (b) Grantee shall notify Grantor at least fifteen (15) days prior direction of Grantor. prior to the intention of Grantee to commence any con- struetion in any streets except in emergency situations. (g) Grantee, at its expense, shall protect, support, tern- Grantor shall cooperate with Grantee in granting any porarily disconnect, relocate, or remove any property of ~ Rav. Ord. Supp. 12/89 l~v. Ord. Supp. 12/89 § 3-5.6.508 CITY OF RIDGRCREST ORDINANCES I~VENUE AND FINANCE § 3-5.6.510 Grantee when, in the opinion of Grantor, the same is 3-5.6.509 Removal or Abandonment of Grantee's Property. required by reason of traffic conditions, public safety, (a) If: street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, (1) The use of any part of the system of Grantee is dis- drains, waterpipes, power line, signal line transporta- continued for any reason for a continuous period of tion facilities, tracks or any other types of structure or thirty (30) days without prior written notice to and improvements by governmental agencies whether act- approval by Grantor; or ing iv. a governmental or a proprietary' capacity, or any (2) Any part of such system has been installed in any other structure or public improvement, including, but not street or other area without Complying with the limited to, movement of buildings, redevelopment, or requirements hereof; or any general program under which Grantor shall under- take to cause any such properties to be located beneath the (3) Any franchise shall be terminated, canceled, or surface of the ground. Grantee shall in all 'cases have shall expire; the privilege, subject to the corresponding obligations, to Then Grantee 'shall, after discussion with Grantor, and abandon any property of Grantee and Grantee shall be at the expense of Grantee and at no expense to Grantor, entitled to no surcharge by reason of anything here- and upon demand of Grantor, promptly and within a under. Should relocation be requested by a private reasonable time, remove from any streets or other areas property owner, the expense shall be borne by that owner, all property of Grantee, and Grantee shall promptly and (h) Upon failure of Grantee to commence, pursue orcom- within a reasonable time, restore the street or other area plete any work required by law or by the provisions of from which such property has been removed to such this chapter to be done in any street, within the time condition as the City Manager shall approve. prescribed and to the satisfaction of Grantor, Grantor (b) The Grantor may, upon written application thereof by may, at its option, after having given fifteen (15) days Grantee, approve the abandonment of any such property written notice to Grantee, cause such work to be done and in place by Grantee .and under such terms and con- Grantee shall pay to Grantor the cost thereof in the ditions as Grantor may prescribe. Upon abandonment of itemized amounts reported by Grantor to Grantee within any of such property in place, Grantee shall cause to be thirty (30) days after receipt of such itemized report, executed, acknowledged, and delivered to Grantor such (i) Grantee shall make no paving cuts or curb cuts unless instruments as Grantor shall prescribe and approve, absolutely necessary, and only after written permission transferring and conveying the ownership of such has been given by Grantor. Property to Grantor. (j) Grantor reserves the right to require conduit for under- 3-5.6.510 Construction and Technical Standards. ground cabling consistent with its normal permit proce- dure for any application of underground street crossing. (a) Construction Standards. (1) Compliance with Safety Codes. All construction practices shall be in accordance with all applicable ~ Federal, State and local laws, rules and regulations. 3,~ 347 [ P~v. Ord. Supp. 12/89 R~v. Ord. Supp. 12/89 § 3-5.6.510 CITY OF RIDGECREST ORDINANCES REVENUE AND FINANCE § 3-5.6.602 (2) Compliance with Electrical Codes. All installation (b) Technical Standards. The Cable Communication Sys- of electronic equipment shall be of a permanent tern shall meet all technical and performance standards nature, durable and installed in accordance with for cable television promulgated by the Federal Corn- ali Federal, State and local rules, laws and munications Commission and contained in 47 C.F.R. regulations.' 76, and any successor standards, whether such (3) Antennas and Towers. Antenna supporting standards be denominated rules, regulations or structures (tower) shall be designed for the proper guidelines. loading in accordance with all applicable Federal, State and local laws, rules and regulations. Part ~ Service Provisions (4) Compliance with Aviation Requirements. Anten- 3-5.6.601 Services to be Provided. na supporting structures (tower) shall be painted, lighted, erected and maintained in accordance with (a) Grantee will provide carriage of all FCC required set- all applicable Federal, State and local laws, rules vices; plus other services, including distant television broadcast signals and satellite-delivered programs as and regulations, deemed appropriate by the Grantee. (5) Construction Standards and Requirements. All of Grantee's plant and equipment, including, but not (b) Grantee shall provide a Cable Communication System limited to, the antenna site, head-end and distribu- which has the technical capacity for up to 450 mhz (sixty tion Cable Communication System tower, house (60) channel) activation. Initial individual channel connections, structures, poles, wire, cable, coaxial activation shall be determined in accordance with the cable, fixtures and appurtenances shall be in- Franchise Agreement and Grantee's Proposal. stalled, located, erected, constructed, reconstructed, 3-5.6.602 Public Access. replaced, removed, repaired, maintained and oper- ated in accordance with good engineering prac- (a) Grantee shall furnish at least one public access channel tices, performed by experienced maintenance and for public, educational or governmental use upon construction personnel so as not to endanger or reasonable request to Grantee. Grantee may utilize the interfere, with improvements Grantor may deem channel furnished pursuant to this section when such proper to make, or to interfere in any manner with channel is not being used for governmental, educa- the rights of any property owner, or to unnecessarily tional or public use, but only at such times as shall not hinder or obstruct pedestrian or vehicular traffic, interfere with any governmental, educational or public (6) Safety, Nuisance, Requirements. Grantee shall at use and any such scheduled use. When such public ac- all times employ ordinary care and shall install cess channel is utilized with reasonable nonrepetitious and maintain in use commonly accepted methods originated programming of a non-automated format, and devices preventing failures and accidents inclusive of a period of thirteen (13) consecutive weeks, which are likely to cause damage, injury or with four (4) hours per day during the time between 10:00 a.m. and 10:00 p.m., a second channel may be made nuisance to the public, available, or time shared, upon request by Grantor. 348 349 Rev. Ord. Supp. 12/89 P~v. Ord. Supp. 12/89 REVENUE AND FINANCE § 3-5.6.703 ·§ 3-5.6.603 CITY OF RIDGECREST ORDINANCES (b) Grantee shall permit public, educational, or govern- which, in (]rantor's opinion, are reasonably necessary to mental access users reasonable accessibility for use of verify the .amounts due and paid to Grantor under this Franchise. Such .book and records shall be made available in the Access Channel(s). the City of Monterey. (c) Grantee shall comply with and provide notification of any rules, regulations and standards relating to Access Grantee s'ha]l, at all times, make and keep in the County, Channel use, as mandated by the FCC and the Cable full and complete plans and records showing the exact Communications Policy Act of 1984, and any subsequent location of all its Cable Communication Service equipment installed or in use in streets, alleys and public places in modifications of same. Grantor's corporate boundaries. Promptly upon acceptance of If Grantee does establish, provide and cause to be used, the Franchise, Grantee shall file with Grantor a current map any access channel(s) by action directly related to or set of maps drawn to a scale approved by Grantor showing Grantee; then Grantee shall establish and file with all Cable Communication System equipment heretofore in- Grantor reasonable rules and regulations Concerning stalled in Grantor's corporate boundaries and now existing. the use of said Access Channel(s). Grantee further Thereafter, Grantee shall file with Grantor on or before the agrees to provide advice to aid in the utilization of the last day of March of each year, a current map or set of maps Access Channel(s). At Grantor's option, Grantor or drawn to a scale approved by Grantor showing all Cable Com- Grantor's designee may establish such rules and munication System equipment installed in streets, alley and regulations'concerning use of said Access channel, public places of Grantor's corporate boundaries during the previous year. 3-5.6.603 Service to Public Facilities. Any school, public building or public library more than one hundred fifty (150) 3-5.6.702 Complaint Records. Grantee shall maintain a feet from Grantee's distribution system may be charged for record, or "log", listing date of customer complaints, identi- the actual cost to Grantee of installation of'such subscriber fying the nature of the complaint, and when and what action drop less the cost, of providing the first one hundred fifty (150) was taken by Grantee in response thereto; such record shall be feet of such drop, which shall be borne by Grantee. kept at Grantee's office within the County for a calendar period of one year after the close of each business year, and Part 7. Operation and Maintenance shall be available for inspection, if requested, during regular business hours without further notice or demand by Grantor. 3-5.6.701 Inspection of Property and Records. Upon written request and during normal business hours, Grantee shall 3-5.6.703 Local'Office and Complaints. permit any duly authorized representative of Grantor to examine the Cable Communication System together withany (a) Grantee shall maintain an office within reasonable appurtenant property of Grantee situated within or without access of the customer base which shall be open at least Grantor's corporate boundaries, and to examine any and all twenty (20) hours per week and Grantee shall provide a maps and other records, kept or maintained by Grantee, or local telephone directory listing and "toll-free" tele- under its control, which deal with the operations of the Cable phone service maintained on a seven (7) day, twenty- Communication System. Upon written request and during four (24) hour basis for the receipt of consumer normal business hours, Grantor, its agents or officers shall - complaints and requests for repairs or adjustments. have the right to inspect all of Grantee's books and records 351 350 Rev. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 3-5.6.704 CITY OF RIDGECREST ORDINANCES REVENUE AND FINANCE § 3-5.6.704 (b) Upon complaint by a subscriber as to signal quality executive and administrative orders relating to non- which is not resolved within seven (7) working days, discrimination which are hereby incorporated and Grantee at request of Grantor, shall make a demon- made part of this chapter by reference. 'stration satisfactory to Grantor that a signal is being (b) Grantee shah adhere to the equal employment delivered which is of sufficient strength and quality to opportunity requirements of Federal, State and local meet the standards set forth in the regulations of the regulations, and is amended from time to time. Federal Communications Commission. (c) Grantee shall comply with all Federal and State laws (c) If a subscriber files, in writing, a complaint for a loss of regarding subscribers' rights to privacy and fairness of service problem for which the subscriber would be en- accessibility to.cable television facilities. titled to a credit under this Division and which exceeds a period of twenty-four (24) hours and Grantee fails to 3-5.6.705 Continuity of Service Mandatory. remedy the problem within a reasonable period follow- lng its receipt of written notice given by Grantor, then (a) It shall be the right of ali subscribers to continue the Council may, after notice and hearing, level a . receiving service insofar as their financial and other penalty of up to seventy-five ($75.00) dollars for any obligations to Grantee are honored. occurrence or series of related occurrences. If Grantee (b) In addition to other service regulations adopted by files' a written objection to the penalty with the Council, Grantee, and excepting circumstances beyond then Grantee and Grantor shall conduct arbitration in Grantee's control including, but not limited to, acts of accordance with the commercial rules of arbitration of God, riots, civil disturbances, power failures and equip- the American Arbitration Association. Any decision by ment failures and in providing the foregoing services, the arbitrators shall be a final judgment which may be 'Grantee shall: executed upon or enforced in accordance with applicable law in any court having jurisdiction thereof. The fees (1) Limit system failures to minimum time duration of for the arbitrator shall be shared equally by Grantor and locating and correcting malfunctioning promptly, Grantee, but the costs of arbitration which shall be the but in no event longer than twenty-four (24) hours same costs which would be .taxable had the dispute been after occurrence, irrespective of holidays or other brought in the Superior Court of Monterey County and non-business hours; and reasonable attorney's fees shall be prorated among (2) Render efficient service, making repairs promptly Grantor and Grantee in proportion to any award made and interrupting service only for good cause and by the arbitrator, for the shortest time possible. Planned interrup- tions, insofar as possible, shall be preceded by no- 3-5.6.704 Rights of Individuals. tice given to subscribers twenty-four (24) hours in (a) Grantee shall not deny service, deny access~ or other- advance and shall occur during periods of wise discriminate against subscribers, channel users, minimum use of the system. or general citizens on the basis of race, color, religion, (c) In the event ora change of Grantee, or in the event a new national origin, age, sex, or physical handicap: Grantee operator acquires the Cable Communication System, shall comply at all times with all other applicable Grantee shall cooperate with Grantor, new Grantee or Federal, State and local laws and regulations, and all 352 353 Rev. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 REVENUE AND FINANCE § 3-5.6.709 § 3-5.6.706 CITY OF RIDGECREST ORDINANCES operator in maintaining continuity of service to all 3-5.6.708 Tenant Rights. Grantee shah be required to subscribers. During such period, Grantee shall be provide tenants in individual units of any multiple-housing entitled to the revenues for any period during which it facility with all services offered to other dwelling units within operates the Cable Communication System, and shall be the Franchise Territory, so long as it is technically and entitled to reasonable costs for its services when it no economically feasible, the Grantee and the building longer operates the Cable Communication System. management shall agree to the following: (a) To Grantee's providing of the service to units of the 3-5.6.706 Credit for Service Interruption. Grantee shall, facility. upon written notice from a subscriber of any verified service loss of fifty (50%) percent or more of the service normally (b) To reasonable conditions and times for installation, available, which exceeds a period of twenty-four (24) hours maintenance, and inspection of the Cable Communica- continuous and i:~ not beyond the control of Grantee. or caused tion System on the facility premises. by acts of God, strikes, insurrection, acts of war, power (c) To reasonable conditions promulgated by Grantee to failures or equipment failures; credit the account of the protect Grantee's equipment and to encourage wide- subscriber for such interruption. The amount of such spread use of the Cable Communication System. subscriber 'credit shall be calculated based uPon a formula which reflects the percentage of viewing hours and channels (d) To not discriminate in rental charges or otherwise, out of the total number of viewing hours and channels between tenants who receive cable service and those who available on a monthly basis of which the subscriber was do no~. deprived. Additionally, if Grantee is provided with a credit by (e) Nothing Shall preclude the Grantee from entering into a program suppliers or transmission delivery of program single billing or bulk bill condition, with the property signal supplies, for service affecting the subscriber which is management in order to efficiently provide services to not performed; then Grantee shall in turn provide a the tenants. proportionate credit applied to the subscriber's bill. The aggregate credit applied to the subscriber service base shall 3-5.6.709 Subscriber Survey. Grantee shall, at its expense, not exceed the Grantee's credit received from the program conduct a ,,iurvey of its subscribers for the purpose of deter- service or transmission supplier, mining subscriber satisfaction with the Cable Communica- tion System and services provided thereby, at or near the time 3.5.6.707 Grantee Rules and Regulations. Grantee shall of this franchise.grant, and again in the second, fifth, tenth have the authority to promulgate such rules, regulations, and fourteenth years of the franchise. At the times during the terms and conditions governing the conduct of its business as franchise when a Franchise Review is implemented put- shall be reasonably necessary to enable Grantee to exercise its suant to Section 15-6.302, the survey may be incorporated rights and perform its obligations under the franchise, and to within the overall review process and not be necessary as an assure an uninterrupted service to each and all of its independent exercise. The survey shall be designed co- customers, provided, however, that such rules, regulations, operatively by Grantor and Grantee. If Grantor determines terms and conditions shall not be in conflict with the that.the survey is not necessary or relevant, Grantor may provisions hereof or applicable State and Federal laws, rules waive this requirement. and regulations. 355 3,54 Rev. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 § 3-5.6.801 CITY OF RIDGECREST.ORDINANCES REVENUE AND FINANCE § 3-5.6.805 Upon request from Grantor, Grantee shall provide to Grantee, and one selected by the appraisers themselves. The Grantor at the second, fifth, tenth and fifteenth year of the cOSt of the appraisal shall be borne equally by the Grantor and franchise, a listing of the then available satellite delivered the Grantee. program services which are commonly used for subscriber distribution by CATV systems. Such listing shall be accom- 3.5.6.802 Eminent Domain. Subject to applicable Federal or panied by a brief description of these services. The purpose of State law, nothing in this chapter shall in any way, or to any the request is to inform Grantor as to the availability of CATV extent, impair or affect the rights of Grantor to acquire satellite delivered program services currently in use by Grantee's property either by purchase or through exercise of CATV systems, yet not currently carried by the Grantee's the right of eminent domain, and nothing herein shall be system serving the City. Additionally, this information may construed to contract away, or to modify, or abridge Grantor's be used or included within the scheduled subscriber survey, right of eminent domain with respect to any Grantee. Nor · shall any franchise ever be given any value before any Court of public authority in any proceeding of any character, except Part lt, Right Reserved to the Grantor for purposes of taxation. 3-5.6.801 Right to Purchase System. Upon the revocation of the franchise in accordance with this Division, or upon the 3-5.6.803 Right of Inspection of Construction. Grantor shall expiration of the terms thereof subject to the renewal provision have the right to inspect all construction or installation work of this Division, and upon payment by the Grantor to the performed subject to the provisions of the franchise and to Grantee of the fair market value of Grantee's Cable make such tests as it shall find necessary to ensure corn- Communication System, Grantor may purchase, acquire, pliance with the terms of the franchise and other pertinent take over, or hold the system. For purposes of this section, provisions of law. Grantor shall perform such inspections "fair market value" shall be determined as' value arrived at and testing by competent and knowledgeable personnel who are recognized as capable of performing to industry with a "willing seller and a willing buyer" mutually agree- ing upon a price. Such price shall take into consideration as standards. Such activity shall not be unreasonable as to time value; tangible and intangible assets of the system, including or interference with the personnel or equipment used by the Grantee. business goodwill, current and potential customers, and a condition as an ongoing business concern with a reasonable life expectancy without regard to the remaining term of the 3-5.6.804 Right of Grantee. Should Grantee become franchise. Such right to purchase system by the GrantOr shall dissatisfied with any material decision or ruling of Grantor be governed by Section 627 (Conditions of Sale) contained pertaining to cable communications matters, Grantee may within the Communications Policy Act of 1984. Immediately pursue such other remedies as are available, including the upon determination of revocation or expiration of the bringing of action in any court of competent jurisdiction for franchise, other than when a renewal or extension of breach of contract and damages. franchise between Grantor and Grantee; Grantor and Grantee may attempt to mutually agree upon the fair market 3-5.6.805 Grantee's Inability to Perform. In the event value of the system. However, if within a reasonable period of Grantee's performance of any of the terms, conditions, time they cannot agree upon the fair market valuation, then obligations or requirements of the franchise is prevented or the valuation may be determined by a three-member board of impaired due to any cause beyond its reasonable control or not appraisers, one selected by the Grantor, one selected by the reasonably foreseeable, such inability to perform shall be 356 357 Rev. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 § 3-5.6.806 CITY OF RIDGECREST ORDINANCES REVENUE AND FINANCE § 3-5.6.905 deemed to be excused and no penalties or sanctions shall be of any such law, rule or regulation, and if said provision is imposed as a result thereof, provided Grantee has notified considered material, said provision shall be considered a Grantor in writing within thirty (30) days of its discovery of separate, distinct and independent part of this Division and the occurrence of such an event. Such causes beyond Grantee's such holding shall not affect the validity and enforceability of reasonable control or not reasonably foreseeable shall all other provisions hereof. In the event that such law, rule or include, but shall not be limited to: Acts of God and civil regulation is subsequently repealed, rescinded, amended or emergencies, otherwise changed, so that the provision hereof or thereof which had been held invalid or modified is no longer in 3-5.6.806 False Statements. Any materially false or mis- conflict with the law, rules and regulations then in effect, said leading statement or representation made knowingly by provisions, shall thereupon return to full force and effect and Grantor or Grantee shall be deemed a material breach of the shall thereafter be binding on the parties hereto, provided that contractual relationship between Grantor and Grantee and Grantor Shall give Grantee thirty (30) days written notice of shall subject the breaching party to all remedies, legal or such change before requiring compliance with said provision. equitable, which are available to Grantor or Grantee under the franchise or otherwise. 3-5.6.903 Separability of Non.material Provisions. If any non-material section of this Division, is held to be invalid or Part 9. Miscellaneous pre-empted by Federal, State or. county regulations or laws, Grantor shall negotiate with Grantee appropriate modifica- 3-5.6.901 Compliance with State and Federal Laws. Not- tions to the franchise to provide reasonable relief from such wir. hstanding any other provisions of this Division to the con- invalidity or pre-emption. If the parties are unable to reach trary, Grantee Shall at all times comply with all laws and reg- agreement on such modifications, then the dispute shall be ulations of the State and Federal government or any admin- submitted to a mutual agreeable arbitrator, in accordance with istrative agencies thereof, provided, however, 'if any such State State law, who shall determine what modifications are or Federal law or regulation shall require Grantee to perform appropriate. The arbitrator's decision shall be binding on the any service, or shall permit Grantee to perform any service, parties, provided, that no decision of the arbitrator shall or shall prohibit Grantee from performing any service, in require Grantor or Grantee to be in violation of any Federal or conflict with the terms of this Division or of any law or regu- State law or regulation. Each party shall bear its respective lation of Grantor, then as soon as possible following costs for such arbitration. knowledge thereof, Grantee shall notify Grantor of the point of conflict believed to exist between such regulation or law and 3-5.6.904 Public Notice. Minimum public notice of any the laws or regulations of Grantor of this Division. public meeting relating to the franchise shall be by publication at least once in a newspaper of general circulation in the area 3-5.6.902 .Separability. of Material Provisions. If any at least ten (10) days prior to the meeting and posting at the provision of this Division or any related agreements is held offices of Grantor. by any court or by any Federal, State, or local agency of competent jurisdiction, to be invalid as conflicting with any 3-5.6.905 Theft of Services and Tampering. Federal, State, or local law, rule or regulation now or hereafter in effect, or is held by such court or agency to be (a) No person, whether or not a subscriber to the Cable Communications System may intentionally or know- modified in any way in order to conform to the requirements Rev. Ord. Supp. 12/89 Rev. Ord. Supp. 12/89 § 3-5.6.906 CITY OF RIDGECREST ORDINANCES ingly damage or cause to be damaged any wire, cable, conduit, equipment and apparatus, or appurtenances of Grantee with the intent to obtain a signal or impulse from the Cable Communications system without authori- zation and compensation to Grantee, or to obtain cable television or other communications services with intent to cheat or defraud Grantee of'any lawful charge to which it is entitled. (b) Any person convicted of violating any provision of this Division is subject to a fine of not more than authorized under Federal law, and such incident shall come under the appropriate court of jurisdiction for review and due process. 3-5.6.906 Audit of Financial Records. Upon written request and during normal business hours, Grantor, its agents or officers shall have the right to audit Grantee's books and records which, in Grantor's opinion, arc'reasonably neces- sary to verify the amount due or paid to Grantor under this franchise. Such audit shall take place within twelve (12) months following the close of Grantee's fiscal years. Grantee shall reimburse Grantor for up to one thousand ($1,000.00) dollars of Grantor's out of pocket and professional service expenses that are substantiated and directly related to the Financial Record Audit. The request for implementation of an audit shall be based upon a reasonable need as determined by the facts involved. 3-5.6.907 Notice. All notices, requests, demands and other communications called for or contemplated hereunder shall be in writing and shall be deemed to have been duly given when delivered or if mailed ten (10) days after the date of mailing by United States certified or registered mail, prepaid, addressed to the parties, their permitted successors in interest or assignees at the following addresses provided in the Franchise Agreement or at such other addresses as the parties may designate by written notice in the manner provided. 360 Rev. Ord. Supp. 12/89 Municipal Code City of Fresno S~. 6-210 the option of the city. and at the expense of grantee and at no expense tn the city. upon demand of the CAn. promptly remove from any Street or other area all property of grantee, and grantee shall promptly restore the street or other area from which such propet~y has been removed to such condition aa the Director shall approve: provided the CAO may. upon written application therefor by grantee, approve the abandonment of any of such property in place by grantee and under such terms and conditions as :he CAn may prescribe; and upon abandonment of any such property in piace, grantee shall cause tn be executed, acknowledged, and delivered to the city such inst~:uments as the City Attorney shall prescribe and approve, transferring and conveying the ownership of such property to in, on, over. or under any street within any time prescribed therefor, or upon notic~ given, where no time is prescribed, the Director may cause such work or other act to be cbmpleted in whole or in part, and upon so doing shall submit to grantee an itemized statement of the costs thereof. and grantee shall, within thirty days after receipt of such statement, pay' unto the city the entire amount thereof. ' (k) Unless otherwise provided in any given instance, where any time is prescribed herein for the doing or causing to be done of any act. '.. .- : the CAn, for good cause, stated in writing, may extend any time so y ' : prescribed for two additional poriode of not to exceed ninety days each. · . grantee is the sub~ect of a petition for stay, petition for review, or appeal · filed with any United States Court of Appeals. (Added Ord. 7~-81. § 1, .. - eft. 8-3b75). ~ SECTION 6-210. SERVICE STANDARDS. (a) Federal Rules. The rules, regulations and standards :' established by the Federal Communications Commission from time to time shall apply to and shall govern the operations of the grantee of the franchise hereunder. Specifically, the cable television system permitted to be operated and installed hereunder shall: · ?~/'!:~.~'.~i-::? ¢1) be operationally capable of relaying to subscriber Communications Commission; 12) be constructed with the potential of two. way digital signal transmission; ¢3) distribute color television signals which it receives in color. ~4~ provide at least one channel, without charge, tbr exclusive use of the city, provided that the CAO may in his discretion. allow the sharing of such channel w~th other governmental agendes on ·" such conditions as he may prescribe. "' ~ ..z...i!;' i.5) provide at least one channel each for those educational : ~ ~- and public access uses as now or herea/ter required by the Federal ~. ,3-75 200 Municipal Code City of Fresno Sec. C-mmunications Commission for systems operating in the top one's' ' ' hundred markets: '~ ~ {fi) have a minimum capacity of twenty channels. Ih~ Additional Services. The cable television system l~rmit- ted to be installed and operated hereunder, may also engage in the business of: ~1~ transmitting original cablecast programming not ceived thr~ugh television broadcast signals; ¢2} transmitting television pictures, film and video-tape programs, not received through broadcast television signals, whether or ..... · ...... : ... :':.. ~.~ . - not encoded or processed to permit reception by only selected receivers :'-.-'.':".' '--":'-'."':.~ ",. '". '."."' ': .." '. ".:'::'-' ' :- -" or sub~bers~ .. voice and audio, visual. (c) Refusal of Service. No person, firm or corporation within the service area of the grantee, and where trunk lines are in place, shall be refused service; provided, however, that the grantee shall not be reqttired to provide service to any subscriber who does not pay the applicable connection fee or service charge. (d) Subscriber Compl~nts. Excepting circumstances beyond · grantee's control, such as Acts of God, riots and civil disturbances, and in providing the foregoing services, the grantee shall: or other non-business hours; ¢2~ upon complaint by a subscriber, make a demonstration satisfactory to the CAO that a signal is being delivered which is or' sufficient strength and quality to meet the standards set forth in the regulations of the Federal Communications Commission, or'in : regulations hereafter adopted by the Council: 13) render efficient service, making repairs promptly and interrupting: service only for good cause and for the shortest time .possible. Planned interruptions, insofar as possible, shall be preceded by notice ~ven to subscribers twenty-four hours in advance and shall directories of the telephone company serving the city. which office shall be so operated that complaints and requests for repairs or adjustment~ may be. received at any time, day or night, seven da.rs wee]<: and provide notice o~ such or, ce and the grantee's complaint procedure t~ each subscriber at the time of initial subscription to the ,~ys:em. ~.5) maintain ~ ~'ritten record, or "log" listing date . customer compl~nts, identif.~-ing the subscriber and describing the ." nature o£ the complaint, and when and what action was taken b.v '..... '~= grantee in response thereto. Said record shall be l~ept at grantee's local 3-75 200. ~ Municq. pal Code City of Fresno Sec. 6-211 ut'rice, for a period of five yeats from the date when the system is first energized, and sh~l be available for inspection during re~uiar business · ,~ hours, w'ithout further notice or demand, by the CAO or his representati ye. (e~ City Complaint Procedures. The CAO shall desi~,mate Aty officer nr employee who shall have the primary responsibility for the administrati,n of complaints regarding cable television tram'hi'e.g, and shall adopt procedures to he fo[lowed by such officer nr employee in resolving and processing such complaint.~. ~['~ Failure to Pros'ide Service. Any grantee of any fi'anchise hereunder who shall, within two years after the payment of any installation charge by any subscriber, fail to operate its system or make its ser,,-ice available to such subscriber, on a regular and continuous :'. '. :- . ..- ' ':'- --.: . ' · basis, shall refund the installation charge, together with interest thereon '- Ill With respect to the local government channel, the grantee shall provide, at the request of the CAO. and upon dry reimbursement of grantee's actual cost" use of grantee's studio. equipment and technical se-rx4ces for production of live and v~deo-tape municipal programs, subject to scheduling requirements of the grantee. 12~ The grantee shall provide all subscriber services other than those specified in subsection Ih) of this section, and a tie-in cunnection, without cost. v,-i~en the system passes such facilities and as used for public purposes, pro~ideci, that. such buildings shall be· '..'i. located within the franchise area and shall be ~'ithin a connecting " range of not to exceed three hundred feet of a transmission cable otherwise maintained or required '.o be maintained hy grantee for the service of paying subscribers of grantee: and provided, further, that " the city -r any such public or private schools shall pay to grantee '.he costs of all labor and materials supplied by grantee for the installation of any multiple connection service, or for extending any transmission cable '.o within connecting range of such building solely for the purpose of serving same. systems within and adjacent to the city. 5uchinterconnecfion shall bo made within sixty days .f the receipt by lt~'antee of a notice fr.m the city requiring same. l-'or good cause shown, the city may .trrant reasonahl,. ,:x'.ensions of ti, me SECTION a-2i I'RA.~IJ. HI~= [-I.MiTATIONS. la adc:.ition t~ any ,,'.her franchise limitations hereunder or a.q herein pro~'ided, the followin,, limitations shall a~ply to any t'canchise .,..-ranted' or renewed by iht, C,mm'il · .- under this aaicte: · /I-73 200.2 'resP.o:~ Mu"~cipal Code .... http://P"vs.municode.corr~'CGI~BlN/om...=10421.ntb&sot'tpage=lynx&x=14&y.=19 MUNICIPALMuNiCiPALCODEcoDEANDoFCHARTERTHE CITyCitYoF°fFREsNoFRESNO' CALIFORNIA Codified through Ordinance No. 99-4~ CHAPTER 6 BUSINESS AND OCCUPATIONS ARTICLE 2 CABLE TELEVISION ORDINANCF SECTION 6-209. CONSTRUCTION AND USE OF FACILITIES. SECTION 6-209. CONSTRUCTION AND USE OF FACILITIES. (a) Within thirty days after acceptance of any franchise, the grantee shall proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of cable television systems, or associated microwave transmission facilities. In connection therewith, copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting grantee's cable television operations, shall also be submitted simultaneously to the CAO. ' (b) Within ninety days after obtaining all necessary per'its, licenses and authorizations, including right of access' to poles and conduits, grantee shall commence construction and installation of the cable television system. (c) Within one hundred eighty days after the commencement of construction and installation of the system, grantee shall complete construction of the headend and the necessary antenna and studio facilities to permit the reception of broadcast signals and the origination of programming within the franchise area. The grantee shall further complete construction of sufficient cable distribution plant within one year of said commencement date, and a like amount during each of the succeeding four year periods thereafter, to make basic service available to an additional twenty percent of the franchise area during each such period; provided, however, that the Council may approve exceptions to this standard upon a showing by the grantee of undue hardship or expense due to extensions of trunk lines of one mile or more to serve ten or fewer occupancies. Prior to commencement of construction of the distribution system, grantee shall submit a construction schedule and map to the city showing in detail the geographic location of the portion of the franchise area to be Wired during each of the five construction periods, and shall construct the distribution system in accordance with such schedule as adopted or modified by the Council. (d) Failure on the part of the grantee to commence and diligently'pursue each of the foregoing requirements and to complete each of the matters set forth herein, shall be grounds for termination of such franchise. By acceptance Of the franchise granted hereunder, grantee agrees that failure to comply with any time requirements referred to in subsections (a), (b) and (c) of this section will result in damage to the city and that it is and will be impracticable to determine the actual amount of such damage in the event of delay; and grantee therefore agrees that, in addition tOandanYeveOther damage ..... suffered by city, he will pay to city the sum of one hundred dollars ($ 100.00) per day for each · ry day s delay beyond the bme prescribed, plus authorized extensions thereof, for completion of any of the acts required to be done by this section. (e) Grantee shall utilize existing poles, conduits, and other facilities whenever possible, and shall not construct or install any new, different, or additional poles, conduits, or other facilities unless and until first securing the written approval of the Director for any of the same; provided, that whenever grantee shall not utilize existing poles, · conduits and other facilities, or whenever existing conduits and other facilities shall be located beneath the surface of the streets, or whenever city shall undertake a program designed to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the city, then the privilege of grantee to ' construct, install, or replace any poles, conduits, or other facilities in, on, or over any street shall at all times be subject to the right of the city, in the exercise of its police power or pursuant to the te~;ms hereof, upon reasonable notice to grantee, to require .any such conduits or other facilities of grantee to be~constructed, installed, placed, or replaced beneath the surface of the streets; and any construction, installation, placement, replacement or changes which may be so required shall be made at the expense of grantee. (f) Grantee shall not cause or permit to become operative for any purpose any agreement, undertaking, lease, instrument, or other contractual arrangement between grantee and any person (other than as an employee), firm, or corporation for the use by grantee of any property or facility or service of such person, firm or corporation, as a part of the system of grantee, whether such property or facility be within or without the city, or between grantee and any subscriber in the city, unless and until the same shall have been first submitted to the city and approved in writing by the City Attorney, and each of the same shall be in writing and shall contain an express provision that it shall not operate or become effective unless and until it is so submitted and approved. (g) The city shall have the right, free of charge, to make additional use, for any public or municipal purpose, whether governmental or proprietary, of any poles, conduits, or other facilities erected, controlled, Or maintained exclusively by or for grantee in any street, provided such use by city does not interfere with the use by grantee. 1 of 2 11/08/1999 11:23 AM Fresno: M-n!cipal Code ~ ; http://i'~vs.municode.corm'CGI-BIN/om..:= i 0421 .ntb&soflloage=lY~&x~14&y= 19 (h) Grantee shall, at the expense of grantee, protect, support, temporarily disconnect, relocate, orremove any property of grantee, when, in the opinion of the Director, the same is r ' · · P ent, including but not limited to, movement of buildings, urba~rYren~3waal~r ahy other redevelopment, and any general program under which the city shall undertake to cause all such properties to be located beneath the surface of the ground; provided, that rantee shall i . the correspondina obliaations ~-, .-,..--.~ ...... .g . . n all cases have the dvil . sub' hereunder shall b'e dee~r~ed 't;"~i~'=~iu°" any prope?_ ol' grantee in place, as herein providgc~- anegde' . ject to a ...... ~ vf the property of grantee, and nrantee ~,, ~ .... : ...... ' no. thJng . reason of anything hereunder. ~ ...... ,.,~ ~.m,~u ~o no surcharge oy (i) In the event the use of any part of the system of grantee is discontinued for any reason for a continuous period of thirty days, without prior written notice to and approval by the CAO, or in the event any part of such system has been installed in any street or other area without complying with the requirements hereof, or in the event any franchise shall be terminated, cancelled, or shall expire, grantee shall, at the option of the city, and at the expense of grantee and at no expense to the city, upon demand of the CAO, promptly remove from any street or other area all property of grantee, and grantee shall promptly restore the street or other area from which such property has been removed to such conditior~ as the Director shall approve; provided the CAO may, upon written application therefor by grantee, approve the abandonment of any of such property in place by grantee and under such terms and conditions as the CAO may prescribe; and upon abandonment of any such property in place, grantee shall cause to be executed, acknowledged, and delivered to the city such instruments as the City Attorney shall prescribe and approve, transferring and conveying the oWnership of such property to the city. )eUponthe failure, refusal, or neglect of grantee to cause any work or other act required by law or hereunder to properly completed in, on, over, or under any street within any time prescribed therefor, or upon notic~given, where no time is prescribed, the Director may cause such work or other act to be completed in whole or' part, and upon so doing shall submit to grantee an itemized statement of the costs thereof, and grantee shall, within thirty days after receipt of such statement, pay unto the city the entire amount thereof. (k) Unless otherwise provided in any given instance, where any time is prescribed herein for the doing or causing to be done of any act, the CAO, for good cause, stated in writing, may extend any time so prescribed for two additional periods of not to exceed ninety days each. Further, the running of any time period specified herein shall be automatically tolled whenever and so long as the Certificate of Compliance issued by the Federal Communications Commission to the grantee is the subject of a petition for stay, petition for review, or appeal filed with any United States Court of Appeals. (Added Ord. 75-81, § 1, eft. 8-31-75). SECTION 6-210. SERVICE STANDARDS. (a) Federal Rules. The rules, regulations and standards established by the Federal Communications Commission from time to time shall apply to and shall govern the operations of the grantee of the franchise hereunder. Specifically, the cable television system permitted to be operated and installed hereunder shall: (1) be operationally capable of relaying to subscriber terminals those television and radio broadcast signals · for the carriage of which the grantee is now or hereafter authorized by the Federal Communications Commission; Next Document Page Prey{bus Document Page Table of Contents Query Options: Search Entire Document Conceal Document Hierarchy at Top ol:' Page Return to Beginning of Text at Top or' Page_ M'CC List of Codes 2 of 2 11/08/1999 11:23 AM ' ~1/24/2001 19:55 530-225-44G3 CITY COUNCIL ........ PAGE 01 ..~~~ ~.1'?¥ OF REDD. ING . ..~..~... , ~ '. - . ~ ,.~:-.~..::. · . .,-:. ~.'.... ~-.. . 777 C~nue. Reddl~. ~ 9~00 I 530. ZZS.~SS ~ 530.Z25.4~3 FACS E '::' T S SSION DA~: 4/25/oz '- ~ ~ ~~ OF PAGES:' 9 ~ ~ ~OM: Connie 8tco~a~C~erk S~T: Franch~sa ~greemenc Th/s ts an exce~p~ from the Has,er Franchiee Agreement. Please call me if you have any questions. Ai~o ~n¢lude~ is a co~y of the ¢ommun~nt' 04./24/2001 19:55 530-225-4463 CITY COUNCIL · "~' ' '" PAGE 02 ;. A ~ R-.E E M E N T THIS AGREF/~ENT, made ~d entered at . . into this~day of~, of Redding, a ~n~ci~' by and between the city . corporation .of the State of California, ("Grantor.), and Viacom cable=lsi'on,.a whoily-owned, s~bsidiary of Viacom International, I~=., hereinafter, known as "Grantee,, "Viacom Cablevlsion" or "ViacOm,,. _~ ' ~ I T N'.E S S R T H WHEREAS, the City of Redding, 'pur'suant to Ordinance No. 1717, is authorized to .grant and/or' renew one or more nonexclusive ' revocable franchises to Operate, construct, maintain and reconstruct a cable television, sys~em within the city; WHEREAS, after public hearings, .the 'City has determined that it is in the best interest of the Cit~.a~d its residents to renew the franchise Previously granted to ~lacom Cablevi~ion; and NOW, THEREFORE, the City (hereinafter'also known as the Grantor) hereby grants to Viacom Cablevision a cable television franchise renewal in accordance with the'provisions of Ordinance No. 1717 and this Agreement. ' 04/24/2001 19:55 530-225-4463 CITY COUNCIL PAGE 03 5.5 _Emergency Aler~ ,:. ~: . The Grantee shall install an eme=g'ency alert override, system within (one) 1 year of the effective date of thi~ Agreement. Said system shall permit the City to interrupt and cablecast an audio message on all channels simultaneously in the event of disaster or public emergency, 5.6 Free Remote Controls forthe Disabled The Grantee shall provide permanently d~sabled non-ambulatory residents with free remote con%rols .... ' 6.0 SUPPORT FOR LOCAL CABLE' USAG~ -. 6.1 Public Cable Usage Management.. Grantor may delegate to an independent.non-profit entity, such as a Commission, Board or nonprofi~ cprporation the authority to manage any resources .and ot~er considerations provided by the Grantee and/or others, designe~, to promote and develop public-benefit usage of the Cable sys%em. 6.2 ~ablecasting Equipmpnt Faci%itie-9. (a) The Grantee shall provide approximately 680 square feet of space in its facility locatedat. Rastside Drive for use as a p~blic access studio, o~fice a~ work area. All.c0sts for remodeling shall be the responsi~ility of the Grantee and no. rent shall be charged once the space is made available. The Grantee wall provide all utilities except telephone and shall provide office furniture as required. The remodeled facilities shall be .completed and available for use within 12 months .of the effective date of this agreement. Until such time as the remodeled facilities are available for use, the Grantee shall provide work space for public access staff. 04/24/2001 19:55 530-225-4463 CITY COUNCIL ............ .: ......... PAGE 84 (i) The. Grantee shall provide return lines to permit origination from the following ~oc'ations: progra~ County Schools office on Magnolia Avenue (return line already in place) Public Access Studio (return line required if studio 'is relocated from Viacom s facility) ' Convention and Visitor Bureau on Auditorium Drive City Hall on Parkview Avenue -._ The Grantee shall initialte construction, of the return lanes from the Convention and' Vis£tor Bureau and City Hall immediately' SpeCificallY' the i'-Grantee Shall develop plans for said return lines ' ..Within~i. ~hirty (30) days of the effective date of this :Agreemm~t,. submit applications for any permits and easemen.~s.' whi.~h!;~ may be required within the following thirty (30)- days and .complete construction within four (4) months of recleipt of..! the required permits and approvals. 'Said' return. 'ilines ~hall be completed no later than nine (9) months .a.~ter- t'he' effective date of this Agreement. '" 6.3 Residential Network: Acces~ Chahnels (a) The existing 'public access, oha~nel shall be retained and used for public, educational an.~ governmental access under the oversight of the City-. Cou/%cil::.. The Council may delegate progran~ing responsibility to a::Cable Television Committee appointed by the Mayor or an. independent non-profit entity. b) The Grantee shall provide a second access channel to be used by the Convention and Visitors BUreau as soon as the return 04/24/2001 19:55 530-225-44~3 OITY COUNCIL '~ ~ ;' · ..... . ......... PAGE OS line E~om the Convention 'an~:':'Visitors Bureau i~ made available. Said channel shall be on the channel (c) Upon completion of the system UPgrade within eighteen (18) months of.franchise renewal, a third access channel shall be provided for public, educational and governmental access USe. (d) In the event that a system 'rebuild to sixty-two (62) channels takes place, a fourth .access channel shall be made available for public, educational and governmental access use. The channels listed .in above are under the oversight of the Redding City Council when activated[ The City Council may delegate programming responsibility as noted. 6.4 Institutional Network: Access Channels The Grantee shall provide two.-(2) downstream channels and one(l) upstream channel on the institutional network for municipal government use. 6.5 Grantee Su orr for Public Cabl~ S stem Usaq~ The Grantee shall assist the City on the entity designated to manage public access in conduc=ing'~i a promotional campaign to familiarize residents with the cable system's access facilities. 7.0 REGULATION 7.1 Franchize Requlation The franchise granted under this Agreement shall be .,subject to regulation by the City in accordance'with the provisions of the Ordinance, this Agreement and applicable law. 18 0412412001 19:55 530-225-44~,3 CITY COUNCIL " ... PAGE AGREEMENT FOR SERVICES This Agreement for Services ("Agreement") is made between the City of Redding, a municipal corporation and general law city ('CityI') and the Redding Community Access Corporation, a California non-profit, public benefit corporation ('RCAC'). I. RJgCITAL O1~ BACKGROUND AND PUR.POS]i:: The City has historically recognized the importance of a cable public access channel:; and thc role it has played in making open communication via television available to thc community. The City also recognizes the RCAC, given its experience in operating the community's access channels in the past, is uniquely qualit'ied to operate the cable public access channel. The City and RCAC have had a longstanding relationship in the operation of the public access channels which has been memorialized at dJf'f'crent times in various written agreements. The City is currently negotiating with Charter Communications, Inc. for the renewal of the City's cable' .franchise. agreement. The outcome of these negotiations will affect the terms and conditions of any agreements between the City and RCAC. In order to provide for the continued operation of the community's access channels for the benefit of the citizens of the City, and pursuant to action by the City Council of the City on December I, 1998, and in order to provide for continuity of services between thc City and RCAC until such time as the City may successfully negotiate a franchise renewal with Charter Communications, Inc. or any other cable operator, the City and RCAC hereby enter into this Agreement providing for the operation of thc access channels by RCAC on the following terms and conditions: 2. TERM: The initial term of this Agreement shall be. for two years commencing on July 1, 1999. After the initial term of this Agreement, this Agreement shall renew on a month to month basis unless terminated by either party upon thirty (30)days written notice or until such time as this Agreement is replaced and superseded by a subsequent ~greement For services between tile City and RCAC, or until June 30, 2002, whichever first occurs. 3. OPERATION: During the term of' this Agreement, RCAC shall operate th· access channels pursuant to the terms and conditions of' the Franchise Agreement between the City and the franchisee under that agreement, or any successor thereto. 4. PAYMENT $CH~DLrLg: During the term of this Agreement and subject to the conditions outlined in Paragraphs 5(El and 7 of this Agreement, the City shall make payment to RCAC as Follows: (Al On a Fee for service basis and pursuant to RCAC's current fee schedule, the City shall ;,L. pay to RCAC up to Twenty Thousand Dollars ($20,000) per year for training workshops, video production and airing of'programs for City departments and For airing City Council '" meetings on Communit7 Access Channel I 1, payable upon invoicing. .~r 84/24/2881 19:55 530-225-44G3 CITY COUNCIL " ........... : ............. F>~GE 07 (B) The City shall make a Ten 'Thousand Dollar ($10,000) annual payment to RCAC for the maintenance and upgrad~ .of Tourism! ChanneI 8, payable in advance in two equal installmen~ of Five Thousand Dollar. i($$,000) due in July and J'anuary of each year during the term of this Agreement. S. SCFLEDL~LE OF' ILESPONSIBILIT~s: During the term of this Agreement, the parties shall fulfill the following responsibilities: (A) RCAC shall provide to the City video production serVices for City departments as requested by the City and as described'in Paragraph 4(A). Nothing in this Agreement shall preclude RCAC and the.City from'contracting for additional services as they ma), mutually agree. ' (B) The City agrees to provide $'crvices from. its reproduction department'and print shop for typesetting and printing of RCAC'.s rnc~.nthly program schedules at no cost to RCAC. RCAC shall make arrangements with p~Vate: vendors for all other reProduction/printing services it may want or require. i; (C) As additional c~n$ideration for the pay"mcnt described in Paragraph 4(B), RCAC shall update the historical and visitation vide~ segments a.s may be agreed by thc City and RCAC. The City shall approv, e thc broad6'~t 'schedule for Tourism Channel 8. (D) The City shall support RCAC in seeking· to have the current cable franchisee and any successor thereto maintain ~nding and .['gcation support directly with RCAC. The City further agrees to consult witb.i~cAC co.n.'~;em. 'lng franchise' renewal negotiations as they 'relate to access television. The;City agrcei, to USe its best efforts to address future funding for public access' television {~.the ren~V~l and/or rcnegotiation of the cable television franchise. (E)On or before May I" of each :year of the tlerm of this Agreement, RCAC shall provide to the City a financial plan for RCAC's upcoming fiscal year. (F) RCAC has responsibility fo~- and ownership of all'assets of the current operation, including equipment and cash, reserves, l~i'the..evcnt of a dissolution of RCAC, control of the channels and ownership ~f.all assetsi, acquircd with public or franchise funds shall revert to the City. F-tJTD'R.E SERVICES: Nothing in thi_~ Agreement shall be construed to require the City to contract for services with RCAC after the termination of this agreement. However, nothing in this 'Agreement shall preclude RCAC and.the City from contracting serVices after the termination of this Agreement. 7. APPROPRIATION AS A CONDi'EiON .TO I~TI/RE SERVICES: It is the intent of the parties to carry out this Agreement to the fullest e~tent, possible. The parties recognize, however, that the City cannot by agreement commit future tax revenues beyond one fiscal year. If funds are not allocated and available for the continuance of the services Provided by RCAC, the City may 2 · 04/24/200]. ].9:55 530-225-44~3 CITV COUNCIL terminate those services at the end of the Pc~,Jed for which funds have been allocated and arc available, and the City will have no further obligation to may payments to RCAC in excess of the funds allocated and available. 8. $I'rPpI~M~:NTAL DIJTI~$: Both part[cs ~hal! do all things and execute all documents reasonably necessary to carry out this Agreement. 9. Fi'OTICI~.S: Any notices or demands shall be d~emed to have been fully and properly given when made in writing and personally delivered or when deposited in first class mail wjtl~ postage prepaid and addressed as follows: CiTY OF I~DDING Attn.: City Manager .REDDING COMMUNITY ACCESS CORP. 777 Cypress Avenue '.Attn,: Executive Director Redding, California 9600 ! ;5831 Eastsidc Road .;Redding,'California 9600! " 10. ENVIRONM3~IqTAL QUALITY.· ACT: lt"l~as, been determined that thc issues of this Agreement are not subject to the prov(~sio, ns of ti~:e California Environmental Quality Act. I1. I~ITERPRJgTATION: This Agreement has bc'~'n d~aftcd as a mutual effort by both parties and shall not be construed against any party to it. : 12. SUCC]E;SSORs: This Agreement shall inure to ~e ·benefit of and be binding upon thc successors in interest of the parties thereto. 13, INDEMNIFICATION: (Al RCAC agrees to hold the City, its officers, agents, employees, and assigned vo!untcers .harmless of any and ali a~tions, claim'S, demands, costs, damages and liabilities on account of or arising out of:th.e City's p~iymcnts to thc same of the funds referred to in paragraph 4 of this agreement. lB) RCAC shall hold the City and its ot'Hc~rs, agents, employees and assigned volunteers harmless from and defend and indemnify them against any and all actions, claims, demands and iiabilit7 arising from the n~gligence or other legal faults of the governing body, officers~ agents, employees a. nd assigned volunteers. 14. ~NSURANCr.: RCAC shall pro,ute and maintain for the duration of the contract insurance against' claims for injuries to person~ or dama~ges to property which may arise from or in connection with the Performance oft. he work he~eu'nder by them, their agents, representatives, and employees. (Al ~inimum Scope of' Insuranc____~c;. Coverage shall be at least as broad as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, owned, non,owned and hired. '04/24/2001 3.9:55 530-225-44R3. CITy COlJNCIL ~.. ,, ...... ' ...... PAGE; 89 I$. ENTII~-AGREEMI2qT: This Agreement conta;ns all the representations and thc entire understanding and agreement between the parties except an.y benefits and obligations arising from an), previous contrac~ between City of Redding and the Cable provider. An), correspondence, memoranda, oral or written agreements regarding the subject of this Agreement are replaced in total by thiS. Agreement. The provisions of this 'Agreement are retroactive to the commencement date of'this Agreement set forth in ?m'agraph 2 of this Agreement. FORM APRROV~_.D: ~ · ~ ~r:--oupport Services -- REDDING COMMUNITY ACCESS CORP. JI..I. 6 ~ /i ~j ,Sacramento Metropolitan Cable Television Commission Table of Contents GENERAL TERMS AND CONDITIONS ......................................... .............................. 1 Definitions ............................................................................................................................... 1 Channel ....................................................................................................................... 1 Commercial Purposes ................................................................................................ 1 Community Programming Facility .............................................................................. 2 Community Programming ........................................................................................... 2 Franchise Ordinance .................................................................................................. 2 Funded Equipment ................................................................... i .................................. 3 Funded Facilities .................................................................. ., ................ · ...................... 3 Funded Staff ................................................................................................................ 3 Grant ............................................................................. ............................................. 3 Grant Application ......................................................................................................... 3 Licensing Ordinance ................................................................................................... 3 Market Value ............................................................................................................... 3 Non-Funded Equipment 3 Non-Funded Facilities ........................ ; ........................................................................ 3 Subcontractor .................................................................................. j ........................... 3 User . 4 Term of: Agreement - 4 Nondiscrimination in Employment or Service ....................................................................... 4 Status of Grantee ................................................................................................................... 4 Indemnification ................... ' ..................................................................................................... 4 Insurance ................................................................................................................................ 5 Minimum Scope'of Insurance ..................................................................................... 5 Minimum Limits of Insurance ...................................................................................... 6 Deductibles and Self-Insured Retentions .................................................................. 6 Other Insurance Provisions ........................................................................................ 6 Acceptability of Insurers .................................................................. : ........................... 7 Verification of Coverage .............................................................................................. 7 Subcontractors ............................................................................................................ 8 Insurance Limits Do Not Limit Grantee Liability ........................................................ 8 Grant Funds May Be Used ........................................................................... ....... ~ ...... 8 Copies To Be Furnished ............................................................................................. 8 Coverage Review and Adequacy.: ............................................................................. 8 Assignment ............................................................................................................................. 8 Time ..................................................................................................................................... 8 Cooperation ............................................................................................................................ 8 Waiver ..................................................................................................................................... 8 Applicable Law .......................................................... - ........................................................... 8 Jurisdiction ..... : ........................................ 8 Attorneys' Fees ............................................................................................................... . ....... 8 Grant Funds for Litigation ...................................... : ................................................................ 9 Successors ............................................................................................................................. 9 Page i CHANNEL USE AGREEMENT Entire Agreement .................................................................................................................... 9 Notices .......................................................................... ; .................................... : ..................... 9 Grantor ........... Grantee ......................................................................... ' ......... : ...................................... '9 Confidentiality ................................ 9 Supplemental Grants ............................................................................................................ 10 Brown Act .................................................................................... : ......................................... 10 GRANT APPLICATION ................................................................................................................. 10 Grant Application .................................................................................................................. 10 Grant Approval ................................................................................................................. : .... 10 Grant Amendments .............................................................................................................. 11 Termination .......... ~ ....................................... ; ....... : ................... . ................ · ............................. 11 Conflict of Interest ............................................................................. , ..................................... 12 Allocation of Resources; Commercial Purposes .................................................................. 12 Funded Staff .......................................................................................................................... 12 Expenditure of Operating Funds ................................ ........................................................... 12 Resources not Provided by Grantor ..................................................................................... 13 Reports and Records ............................................................................................................ 13 Grantee Audit ......................................................................................................................... 14 PROGRAMMING .......................................................................................................................... . .... 14' User Fees and Charges ..................................................... i .................................................. 1.4 Community Programming Requirements ............................................................................. 14 Community Programming Restrictions ............................................................. ' .................... 14 Programming Underwriting ................................................................................................... 15 Programming Liability .................... : ....................................................................................... 16 Copyright Clearance ......................... ; ......... · ........................................................................... 16 Copyright and Ownership ...................................................................................................... 16 Distribution Rights ................................................................................................................. 17 Authority of Grantee .............................................................................................................. 18 EQUIPMENT .................... Equipment Ownership ................................................................................ . ........................... 19 Equipment Maintenance ........................................................................................................ 19 .Equipment Insurance ............................................................................................................ 19 Equipment Replacement and Substitution ........................................................................... 20 Equipment Limitations ........................................................................................................... 20 FACILITIES ................. · ................................................................................................................. ..... 20 Restrictions on the Use of Facilities ..................................................................................... 20 Public Access Facilities ......................................................................................................... 20 Supervision ............................................................................................................................ 21 Page ii CHANNEL USE AGREEMENT AGREEMENT made this 3"d day of June, 1999 ("Agreement") between the SACRAMENTO METROPOLITAN CABLE TELEVISION COMMISSION, a joint powers agency, (hereinafter, together with its permitted successors and assigns, referred to as "Grantor") and SACRAMENTO COMMUNITY CABLE FOUNDATION, DBA Access Sacramento (hereinafter referred to as "Grantee"). WHEREAS, Grantor desires to provide monetary grants and/or use of cable channels provided pursuant to Section 611 of the Cable Communications Policy Act of 1984 to Grantee; and, WHEREAS, in consideration of those grants, Grantor is desirous of receiving from Grantee [As to SECC and KVlE only: 'educational'] programming, services and activities which provide the maximum possible benefit to cable television subscribers and the community. NOW, THEREFORE, Grantor and Grantee do hereby covenant and agree as follows: 1.00 GENERAL TERMS AND CONDITIONS 1.01 'Definitions. As used in this Agreement ihe following terms shall be ascribed the following meanings: a) "Channel" - means a portion of the spectrum space on cable television subscriber systems authorized to operate in Sacramento County, capable of delivering video, audio, data, or voice transmission. b) "Commercial Purposes" - means utilization of resources granted under this Agreement or programming produced with funds, staff, equipment, or facilities granted under this Agreement that yields a return of revenue which exceeds the total cost of the resources devoted to the development, implementation and presentation of community programming by the Grantee pursuant to this Agreement. Subject to the preceding sentence, the sale by a Grantee or User of a program produced with the use of resources granted under this Agreement, whether through syndication or otherwise, shall constitute a "commercial purpose" unless the proceeds thereof shall be irrevocably devoted, under terms, conditions and restrictions similar to those contained herein, to the development, implementation and/or presentation of community programming as defined herein. The use of facilities, staffing or other resources to produce for cablecasting of telethons or other similar programming by which contributions from subscribers for charitable or other purposes other than for the support of community programming as defined herein are solicited also constitute "commercial purposes". "Commercial purposes" as used herein shall ..n. ot include fund-raising programming: (A) by Grantee where the proceeds from. such fund-raising are limited to the direct support of Grantee's cablecasting activities on the channels whose use is authorized by this Agreement, and (B) Page 1 CHANNEL USE AGREEMENT by non-profit organizations who apply to Grantee's Board of Directors and receive permission from the Grantee's Board of Directors to use Grantee's facilities and channel(s) subject to, at a minimum, the following requirements: (1) The organization shall present evidence of its IRS 501(c)(3) determination letter as an approved non-profit having an office in Sacramento County for a minimum of three years prior to the date of the application to Access. (2) The fund-raising production efforts shall be limited to fund-raising to alleviate crisis or emergency situations. (3) The requesting non-profit shall present a plan to Grantee's Board prior to the fund-raising event and a timely after the event report documenting the amount of funds raised and how such funds were distributed to help those in need. No more than two fund-raising programs shall be produced by all non-profit organizations under the subsection (B) during any one fiscal year on all channels allocated to Grantee. Grantee shall report to Grantor once each fiscal year on the extent of fund-raising activities and such other, information as Grantor may request. This provision authorizing fund-raising activities by non-profit organizations shall be for a one year period commencing on July 1, 1999 and terminating on June 30, 2000 unless extended by Grantor. Grantee may request extension of this provision. If an extension is requested, Grantor shall review this provision and may determine in Grantor's sole discretion to continue this provision for an additional period. c) "Community Pro.qramminq Facility" - means any building or other facility or portion thereof substantially devoted to the development, implementation and/or presentation of community programming. d) "Community Pro.qrammin.q"-- means noncommercial cablecasts (1) which consist of topics of special interest to the Sacramento community or element thereof, (2) which further the Community Programming Goals heretofore adopted by Grantor, and (3)which are not "obscene"-under the laws of California and/or other applicable law; including matters of a political, governmental, sociological, religious, educational, instructional, cultural, artistic, health oriented, ethnic, economic, recreational, charitable and philanthropic nature; a significant part of such programming having been locally produced. As used herein, "noncommercial" means: (1) the content of such programming shall not be for the purpose of either directly or indirectly selling any product or service for private gain; and (2) the programming shall not be associated with or interrupted during presentation by commercial advertising or announcements presented for the purpose 'of selling products or services for private gain. e) "Franchise Ordinance" - means Chapter 5.50 of the Sacramento County Code. Page 2 CHANNEL USE AGREEMENT f) "Funded Equipment,- means all equipment, appliances, apparatus, and other personal property purchased by Grantee in whole or in part with funds provided in accordance with this Agreement or some predecessor agreement between Grantor and Grantee or received by Grantee pursuant to the provisions of any franchising or licensing agreement of Commission. With respect to equipment acquired in part with Grantor's funds, Grantor shall have an interest in proportion to the percentage of grant funds utilized to acquire such equipment. g) "Funded Facilities" - means all facilities and capital improvements purchased or rented by Grantee in whole or in part with funds provided in accordance with this Agreement or some predecessor agreement between Grantor and Grantee. With respect to facilities acquired in part with Grantor's funds, Grantor shall have an interest in proportion to the percentage of grant funds utilized to acquire such facilities. h) "Funded Staff" - means persons engaged in activities in furtherance of this Agreement whose salaries and benefits are, in whole or in part, paid for by Grantee with funds provided in accordance with this Agreement. i) '.'Grant',- means a Grant Application which has been approved by the Commission in which Grantee agrees to provide programs, services, and activities in whole or in part with Commission funds. j) "Grant Application"-means a Grantee request(s) for a channel(s) and/or Funded Facilities, equipment and staff Under this Agreement under a procedure adopted and implemented by the Grantor. k) "Licensin.q Ordinance" - means Chapter 5.75 of the Sacramento County Code relating to Cable Television Licenses, at the time of the execution of this Agreement and as amended from time to time. I) "Market Value" - means the price in terms of money which a property will bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently, knowledgeably, and assuming the price is not affected by undue stimulus. m) "Non-Funded Equipment"-means all equipment, appliances, apparatus, and other personal property of Grantee acquired with funds obtained from an identifiable source other than Grantor. n) "Non-Funded Facilities"- means all facilities and capital improvements purchased or rented by Grantee with funds obtained from an identifiable source other than Grantor. o) "Subcontractor" -- means any person or entity who has executed an independent contract directly with Grantee for the performance of any obligation required of Grantee pursuant to this Agreement. Page 3 CHANNEL USE AGREEMENT p) ".User"-- means any person or entity other than Grantee using resources granted under this Agreement. 1.02 Term of A.qreement. This Agreement is effective on July 1, 1999 unless otherwise stated and shall expire on June 30, 2002 unless extended in writing signed by both parties. Upon termination of this Agreement all funds of any kind or amount whatever theretofore received from Grantor and not theretofore expended pursuant to a Grant shall be returned forthwith to Grantor, provided that, in the event of such termination, Grantee may, with the prior written consent of Grantor, expend reasonable sums to wind up the affairs of the Grantee. 1.03 Nondiscrimination in Employment or Servia. · a) Grantee shall not discriminate against any person, employee, applicant for employment or subcontractor working on projects supported in whole or in part by using funds, staff, or equipment provided by Grantor on the basis of race, color, creed, national origin, sex, sexual preference, age, religious belief, political belief, economic status, or physical ability. b) Grantee shall not discriminate in the delivery of services on the basis of race, color, creed, national origin, sex, sexual preference, age, religious belief, political belief, economic status, or physical ability. 1.04 Status of Grantee. a) It is understood and agreed that Grantee is a tax exempt non-profit public benefit corporation funded and operating under the laws of California and an independent contraCtor and that no relationship of principal-agent or employer- employee exists as between Grantor and the Grantee. [As to SECO only: It is also understood that the Board of Directors of Grantee consists of representatives of public and private educational institutions.] b) If in the performance of this Agreement any third persons are employed by Grantee, such persons shall be entirely and exclusively under the selection, direction, supervision, and control of Grantee. All terms of employment, including hours, wages, working conditions, discipline, hiring and discharging or any other terms of employment or requirements of law, shall be determined by Grantee, and Grantor shall have-no right or authority over such persons or the terms of such emploYment. 1.05 Indemnification. Grantee shall, at its sole expense, fully indemnify, defend and hold harmless the Grantor, the County of Sacramento and' the Municipalities of Sacramento, Folsom, G'alt, and any other municipality within the County of Sacramento that is a member of the Cable Television Commission, and in their capacity as such, the officers, agents and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damages or otherwise: Page 4 CHANNEL USE AGREEMENT a) For actual or alleged injury to persons or property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through or alleged to arise out of or through the acts or omissions of the Grantee or its officers, agents, employees, or contractors or to which the Grantee's or its officers, agents, employees or contractors acts or omissions in any way contribute; b). Arising out of or alleged to arise out of any claim for damages for invasion of the right of privacy, defamation of any person, firm or corporation, or the violation or infringement of any copyright, trade mark, trade name, service mark or patent, or of any other right of any person, firm or corporation in any way arising out of or through or alleged to arise out of or through the acts or omissions of the Grantee or its officers, agents, employees, or contractors or to which the Grantee's or its officers, agents, employees or contractors acts or omissions in any way contribute; and c) Arising out of or alleged to arise out of Grantee's" failure to comply with the provisions of any statute, regulation or ordinance of the United States, State of California or any local agency applicable to the Grantee in its business. Nothing herein shall be deemed to prevent the parties indemnified and held harmless herein from participating in the defense of any litigation by their own counsel at the Grantee's sole expense. Indemnified parties' reimbursements shall be limited to those wh'ich are reasonable in light of the circumstances and Grantee is authorized to use funds received under this Agreement to pay such costs if 'other sources are insufficient. Such participation shall not under any circumstances relieve the Grantee from its duty of defense against liability or of paying any ..judgment entered against such party. 1.06 Insurance. Without limiting Grantee's indemnification and prior to performing any other term or condition of this Agreement, Grantee shall procure and maintain at Grantee's expense for the duration of the Agreement insurance'against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Grantee, its agents, representatives, employees Or subcontractors as follows: a) Minimum Scope of Insurance. Insurance coverage shall be at least as broad as: (1) Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001). (2) Insurance Services Off'ice Business Auto Coverage form number CA 0001 (06 92) covering Automobile Liability Code 1 (any auto). (3) Workers' Compensation insurance as required by the State of California and Employers Liability insurance. Page 5 .CHANNEL USE AGREEMENT b) Minimum Limits of Insurance. Grantee shall maintain limits of insurance no less · than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to any act or omission to act by Grantee under this Agreement or the general aggregate limit shall be twice the required occurrence limit. (2) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. (3) Workers' Compensation: Statutory , (4) Employers Liability: $1,000,000 per accident for bodily injury or disease. c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by Grantor in its sole and complete discretion. Grantee's current deductibles under the insurance policies identified on Exhibit A, attached hereto and incorporated herein by reference. Upon request of the Grantee, but at the option of the Grantor, either: the insurer shall reduce or eliminate such deductibles or self-insured retention as respects the Grant°r, its officers, officials, employees and volunteers; or the Grantee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. d) Other Insurance Provisions. The insurance policies required by this Agreement are to contain, or be endorsed to contain, as applicable, the following provisions: · (1) General Liability and Automobile Liability Coverages. (a) The Grantor and Grantor's officers, officials, employees, agents, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by' or on behalf of the Grantee; services, products and completed operations of the Grantee; premises owned, occupied or used by the Grantee; and automobiles owned, leased, hired or borrowed by the Grantee. The coverage shall contain no special limitations on the scope of protection afforded to the Grantor or Grantor's officers, officials, employees, or volunteers, except as shall have the prior written approval of Grantor. (b) For any claims related to the services provided under this Agreement, The Grantee's insurance coverage shall be primary insurance as respects the Grantor and Grantor's officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the Grantor or Grantor's officers, officials, employees, agents or Page 6 l CHANNEL USE AGREEMENT volunteers shall be excess of the Grantee's insurance and shall not contribute with Grantee's insurance. (c) Any failure to comply with reporting provisions or Other provisions of the policies including breaches of warranties shall not affect coverage provided to Grantor or Grantor's officers, officials, employees, agents or volunteers. (d) The Grantee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (2) Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all its rights of subrogation against the Grantor and Grantor's officers, officials, employees, agents and volunteers which might arise by reason of payment under such policy in connection with work performed under this Agreement by the Grante~. (3) All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, retUrn receipt requested, has been given to Grantor. e) Acceptability of Insurers. Insurance is to be placed with insurers with a current rating of no less than A:Vll by A.M. Best's Insurance Services. Grantor's Risk Manager may waive or alter this requirement, or accept self-insurance in lieu of any required policy of insurance if, in the opinion of the Risk Manager, the interests of the'Grantor and the general public are adequately protected. f) Verification of Coverage. Prior to performing any other term or condition of this Agreement Grantee shall furnish Grantor with current certificates of insurance for the duration of this Agreement evidencing coverage required by this Agreement. Certified copies of required endorsements shall be attached to the certificates provided. The certificates and endorsements for each' insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements shall be received and, in Grantor's sole and absolute discretion, a'pproved by Grantor before any other term or condition of this Agreement is performed by Grantee and before any funds are released by Grantor to Grantee. Grantor reserves the right to requ re complete, certified copies of all required insurance _p, olicies at any time. As an alternaiive to insurance certficates, the Grantees insurer may voluntarily provide complete, certified copies of ail required insurance policies, including endorsements, effecting the coverage required by this Agreement. Page 7 _CHANNEL USE AGREEMENT g) Sub-contractors. Grantee shall include all subcontractors as insureds under its insurance policies or shall furnish separate cedificates and endorsements for each subcontractor. All insurance coverages for subcontractors shall be subjec~ to all of the requirements stated herein. h) Insurance Limits Do Not Limit Grantee Liability. The limits of insurance described herein shall not limit the liability of the Grantee and Grantee's agents, representatives, employees or subcontractors. i) Grant Funds May Be Used. Grant funds may be used for purchase of any insurance required by this Agreement. Certificates evidencing the maintenance of Grantee's insurance shall be filed with Grantor prior to the release of resources to Grantee. j) Copies To Be Furnished..UPOn written request by Grantor, a duplicate original of each insurance policy required to be purchased or maintained hereunder and all endorsements shall be furnished to Grantor p~:ior to the release of any resources or additional resources, as the case may be, by Grantor to Grantee. k) Coverage Review and Adequacy . Grantor retains the right at any time to review the coverage, form and amoUnt of the insurance required herein. If, in the opinion of Grantor's Risk Manager, the insurance provisions in these requirements do not provide adequate protection for Grantor, Grantor may require Grantee to obtain insurance sufficient in coverage, form and amount to provide adequate protectSion from and against the kind and extent of risks that exist at the time a change in insurance is required. 1.07 _Assiqnment. This Agreement is not assignable by Grantee, in whole or in part, without the express written consent of the Grantor. 1.08 .Time. Time is of the essence of this Agreement and for the performance o¢ all covenants and conditions thereof. 1.09 .Cooperation. Each party agrees to execute all documents and do all things necessary and appropriate to carry out the provisions of this Agreement. 1.10 Waiver. Any waiver of any breach of this Agreement shall not waive any continuing or other breach of the same provision or any other provision of this Agreement. 1,11 Applicable Law. This Agreement shall be interpreted and enforced under the laws of the State of California. 1.12 Jurisdiction. Except as required by federal law, the courts of the State of California shall have exclusive jurisdiction and venue of any legal action under this Agreement. 1.13 Attorneys' Fees. In any action to interpret or enforce this ,~greement, the prevailing party shall recover its reasonable expenses of litigation and attorneys' fees incurred. Page 8 CHANNEL USE AGREEMENT 1.14. Grant Funds for Liti,qation. Notwithstanding any other provision hereof, Grantee shall not expend any funds received from Grantor to pay costs or attorneys fees in any litigation in which Grantee asserts or attempts to assert any cause of action whatsoever against Grantor, the County of Sacramento, the Municipalities of Sacramento, Folsom, Gait, and any other municipality within the County of Sacramento that is a member of the Cable Television Commission, and/or the directors, employees, or officers of such entities nor shall Grantee expend any funds received from Grantor to pay costs or attorneys fees of any other person or entity in the absence of an order of a court of competent jurisdiction. 1.15 .Successors. This Agreement shall bind and inure to the benefit of the successors and assigns of the parties. 1.16 .Entire A.qreemenL This is the entire Agreement between the par;ties concerning the subject matter of this Agreement. Any amendment of this Agreement shall not be effective unless stated in writing, signed by the parties, and approved by Grantor. 1.17 .Notices_. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or by registered or certified mail, return receipt requested: Grantor. If to Grantor, to: Richard Esposto, Executive Director Sacramento Metropolitan Cable Television Commission 828 I Street, Suite 527 Sacramento, CA 95814 and Harriet Steiner, Commission General Counsel McDonough, Holland & Allen, A Professional CorporatiOn 555 Capitol Mall, Suite 950 Sacramento, CA 95814 Grantee. If to Grantee, to: Ron Cooper, Executive Director Sacramento Community Ca'ble Foundation, DBA Access Sacramento 4623 T Street Sacramento, CA 95819 and Craig Powell Law Office of Craig K. Powell 4678 Cabana Way Sacramento, CA 95822 Any party may change its address for notice by notice to the other party at any time. Page 9 _CHANNEL USE AGREEMENT 1.18 .Confidentiality. All information, books, records, and reports of Grantee, not otherwise required to be made public or provided to Grantor, shall remain confidential, unless such information, books, records, or reports become generally available to the public other than by a breach of this Agreement by Grantor. 1.19 _Supplemental Grants. Nothing contained in this Agreement shall be construed to restrict the legislative discretion' of Grantor to make additional, supplemental grants to any person or entity in support of Community' Programming. 1.20 Brown Act. Grantee, as a condition of accepting a Grant under the terms of this Agreement and so long as any funds remain unexpended pursuant to the terms of any such Grant, shall, regardless of its organizational structure, comply with the provisions of the Ralph M. Brown Act (Govt. Code § 54950 et seq.), as it now exists and may hereafter be amended as to any discussions and/or decisions of Grantee's governing board relating to the:' expenditure of all or any portion of the funds provided pursuant to this Agreement.. 2.00 GRANT APPLICATION 2.01 Grant Application. Prior to the 15th day of March of each year this Agreement is in effect, Grantor shall announce estimates of the amount of funding available for grants for the fodhcoming fiscal year. Prior to the 15th day of May of each year, Grantee shall thereupon submit for Grantor's review and approval a Grant Application. Said Grant Application shall include a statement of the grantee goals; revenues to be received from sources other than Grantor; the total costs for personnel, services and supplies, grants to other individuals and Organizations, and fixed assets and equipment. The Grant Application shall include a narrative description of the services to be 'rendered and the benefits which shall accrue to the community. In awarding .a Grant pursuant to this Agreement, the Grantor is acting upon its knowledge of the Grantee's history as a community programming grantee and recognizes that this Agreement does not provide objectively quantifiable performance standards. Thus, Grantor must necessarily reserve unto itself the right to modify, alter, amend or eliminate in its entirety any future grants under this Agreement for any reason or no reason at all and Grantee accepts this grant with acknowledgement that it has no vested right whatever to continued funding under this or any other Agreement with Grantor. Moreover, Grantee agrees at all times to operate in accordance with all State and Federal laws. 2.02 Granl Approval. Grantor's approval shall be subject at all times to the sole and exclusive discretion of Grantor. Grantor will use its best efforts to approve or disapprove each Grant Application by the fifteenth (15th) day of June. Pending any delay in approval, Grantee may, at its option, continue operations in accordance with the terms and conditions of its last approved Grant, provided that Grantee does Page 10 CHANNEL USE AGREEMENT so at its own risk and cost and Grantor shall incur no liability whatever to Grantee or other person or entity by reason of such continued operation. Notwithstanding any other provision hereof, Grantor may, in its sole discretion and for any reason or none at all, decline to approve any Grant Application, or modify or reduce any Grant Application, prior to its approval. 2.03 Grant Amendments. During the term of a Grant, a Grantee may submit amendments to the Grantor for approval. Such amendments shall contain: a) the same type of information required of Grantee in the Grant Application procedure established herein; b) an explanation by the Grantee of the necessity for such amendment(s); and,. c) a report prepared by the Grantee describing the extent to which the budget outlined in the original Grant Application sought to be amended has been theretofore met. Approval of such amendment(s) are subject to the sole and exclusive discretion of the Grantor. Grantor will use its best efforts to approve or disapprove any proposed amendment within sixty (60) days after receipt of such proposed amendment. 2.04 Termination. Notwithstanding any other provision hereof, Grantor may, for good cause, terminate any Grant approved pursuant to the Grant Application procedure established herein prior to stated expiration of the term thereof, provided that the Grantor shall follow the following procedure in connection therewith: a) In the event that the Grantee shall fail, refuse or neglect to comply fully with the requirements of the provisions of the Grant, the Grantor's Executive Direotor may attempt informal resolution and rectification of the Grantee's non- compliance by informal meeting and/or telephone conference between the Grantee and the Grantor staff. While it is the intention of Grantor to attempt informal resolution, any asserted or actual failure so to do shall not render any subsequent enforcement proceeding or termination deficient, invalid or ineffective. I~) In the event that the informal efforts at resolution are ineffective or otherwise inappropriate, (1) The Executive Director may notice the Grantee to meet with the Executive Director on not less than ten (10) days notice to allow the Grantee to present such evidence as it may have as to whether or not probable cause exists to believe that the Grantee has failed, neglected or refused to comply with the provisions of the Grant, or (2) In the sole discretion of the Grantor's Executive Director, the Executive Director may notice the Grantee to meet with the Grantor on not less than ten (10) days notice to allow the Grantee to present such evidence as it Page 11 · CHANNEL USE AGREEMENT may have as to whether or not probable cause exists to believe that the Grantee has failed, neglected or refused to comply with the provisions of the Grant. c) Upon a determination of the Executive Director pursuant to subpart b) 1) above, or of the Grantor pursuant to subpart b)2)above, that probable cause exists to believe that the Grantee has failed, neglected or refused to comply with the provisions of the Grant, the Grantor may hold a termination hearing and, upon a finding by the Grantor based upon substantial evidence that the Grantee has failed, neglected and refused to perform a material term, provision or COndition of the Grant, thereupon terminate Grantee's rights to any future funds from the Grant and/or from the Grantor. Nothing COntained in this section shall be deemed to imply any right whatever in the Grantee to any renewal, extension or additional grant of any Grant pursuant to the Grant Application procedure at the end of any Term thereof. 2.05 Conflict of Interest. Grantee shall not, directly or indirectly, purchase goods or services or otherwise fund any person or entity in which any of Grantee's directors, officers, agents or employees have or acquire any direct or indirect interest unless and until: (1) the material facts as to such interest are disclosed in a public meeting to Grantee's board of directors, and (2) the board of directors of Grantee in good faith specifically authorizes the purchase and/or funding by the affirmative vote of a majority of the disinterested directors, provided that the disinterested directors constitute at least a majority of the author~ized board of directors, and (3) the funding is fair and reasonable to the Grantee under the terms of this Agreement. 2.06 Allocation of Resources; Commercial Purposes. Grantor shall allocate and provide resource for its activities in accordance with its approved Grant. Grantee shall not, and Grantee shall take reasonable efforts to assure that all users shall not, use any resources or benefits granted under this Agreement for Commercial Purposes. Upon award of a Grant, Grantee may use resources received pursuant to this Agreement to reimburse funds expended by Grantee during the period covered by the Grant for the purposes thereof and in accordance therewith, even though the sources .of those funds theretofore expended may have included activities c. onstituting Commercial Purposes. 2.07 Funded Staff. Grantee may use funds provided under this Agreement for staffing purposes reasonably and necessarily related to the performance of Grantee's obligations under a Grant. 2.08 Expenditure of Operatinq Funds. Grantee shall spend operating funds received from Grantor solely for the purposes listed in its Grant. Funds not expended in the term covered by a Grant may not be carried over into succeeding years or grants, nor used for other purposes without Grantor's approval. Grantee shall provide for such fiscal control and funding accounting procedures as are reasonably necessary to assure proper disbursement and accounting for operating funds received from Grantor. · Page 12 CHANNEL USE AGREEMENT 2.09 Resources not Provided by Grantor. Any anticipated use by Grantee of resources not provided by 'Grantor shall be stated in the Grant Application. Grantee may, in its discretion, withhold the identity of this source of such resources. Funds anticipated to be derived from fund-raising activities shall be identified and stated separately. Upon request by Grantor, Grantee shall disclose the identity of the source of all resources to Grantor for purpose of audit. 2.10 Grantee Reoorts and Records. Grantee shall maintain and submit copies upon request to Grantor of the following reports and records pertaining to the use of funds, channels, staff, and equipment provided under this Agreement: a) pro.qram Information. Grantee will maintain computer reports or program logs for each channel' on the subscriber network provided under this Agreement. Such computer reports or program logs shall be retained for two (2) years and must contain, at a minimum, the title of program, the length of program, and the' time cablecast. Upon request, Grantee shall provide Grantor with (1) summary reports of the above described information, reproduced on paper, in a form that can be understood without resort to interpretive aids and/or (2) video copies of specifically identified programs produced by Grantee in whole or in part with resources obtained through funds from Grantor under this or any predecessor Agreement and presented within ten (10) days prior to the request, provided that notwithstanding the foregoing Grantee shall not be required to retain and/or produce video copies of cablecasts of live classroom sessions of courses authorized and approved for credit by California State University, Los Rios Community College District or any public K-12 school district in Sacramento County. b) Financial Records. Grantee shall maintain for three (3) years financial records and accounts of all funds received under this Agreement. Such records shall be maintained.in accordance with generally accepted accounting principles, consistently applied, and shall be subject to audit by Grantee and submitted to Grantor by November 1 of each year. [As to RCCTV--Excluded] c) ,Equipment Utilization Records. Grantee shall maintain and provide copies to Grantor upon request of records pertaining to the use of Funded Equipment. Such records should contain at minimum, the type and name of equipment purchased or granted; the date purchased; the cost of purchase; the maintenance history; any emergency repairs of the equipment; and the da(e of replacement and/or disposition of the equipment. [As. to RCCTV--Excluded] Grantee shall maintain such Equipment Utilization Records during the useful life of such equipment and for one (1) year thereafter. Notwithstanding the foregoing, Grantee need not maintain maintenance, repair, and replacement information as to Funded EquiPment the purchase price of which is less than One Thousand Dollars ($1,000). [As to RCCTV--Excluded] I Page 13 CHANNEL USE AGREEMENT 2.11. Grantee Audit. Grantee, at its sole expense but with funds obtained under this Agreement, shall Provide to Grantor an audited financial statement detailing the expenditure of all funds received pursuant hereto reviewed and certified by a Certified Public Accountant to fairly present the disposition of those funds under Generally Accepted Accounting Principles and pursuant to Generally Accepted Auditing Standards within ninety (90) days of the grant termination, but in any event not less frequently than once every eighteen (18) months in instances of any multi- year grants which might be awarded hereunder. Such' audits shall comply with all applicable AICPA Professional Standards including without limitation AU Section 801, Compliance Auditing Applicable to Governmental Entities and Other Recipients of Governmental Financial Assistance. [As to RCC'i-V--Excluded] ' 3.00 PROGRAMMING 3.01 User Fees and Char.qe~. Use of Funded Facilities and Equipment shall be provided to members of the general public and representatives of non-profit organizations and public agencies by Grantee at its sole cost and expense, and without fees or charges whatsoever. However, upon the prior approval of Grantor, Grantee may establish and levy reasonable user fees and charges in connection with the use of such facilities and equipment. 3.02 Community Pro.qrammin.q Requirement,o,. If Grantee is unable to comply with the terms of the Grant, Grantee shall, when it first has reason to believe that it will be unable to comply, notify Grantor. Failures resulting from circumstances beyond the reasonable control of Grantee shall be excused to the extent such failure was a result of said cause, and appropriate amendments made to the Grant. A material failure to comply with the Grant that is not excused under the previous sentence may, in Grantor's sole discretion, constitute grounds for termination of the Grant, and this Agreement pursuant to the provisions of section 2.04 above. 3.03 Community Pro.qramminq Restrictions. Notwithstanding any other term, provision or condition hereof, Grantee will not, and Grantee shall require that Users agree in .writing that they shall not, use a Channel, or Funded Staff Funded Equipment, or Funded Facilities to produce or distribute: a) any material designed to promote the sale or use of commercial products, services, or entities; including advertising by and on behalf of candidates for public office; b) a lottery as defined by FCC regulation or any advertisement of or information concerning a lottery; c) any obscene material; or d) libelous or slanderous material. Page ! 4 .CHANNEL USE AGREEMENT 3.04 Proqrammin.q Underwriting. Grantee;s programming and the programming of Users produced in accordance with this Agreement and distributed on channels whose use is authorized by Grantor shall comply with all applicable rules and regulations of Federal, State, and local governments and all other regulatory agencies, including the FCC. a) Grantee and Users are permitted to give aural and visual underwriting credits to a person or organization that has paid for, in whole or in part, the production, distribution, promotion or cablecast of a program, so long as the underwriting credits do not violate the terms and conditions of this Agreement, and so long as credits 'are within the parameters of FCC rules and regulations for noncommercial public television stations. b) Underwriters may be given a credit at the opening and close of every program and must be given a credit at the end of the program. If the program is longer than one (1) hour and fifteen (15) minutes, underwriters may be credited at the natural breaks in the program content; provided, however, that there shall be no more than an average of three underwriting breaks per hour for each hour of the total program averaged over the length of the program. c) Notwithstanding the foregoing, Grantee and Users may conduct fund-raising activities such as telethons, auctions and membership drives on the channels whose use is authorized by this Agreement, without charges for such channel use, if the activity meets the following criteria: (1) All funds generated from such activity shall be used in support of Grantee's or such User's cablecasting activities on the channel whose use is authorized by this Agreement or as authorized in subsection 1.01. (b). Grantee shall take reasonable efforts to assure that funds generated from such activity by users shall be used in support of such User's cablecasting activities. Funds received by Grantee shall be incorporated into its Grant Application. The purpose of the fund-raising activity must be clearly stated during the cablecast at least once every half hour. . (2) Neither Grantee nor any User may use the channels whose use is authorized by Grantor to raise funds for any other organization or any purpose other than those stated in clause (i) of this SubseCtion (c). This shall not prevent public service announcements, including announcements of fund-raising events or activities. (3) During an auction or similar activity, credit announcements may identify particular products or services, but .shall not include promotion of such products or services beyond that necessary for the specific auction purposes. Visual exposure may be given, including the underwriter's name and trademark, and product or service, or a representation thereof. Page 15 _CHANNEL USE AGREEMENT 3.05 Pro.qrammin.q Liabilit,F. Notwithstanding the requirements imposed on Grantee by this Agreement, Grantee shall be fully responsible for all programs cablecast on channels granted herein. Grantee agrees to indemnify and hold harmless Grantor, the County of Sacramento, and the Municipalities of Sacramento, Folsom, Gait, and any other municipality within the County of saCramento that is a member of the Cable Television Commission, from any and all claims or other injury (including reasonable cost of defending claims or litigation) arising from or in connection with claims of loss or damage to person or property arising out of the failure to comply with any applicable laws, rules, regulations, or other requirements of local, state, or federal authorities, for claims of libel, slander, invasion of privacy, or infringement of common law or statutory copyright, for breach of contract or other injury or damage in law or equity which claims result from Grantee's use of char~nels, funds, equipment, facilities, or 'staff provided under this Agreement. , 3.06 Cooyri.qht Clearance._. a) . Before cablecasting video transmissions, Grantee shall make, and shall require all Users to agree in writing that they shall make, all appropriate arrangements to Obtain all rights to all material cablecast and clearances from broadcast stations, networks, sponsors, music licensing organizations' representatives, and without limitation from the foregoing, any and all other persons as may be necessary to transmit its or their program material over Grantee's authorized channel. Grantee shall maintain for the applicable statute of limitations for Grantor's inspection, upon reasonable notice by Grantor and for the term of the applicable statute of limitations, copies of all such clearances and releases. b) Before cablecastin9 transmissions for audio use only, Grantee shall, and shall require all Users to agree in writing that they shall, obtain all required rights to all material.cablecast and shall obtain all required clearances from broadcast stations, networks, sponsors, music licensing 'organizations' representatives, and without limitation from the foregoing, all other persons as may be necessary to tranSmit its or their program material over GrantoCs cable television system. Grantee shall maintain for Grantor's inspection, upon reasonable notice by Grantor, copies of all such clearances and releases that are received by Grantee. In the event that procedures are developed for obtainin9 clearances for the cablecasting of audio transmissions which are similar to the procedures for obtainin9 clearance for cablecasting video transmissions, then, at such time, any Grantee or User cablecasting audio transmissions shall observe the requirements of the preceding Subsection a), to the extent applicable. 3.07 _Copvri.qht and Ownership. Grantee shall have an ownership interest in the copyright of all programs and materials sufficient to control distribution and re- presentation and shall own such an interest in all programs and materials produced by Grantee with funds, equipment, or staff provided under this Agreement. .. Page 16 .CHANNEL USE AGREEMENT 3.08 pistribution Ri,qht~. a) Grantee shall require that, except with Grantor's permission, all programs produced in whole or in part with Funded Equipment, Facilities, or Staff granted under this Agreement shall be distributed on the channels whose use is authorized by this Agreement. This subparagraph shall not be interpreted to restrict other distribution (beyond that distribution on channels authorized by this Agreement), so long as such other distribution is consistent with section 2.06 of this Agreement. b) Additional payments required to obtain cable television distribution rights for programs acquired primari y for broadcast use may be made by Grantee from funds granted under this Agreement. c) At the beginning and. end of_each day that video programming is cablecast on the channel(s) whose use is authorized by this Agreement, Grantee shall display a credit stating "Funds for the operation of this channel are provided in part by the Sacramento Metropolitan Cable Television Commission". The current address and telephone number of the Commission shall also be displayed. d) Grantee may exchange programming with commercial broadcast channels provided that (1) Grantee obtains permission from all persons who have an interest or right in the programming; (2) the commercial broadcast channel credits the programming to Grantee under the auspice~ of Grantor; (3) the programming has first been cablecast on the channels provided for under this Agreement; (4) Grantee receives programming from the commercial broadcast channel for cablecasting on the channels provided for under this Agreement that Grantee's Board determines to be of value to Grantee and viewers of the channels provided for under this Agreement. (5) and such other terms and conditions as the Grantee's' Board determines. e) If programming produced with funds provided for under this Agreement is exchanged for programming from a commercial broadcast channel, as provided for under subsection d), above, the commercial broadcast channel may broadcast the programming with commercials, if Grantee's Board so authorizes. f) Grantee shall report to Grantor in writing annually, on the anniversary date(s) of this Agreement, on the programming exchanged and the terms of the exchange(s), including but not limited to any money or other consideration Page 17 CHANNEL USE AGREEMENT received by Grantee for the exchange, made pursuant to subsection d) of this section; and on whether, and to what extent, commercials were inserted into the programming by commercial broadcast channels, as permitted by subsection e) of this secti'on. g) Subsections d), e), and f), constitute a pilot program on programming exchanges which shall terminate on June 30, 2001, unless extended by Grantor, in its sole discretion: The reports due from Grantee under subsection f) are intended to provide Grantor with sufficient information to determine whether to extend, modify and extend, or terminate all or any portion of this pilot program. 3.09 _Authority of Grante~. Grantee shall have sole discretion to resolve the following types of issues and~uestions with regard to Community Prograrru'ning: a) The time or date on which a Particular program will be cablecast; b) Whether the content of a padicular program is sufficiently related to the subject matter of a particular theme channel to warrant cablecast on that channel as distinguished from another channel; c) Whether the production quality of a padicular program is sufficient to warrant cablecasting to subscribers; d) In the event of a demand to program channels or time thereon allocated to Community Programming which exceeds the capacity of the channels (i.e., a demand for programming which exceeds the volume which can be accommodated by twenty-four (24) hours per day, seven (7) days per week cablecasting), the determination of which programs are to be cablecast and which are not; e) The permissible length of program; f) The appropriateness of the content ofprogr'ams; g.)The mon(~polization by particular users of production facilities or equipment; h) In the event of a demand to utilize production facilities or equipment which exceeds capacity, determination of who will be permitted use and who will not be; i) Denial of the use of facilities or equipment on the baSis of past abuse, misuse, or inadequate care thereof; and, J) Determination of how staffing for Community Use Programming will be allocated to assist particular parties in the production of programming or assist in the production of particular types of programming. Page 18 _CHANNEL USE AGREEMENT 4.00 EQUIPMENT 4.01 Ec~uipment OwnershiE. a) All Non-Funded and Funded Equipment, Facilities, and capital improvements shall remain the property of Grantee and shall be identified as such utilizing appropriate markings in a prominent and conspicuous place upon said equipment. b) Upon the termination, revocation, or cancellation of this Agreement, Grantee shall immediately, at Grantee's option, either deliver to Grantor all Funded Equipment, exclusive of fixtures, then in Grantee's possession or reimburse Grantor for the then Market Value of all Funded Equipment, or the proportional interest of the Commission-funded portion thereof then owned by Grantee or in Grantee's possession. Thereupon, Grantor shall apply all of such Funded Equipment and/or the proceeds thereof to the furtherance of Community Use and/or Public Access Programming as these terms are defined in the Franchise Ordinance. c) Upon the dissolution of Grantee, Grantee shall, subject to the approval of. Grantor, dispose of all assets of Grantee representing Funded Equipment, Funded Facilities, and/or the proceeds of either, as provided in Grantee's Articles of Incorporation, or to such oi'§anization or organizations organized and operated exclusively for charitable or educational purposes as shall at the time qualify as an exempt organization or organizations under section 50'1(c)(3) of the Internal Revenue Code of -1954 (or the corresponding provisions of any future United 8tares Internal Revenue Law), as Grantor shall determine to the extent alloWable by law. 4.02 _Equipment Maintenance.. Granlee shall be responsible' for all maintenance and repair of Funded Equip~nent and Facilities within a reasonable time after the need for such maintenance and/or repair becomes reasonably apparent. Grantee shall adopt policies regarding use of Funded Equipment to ensure that only qualified persons use said equipment. [As to RCCTV--Excluded] 4.03 _Equipment Insurance. Grantee shall maintain insurance upon all Funded Equipmen~t and Facil~ies, exclusive of fixtures, to a value of, al: a minimum, the lesser of.fair market value or replacement cost of the Funded Equipment and Facilities. Said insurance shall include, al a minimum, insurance against loss or damage beyond uSer control, theft, or damage due to a natural catastrophe. 8aid policy shall be mainlained by the Grantee throughout the life of this Agreement. Such insurance and the obliqations of Grantee hereunder shall also be subject to Section '1.06 of this Agreement. [As to RCCTV--Excluded] . Page 19 .,CHANNEL USE AGREEMENT 4.04 Equipment Replacement and Substitution_. [As to RCCTV-Excluded] a) Grantee shall be responsible for the replacement of all Funded Equipment damaged, lost, or stolen through the neglect, oversight, or willful abuse of Grantee or persons using the equipment under authority of Grantee, reasonable wear and tear excepted. [As to RCCT'V--Excluded] b) Grantor shall not be responsible for the replacement of Funded Equipment and Facilities, but Grantee may at its option use grant funds or insurance proceeds for such equipment. [As to RCCTV--Excluded] 4.05 Equipment Limitations. [As to RCCTV--Excluded] a) The expenditure of funds provided by Grantor under a Grant for the purchase of equipment, facilities, or capital improvements shall be subject to prior approval by Grantor or the Executive Director provided that Grantee may specify within its annual budget, as approved by the Commission, specific items of equiPment and approximate levels of expenditure for each such specific item of equipment. In such an event, Grantee may purchase such items without the further approval of the Commission if and only if all of the followin,~ conditions apply: (1) the budgeted amount for the piece of equipment so specified i~ less than one thousand dollars ($1,000); (2) the total all other pieces of equipment of the same type and utility so specified in'the same budget is less than one thousand dollars ($1,000); an~d (3) the price paid for eaCh such piece of equipment so specified and purchased does not exceed the amount specified therefore in the budget as approved by the Commission. [As to RCOTV--Excluded] b) Any such expenditure that is Specifically included in a Grant shall not require further approval under this section. [As to RCCTV--Excluded] c) Grantee shall not sell or transfer Funded Equipment or Facilities without the prior written approval of Grantor. [As to RCCTV--Excluded] d) Grantee shall use said equipment and facilities primarily for the purposes outlined in the Grant. [As to RCCTV--Excluded] 5.00 FACILITIES 5.01 _Restrictions on the Use of Facilit e.~, Grantee shall take reasonable steps to insure that any User of Funded Equipment or Funded Facilities who is-under the age of eighteen, be accompanied by a responsible adult, and to deny access to use of any of the resources granted pursuant to any grant to any User who has established a pattern of past abuse of equipment. 5.02 _Public Access Facilities. Whenever a Grant approved pursuant hereto specifies the provision of programs, services, and activities relating to "public access", Grantee shall designate production area, facilities and equipment, both Funded and Non- Page 20 _CHANNEL USE AGREEMENT : Funded, for public access use. Such designated production area, facilities, an(j equipment shall include, at a minimum, a produCtion area, a camera and SOund system, necessary lighting and support facilities and editing and related production facilities,, subject to the reasonable regulations of Grantee ("Public Access Facility!'). Public Access Facilities shall be available for use by members of the general public, non-profit organizations and public agencies on a first-come-first-served basis. The actual hours and days such Public Access Facilities are open and available for such use shall be prescribed by Grantee, which may prescribe different hours or days of use, and may change the prescribed hours or days from time to time during the term of this Agreement for the purpose of relating use availability to use demand; provided, however, that no use thereOf for the production, cablecasting or broadcasting of public access programming by members of the general-public is delayed more than seventy-two (72) hours after a request for use. 5.03 ~. During all hours the Funded Facilities are open anc~ available for use by members of the general public, non-profit community organizations or public agencies, each such facility shall be directly supervised by Grantee through qualified and 'responsible persons on-site, for the purpose of insUring safety of users of the facilities, effective and efficient utilization of equipment, appliances, hardware and other personal and other property, and protecting such property from abuse, damage, destruction, theft, loss or other harm. IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives effective this 3rd day of June, 1999. "Grantor": Grantee: SACRAMENTO CoMMUNiTY CABLE FOUNDATION, DBA Access Sacramento S/gnature..~ Type Name: _ '/~ ~'~ .h' Exhibit A: Insurance Certificate ChannetUseAgrMstr (99-141) . · Page 21 iRECE VED M E M O R A N D U M ~,i - :; C~TY h~AN~,GEF~'S OFFICE July 3, 2001 TO: LEGISLATIVE & LITIGATION COMMITTEE SUE BENHAM, Chair DAVID COUCH JACQUIE SULLIVAN FROM: BART J. THILTGEN, CITY ATTORNEY ~ SUBJECT: TIMING OF COUNCIL CONSIDERATION OF ORDINANCES CONCERNING EXPANSION OF SKATEBOARD RESTRICTIONS AND TOBACCO SELF- SERVICE DISPLAYS During the Legislative and Litigation Committee meeting of June 25, 2001, the Committee voted to recommend the subject ordinances for adoption by the City Council. Staff was instructed to adjust the Skateboard Restriction Ordinance to apply only to a limited area within the Old Town Kern Redevelopmentarea (in addition to the Central Traffic District). We are currently attempting to arrive at a consensus with the Old Town Kern PAC to establish this limited area. It is anticipated that such consensus will be obtained in the latter portion of July. Therefore, it is planned to submit the adjusted ordinance to the Council on August 8, 2001 for first reading and August 22, 2001 for final adoption. Regarding the Tobacco Self-Service Display Ordinance, it was indicated during the Committee's meeting that Council Member Benham would be absent from the August 8,2001 Council meeting and she wanted to be present for the Council's consideration of the final adoption. Therefore, we are placing this ordinance on the August 8, 2001 Agenda for first reading with second reading scheduled for August 22, 2001, when Council Member Benham will be present. Also, for the Committee's information, the recent decision of the United States Supreme Court upheld the right of a state (including local government) to regulate the accessibility of tobacco products as neither being a restriction of free speech, nor preempted by federal law. This regulation of accessibility is precisely what the proposed ordinance prohibiting self-service tobacco product displays' is designed to accomplish. BJT:alj cc: Honorable Mayor and City Council Members Alan Tandy, City Manager Trudy Slater, Administrative Analyst S:\COUNCIL\M EMOS\Leg&Lit. SkateboardTobacco.wpd M E M O R A N'D U M June 4, 2001 TO: LEGISLATIVE AND 'LITIGATION COMMITTEE SUE BENHAM - Chair DAVID COUCH JACQUIE SULLIVAN BART J. THILTGEN, CITY ATTORNEY / FROM: GINNY GENNARO, DEPUTY CITY ATTORNE~/~,~,,,.-~X/ SUBJECT: SKATEBOARD ORDINANCE CHANGE //[,/ L.~ At.the request of EDCD (please see attached memo from Donna Kunz ), the following ordinance revision is proposed: 10.'52..010 Restrictions on use i~, ~^~'-~' '-~..^ -,:~,-:~, ~:~.. &,',~ll ~A ^,l.k.-,~ ~:,l-~, ~..,~A k,,;I..J;~.. ~E_x_cept as to areas.which are _sp_ecifical!y de_si~q.Qated and posted t~ p_ermit such uses~ it is unlawful for any person upon a bicycle, r-oriel skates {jnline or otherwise..~, skateboard or by means of any coaster, toy vehicle or similar device to go upon any ~ sidewalk in the central traffic district, as defined in Section 10.08.020, or,_ uEo. n___a~0y__s~idewalk within all c~ty~_c_ommercial zones as they.are defined within C_hap_ter 17 'herein,9_r upon the steps, landings, entranceways or halls of city hall or any other city-owned building ..... · .,.- ~^ ~" '"~': ...... ~-:^~- .... :~.~,,., '~'~'~'"~'~'~ '~'"~ ,'~,~, ~,~ ~,~, ,,,-.~,~.,, use~. (Ord. 3237 § 1, 1989: Ord. 2607 § 5, 1980: prior code § 11.04.280) First reading of the Ordinance would be as follows: 10.52.010 Restrictions on use. Except as to areas which are specifically designated and posted to permit such uses, it is unlawful for any person upon a bicycle, skates Online or otherwise), skateboard or by means of any coaster, .-toy vehicle or similar device to go upon any city sidewalk in the central traffic district, as defined in Section 1'0.08.020, or, upon any sidewalk within all city commercial zones as they are defined within Chapter 17.herein, or upon the steps, landings, entranceways or halls of city hall or any other city-owned building. (Ord. 3237 § 1, 1989: Ord. 2607 § 5, 1980: prior code § 11.04.280) GG:alj Attachment cc: Alan Tandy, City Manager Donna Kunz, Economic Development Director S:\COUNCIL\MEMOS\Leg&Lit .Skateboard 10.52.010.wpd BAKERSFIELD Economic and Community Development Department M E M 0 RAN D U M April 13, 2001 TO: Bart Thiltgen, City Attorney /"~.¢V¢:~''' ' FROM: Donna L. Kunz, Economic Develo.¢ment Director SUBJECT: Expansion of Skateboard Restrictions to Old Town Kern Area Recently this department has received inquiries from merchants and business owners in the Old Town Kern/Baker Street area asking 'how the City can restrict skateboarders in their business areas. They asked if signs could-be :posted. Our review of the Municipal Code (10.52:010) shows that the suoh restrictions are currently limited to a designated central traffic district as defined by 10.80.020A (essentially the downtown). Could you review the current ordinance and determine the feasability of expanding or adding another designated zone which restriots skateboarding? It might be that other merchant areas would have a similar interest, but the Old Town Kern group has asked for the help and I would like to be able to respond. Please let me know if I or someone from my staff could.be of assistance to you. Thank you. dlk:S:klF, skatcboard ord mcmo.wpd MEMORANDUM June 19,2001 TO: LEGISLATIVE & LITIGATION COMMITTEE SUE BENHAM, Chair DAVID COUCH JACQUIE SULLIVAN SUBJECT: UPDATE ON TOBACCO SELF-SERVICE DISPLAYS At the request of Council Member Benham, this issue is being presented to the Legislative & Litigation Committee. As background, the issue of tobacco self-service displays was before this Committee on August 20, 1998 and again on September 17, 1998. Copies of the minutes for both of these meetings are attached as Exhibits "A" and "B" respectively. In a nutshell, this Committee considered an ordinance banning self-service tobacco displays from stores within City limits. Because there were several cases pending throughout the United States governing tobacco sales, advertising and related issues, the Committee thought it best to proceed with a Resolution encouraging the voluntary ban on self-service tobacco displays rather than an ordinance. Such a Resolution was adopted by Council on October 7, 1998, and a copy is attached as Exhibit "C" for review. In 1999, the United States Court of Appeals for the Ninth Circuit, which governs our jurisdiction, rendered a decision in the matter of Lindsey v. Tacoma-Pierce County Health Department. In that decision, the Court found that the 'County ordinances attempting to regulate tobacco advertising were pre-empted by the Federal Cigarette Labeling and Advertising Act as well as the Washington Tobacco Access to Minors Act and were an unconstitutional regulation of commercial speech under the First Amendment. As such, retailers within Tacoma County are free to post cigarette advertising in their storefronts and large outdoor tobacco advertising billboards are governed within the master settlement agreement with the tobacco industry. Legislative & Litigation Committee June 19, 2001 Page No. 2 The Technical Assistance Legal Center (TALC) believes that the decision by the Ninth Circuit is different from ordinances passed by other California communities regulating tobacco advertising because the Tacoma-Pierce County resolution was issued by a local board of health and contained explicit health-related findings. As it stands now, the City of Bakersfield has a Resolution encouraging voluntary compliance in banning self-service tobacco displays. A sample ordinance which could replace the Resolution is attached for the Committee's review; however, the United States Supreme Court recently heard oral arguments in a case challenging a Massachusetts regulation limiting advertising near schools and playgrounds. It is believed that the Supreme Court's decision will be critical in defining the limits of local governments' ability and authority to regulate tobacco advertising. For this reason, and in light of the Ninth Circuit decision, pending cases as well as enforcement and amortization concerns, it is suggested that the Committee not proceed with the ordinance at this time. BJT:VG:Isc Attachments cc: Honorable Mayor and City Councilmembers Alan Tandy, City Manager S:\COUNClL\MEMOS\Leg&Lit. TobaccoDisplayswpd.wpd B A K E R S F I.E L D Alan Ta~)', citYlManager Jacquie Sullivan, Chair Staff: Trddy Slater Irma Carson Patricia DeMond AGENDA SUMMARY REPORT LEGISLATIVE AND LITIGATION COMMITTEE Regular Meeting Thursday, August 20, 1998 4:00 p.m, City Manager's Conference Room 1. ROLL CALL Called to order at 4:12 p.m. Members present: Councilmember Jacquie Sullivan, Chair Councilmember Irma Carson Councilmember Patricia DeMond 2, APPROVAL OF JUNE 18, 1998 MEETING MINUTES Approved as submitted. 3. PRESENTATIONS None 4. PUBLIC STATEMENTS None 5. DEFERRED BUSINESS None. .Agenda Summary Report Legislative and Litigation Committee August 20, 1998 Page -2- 6. NEW BUSINESS A. LEAGUE VOTING DELEGATE AND ALTERNATE TO ANNUAL CONFERENCE Administrative Analyst Trudy Slater explained that as an importani part of the League of California Cities. Annual Conference each member city is asked to designate a Voting Delegate and an Alternate who will be present at the Business meeting. Through its Delegate, each city has one vote on matters affecting municipal and/or League policy. The City Council typically makes appointments from among those elected leaders attending the Annual Conference. Committee members Irma Carson and Jacquie Sullivan indicated they would be attending the League meeting after the , celebrations for the opening of the Bakersfield Centennial Garden. After discussion, the Committee recommended that a recommendation be forwarded to Council to have Irma Carson appointed Voting Delegate and Jacquie Sullivan appointed as Alternate. The appointment of the Voting Delegate and Alternate will be placed on the September 9, 1998, Council agenda in order to comply with the League's request for a response by September 18. B. CLEANUP LEGISLATION: HOUSE NUMBER CURB PAINTING; SEISMIC SURVEY ACTIVITIES; AND PARADES Chief Assistant City Attorney Bob Sherry explained that the requested changes in the three ordinances before the Committee at this time were part ofthe City's on- going efforts to try to maintain the same general format across different ordinances. Changes in the ordinances related to: requiring weekly instead of daily reports in the curb painting ordinance; no posting requirements on equipment in the seismic survey ordinance; and no less than two working days notice in the parade ordinance. After several Committee questions and comments, the Committee directed staff to send a courtesy copy of the proposed change.s in the parade ordinance, to Harvey Hall as he was the individual who was most involved with parades in downtown Bakersfield. A motion was made, seconded and 'passed to forward the proposed ordinances to Council for approval. Agenda Summary Report Legislative and Litigation Committee August 20, 1998 Page -3- C. TOBACCO FREE COALITION REQUEST REGARDING SELF-SERVE TOBACCO DISPLAYS ' Administrative Analyst Trudy Slater explained that the City Council had on July 17 referred to the Committee the Toba~:co Free Coalition's request for a ban on self- service tobacco displays in the City. She indicated the Coalition was a group committed to .reducing tobacco use in the county, and one of its goals was to provide information to the public and policy makers on tobacco-related health issues. Ms. Scarlett Sabin, of.the American Heart Association and the Tobacco Free Coalition, spoke regarding the Coalition's desire to have Bakersfield ban self-service tobacco displays as has been done by Shafter and other cities. She indicated that banning self-service displays meant removing open racks of tobacco so that all tobacco sales would require the assistance of the store clerk. She further stated that banning self-service displays was an important step in discouraging teens from experimenting with tobacco, both by limiting opportunities for shoplifting and requiring purchaser identification. Ms. Sabin thanked the Committee for allowing them to.speak on the issue. Upon questioning by the Committee, Chief Assistant City Attorney Bob Sherry responded that research had indicated there were several cases in the courts, including one in the 9th Circuit which would apply to Bakersfield. Waiting until an opinion was published was desirable to avoid Bakersfield's becoming a test case. Although court case lengths varied greatly, Bob estimated some kind.of published opinion should be available in six to twelve months. Leslie Fiedler, Kern County Health Department and' Tobacco Free Coalition indicated in the last two days the Coalition had visited 76 Bakersfield stores. Their definition of a self-service display was any rack where tobacco could be picked up, even on the counter, without the assistance of the store clerk. Almost 80% of the stores visited had some type of self-service display of a tobacco product. After discussion among Committee members who were supportive of the group's educational efforts relating to tobacco, Committee member Patricia DeMond moved that the Committee forward to Council'a Council resolution indicating policy support of a ban on self-service tobacco displays. A letter from the Mayor was to act as a cover letter. Committee member Irma Carson seconded the motion, and staff was · instructed to place it on the September 9 Council agenda. Agenda Summary Report Legislative and Litigation Committee August 20, 1998 Page -4- Committee members encouraged the groups.to distribute the resolution and letter to affected businesses through th'eir volunteers and youth groups. Further recommendations included suggestions for the groups to obtain media coverage, possibility involving the Mayor or recognizing businesses for their efforts. 7. ADJOURNMENT The meeting adjourned at 4:49 p.m. Staff Attendees: Administrative Analyst Trudy Slater; Chief Assistant City Attorney Bob Sherfy; Deputy City Attorney Virginia 'Gennaro; Treasurer Bill Descary Other Attendees: John Digges;Jennifer Henry, American Cancer Society; Jillian Hallman; Leslie Fiedler; Ralph Anthony; LaMesha Doak; Tahra Gorayah; Scarlett Sabin (P:\L&L\L980820.MIN) BAKERSFIELD · : Irma Carson Patricia DeMond AGENDA SUMMARY REPORT · LEGISLATIVE AND LITIGATION COMMITTEE Regular Meeting Thursday, September 17, 1998 4:00-p.m. City Manager's Conference Room 1. ROLL CALL Called to order at 4:20 p.m. Members present: Councilmember Jacquie Sullivan, Chair Councilmember Irma Carson .Councilmember Patricia DeMond 2. APPROVAL OF AUGUST 20, 1998 MEETING MINUTES Approved as submitted. 3. PRESENTATIONS None 4. PUBLIC STATEMENTS None Agenda Summary Report Legislative and Litigation Committee September 17, 1998 Page -2- 5. DEFERRED BUSINESS A. RESOLUTION ENCOURAGING THE BANNING OF SELF-SERVICE TOBACCO DISPLAYS Chairperson Jacquie Sullivan explained the.proposed resolution urging a voluntary ban on self-service tobacco displays had been pulled from the Council agenda at the meeting of September 9 because the Tobacco Free Coalition of Kern had provided her with additional information indicating there had been no legal challenges to bans in other cities. She urged the committee to take a hard stand on easy-access tobacco displays. She added cigarette companies provided vendors with suitable displays where bans were in place. Additional information items from the Tobacco Free Coalition were handed out to the Committee and a short video played illustrating the ease with which under-age children could get cigarettes. Photographs.of self-service displays were 'also passed around to the Committee. Dr. John Digges stated voluntary display bans had not worked in other communities and an ordinance leveled the playing field on tobacco sales. Upon questioning, Chief Assistant City Attorney Bob Sherry stated a number of issues needed to be addressed, including: the immediate action of a resolution; mechanisms for enforcement; the need to carefully craft the ordinance to avoid the City's becoming a "test case" for challenges; pending court case which may influence such ordinances; and the need to be especially careful as the state and federal governments have numerous laws governing tobacco sales, advertising and related issues. Mr. Sherry indicated Pasadena, a city similar in size to Bakersfield, had an ordinance but was not yet enforcing it. That ordinance would eventually be enforced through Pasadena's health department, which is operated by the'City of Pasadena and not the county. The consensus of the Committee was to move forward with the resolution, and members asked that it be placed on the next Council agenda as an item which arose after the preparation of the 'agenda. The administrative report to the resolution would explain the City was moving forward with crafting an ordinance banning self-service tobacco displays. Agenda Summary Report Legislative and Litigation Committee · September 17, 1998 Page -3- The City Attorney's Office was further directed to begin working on a narrowly defined ordinance which would comply with the needs of the City. Mr. Sherfy was asked to contact the County to seek its involvement and to see if shared responsibility was an option. Dr. John Digges.will disseminate to the community the resolution and a cover letter from the Mayor. Other community-based organizations could help as well. · 6. NEW 'BUSINESS A. REVIEW AND RECOMMENDATIONS FOR LEAGUE OF CALIFORNIA CITIES PROPOSED RESOLUTIONS Administrative Analyst Trudy Slater indicated that recommendations had been received from department heads on most resolutions and explained the reasons for the various recommended positions. After discussion, the Committee directed staff to forward tothe City Council the following positions for the 21 proposed League propositions: Approve: Resolutions 1, 2, 13, 14, 15, 19, 21 Approve as amended: Resolutions 5, 6, 8, 9, 10, 16, 17 Refer to appropriate policy committee for study: Resolution 18 Amend and. refer to appropriate policy committee for study:. Resolutions 11 No action: Resolutions 4, 7, 12, 20 Disapprove: Resolution 3 The recommendations will be placed on the September 23 Council agenda for Council approval and direction to the League Voting Delegate. 7. ADJOURNMENT The meeting adjourned at 5:12 p.m. Staff Attendees: Administrative Analyst Trudy Slater; Chief Assistant City Attorney Bob Sherry; and Deputy City Attorney Virginia Gennaro Other Attendees: John Digges; Leslie Fiedler; Loren Hall; and Scarlett Sabin (P:~L&L~L980917.MIN) RESOLUTION NO. I 2 18- 9 8 A RESOLUTION ENCOURAGING MERCHANTS TO REGULATE THE MANNER OF SALE OF TOBACCO PRODUCTS. WHEREAS, the Surgeon General of the United States labels smoking "the largest single preventable cause of premature death and disability for the U.S. population"; and WHEREAS, the National Centers for Disease Control have found that at least 434,000 Americans die each year from tobacco-caused diseases; and WHEREAS, the Surgeon General of the United States and the United States Department of Health and Human Services have found that a majority of those Americans who die of tobacco-caused diseases become addicted to nicotine and tobacco products as adolescents before the age of legal consent; and WHEREAS, the National Institute on Drug Abuse has concluded that the nicotine in tobacco products is a powerful addictive drug and identifies nicotine addiction as the most wide-spread example of drug dependence in the United States; and WHEREAS, the Surgeon General of the United States has found that nicotine and tobacco products are as addictive as cocaine and heroin; and WHEREAS, a state-wide survey' conducted in 1997 found that nearly'22% of tobacco retailers in California were willing to illegally sale tobacco to minors and that even those conscientious merchants will not sale to minors may inadvertently contribute to the problem by placing their products in open racks or shelves where they could easily be shoplifted; and WHEREAS, City Council recognizes and supports the efforts of the Tobacco-Free Coalition of Kern County and its efforts to reduce tobacco use and tobacco-related disease on the youth within our community; WHEREAS, in an effort to support the goals of the Tobacco-Free Coalition of Kern County, the City Council supports a ban of self-service tobacco displays and a requirement that requires tobacco products be placed behind a counter or in a locked case to require vendor assistance sales in an effort to prevent tobacco shoplifting from minors, discourage younger adolescents from attempting to purchase tobacco, and promote identification checking by store clerks. Page 1 of 3 EXHIBIT'", C" NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Bakersfield as follows: t. Theabove recitals and findings are true and correct. 2. That the City Council of the City of Bakersfield encourages all business owners and merchants within the City to voluntarily ban displays for sale of any tobacco product or tobacco promotional product by means of self- service merchandising or by means of other than vendor/assistance sales. 3. That the City Council of the City of Bakersfield encourages all business owners and merchants within the City to voluntarily ban the installation or keeping or use or maintenance of any vending machine for the purpose of selling or distributing any tobacco products. 4. That the City Council. of the City of Bakersfield encourages all business owners and merchants within the City to reduce the acceptability and expectation of tobacco use among youth and to discourage the making of tobacco products appealing and attractive to youth. .......... ooo00ooo ........... Page 2 of 3 Council of the City of Bakersfie d at a regular meeting thereof held on by the following vote: AYES: COUNCILMEMBER CARSON, DEMOND, SMITH, MCDERMOTT R~t'EE~, SULLIVAN, SALVAGGIO NOES: COUNCILMEMBER ,,~,0/M.~-, ~ ~ ' ABSTAIN: COUNCILMEMBER ,A/ ABSENT: COUNCILMEMBER_ CITY CLERK and Ex Officio Clerk~f the Council of the City of Bakersfield APPROVED BOB PRI~E' ~'' '~ MAYOR of Bakersfield APPROVED as to form: ROBERT M. SHER/FY Chief Assistant City Attorney / By: ,,' VIRGINIA GENNARO .. Deputy City Attorney VG:cj S:\COUNClL~Resos\Tobacco. Res.wpd Page 3 of 3 ORDINANCE NO. AN ORDINANCE OF THE CITY OF BAKERSFIELD ADDING CHAPTER OF THE BAKERSFIELD MUNICIPAL CODE RELATED TO TOBACCO USE PREVENTION. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Chapter of the Bakersfield Municipal Code is hereby added to read as follows: [Chapter No.] Tobacco Use Prevention Ordinance [Section No.] Short title. This ordinance shall be known as the "tobacco use prevention ordinance". [Section No.] Findings and purpose. The City Council finds that the smoking of tobacco, or any other weed or plant, is a positive danger to health and a material annoyance, inconvenience, discomfort and a health hazard to those who are present in confined spaces, and that smoking rates are on the increase among the youth population of Kern County. In addition, the U.S. Surgeon General and the U.S. Environmental Protection Agency have concluded that secondhand smoke causes lung cancer and heart disease in healthy non-smokers. In order to promote public health, safety and welfare, the declared purposes of this Chapter are to prohibit the smoking of tobacco, or any weed or plant, in public places and places of employment, to proteCt the public health by restricting public exposure to secondhand smoke, and to restrict youth access to tobacco products, as stated and required in this chapter. [Section No.] [Title,] A. "Vendor-assisted sale" means a purchase requiring a direct, face-to-face exchange between the retailer and the customer, in which the'vendor has access to the tobacco product, and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased. B. "Tobacco product" means any manufactured substance made from the tobacco plant, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco and smokeless tobacco, or products prepared from tobacco and designed for smoking or ingestion. C. "Cigar lounge" means a private smokers' lounge of an enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products, including but not limited to cigars and pipes. Page 1 of 3 EXHIBIT" ,D" D. "Tobacco shop" means a business establishment whose main purpose is the sale-of tobacco products, including but not limited to cigars, pipe tobacco, and smoking accessories. [Section No.] [Title,] A. Restaurants, hotel lobbies, and common areas within hotels and motels, excluding guest rooms. [Section No.] Requirement of vendor-assisted sales. It shall be unlawful for any person, business, or tobacco retailer to sell, permit to be sold, or offer for sale any tobacco product by means of a self-service display, cigarette vending machine, or by any means other than vendor-assisted sales. This prohibition shall not apply to tobacco shops and cigar lounges. A "self-service display" is the open display of tobacco products which the public has access to without the intervention of a store employee, including but not limited to a rack, shelf, or counter-top display. [Section No.] Purchaser Identification. The seller of any tobacco products shall require photograPhic identification if a purchaser reasonably appears to be under 27 years of age. In compliance with federal and state law, tobacco products shall not be sold to anyone under 18 years of age. [Section No.] [Title.] A. Any owner or manager of a business or other establishment subject to this' chapter may apply to the city health officer for an exemption or modification to any provision of this chapter due to unusual circumstances or conditions not related to youth acce'ss to tobacco products or the public's exposure to secondhand smoke. Such exemption shall be granted only if the city health officer finds from the evidence presented by the applicant for exemption either that: 1. The applicant cannot comply With the provisions of this chapter for which an exemption is requested without incurring expenses for structural or other physical modifications, .other than posting signs, to buildings and structures; or 2. Due to such unusual circumstances, the failure to comply with the provision for which the exemption is requested will not result in a danger to health or annoyance, inconvenience or discomfort. SECTION 2. 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. .............. O0o .............. Page 2 of 3 I HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on , by the following vote: AYES: COUNCILMEMBER CARSON, DEMOND. SMITH, MCDERMOTT, ROWLES, SULLIVAN, SALVAGGIO NOES: COUNCILMEMBER ABSTAIN: COUNClLMEMBER ABSENT: COUNCILMEMBER CITY CLERK and EX OFFICIO of the Council of the City of Bakersfield APPROVED: BOB PRICE, MAYOR CITY OF BAKERSFIELD APPROVED AS TO FORM' ROBERT M. SHERFY CHIEF ASSISTANT CITY ATTORNEY By;, VIRGINIA GENNARO Deputy City Attorney VG:cj September 24, 1998 S:\COUNCIL\Ords\TobaccoOrd.wpd Page 3 of 3 BAKERSFIELD M E M O R A ~N D 'U M June 15, 2001 TO: LEGISLATIVE AND LITIGATION COMMITTEE STAFF TO LEGISLATIVE AND'LITIGA?ION COMMI-'I'rEE ~" SUBJECT: TOBACCO SELF SERVICE DISPLAY INFORMATION In July of 1998 the issue of tobacco self service displays was referred to the Legislative and Litigation Committee. A resolution encouraging the banning of self-service tobacco displays was placed on the Council agenda for that September but was returned to Committee for further review. A resolution encouraging merchants to regulate the manner of the sale of tobacco products was placed on the October 7, 1998 agenda and was approved by Council. The Tobacco Free Coalition of Kern County planned to use -the resolution in conjunction with a letter from the Mayor in a campaign to educate individuals about tobacco use with the goal of gaining voluntary compliance. Committee discussions in 1998 included increased costs to business, enforcement issues, pending court case influencing such tobacco self service display ordinances, and the need for careful construction of an ordinance as both the state and federal government had numerous laws governing tobacco sales, advertising and related issues. Attached is a copy of the 1998 resolution approved by the City Council, a copy of the Mayor's letter and an attached flyer of the Tobacco Free Coalition. (P:\L&L~vl0106152) Attachments cc: Alan Tandy, City Manager Bart Thiltgen, City Attorney RESOLUTION NO. ~, 28' 9 8 A RESOLUTION ENCOURAGING MERCHANTS TO REGULATE THE MANNER OF SALE i OF TOBACCO PRODUCTS. WHEREAS, the Surgeon General of the United States labels smoking 'the largest single preventable cause of premature death and ~disabilitY for the U.S. population"; and WHEREAS, the National Centers for Disease Control have found that at least 434,000 Americans die each year from tobacco-caused diseases; and WHEREAS, the Sargeon General of the United .States and the United States Department of Health and Human Services have found thai a .majority of those Americans who die of tobacco, caused diseases become addicted to. nicotine and tobacco products as adolescents before the-age of legal consent; and WHEREAS, the National Institute on Drug Abuse has concluded that the nicotine in tobacco-products is a powerful addictive drug and identifies.nicotine addiction as the most wide-spread example ofdrug dependence in the United States; and WHEREAS, the Surgeon General of the .United States has found that nicotine and tobacco products are as addictive as cocaine and heroin; and WHEREAS, a state-wide survey conducted in 1997 found that nearly 22% of tobacco retailers-in California were willing .to illegally sale tobacco to minors and that even those conscientious merchants will not sale to minors may inadvertently contribute to the problem by placing their products in open racks or shelf/es where they could easily be shoplifted; and WHEREAS, City Coundl-recognizes and supports the efforts of the Tobacco-Free Coalition of Kern County and its efforts~to reduce tobacco use and tobacco-related disease on the youth within our community; WHEREAS, in an effort to support the.goals of the Tobacco-Free CoalitiOn of Kem County, the City Council supports a ban of self-service tobacco displays and a requirement that requires tobaccoproducts be placed behind a counter or in a locked case to require vendor assistance sales in an effort to prevent tobacco shOPlifting from minors, discourage younger adolescents from attempting to purchase tobacco, and promote identification checking by store clerks. Page I of 3 -NOW, THEREFORE, BE IT RESOLVED .by the Council of the City of'Bakersfield as follows: 1. The above recitals and findings are true and correct. 2. That the City Council of the City of Bakersfield .encourages all business owners and merchants within .the 'City to voluntarily ban displays for sale of any tobacco product or tobacco promotional product by means of' self- service merchandising or by means of other than vendor/assistance sales. 3. That the City Council of the City of Bakersfield encourages all business owners and merchants within the City to voluntarily ban the installation or keeping or use or maintenance of any vending machine .for the _purpose of selling or distributing any tobacco products. 4. That the City Council of the City of 'Bakersfield encourages all business owners and merchants within the City to reduce the acceptability and expectation of tobacco use among youth and to discourage the making of tobacco products appealing and attractive to youth. ' oooO0ooo---- · Page 2 of 3 Council of the City'of-Bakersfield at a regular meeting thereof held on by the following vote: AYES: COUNCIl. MEMBER CARSON. DEMOND, SMITH, MCDERMOTT, I~t~'L'E~, SULLIVAN, SALVAGGIO NOES: COUNCILMEMBER ,Z~3/.~JL P'_~, ' ABSTAIN: COUNClLMEMBER ABSENT: COUNClLMEMBER CITY CLERK and.Ex ~Officio Clerl~ the Council of the City of Bakersfield APPROVED ~;~'1' ! ? 1~8 MAYOR of Bakersfield APPROVED as-to form: ROBERT M. SHER~_ Chief Assistant C,~y Attorney By: ,/~',',"?.,,,,..; .,.- ..i ,/ · ' - .V~GINIA GEI~NARO Deputy City Attorney VG:cj S ;lC,?,O UNClL~Re~estTol3acco.Re~.wlxl Page 3 of 3 November 25, 1998 Dear Store Owner: On October 7, 1998, the Bakersfield City Council adopted a.res01ution asking store owners to remove self-service displays of tobacco. Self-service displays are any open raCks in which tobacco products Can-be reached without the assistance of a clerk. This includes open .racks that are placed on the counter. We strongly encourage you to place your tobacco products--cigarettes, chewing tobacco, cigars, and pipe tobacco--behind the counter or in locked cases. Taking this simple step will greatly reduce minors' access to tobacco. As a store owner, you are aware that tobacco .products are the items most frequently stolen from stores. Overall, almost half of teenage smokers .have admitted stealing cigarettes. When this happens, everyone loses. Stores lose merchandise, while teens become addicted to a deadly drug. More than 188 cities and counties around the country have enacted ordinances that ban self-service displays of tobacco. In these jurisdictions, distributors have provided locking cases to store owners, so there is no cost to you to make your store-kid friendly. We are asking stores to voluntarily take advantage of this opportunity to get tobacco out of reach. of minors. In no way does removing open racks of tobacco discourage.adults from legally purchasing tobacco. This resolution is only intended to prevent kids from having easy access to tobacco. Requiring vendor-assisted sales has another advantage; younger teens are discouraged from attempting to-purchase tobacco when they must ask the clerk for the product. Public opinion supports strong policies that prohibit youth access to tobacco. As an important member of our business community, please consider removing your self-service displays. Yours truly, Bob Price Mayor Enclosures 1501 Truxtun Avenue * Bakersfield, California 93301 · (805) 326-3770 · Fax (805) 326-3779 ,For The Health Of Our Children.... Remove Self-Service ~"~ Remove Tobacco. Tobacc0,Displays. ~.~ Ads -That Are.Lower Keep tobacco behind the Than :3 FeetOr Ni counter.or .in locked cases. ~0 CheckPhotolDs & ,~ Make*Sure All PostReq~redSTAKE Employees Know The STAKE -Act & PC308. It'is againstthe ~law*to sell tobacco to minors BAKERSFIELD MEMORANDUM June 15, 2001 TO: LEGISLATIVE AND UTIGATION COMMI'R'EE FROM: TRUDY SLATER, ADMINISTRATIVE ANALYST Ill STAFF TO LEGISLATIVE AND LITIGATION COMMITTEE SUBJECT: LEAGUE OF CALIFORNIA CITIES ANNUAL CONFERENCE POLICY DEVELOPMENT PROCESS - INFORMATION As part of the annual process for reviewing policy decisions made at the League's Annual Conference, the Legislative and Litigation Committee is involved in two important procedures. First, it recommends to the City Council Voting Delegates and ~lternates to the League conference. Second, it .reviews and recommends to City Council positions on propositions proposed by the League. The propositions approved at the conference are used in the forthcoming year to provide policy guidance for the League. Typically, a written request is received from the League, prior to its annual conference, for the City to appoint a Voting Delegate and Alternate. The Legislative and Litigation Committee seeks to identify those Council members interested in being considered for the Voting Delegate and Alternate positions and makes recommendations to Council. Both the Delegate and Alternate are typically appointed from among those elected officials attending the conference. 'Many times in recent years the Voting Delegate and Alternate have been Legislative and Litigation Committee members. League propositions generally are forwarded to cities a .month prior to the Annual Conference. The Legislative and Litigation Committee quickly reviews the propositions received from the League, seeks input from Council and department heads relative to the impact of the propositions upon the City, and makes recommendations to Council. This allows the Council to quickly make decisions on each proposition and thus direct the Voting .Delegate .or Alternate to vote accordingly at the League General Assembly meeting. The Legislative and Litigation Committee .expedites -the flow of information from the City to4the League so that the City is adequately represented in the decision making process which sets the League policy direction for the upcoming year. This year's League conference is being held in Sacramento from Wednesday, September 12-15. The General Assembly meeting, where propositions are voted upon, will .be held on Saturday, September 15. Attached is a page from the League's annual conference flyer which explains in general terms the process followed in developing the League's policies through the submission and consideration of proposed resolutions. (P:%&L~vl0106151 ) Attachment cc: Alan Tandy, City Manager 'Bart Thiltgen, City Attorney HOW TO PARTICIPATE IN DEVELOPING LEAGUE POLICIES Policy development is one of the primary purposes of the annual ANNUAL CONFERENCE RESOLUTION conference. The conference provides cities an opportunity to CALENDAR OF EVENTS focu~ attention and to prepare a positive program to strengthen Friday, June 29 cities. Cities are the level of government closest and most responsive to the public. All city officials are welcome at and Deadline for submitting nominations for general may address pol!cy committee meetings, the general resolutions resolutions committee. committee meeting, and the annual business meeting. Monday, July 9 SUBMISSION OF RESOLUTIONS Deadline for submitting resolutions to the League's Resolutions for consideration at the conference may origi- Sacramento office. hate .from city officials, city councils, regional divisions, departments, policy committees, the board of directors, or Thursday, July 12 by petition at the conference. Resolutions to be considered Resolutions mailed to policy committee members. at the 2001 annual conference must be submitted to the League's Sacramento office at least 60 days prior to the Thursday - Friday, July 19-20 opening session of the League's general assembly. Resolutions Policy committees meet to review resolutions and make must be submitted no later than July 9, 2001 so citv officials preliminary recommendations. will have full opportunity to consider resolutions prior to the annual conference. Friday, August 10 Resolutions, including policy committee recommendations, CONSIDERATION OF RESOLUTIONS mailed to all cities. The League president refers each conference resolution to an appropriate policy committee for review. Policy commit- Wednesday, September 12 tees meet on Thursday and Friday, July 19-20, 2001, to Policy committees meet to review preliminary recommen- make preliminary recommendat4ons on the resolutions. The dations and m~ke final recommendations to the general committees meet again on Wednesday, Se-ptember 12, to finalize their recommendations, which are then reported to resolutions committee on resolutions assigned to the general resolutions committee Only resolutions that each committee. have a direct bearing on municipal affairs should be consid- ered or adopted at the annual conference. Friday, September 14 General resolution committee meets to consider and make LATE-BREAKING ISSUES recommendations on re'solutions presented. For those issues that develop after the normal 60:day dead- line, a resolution may be introduced with a petition signed Saturday, September 15 by designated voting delegates of 10 percent of all member Consideration of resolutions by general assembly at the cities. A resolution signed by 48 voting delegates shall be annual business meeting. presented to the League president no later than 24 hours prior to the time set for covering the League's general assembly. This deadline is 9:15 a.m., Friday, September 14, 2001. The initiative process should be reserved for truly late-breaking issues. If the parliamentarian finds that a petitioned resolution is identical or substantially similar in substance to a resolution already under consideration, the petitioned resolution ~will be disqualified. ADMINISTRATIVE REPORT MEETING DATE: June 13, 2001 AGENDA SECTION: Consent Calendar ITEM: .8. dd. TO: Honorable Mayor and City Council FROM: Eric Matlock, Chief of Police DEPARTMENT HEAD~ DATE: June 4, 2001 ClTY ATI'ORNEY · CITY MANAGER SUBJECT: Referral of taxi-cab revisions to Legislative & Litigation Committee RECOMMENDATION: Staff recommends referral of the matter to the Legislation & Litigation Committee. BACKGROUND: The Bakersfield Police Department desires to make several minor changes to the existing taxi-cab ordinance. At this point, the proposed changes deal with Sections 5.50.020 (Permits), 5.50.090 (Vehicle Identification), 5.50.110 (Numbers), 5.50.130 (Inspection), and 5.50.t40 (Taximeters). VG:a/j P:\RPT~admin TaxiCab 6-5-01.wpd June 5, 2001 JN13PD.NB CITY O'F BAKERSFIELD CALIFORNIA ERIC W. MATLOCK POLICE DEPARTMENT CHIEF OF POLICE (661) 326-3800 FAX (661) 852-2158 May 30, 2001 · Dear Taxi-'Cab owner: In the near future, the Bakersfield City Council will consider several minor changes to the Bakersfield Municipal Code relating to taxi-cabs. At this point, the proposed changes deal with Sections 5.50.020 (Permits); 5.50.090 (Vehicle Identification); 5.50.1 I0 (Numbers); 5.50.130 (Inspection); and 5.50.140 (Taximeters). For your review, an abbreviated version of the Bakersfield Municipal Code relating to taxi- cabs is enclosed and the proposed modifications to-these sections are in bold. If you have any questions, concerns or comments about the changes, please contact me at 326-3896. When the changes have been formally adopted, we will notify you in writing. Thank you for your attention to this matter. Sincerely, E. W. MATLOCK Chief of Police By LT. A. ZACk~cRY // ' Traffic Commanaer '~ AZ/crg 1601 TRUXTUN AVENUE P.O. BOX 59 BAKERSFIELD. ~..~,~ ~crb~t,,f~,~ c, qqno 30.de Mayo, 2001 Estimado Duefio de Compafiia de Taxi: En el pr6ximo futuro, .el Concilio de la Ciudad de Bakersfield considerar~ varios cambios menores del C6digo Municipal de Bakersfield que pertenece a los taxis. A 6ste punto los cambios propuestos pertenecen a las Secciones 5.50.020 (Permisos); 5.50.090 (Identificaci6n de Vehiculo); 5.50.110 (Nfimeros); 5.50.130 (Inspecci6n); y 5.50.140 (Taximetros). Para su reviso una versi6n abreviada del C6digo Municipal .de Bakersfield que pertenece a los taxis esta ,.. incluida y las modificaciones propuestas a estas secciones estan impresionadas en "letras negras". Si .usted tiene preguntas, preocupaciones o comentarios sobre los cambios propuestos, me puede llamar al 326-3896. Le notificar6mos por escrito, cuando, oficialmente, se acepten los cambios. Muchas gracias para sus atenciones a este asunto Sinceramente, E. W. MATLOCK Jefe de Policia 5.50.020 Permit--Required-Exceptions. No person shall drive, operate or cause to be operated, nor shall any person employ, permit or allow another to drive, operate or cause to .be operated, any vehicle covered by this chapterover any street of the city for the purpose of transporting a passenger, or passengers, for compensation, regardless of whether such operation extends beyond the boundary limits of. the city, without a permit first obtained from the city manager authorizing such operation except: A. A vehicle which is lawfully transporting a passenger or passengers from a point outside Bakersfield city limits, to a destination within city limits, or is en mute.through this city to a destination outside the city; provided, that no.such vehicle shall, without such permit, Solicit or accept a passenger, or passengers, from within Bakersfield city limits for transportation 'to any destination whatsoever; ' B. A vehicle being operated pursuant to a-franchise issued by the City, pursuant to authority of the Public Utilities Commission of the state,, or, pursuant'to regulations of the Interstate Commerce Commission, unless authorized by law; C. A vehicle being operated for the purpose of-transporting bona fide pupils attending an inStitutien of learning between their homes and such institutions. (Ord. 3862 § 1 (part), 1998: Ord. 2598 § 10, 1980; prior code § 7.52.010) Add - .Every driver shall be in immediate possession and must display a'current and valid taxi-drivers permit at all times in plain view of and readily visible to .all- passengers. 5.50.090 Vehicle identification. No permit shall be granted to any carrier to operate any vehicle covered by this chapter whose color scheme; name., trade 'name, monogram or insignia is in conflict · with, or in imitation of, any color scheme, name, trade name, monogram or insignia used by any other carrier as defined in subsection A of Section 5.50.010, and which shall .be .of such character and. nature as to be misleading .or deceptive to the public. (Ord. 3862 § I (part), 1998: prior code § 7.52.080) 'Add. Color scheme or changes in .color scheme-will be approved by the city manager prior to conducting business. 5.50.110 Numbers. A. Each taxicab operated pursuant to the-terms of this chapter shall be numbered. B. The numbers shall be painted upon the body of the-taxicab in numerals of a size, color, visibility and position or positions approved from time to time by the chief of police. Add. Numbers shall be displayed on the drivers, passenger, and.rear of the taxicab. C. A series of numbers shall 'be aSsigned by the chief of police to carriers foruse on their taxicabs. (Ord. 3862 § 1(part), 1998: prior code § 7..52.100) 5.50.130 Vehicle equipment--Inspection. A. All vehicles operated ay any carrier as defined in subsection A of Section 5.50.010 . ~.-.- shall, before being placed in service, be approved by the chief of police of the city. All the f vehicles shall be of a design and type of construction as shall comply with orders and regulationspertaining to the equipment adopted from time.to timebythe city manager. The vehicles shall at all times .be kept in a clean and sanitary condition and in good state of repair, and Shall,be subject-to constant inspection by the chief of police. Any vehicle which becomes-unsafe, or unserviceable, either frOm the standpoint of its state of repair, or its condition of obsolescence, maY be retired from service upon order of the chief of police, and no vehicle 'which 'has been so retired shall be again Operated in such service except with approval of,the chief of-police. B. In the event-the condition of any vehicle shall, in the opinion of the chief of police, be so unclean, unsightly,or'mechanically defective as to be undesirable for use by the public, the chief of.police may require such 'vehicle to be immediately withdrawn .from service and such vehicle shall not be again placed -in 'service until approved by the chief of .police. Add. It s-hall be unlawful.for a carrier or taxicab driver.to operate a taxicab for compensation without being inspected and a current inspection sticker for ' service 'by the City of Bakersfield. Add. 'Unlawful-to operate a taxicab after being ~placed out-of-service without being re-inspected and re-stickered.by.the chief of police. C. It is unlawful -for a -taxicab or its driver to carry, contain or otherwise possess or (' receive_information from any type of device, which monitors other taxicab activities, or "- public safety calls. (.Ord. 3862 § 1 (part), 1998: prior code § 7.52.120) Add - Standards for taxicabs before operation shall be in compliance with-but.not limited,to statutes regulating taxicab operation in the State of California. A carrier shall not permit a taxicab to -be operated in .passenger service unless it .meets all the standards set forth by the~chief of.police. 5.50.140 Taximeter,-Operation, placement, .inspection, flag and charges. ^. It is unlawful for any carrier to operate any taxicab in the city unless and ~until such taxicab is .equipped with a taximeter of a design which has been approved by the chief of police, and it shall be the duty of the carrier operating such taxicab, and also the driver thereof, to-keep such meter operat,)g at all t;,nes within such standard of accuracy as may 'be prescribed from .time {otime bythe chief ofpolice. No.passenger shall be carried in any such taxicab unless such taximeter is in operation. This provision shall apply regardless of whether the taxicab is engaged for a trip entirely within the boundaries of the city or partially outside 'thereof, and such meter shall be kept operating continuously during the entire time that it is engaged in the transportation of passengers for compensation, regardless of the point of destination, provided such destination is within five miles of any exterior boundary of the city. L B. The taximeter shall be placed in each 'taxicab so that the reading dial showing the amount to be charged is well lighted.and readily discernible to a passenger riding in any '" such .taxicab. C. Every.taximeter used in the operation of taxicabs shall be subject to inspection at any time .by the chief of police, or his representatives. Upon discovery of any inaccuracy of such taximeter, the operator thereof shall remove, or cause to be removed from service any vehicle equipped with such taximeter ,until' such taximeter has been repaired and accurately adjusted. D. Every taximeter shall be inspected and tested for accuracy by the carrier Remove. at least once-each year. Add- in January of each year. Remove - 'U~_p_9,Q_the com__~_p_letion of such ins ection and of ~ necessa to cause such taximeter to o :erate ..within the standards of accurac a rovedb thechiefof olice 'thec~rriershallcausetobe. laced.u onSuchmeter a ~ ummed label:havin rinted thereon the followin : This taximeter was ins ected and tested on date. and foUnd.to com I. with standard of accurac, rescribed b the chief of olice of the Ci of Bakersfield California. Add. Every taximeter shall be inspected, res ted and affixed with a label.for accuracy by "Kern 'County Weights and Measures" at. the ~carriers expense. No such label ..- shall be,removed except at ~he time a subsequent inspection is made. Add - Every carrier shall provide a copy of the taximeter inspection sheet to be placed in the carriers file and.a copy will be retained in the vehicle for inspection at any time. The date on which such inspection was made shall be stamped in the ·blank space provided for that purpose. No such label shall be removed except at the time a subsequent inspection is made. E. It is unlawful for any driver of any taxicab, while Carrying passengers, to display the "flag" attache.d to the taximeter in such a position as to denote that such vehicle .is not employed, or.to fail to throw the "flag" of the taximeter to a position indicating such vehicle is unemployed at the termination of each and every service. F. All charges for taxicab service shall be calculated and indicated 'by a taximeter, and at all :times while the taxicab is engaged, the "flag" of the taximeter shall be thrown into a position to register charges for mileage, or into a position te register charges for waiting time. No taximeter shall be-used .whose mechanism will register a combined charge for mileage and waiting time in any single position, and-no taximeter shall be so operated'as to cause any charge to be registered thereon except duringthe time while a passenger, or passengers engage the taxicab..(Ord. 3862 § 1 (part), 1998: Ord. 2598 § 11, 1980; prior code § 7.52.130) MEMORANDUM June 19, 2001 TO: LEGISLATIVE & LITIGATION COMMITTEE SUE BENHAM, Chair DAVID COUCH JACQUIE SULLIVAN FROM: BART J. THILTGEN, CITY ATTORNEY By: GINNY GENNARO, DEPUTY CITY ATTORNEY~,._O?~v~v- J SUBJECT: URGENCY ORDINANCE AMENDING CHAPTER 5.32 RELATING TO MASSAGE ESTABLISHMENTS Chapter 5.32 of the Bakersfield Municipal Code governs massage establishments. Under 5.32.030, an applicant for a massage technician permit must submit a "valid diploma or certificate of graduation from a school or other institution licensed by the State of California Department of Education, wherein the method, profession and work of massage is taught." It has recently come to the attention of Staff that the State of California Department of Education no longer governs or has jurisdiction over the profession of massage. Rather, State law changed in 1991 and massage schools are goVerned by the State of California Council for Private Post Secondary and Vocational Education under the direction of the State of California Consumer Affairs Division. As such, the Code must be changed in order to allow staff to accept diplomas from Post Secondary Vocational Schools as opposed to schools under the Department of Education (which are non-existent). In order to assure uniformity, Staff is also recommending a minimum number of classroom hours and internship on the subject of massage hour of massage before obtaining a permit. In comparison with surrounding cities, and based upon discussions with the Massage Training Institute here in Bakersfield, itwas determined that 100 hours of classroom time plus 100 hours of internship is an appropriate guideline to use for massage technician permits. As such, the attached ordinance is being proposed to Council for urgency consideration so that permits may continue to be issued. BJT/GG:alj Attachments cc: Honorable Mayor and City Council Members Alan Tandy, City Manager S:\COUNClL\M EMOS\Leg&Lit. MassageEstab.wpd 5.32.020 Permit required. A. ' Except as provided in subsections B, C and D, below, it is unlawful for any person to keep, maintain or operate a massage establishment, or to perform massage for a fee, profit or other compenSation, in the city, in violation of this chapter or without having first procured and maintained a valid permit from the city manager or his designee. Except as otherwise provided in this section, each massage technician must hold a valid permit. No more than one massage establishment permit shall be required for any establishment at a single location. B. Subsection A of this section shall not apply to establishments wherein the only persons performing massage are the following: '1. Physicians, nurses, physical therapists, chiropractors, osteopaths or cosmetologists licensed in their respective professions by the State of California pursuant to the Code of Business and Professions; 2. Massage technicians holding valid diplomas or certificates of graduation from a school or other institution licensed by the State of California D~p~,~m~r;,t of Fd,,,.,ot,,.,,, ~~!i~ wherein the method, profession or work of massage is taught, performing under the direction of, and in the presence of, a physician, nurse, physical therapist, chiropractor, osteopath or cosmetologist licensed in his or her respective profession by the State of California pursuant to the Code of Business and Professions. C. Subsection A of this section shall not apply to the following persons: '1. Physicians, nurses, physical therapists, chiropractors, osteopaths and cosmetologists, all of whom must be licensed in their respective professions issued by the State of California pursuant to the Code of Business and Professions; 2. Massage technidans holding valid diplomas or certificates of graduation from a school or other institution licensed by the State of California D~p~,"tm~nt ~f,_,.,,,,.o,,,.,,'-" .... :^~, wherein the method, profession or work of massage is taught, performing under the direction of, and in the presence of, a physician, nurse, physical therapist, chiropractor, osteopath or cosmetologist licensed in his or her respective profession by the State of California pursuaht to the Code of Business and Professions. D. "Health facilities" licensed as such by the State of California pursuant to the Health and Safety Code, shall not be required to obtain a permit as a massage establishment, and persons holding a massage technician permit, or who are otherwise authorized to perform, massage pursuant to this section, may perform massage on residents therein. (Ord. 3343 §§ '1, 5, '199'1' Ord. 33'14 § '1, '1990). 5.32.030 Application m Issuance m Fee. A. Applications for permits under this section shall be made on forms to be furnished by the city manager or his designee,, shall be submitted to less than fourteen days prior to commencement of business, shall be signed under penalty of perjury by the applicant and shall require the following information: 1. The name, mailing address, two previous addresses immediately prior to present address, title, telephone number, previously used names, date of birth, sex, height, weight, eye color, hair color, driver's license number, social security number, previous employment for the three years immediately preceding the date of application, prior licenses held and whether such licenses were ever revoked or suspended and the reason therefor, and the arrest record if any, of the applicant and of all persons who will manage the business; 2. The name, mailing address and location of the business; and 3. The business tax certificate number of the business. B. Each application shall be submitted along with two portrait photographs at least two inches by two inches. C. Each applicant shall submit a valid diploma or certificate of graduation from a school or other institution licensed by the State of California Depc~,~mcnt of ,_,~-,,o,,,.,,, ~~j[~~, wherein the method, profession and work of massage is taught. D. The city manager or his designee shall, in his discretion, issue a permit if he finds: 1. That the application is complete and truthful. 2. That neither the applicant nor any manager of the business has been convicted of a crime substantially related to the qualifications, functions or duties of the business for. Which application is made, unless he has obtained a certificate of rehabilitation. 3. That neither the applicant nor any manager of the business has done any act involving dishonesty, fraud or deceit with the intent to substantially benefit himself or another, or substantially injure another. 4. The building and the business for which the application is made will be maintained and conducted in accordance with all laws of the city and the state, including, but not limited to health, structural soundness, fire safety and zoning. 5. That a valid business tax certificate has been issued for this business. 6. The applicant is eighteen years of age or older. 7. The applicant for a permit to operate as a massage technician has been granted a valid diploma or certificate of graduation from a school or other institution licensed by the State of California Dcpa,~msnt of Education the method, profession or work of massage technicians is taught. 8. That the applicant has not had a permit, issued under this section, revoked, unless the city manager finds that the reasons for such revocation are unrelated to this application. E. The applicant shall pay a fee not to exceed the cost of procesSing any such application as set forth in Section 3.70.040. (Ord. 3343 § 2, 1995: Ord. 3314 § 1, 1990). 5.32.040 Regulations. A. A recognizable and readable sign shall be posted at the main entrance identifying the establishment; provided, however, that all signs shall comply with the sign requirements of the city. B. Lighting shall be provided as required by the Uniform Building Code, adopted' in Chapter ,15.'I 2; in addition, at least one artificial light of not less than forty watts shall be provided in each enclosed room or booth where massage services are being performed. C. Ventilation shall be provided as required by the Uniform Building Code, adopted in Chapter '15.'12. D. All massage establishments shall be operated in compliance with state and local health laws and regulations. E. All employees of the massage establishment, and all persons performing massage shall be eighteen.years of age or older. F. No massage establishment shall operate at any time unless there is displayed in a location clearly visible to the public a valid permit, issued pursuant to the provisions of this chapter, to so operate. G. Any permit issued pursuant to this chaPter shall be nontransferable, and shall be valid only aS to the applicant and location provided on the application for such permit. H. It shall be the responsibility of the holder of the permit for the massage establishment to insure that each person employed as a massage technician shall have first obtained a valid permit pursuant to this chapter. I. The permit'holder for the massage establishment shall maintain a current file · of all persons employed by him or her. The file shall contain true names and aliases used by such employees, age, birthdate, height, weight, color of hair and eyes, home address, phone numbers, social security number and the date of emPloyment and termination. J. Every person holding a permit pursuant to this chapter shall keep a record of the date and hour of each treatment, the name and address of the patron and the name of the massage technician administering such treatment. The record shall be open to inspection by the city manager or his designee during business hours. Such records shall be maintained for a period of two years. K. No person holding a permit pursuant to this chapter shall permit communication devices to be installed or used in any manner on the premises of the massage establishment so as to interfere with or hinder inspection by a law enforcement officer. L. ' No person shall conduct or operate, or permit to be conducted or operated, a massage establishment between the hours of ten p.m. and seven a.m. of the following day. M. Any person holding a permit for a massage establishment Shall, during business hours, be responsible for, and provide, that the premises be readily accessible and open for inspection by law enforcement officers or other government employees who · are charged with enforcement of health and safety or other laws of the city or state. N. The departments of planning, building, fire and health departments shall, from time to time, make an inspection of each massage establishment in the city for the purpose of determining that the provisions of this chapter are met. O. No person licensed to do business as provided in this chapter shall operate under any name or conduct the business under any designation not specified in the permit. P. All massage technidans shall hold valid diplomas or certificates of graduation from a school or other institution licensed by the State of California Dspart, msnt of ~wherein the method, profession or work of massage is taught. Q. Except as otherwise provided in this chapter, massage shall be performed only at a massage establishment for which a permit has been issued and is valid. (Ord. 3343 § 3, 1991: Ord. 3314 § 1, 1990). 5.32.020 Permit required. A. Except as provided in'subsections B, C and D, below, it is unlawfUl for any person to keep, maintain or operate a massage establishment, or to perform massage for a fee, profit or other compensation, in the city, in violation of this chapter or without having first procured and maintained a valid permit from the city manager or his designee. Except as otherwise provided in this section, each massage technician must hold a valid permit. No more than one massage establishment permit shall be required for any establishment at a single location. B. Subsection A. of this section shall not apply to establishments wherein the only persons performing massage are the following: *- 1. Physicians, nurses, physical therapists, chiropractors, osteopaths or cosmetologists licensed in their respective professions by the State of California pursuant to the Code of Business and Professions; 2. Massage technicians holding valid diplomas or certificates of graduation from a school or other institution licensed by the State of California showing completion of at least 100 classroom hours and 100 hours of internship both on the subject of massage, wherein the method, profession or work of massage is taught, performing under the direction of, and in the presence of, a physician, nurse, physical therapist, chiropractor, osteopath or cosmetologist licensed in his or her respective profession by the State of California pursuant to the Code of Business and Professions. C. Subsection A of this section shall not apply to the following persons: 1. Physicians, nurses, physical therapists, chiropractors, osteopaths and cosmetologists, all of whom must be licensed in their respective professions issued by the · State of California pursuant to the Code of Business and Professions; 2. Massage technicians holding valid diplomas or certificates of graduation from a school or other institution licensed by the State of California wherein the method, profession or work of massage is taught, performing under the direction of, and in the presence of, a phySician, nurse, physical therapist, chiropractor, osteopath or cosmetologist licensed in his or her respective profession by the State of California pursuant to the Code of Business and Professions. D. "Health facilities" licensed as such by the State of California pursuant to the Health and Safety Code, shall not be required to obtain a permit as a massage establishment, and persons holding a massage technician permit, or who are otherwise authorized to perform massage pursuant to this section, may perform massage on residents therein. (Ord. 3343 §§ 1, 5, 1991:Ord.'3314 § 1, 1990). 5.32.030 Application m Issuance -- Fee. A. Applications for permits under this section shall be made on forms to be furnished by the city manager or his designee, shall be submitted to less than fourteen days prior to commencement of business, shall be signed under penalty of perjury by the applicant and shall require the following information: 1. The name, mailing' address, two previous addresses immediately prior to present address, title, telephone number, previously used names, date of birth, sex, height, weight, eye color, hair color, driver's license number, social security number, previous employment for the three years immediately preceding the date of application, prior licenses held and whether such licenses were ever revoked or suspended and the reason therefor, and the arrest recOrd if any, of the applicant and of all persons who will manage the business; 2. The name, mailing address and location of the business; and 3. The business tax certificate number of the business. · B. Each application shall be submitted along with two portrait photographs at least two inches by two inches. C. Each applicant shall submit a valid diploma or certificate of graduation frOm a school or other institution licensed by the State of California showing completion of at least 100 classroom hours and 100 hours of internship both on the subject of massage, wherein the method, profession and work of massage is taUght. D. The city manager or his designee shall, in his discretion, issue a permit if he finds: i. That the application is complete and truthful. 2. That neither the applicant nor any manager of the business has been convicted of a crime substantially related to the qualifications, functions or duties of the business for which application' is made, unless he has obtained a certificate of rehabilitation. 3. That neither the applicant nor any manager of the business has done any act involving .dishonesty, fraud or deceit with the intent to substantially' benefit himself or another, or substantially injure another. 4. The building and the business for which the application is made will be maintained and conducted in accordance with all-laws of the city and the state, including, but not limited to health, structural soundness, fire safety and zoning. 5. That a valid business tax certificate has been'issued for this business. 6. The applicant is eighteen years of age or older. 7. The applicant for a permit to operate as a massage technician has been granted a valid diploma or certificate of graduation from a school or other institution licensed by the State of California showing completion of at least 100 classroom hours and 100 hours of internship .both on the subject of massage, wherein the method, profession or work of massage technicians is taught. 8. That the applicant has not had a permit, issued under this section, revoked, unless the city manager finds that the reasons for such revocation are unrelated to this application: E. The applicant shall pay a fee not to exceed the cost of processing any such application as set forth in Section 3.70.040. (Ord. 3343 § 2, 1995: Ord. 3314 § 1, 1990). F. Applicants for permits under this section that intend to teach massage shall, in addition to all other requirements of this COde, submit a valid massage teaching certificate from the State of California Council for Private Post Secondary and Vocational Education or equivalent thereof. ,5,32.040 Regulations, A. A recognizable and readable sign shall be posted at the main entrance identifying the establishment; provided, however, that all signs shall comply with the sign requirements of the city. B. Lighting shall be provided as required bythe Uniform Building Code, adopted in Chapter 15.12; in addition, at least one artificial light of not less than forty.watts shall be provided in each enclosed room or booth where massage services are being performed. C. Ventilation shall be provided as required by the Uniform Building Code, adOpted in Chapter 15.12. D. All massage establishments shall be operated in compliance with state and local health laws and regulations. E. All employees of the massage establishment, and all persons performing massage shall be eighteen years of age or older. F. No massage establishment shall operate at any time unless there is displayed in a location clearly visible to the public a valid permit, issued pursuant to the provisions of this chapter, to so operate. G. Any permit issued pursuant to this chapter shall be nontransferable, and shall be valid onlY as to the applicant and loCation provided on the application for such permit. H. It shall be the responsibility of the holder of'the permit for the massage establishment to insure that each person employed as a massage technician shall have first obtained a valid permit pursuant to this chapter. · I. The permit holder for the massage establishment shall maintain a current file of all persons employed by him or her. The file shall contain true names and aliases used by such employees, age, birthdate, height, weight, color of hair and eyes, home address, phone numbers, social security number and the date of employment and termination. J. Every person holding a permit pursuant to this chapter shall keep a record of the date and hour of each treatment, the name and address of the patron and the name of the massage technician administering such treatment. The record shall be open to inspection by the city manager or his designee during business hours. Such records shall be maintained for a period of two years. K. No person .holding a permit pursuant to this chapter shall permit communication devices to be installed or used in any manner on the premises of the massage establishment so as to interfere with or hinder inspection by a law enforcement officer. L. No person shall conduct or operate, or permit to be conducted or operated, a massage establishment between the hours of ten p.m. and seven a.m. of the following day. M. Any person holding a permit for a massage establishment shall, during business hours, be responsible for, and provide, that the premises be readily accessible and open for inspection by law enforcement officers or other government employees who are charged with enforcement of health and safety or other laws of the city or state. N. The departments of planning, building, fire and health departments shall, from time to time, make an inspection of each massage establishment in the city for the purpose of determining that the provisions of this chapter are met. O. No person licensed to do business as provided in this chapter shall operate under any name or conduct the business under any designation not specified in the permit. P. All massage technicians shall hold valid diplomas or certificates of graduation from a school or other institution licensed by the State of California showing completion of at least 100 classroom hours and 100 hours of internship both on thesubject of massage, wherein the method, profession or work of massage is taught. Q. Except as otherwise provided in this chapter, massage shall be performed only at a massage establishment for which a permit has been issued and is valid. (Ord. 3343 § 3, 1991' Ord. 3314 § 1, 1990)i