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HomeMy WebLinkAbout06/05/2007 1 B A K E R S F I E L D Staff: Rhonda Smiley City Council Members: Public Information Officer Sue Benham, Chair David Couch Jacquie Sullivan Regular Meeting of the LEGISLATIVE AND LITIGATION COMMITTEE of the City Council -City of Bakersfield Tuesday, June 5, 2007 1:00 p.m. City Manager's Conference Room City Hall, 1501 Truxtun Avenue -.Suite 201, Bakersfield, CA AGENDA 1. ROLL CALL 2. ADOPT MAY 8, 2007 MINUTES 3. PUBLIC STATEMENTS 4. DEFERRED BUSINESS A. Update regarding plastic bag issue. 5. NEW BUSINESS A. Discussion and recommendation on a proposed ordinance regarding statewide cable franchising B. Discussion and recommendation on an amendment to the cabaret permit ordinance 6. COMMITTEE COMMENTS 7. ADJOURNMENT • B A K E R S F I E L D DRAFT Sue Benham, Chair Rhon Smiley, Public ormation Officer David Couch For: Alan Tandy, City Manager Jacquie Sullivan MINUTES LEGISLATIVE AND LITIGATION COMMITTEE MEETING Tuesday, May 8, 2007 - 1:00 p.m. City Manager's Conference Room -Suite 201 City Hall, 1501 Truxtun Avenue, Bakersfield, CA The meeting was called to order at 1:00:23 PM. ROLL CALL Present: Councilmember Sue Benham; Chair Councilmembers David Couch and Jacquie Sullivan Staff present: Alan Tandy, City Manager Ginny Gennaro, City Attorney Andrew Whang, Associate Attorney John W. Stinson, Assistant City Manager Rick Kirkwood, Management Assistant Roberta Gafford, Assistant City Clerk Rhonda Smiley, Public Information Officer Stanley Grady, Development Services Director Others present: Bob Rutledge, Citizen Gretchen Wenner, Bakersfield Californian Peter Samore, KUZZ News 2. ADOPT APRIL 10, 2007 MINUTES Adopted as submitted. 3. PUBLIC STATEMENTS None AGENDA SUMMARY REPORT Page 2 LEGISLATIVE AND LITIGATION COMMITTEE MEETING Tuesday, May 8, 2007 4. NEW BUSINESS a. Discussion regarding marketing annexation benefits City Manager Tandy gave an overview of the research that was conducted with Fontana, San Bernardino, and San Jose who have similar island issues and how they have addressed them. Issues include zoning, taxes, code enforcement, graffiti, police response, street sweeping, and septic/sewer systems. Committee member Couch suggested a study could be conducted by CSUB or some other entity regarding Metro Bakersfield public services, regarding the cost of those services, and how the community would benefit by more orderly development. Committee Chair Benham stated that she would like to tie the City's efforts to market annexation to the Council goals. Committee member Sullivan would like research to continue on the annexation issue. She stated that the public needs to be informed properly, maybe through town halt meetings. Committee Chair Benham proposed that staff come up with other methods to get the citizens informed. Committee member Couch would like the public forms, which contain annexation information, to be distributed to the City Council once again. These forms are available to the public and may be in need of updating. He suggested that the citizens' tax bill show a comparison with the savings due to the annexation, and how it affects them financially. City Manager Tandy explained staff currently provides such information; however, it is unique to each area annexed. Committee member Couch stated that citizens should also be made aware of examples of recent positive experiences. b. Discussion regarding plastic shopping bags Management Assistant Kirkwood gave an overview on the research that was conducted, where other cities are initiating a ban of plastic bags in certain stores. These cities have defined a store as a full-line, self-service supermarket with gross annual sales of $2 million or more. They have also looked at a law that was passed last September, enforcing stores 2,000 sq. ft. or more with a pharmacy to implement a plastic bag "Take Back & Recycling" program. This gives the consumers a place to bring their plastic bags, rather than leaving them stored in their home. Some stores are also charging the consumer per bag. Committee member Couch questioned how much time is needed for a store to phase out the use of plastic bags. Management Assistant Kirkwood explained that once the ordinance was passed, San Francisco stores were given six months and pharmacies were given one year to phase out plastic bags. AGENDA SUMMARY REPORT LEGISLATIVE AND LITIGATION COMMITTEE MEETING Tuesday, May 8, 2007 Page 3 Committee member Sullivan questioned the impact that plastic bags have on our environment. Committee Chair Benham referred to the staff report that states for the number of bags that were distributed in California last year, it took 450,000 gallons of oil to produce them. This contributes to the high oil dependency and high oil prices. Plastic bags also produce an issue with littering, due to the fact that they are so light and blow around so easily. Committee member Couch would like more information on how far these cities went with this topic. Citizen Bob Rutledge stated he is against plastic and paper bags. He feels that the consumer should be allowed to take its own re-usable container to the store to collect its items. Save You Foods, located on White Lane Avenue & South H Street, charges 10 cents per bag. If you bring your own bag to Trader Joes, your name will be placed in a drawing for a prize. There will be resistance from the public, but something needs to be done about our environment. This is definitely a start. Committee member Sullivan noted that Mr. Rutledge has made many great points about this issue and suggested that he come and make a Public Statement at a City Council Meeting. Committee member Couch stated that the County be contacted about any proposed changes. The City and County should be on the same page regarding this matter. 5. COMMITTEE COMMENTS None. 6. ADJOURNMENT The meeting adjourned at 1:41:31 PM. cc: Honorable Mayor and City Council S:\Council Committees\2007\07 LegislativeBLitigation\May 8\May 8 Minutes.doc • B A K E R S F I E L D CITY MANAGER'S OFFICE MEMORANDUM. May 30, 2007 TO: FROM: SUBJECT: Alan Tandy, City Manager Rick Kirkwood, Management Assistant Plastic Bag Ban Councilmember Couch requested staff research what types of bags other cities are allowing and the impact a ban of plastic bags would have on local retailers for the Legislative and Litigation Committee's review. Please note the following information corrects data presented in the April 24, 2007 memo to the Legislative and Litigation Committee .pertaining to the ban of plastic bags in San Francisco. Data from the- City of San Francisco's Department of the Environment shows nearly 180 million plastic bags are used .annually in San Francisco. Jared Blumenfeld, City of San Francisco's Director of the Department of the Environment, stated it takes 430,000 gallons of oil to manufacture 100 million bags. Ross Mirkarimi, District 5 Supervisor, stated the ban would save 450,.000 gallons of oil a year and remove the need to send 1,400 tons of debris now sent to the landfill annually. The Plastic Bag Reduction Ordinance amended the San Francisco Environment Code to mandate stores and pharmacies defined in the ordinance to provide recyclable paper bags, compostable plastic bags, and/or reusable bags as checkout bags to cus#omers. The ordinance shall become operative to supermarkets six (6) months after its effective date and to pharmacies one (1) year after its effective date. A number of other agencies are watching the issue of plastic bag bans. City of Santa Cruz: The City of Santa Cruz is also considering a ban of plastic bags, but. is currently seeking buy-in from other municipalities. In order to increase a ban's effectiveness, the City plans to initiate discussions with Scotts Valley, Capitola, Watsonville, and the county to'gain support. According- to Chris Moran, City of Santa Cruz Waste Reduction Manager, the City is encouraging the public to use cloth bags Alan Tandy May 30, 2007 Page 2 and to say no to plastic bags altogether through public outreach and education. City of Santa Barbara: Santa Barbara's City Council is considering a .proposal from a four-member group from Santa Barbara City College to ban plastic. bags and styrofoam containers. Staff was not able to review this report, but a news article states the proposal does not directly address the ramifications for local businesses but it hopes the use of cloth bags' and biodegradable products will fill the void left by plastic. Los Angeles County: Los Angeles County is considering several options: an outright ban of plastic bags, encouraging customers to buy reusable bags, and/or encouraging customers to return plastic bags to stores. Boston, MA: A measure sponsored by Councilor Robert Consalvo to ban plastic bags has gained the support of nine of the twelve councilors of the City of Boston. The measure has been advanced to the Council's Committee on City and Neighborhood Services. At the state level in Massachusetts, Senator Brian A. Joyce plans to file a bill proposing a statewide law that would charge customers atwo-cent ($0.02) per bag fee in 2008, gradually increasing to fifteen cents ($0.15) per bag in 20'15.. The revenue generated by .this program is proposed to go toward the state's recycling programs and toward improving consumer awareness of environmental problems caused by plastic bags. IKEA: As of March 15, 2007, all IKEA stores in the U.S. are charging five cents ($0.05) per plastic bag used at the checkout counter and are encouraging customers to purchase a `Big Blue Bag' for fifty-nine cents ($0.59) each. The blue bags are made of amore durable and stronger plastic that can potentially replace hundreds of single-use plastic bags if customers bring it along with them when they shop at IKEA. All proceeds from this program will go to American Forests, anon-profit organization that plants trees to restore forests and offset C02 emissions. This program was launched in IKEA stores in the UK in late Spring 2006 and has resulted in a ninety-five percent (95%) reduction in the use of plastic bags. Whole Foods: Whole Foods offers customers five cents ($0.05) as an incentive each time they bag their groceries in a reusable bag. Staff conducted a survey of several stores located in Bakersfield to determine the impact of a ban of plastic bags in the city. Below is a list of stores that were contacted and the responses from their respective store managers. Chris Middleton, Albertsons District Manager: Mr. Middleton provided information to staff on seven stores located in Bakersfield. The average Albertsons has about 50,000 square feet of retail and storage space. Four of the seven stores have a pharmacy. Based on thirteen weeks of plastic bags orders, Mr. Middleton estimated that the seven Albertsons stores in Bakersfield distribute nearly 11 million plastic bags per year. Each store may be able to comply with a ban of plastic bags within three to six months. Alan Tandy May 30, 2007 Page 3 Each store offers the following free options at the checkout counter: plastic, paper, qt. liquor bag, and header bag (for frozen items). The stores sell a recyclable canvas bag for $1.00. Promotions run throughout the year to encourage consumers to purchase the recyclable canvas bags. The most recent promotion donated five cents ($0.05) to California State Parks from each canvas bag purchased by a customer. Mr. Middleton added that Albertsons' plastic bags are the smallest in the industry and are collected and recycled at the store level in recycling bins made from recycled plastic bags. Recycled plastic bags .are also used to produce the benches around the stores and the ones donated to parks. Albertsons is considering new technology to produce alternative bags from corn husks, potato peels, and .switchblade grass. This technology may raise the cost to produce one bag from one cent ($0.01) for a plastic bag to four cents ($0.04) for an alternative bag. Food 4 Less -Store 365 - 1801 White Lane: This store has 74,000 square feet of retail space and does not have a pharmacy. It offers paper or plastic bags to customers for free, and would not comment on how many are distributed. This store accepts and recycles plastic bags returned by customers. Green Frog Market - 3711 Colombus St: This store has 60,000 square feet of retail space and does not have a pharmacy. It offers paper or plastic bags for free or a canvas bag for $6.99 to customers. A bin is available on-site for customers to return plastic bags to be recycled. This store orders a new shipment of bags every two weeks to one month depending on demand and claims it could comply with a ban of plastic bags within six months. Sav-A-Lot - 1505 White Lane: This store has 17,000 square feet of retail space. Instead of offering paper bags to customers, it offers asingle-use plastic bag for three cents ($0.03) each, a reusable bag (made of a thicker material) for ten cents ($0.10) each, or a thermal bag for ninety-nine cents ($0.99) each. Since the customers pay for each plastic bag used, the cost is not built in to the price of grocery items. This store orders new shipments of bags weekly and claims it could comply with a ban of plastic bags within six months but with some concerns. The store would need time to find alternative bags and would incur costs of changing over to new bags. The store is also concerned, if the current program is continued, customers may have to pay more for alternative bags. FoodMaxx - 4128 Chester Ave: This store has 49,000 square feet of retail space and does not have a pharmacy. It offers paper or plastic bags for free, or a canvas bag for ninety-eight cents ($0.98) each to customers. A bin. located on-site accepts plastic bags returned by customers to be recycled. The store would not comment on the number of bags distributed last year or how long it would take to comply with a ban of plastic bags. Trader Joes; Trader Joes outlets do-not offer plastic bags unless specifically requested by a customer. Reusable bags made of canvas for $2.99 -each and two versions of a Alan Tandy May 30, 2007 Page 4 microfiber bag ($0.99 and $1.99 each) are available for customers to purchase. Thermal bags for $1.99 each may be purchased to carry frozen items. .Each outlet posts a sign stating "Reduce, Recycle, Reuse" and offers a ticket for a monthly drawing fora $25 gift card to customers that bring their own reusable bags (paper, canvas, or microfiber). Approximately 600 tickets are given out to customers every two weeks for this drawing. This store could comply immediately with a ban of plastic bags. MAY 2 ~ 2007 May 23, 2007 TO: LEGISLATIVE AND LITIGATION COMMITTEE Sue Benham, Chair David Couch Jacquie Sullivan FROM: JANICE SCANLAN, ASSISTANT CITY ATTORNEY SUBJECT: PROPOSED ORDINANCE REGARDING STATEWIDE CABLE FRANCHISING In September 2006, the California Legislature adopted Assembly Bill 2987. In essence, AB 2987 is a law which takes cable television franchising authority away from local government and gives into the state. Instead of applying with a local government, any company desiring to provide cable television anywhere in the state of California files an application with .the PUC. The applicant is required to let the local entity know about the franchise application if the company plans to provide service in the local entity's jurisdiction. Impact on the City AB 2987 requires local entities to do and refrain from doing several things. Below is a synopsis of various. sections of the new law and what it requires of or means to the City. Current Franchise Holders Under AB 2987, the current franchise holders can either- continue under their existing agreements and file for the state franchise when their local franchise expires, or negotiate an early termination date with the local entity and apply for a state franchise. The current franchises are set to expire in 2015. Franchise Fees Currently, under the Brighthouse and Cox/Cebridge franchise agreements, the City receives 5% of the "total gross receipts." AB 2987 requires state franchise holders to pay cities 5% of gross revenues. AB 2987 defines gross revenues slightly different than the franchise agreement. It remains to be seen how that will impact the City. Legislative and Litigation Committee May 23, 2007 Page 2 PEG channels The new law requires the franchise holder to provide PEG channels to the local entities within three months of being requested to do so by the local entities. The franchise holder only has to provide the equivalent of what the other local providers supply, but the local entity can request up to three channels. If the local entity does not broadcast an average of 8 hours a day, .however, the franchise holder can take the channel back for its own programming. (Section 5870(a) and (e).) Encroachment Permits This law requires local entities to allow state franchise holders to install, construct, and maintain a network within public rights-of-way under the same time, place, and manner as the provisions governing telephone corporations under applicable state and federal law. (Section 5885(a).) Moreover, local entities must have a process where the franchise holder can appeal the denial of an encroachment permit to the City Council. (Section 5885(c).) Currently, our municipal code has no appeal of a denial of an encroachment permit. Enforcement Section 5900(c) requires the local entities to enforce the customer service and protection standards set forth in the code and other sections of the law. Section 5900(d) requires the local entities to adopt by ordinance or resolution penalties for failing to comply with the customer service and protection standards. The fines are set forth in the statute and the local entities are locked in to those fines. In order to comply with due process, the City would have to establish a hearing procedure before we could start levying the penalties. Section 5900(g) requires the local entities to remit one-half of all penalties collected to the Digital Divide Account. The Digital Divide Account supposedly provides grants to non-profits to fund community technology programs. State-wide Applicants On March 9, 2007, the City received a notice from AT&T that it had applied for a state-wide video franchise. On April. 5, 2007, we received a notice from the Public Utilities Commission that the franchise had been granted. Pursuant to AB 2987, AT&T must notify the City at least 10 drays and no more than 60 days before it begins providing cable service in the City. Once it starts providing the service, it must pay the franchise fees at the end of the quarter which is more than 180 days from the start of service and quarterly thereafter. Section 5890(a) prohibits state-wide franchise holders from discriminating against customers because of income, but only requires that, after 3 years, 25% of their customers be low-income (30% after five years) and they provide free service to community centers.. S:\COiJNCIL,\CommitteeU.E('~ & I.TI~06-07\Sta~wideCableFranchisimg.doc Legislative and Litigation Committee May 23, 2007 Page 3 Sample Ordinances I have searched several high-tech cities' codes to see if any of them have adopted an ordinance pursuant to this law. I cannot find any. I contacted the Walnut Creek City Attorney who is the expert on telecommunications and cable laws. He actually wrote the book that most municipalities look at to determine what they can and cannot do. His city has not adopted anything yet because they are in litigation with AT&T regarding encroachment permits. Attached is a draft ordinance which includes all of the requirements of AB 2987. JS:Isc Attachment S:\COiJNCII,\CommitteeU.EG ~ LTI\06-07\StatewideCableFranchismg.doc ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 5.48 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO VIDEO SERVICE PROVIDERS, AMENDING SECTION 12.16.060 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO CONSTRUCTION WORK IN STREETS AND AMENDING SECTION 12.20.020 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO ENCROACHMENTS WHEREAS, Section 116 of the City Charter sets forth that the City can grant cable television franchises; and WHEREAS, pursuant to the Charter, the City entered into franchise agreements with two cable operators; and WHEREAS, in 2006, the California Legislature enacted Assembly Bill 2987 (AB 2987) which eliminated local video service franchising authority and created a state- wide video programming franchise process; and WHEREAS, AB 2987 allows current franchise holders to continue operating under the local franchise until the franchise expires or is terminated; and WHEREAS, pursuant to AB 2987, potential video service providers apply to the California Public Utilities Commission for state-wide video service franchises and, if granted, can provide video programming services anywhere in the State; and WHEREAS, AB 2987 requires local entities to enforce regulations regarding such programming services and to adopt penalties for violations of the regulations; and WHEREAS, additionally, AB 2987 requires local entities to have a mechanism in place whereby video service providers can appeal the decision of the Public Works Department to deny an encroachment permit or a permit allowing work in city streets or rights-of-way; and WHEREAS, AB 2987 requires that such appeal be heard by the City Council. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Chapter 5.48 is hereby amended to read as follows: Chapter 5.48 C~zB' C TCI wic~n~i cQn~irwc~S VIDEO SERVICE PROVIDERS 5 48 010 Definitions 5.48.8-A 424 Grant of franchise to Time Warner Entertainment- Advance/Newhouse, a general partnership under the laws of the state of New York. 5.48.828 4~4 Grant of franchise to Cebridge Acquisitions, L.P., a Delaware limited partnership doing business in California as Cebridge Connections. 5_a8_~40 Regulations __ 5 48 050 Notice of Violation 5 48 060 Penalties 5 48 010 Definitions. (al "Cable Operator" means anv person group of persons or business entity providing cable television service in the city limits pursuant to a franchise agreement with the itv entered into prior to January 1.2007_ (bl "State Franchise Holder" means anv person group of persons or business entit (c) "Video Service Provider" means both a Cable Operator and a State Franchise Holder. 5.48.8-8 924 Grant of franchise to Time Warner Entertainment- Advance/Newhouse, a general partnership under the laws of the state of New York. Pursuant to Charter Section 116 the city of Bakersfield hereby grants to Time Warner Entertainment-Advance/ Newhouse, a general partnership under the laws of the state of New York the nonexclusive right, privilege and franchise to lay and use lines, wires, coaxial cable and appurtenances for transmitting, distributing and supplying radio and television antenna service along, across and upon the public streets, ways, alleys and places within the city of Bakersfield effective upon the execution of a franchise agreement as approved by the city council of the city of Bakersfield and subject to all the terms and conditions contained in such franchise agreement approved by the city council of the city of Bakersfield. 5.48.828 Q$Q Grant of franchise to Cebridge Acquisitions, L.P., a Delaware limited partnership doing business in California as Cebridge Connections. Pursuant to Charter Section 116, the city of Bakersfield grants to Cebridge Acquisitions, L.P., a Delaware limited partnership doing business in California as Cebridge Connections the nonexclusive right, privilege and franchise to lay and use lines, wires, coaxial cable and appurtenances for transmitting, distributing and supplying radio and television antenna service along, across and upon the public streets, ways, alleys and places within the city of Bakersfield effective upon the execution of an amendment to a franchise agreement as approved by the city council of the city of Bakersfield and subject to all the terms and conditions contained in such franchise agreement approved by the city council of the city of Bakersfield. All Vi deo Servi ce Providers must c omply with the provisions o f Section 53055. 53 055.1. ~~~~ ~ 2 and 53088 2 of the C aliforni a Government Cod e Sectio n 637 5 of the Calif ornia Pen al Code and 47 U S C 5 51 et sea All Vide o Service Provider s must comp ly with c ustomer service st andard s pertainina to the provision of video s ervice estab lished by federal law or rea ulation or adopted by sub seauent e nactment or the Calif ornia Leai slature Additionall y Cabl e Operators must comply with ail terms oT tneir franc hise aaree ments until such a areeme nts are terminated o r expires. 5_a~_o~n Notice of Violation. If the Citv determines that a Video Service Provider is in violation of any laws set forth in Section 5 48 040 or in the case of a Cable Operator the terms of the trancnise aareement Citv shall notify the Video Service Provider of the violation(sl in writina. 1 ne Video Service Provider shall have thirty (301 days to correct the violation. it the violation is not corrected a fine or other penalty shall be imposed pursuant to Section 5.48.060. A violation of any law or reaulation referenced in Section 5 48 040 or any other law cited in any amendment to the Diaital Infrastructure and Video Competition Act of 2006 ~~°lifornia Public Utilities Code section 5800 et seal shall result in a fine of $500.00 per day for each day the violation continues not to exceed $1 500 00 A second violation urrina and not corrected in a 12-month period shall result_in a fine of $1.000.00_,per da~for each day the violation continues. not to exceed $3.000.00. A third or subseauent violation in that same 12-month period shall result in a fine of $2.500.00 per Slav for each day the violation continues not to exceed $7 500.00. City shall notify the Video Service Provider of the fine(sl in writina_ and the Video Service Provider shall pay such fine(sl to the Citv within ten (101 days of the mailina of the notice by City or file a written reauest for an appeal of the fine with the Citv Clerk. Upon timely receipt of a _ __ written reauest for an appeal the Citv Clerk shall schedule the matter for hearina with the Citv Manaaer or desianee within sixty (601 days of receipt of reauest for appeal. After the time for appeal has run or if the Citv Manaaer or desianee upholds of the fine. -- the Citv may take any action allowed by law to recover an unpaid fine. Additionally. failure to pay the fine shall be reported to the Public Utilities Commission. Nothina in this section precludes the City from terminatina a franchise aareement with a Cable Opera+nr tnr nraacninn tnP tarm~ of the franchise aareement. One half_of any fine collected by City shall be submitted to the Diaital Divide Account established in Section 280 5 of the Public Utilities Code. SECTION 2 Section 12.16.060C of the Bakersfield Municipal Code is hereby amended to read as follows: 12.16.060 Action on applications for permits to excavate. C. If the application is denied, the department shall advise the applicant in writing of the basis for denial. The applicant shall have ten (101 davs from the mailina of such denial by City to appeal The written reauest for appeal must be received by the ('itv Clerk within such time aeriod Uoon timely receiot of a written reauest for an ^^^^^! +he City Clerk shall schedule the matter for hearina with the Citv Manaaer or desianee within sixty (601 davs of receipt of the reauest. If the applicant is a Video Service Provider as defined in Section 5 48 010 of this Code pursuant to Section 5885 of the Public Utilities Code the applicant shall have ten (101 davs from the mailina of such denial by City to appeal The written reauest for appeal must be received by the Citv_Clerk within such time period Upon timely receipt of a written reauest for an anneal. the Citv Council shall schedule the matter for hearina at the next available Citv Council meeting_ SECTION 3. Section 12.20.0206 of the Bakersfield Municipal Code is hereby amended to read as follows: 12.20.020 Permit requirements-Revocation. B. Any person, firm or corporation desiring to place, erect or maintain any such encroachment as defined in Section 12.20.010 shall make application for a permit at the office of the city engineer.. Such application shall contain the name and address of the applicant, a description of the proposed encroachment and the proposed location thereof, the period of time for which such encroachment is proposed to be maintained, and such other information as may be required by the city engineer. Such application shall further contain an agreement on the part of the applicant that if such application is granted, the applicant will indemnify and save and hold harmless the city, its agents, officers and employees against and from all damages, judgments, claims, demands, expenses, costs and expenditures, and against all loss or liability which the city or such officers, agents or employees may suffer, or which may be recovered from or obtainable against the city or such officers, agents or employees, legally caused by, growing out of, or in any way connected with, the placing, erection or maintenance of such encroachment, and upon the expiration of such permit or the revocation thereof, the applicant will, at his own cost and expense, remove the same from the public property or right-of-way where the same is located and restore such public property or right-of- way to the condition as nearly as that in which it was before the placing, erection, maintenance or existence of such encroachment. Such application shall also contain an agreement on the part of the applicant to keep all liability insurance required by the city manager in full force and effect for however long the encroachment remains. Upon the receipt of such application, the city engineer shall make an investigation to determine if the maintenance of such encroachment will substantially interfere with the use of the public property, right-of-way or other public place where the same is proposed to be placed, erected or maintained, and whether the placing, erection or maintenance of such encroachment will constitute a hazard to persons using such public property, right- of-way or other public place. Upon the completion of such investigation, the city engineer shall, at his discretion, either grant or deny the applicant a permit to place, erect and/or maintain such encroachment. Such permit, if granted, may be granted for a definite time or for annual renewal, and the city engineer may impose such conditions to the granting of the same as in his discretion will best serve the public interest. In any event, a permit granted by the city engineer pursuant to this section is revocable at any time by the city engineer. If the application is denied the department shall advise the applicant in writing of the basis for denial. The applicant shall have ten (101 davs from the mailina of such denial by City to appeal. The written reauest for appeal must be received by the Citv Clerk within such time period. Upon timely receipt of a written gq„PSt for an appeal the Citv Clerk shall schedule the matter for hearing with the Citv Manager or designee within sixty (601 davs of receipt of the reauest. If the applicant is a Video Service Provider as defined in Section 5 48 010 of this Code. pursuant to Section 5885 of the Public Utilities Code the applicant shall have ten (101 davs from the mailina of such denial by City to appeal The written reauest for appeal must be received by the Citv Clerk within such time period. Upon timely receipt of a written request for an appeal the Citv Council shall schedule the matter for hearing at the next available Citv Council meeting.. Upon the revocation of any such permit, the city engineer shall give notice in the form and manner specified in Section 12.2:0.030 to the applicant for such permit or to the person maintaining such encroachment. It is unlawful for a person, firm or corporation to place, erect or maintain or to permit the placing, erection, maintenance or existence of an encroachment upon, over or under any street, avenue, lane, alley, sidewalk, court, place, public way, property or right-af-way after his permit has expired, after his permit has been revoked and the time specified in the notice from the city engineer for removal of the same has expired, or after required insurance has expired, lapsed, been reduced or revoked. An encroachment permit may be granted in the Central Business Zone and Commercial Center Zone for restaurants or other establishments serving food or beverages in the encroachment area; however, all the requirements of Sections 12.20.020(c) and (D) shall be followed in addition to all other requirements of this chapter. Fees or charges for the issuance of any permit under this chapter may be imposed by resolution or ordinance of the city council. SECTION 4. This Ordinance shall be posted in accordance with the provisions of the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. -----00000----- 1 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, BENHAM, WEIR, COUCH, HANSON, SULLIVAN, SCRIVNER NOES: COUNCILMEMBER ABSTAIN: COUNCILMEMBER ABSENT: COUNCILMEMBER CITY CLERK and EX OFFICIO of the Council of the City of Bakersfield APPROVED: By: HARVEY L. HALL, Mayor CITY OF BAKERSFIELD APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By: JANICE SCANLAN Assistant City Attorney S:\COUNCIL\Ords\06-07 Ords\5.48.statevideofranchiseamend.doc ~, MAY 2 ~ 2007 MEMORANDUM CITY ATTORNEY May 23, 2007 TO: LEGISLATIVE AND LITIGATION COMMITTEE Sue Benham, Chair David Couch Jacquie Sullivan FROM: JANICE SCANLAN, ASSISTANT CITY ATTORNEY SUBJECT: AMENDMENT TO CABARET PERMIT ORDINANCE The City's current cabaret ordinance (Chapter 5.14) authorizes the police chief to immediately revoke a cabaret permit if he determines: A. That misrepresentatians were .made on the application; or B. That the owner or a manager has in the past three years 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; or C. That the owner or a manager has in the past three years done any act involving dishonesty,. fraud or deceit with the intent to substantially benefit himself or another, or substantially injure another; or D. That any of the terms or conditions of said permit have been violated or that the business has been operated in violation of a local, state or federal law; or E. That the operation of the cabaret is interfering with the peace and quiet of the neighborhood. As written, all the chief can do is revoke a permit. He has no authority to suspend permits. When permits are revoked, the permit holder must immediately cease providing live entertainment or music at the facility. After a permit has been, revoked, businesses cannot reapply for cabaret permits for three years. Thus, any time a cabaret permit is revoked by the chief, the permit holder requests an appeal to the city manager. The city manager has the authority to reduce the revocation to a suspension. This amendment will authorize the chief to suspend cabaret permits, as well as revoke them, and, thus, allowing him to suspend the permit when the violation does not merit revocation. JS:Isc S:\COUNCIL\Committee\LEG & Ln106-07\cabaretamendment.doc ORDINANCE NO. AN ORDINANCE AMENDING SECTIONS 5.14.050 and 5.14.060 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO CABARETS BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Section 5.14.050 is hereby amended to read as follows: 5.14.050 Suspension or Revocation. Any permit issued pursuant to this chapter shall be immediately suspended or revoked by the chief of police or his designee whenever he finds: A. That misrepresentations were made on the application; or B. That the owner or a manager has in the past three years 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; or C. That the owner or a manager has in the past three years done any act involving dishonesty, fraud or deceit with the intent to substantially benefit himself or another, or substantially injure another; or D. That any of the terms or conditions of said permit have been violated or that the business has been operated in violation of a local, state or federal law; or E. That the operation of the cabaret is interfering with the peace and quiet of the neighborhood. SECTION 2. Section 5.14.060 is hereby amended to read as follows: 5.14.060 Appeal. A. Should any applicant be dissatisfied with the decision of the chief of police or his designee not to grant a permit or for the suspension or revocation of a permit, then said applicant may, no later than ten days after notice of such decision is deposited in the United States mail, addressed to the applicant or permittee at the address provided on the application, make written objection to the city manager or his designee setting the grounds for dissatisfaction whereupon the city manager shall hear said objections at a hearing no later than three weeks following the filing of the objection with the city clerk. The applicant shall be given written notice no less than three days prior to said hearing. The city manager or his designee may, upon said hearing, sustain, suspend or overrule the decision of the chief of police or his designee, which decision shall be final and conclusive. B. Pending the hearing before the city manager, the decision of the chief of police or his designee shall remain in full force and effect and any reversal thereof by the city manager shall not be retroactive but shall take effect as of the date of the manager's decision. SECTION 3. This Ordinance shall be posted in accordance with the provisions of the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. -----00000----- 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, BENHAM, WEIR, COUCH, HANSON, SULLIVAN, SCRIVNER NOES: COUNCILMEMBER ABSTAIN: COUNCILMEMBER ABSENT: COUNCILMEMBER __ ___ CITY CLERK and EX OFFICIO of the Council of the City of Bakersfield APPROVED: By: HARVEY L. HALL, Mayor CITY OF BAKERSFIELD APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By: JANICE SCANLAN Assistant City Attorney S:\COUNCIL\Ords\06-07 Ords\5.14cabaretamendment.doc LEGISLATIVE AND LITIGATION COMMITTEE Tuesday, June 5, 2007 ATTENDANCE LIST Name ^/1 o/tGYol ~M i~ Organization Contact: Phone/ E-mail l C ~ o~c~ /a.~ ' 32c~-3~z1 ,' ~~.~ C~-~ ~~ ~~~ ;'pis - ~ ~~ ~ ,euNrte~S ~ pD ~?~ `3?~3 ~~~~~~ L~~,~ 3~~ -~gZ 7 L ~~~ ~ S ~2~- 3 ~~ ~ ~ . ~ e vi ~~ ~~ -~2 Z~ ~-- ~~.-t~- Sa~,~ ~~ I~ ~(z~- R~~ t~ ~ a8--~~s G 3 - 3? s~l v ~~- - ~z 3 w ~ y- ~ ~~ We'll still get 5% of the "gross revenue". ~ suppose a ~~~ ~~ G. ~ ,~~~~ -_ .. how we will be financially impacti dtow the state to hhave thei r curhent contract with lus seems to think they will not app y nullified, but just let it expire (2015?). However, one of the major reasons local governments strongly opposed the measure, is that even though we'll no longer have oversight or authority over cable franchising in our jurisdiction, we will be required to provide encroachment permits and wlica t wouldabe mechanism for appealttached ordinance drafted by Janice randnthe suggestion it be denied. Hence, the a discussed in committee. Hopefully, this give you a simplified overview of where we are and what we need to took at. Let me know if you have further questions or want me to directly pursue further with Janice. rks ~k i .. A ~ : ~ IO OFFICE OF THE CITY ATTORNEY MEMORANDUM April 23, 2007 TO: FROM: SUBJECT: ALAN TANDY, CITY MANAGER JANICE SCANLAN, ASSISTANT CITY ATTORNEY RAMIFICATIONS OF A.B. 2987 (STATEWIDE CABLE FRANCHISING) In September 2006, the California Legislature adopted Assembly Bill 2987. In essence, AB 2987 is a law which takes cable television franchising authority away from local government and gives it to the state. All it really does is provide a mechanism for telephone companies to become cable television providers without having to go through the negotiations with local entities that other cable providers had to endure. Instead of applying with a local government, any company desiring to provide cable television anywhere in the state of California files an application with the PUC. The applicant is required to let the local entity know about the franchise application if the company plans to provide service in the local entity's jurisdiction. Impact on the City AB 2987 requires local entities to do and refrain from doing several things. Below is a synopsis of various sections of the new law and what it requires of or means to the City. Current Franchise Holders Under AB 2987, the current franchise holders can either continue under their existing agreements and file for the state franchise when their local franchise expires, or negotiate an early termination date with the local entity and apply for a state franchise. The current franchises are set to expire in 2015. Franchise Fees Currently, under the Brighthouse and Cox/Cebridge franchise agreements, the City receives 5% of the "total gross receipts". "Total gross receipts° are defined in the agreement as: any and all compensation and other consideration received directly by the Grantee from the operation of its CATV service in the City of Bakersfield, including revenues from monthly subscriber rates, pay television revenues, revenues received from any access channels (except as noted herein), data and impulse signals, revenues i41an Tandy, City Manager A.B.2987 April 23, 2007 Page 2 received from sale of advertising and installation, connections, and reinstatement charges, and any other or additional available services provided by cable. Total gross receipts shall not include (1) uncollectible amounts; (2) refunds or rebates made by Grantee; (3) sales, ad valorem or other types of "add-on" taxes, levies or fees calculated by gross receipts or gross revenues which Grantee might have to pay or collect for Federal, State or local government (exclusive of franchise fees provided for herein); (4) non-operating revenues such as interest income or gain from sale of an asset; and (5) revenues received from the public access channels when such revenues represent only a reimbursement of the Grantee's actual costs. The new law requires state franchise holders to pay local entities 5% of "gross revenues". "Gross revenues" are defined as: (d) For purposes of this section, the term "gross revenues" means all revenue actually received by the holder of a state franchise, as determined in accordance with generally accepted accounting principles, that is derived from the operation of the holder's network to provide cable or video service within the jurisdiction of the local entity, including all of the following: (1) All charges billed to subscribers for any and all cable service or video service provided by the holder of a state franchise, including all revenue related to programming provided to the subscriber, equipment rentals, late fees, and insufficient fund fees: (2) Franchise fees imposed on the holder of a state franchise by this section that are passed through to, and paid by, the subscribers. (3) Compensation received by the holder of a state franchise that is derived from the operation of the holder's network to provide cable service or video service with respect to commissions that are paid to the holder of a state franchise as compensation for promotion or exhibition of any products or services on .the holder's network, such as a "home shopping" or similar channel, subject to paragraph (4) of subdivision (e). (4) A pro rata portion of all revenue derived by the holder of a state franchise or its affiliates pursuant to compensation arrangements for advertising derived from the operation of the holder's network to provide video service within the jurisdiction of the local entity, subject to paragraph (1) of subdivision (e). The allocation shall be based on the number of subscribers in the local entity divided by the total number of subscribers in relation to the relevant regional or national compensation arrangement. S:\Manager\MEMOS\06-07W62987.doc Alan Tandy, City Manager A.B.2987 April 23, 2007 Page 3 (e) For purposes of this section, the term "gross revenue" set forth in subdivision. (d) does not include any of the following: (1) Amounts not actually received, even if billed, such as bad debt; refunds, rebates, or discounts to subscribers or other third parties; or revenue imputed from the provision of cable services or video services for free or at reduced rates to any person as .required or allowed by law, including, but not limited to, the provision of these services to public institutions, public schools, governmental agencies, or employees except that forgone revenue chosen not to be received in exchange for trades, barters, services, or other items of value shall be included in gross revenue. (2) Revenues received by any affiliate or any other person in exchange for supplying goods or services used by the holder of a state franchise to provide cable services. or video services. However, revenue received by an affiliate of the holder from the affiliate's provision of cable or video service shall be included in gross revenue as follows: (A) To the extent that treating the revenue as revenue of the affiliate, instead of revenue of the holder, would have the effect of evading the payment of fees that would otherwise be paid to the local entity. (B) The revenue is not otherwise subject to fees to be paid to the local entity. (3) Revenue derived from services classified as noncable services or nonvideo services under federal law, including, but not limited to, revenue derived from telecommunications services and information services, other than cable services or video services, and any other revenues attributed by the holder of a state franchise to noncable services or nonvideo services in accordance with Federal Communications Commission rules, regulations, standards, or orders. (4) Revenue paid by subscribers to "home shopping" or similar networks directly from the sale of merchandise through any home shopping channel offered as part of the cable services or video services. However, commissions or other compensation paid to the holder of a state franchise by "home shopping" or similar networks for the promotion or exhibition products or services shall be included in gross revenue. S:VolanagerUNEMOS\06-07\AB2987.doc Alan Tandy, City Manager A.B.2987 April 23, 2007 Page 4 (5) Revenue from the sale of cable services or video services for resale in which the reseller is required to collect a fee similar'to the franchise fee from the reseller's customers. (6) Amounts billed to, and collected from, subscribers to recover any tax, fee, or surcharge imposed by any governmental entity on the holder of a state franchise, including, but not limited to, sales and use taxes, gross receipts taxes, excise taxes, utility users taxes, public service taxes, communication taxes, and any other fee not imposed by this section. (7) Revenue from the sale of capital assets or surplus equipment not used by the purchaser to receive cable services or video services from the seller of those assets or surplus equipment. (8) Revenue from directory or Internet advertising revenue, including, but not limited to, yellow pages, white pages, banner advertisement, and electronic publishing. (9) Revenue received as reimbursement by programmers of specific, identifiable marketing costs incurred by the holder of a state franchise for the introduction of new programming. (10) Security deposits received from subscribers, excluding security deposits applied to the outstanding balance of a subscriber's account and thereby taken into revenue. (f) For the purposes of this section, in the case of a video service that may be bundled or integrated functionally with other services, capabilities, or applications, the state franchise fee shall be applied only to the gross revenue, as defined in subdivision (d), attributable to video service. Where the holder of a state franchise or any affiliate bundles, integrates, ties, or combines video services with nonvideo services creating a bundled package, so that subscribers pay a single fee for more than one class of service or receive a discount on video services, gross revenues shall be determined based on an equal allocation of the package discount, that is, the total price of the individual classes of service at advertised rates compared to the package price, among all classes of service comprising the package. The fact that the holder of a state franchise offers a bundled package shall not be deemed a promotional activity. ff the holder of a state franchise does not offer any component of the bundled package separately, the holder of a state franchise shall. declare a stated retail S:\Manager\MEMOS\06A7\AB2987.dce Alan Tandy, City. Manager A. B. 2987 April 23, 2007 Page 5 value for each component based on reasonable comparable prices for the product or service for the purpose of determining franchise fees based on the package discount described above. (g) For the purposes of determining gross revenue under this division, a video service provider shall use the same method of determining revenues under generally accepted accounting principals as that which the video service provider uses in determining revenues for the purpose of reporting to national and state regulatory agencies. Cal Pub Util Code § 5860 From my reading of the definition, our current franchise holders would be paying the City a percentage of the amount of money they receive for digital intemet service and/or voice-over IP (phone) or other noncable services. Whereas, a new, state-wide provider would not have to pay the City a percentage of that money. It is entirely possible that a new provider can charge very little for the cable television service and charge a large amount for the high-speed intemet and the City would not be entitled to the 5% of the charges for the intemet service. PEG channels The new law requires the franchise holder to provide PEG channels to the local entities within three months of being requested to do so by the local entities. The franchise holder only has to provide the equivalent of what the other local providers supply, but the local entity can request up to three channels. If the local entity does not broadcast an average of 8 hours a day, however, the franchise holder can take the channel back for its own programming. (Section. 5870(a) and (e).) Encroachment Permits This law requires local entities to allow state franchise holders to install, construct, and maintain a network within public rights-of--way under the same time, place, and manner as the provisions governing telephone corporations under applicable state and federal law. (Section 5885(a)). Moreover, local entities must have a process where the franchise holder can appeal the denial of an encroachment permit to the City Council. (Section 5885(c)). Currently, our municipal code has no appeal of a denial of an encroachment permit, much. less an appeal to the City Council. Enforcement Section 5900(c) requires the local entities to enforce the customer service and protection standards set forth in the code and other sections of the law. Section 5900(d) requires the local entities to adopt by ordinance or resolution penalties for failing to comply with the customer service and protection standards. The fines are set S:\ManagerUvl EMOS\06-07 W B2987.doc i41an Tandy, City Manager A.B.2987 April 23, 2007 Page 6 forth in the statute and the local entities are locked in to those fines. In order to comply with due process, the City would have to establish a hearing procedure before we could start levying the penalties. Section 5900(g) requires the local entities to remit one-half of all penalties collected to the Digital Divide Account. The Digital Divide Account supposedly provides grants to non-profits to fund community technology programs. State-wide Applicants On March 9, 2007, the City received a notice from AT&T that it had applied for a state-wide video franchise. On April 5, 2007, we received a notice from the Public Utilities Commission that the franchise had been granted. Pursuant to AB 2987, AT&T must notify the City at least 10 days and no more than 60 days before it begins providing cable service in the City. Once it starts providing the service, it must pay the franchise fees at the end of the quarter which is more than 180 days from the start of service and quarterly thereafter. Section 5890(a) prohibits state-wide franchise holders from discriminating against customers because of income, but only requires that, after 3 years, 25% of their customers be low-income (30% after five years) and they provide free service to community centers. Sample Ordinances I have searched several high-tech cities' codes to see if any of them have adopted an ordinance pursuant to this law. I cannot find any. I contacted the Walnut Creek .City Attorney who is the expert on telecommunications and cable laws. He actually wrote the book that most municipalities look at to determine what they can and cannot do. His city has not adopted anything yet because they are in litigation with AT&T regarding encroachment permits. Attached is a draft ordinance which includes all of the- requirements of AB 2987. Attachment S:\Manageruvi EMOS\06-07\AB2987.dce ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 5.48 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO VIDEO SERVICE PROVIDERS, AMENDING SECTION 12.16.060 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO CONSTRUCTION WORK IN STREETS AND AMENDING SECTION 12.20.020 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO ENCROACHMENTS WHEREAS, Section 116 of the City Charter sets forth that the City can grant cable television franchises; and WHEREAS, pursuant to the Charter, the City entered into franchise agreements with two cable operators; and WHEREAS, in 2006, the California Legislature enacted Assembly Bill 2987 (AB 2987) which eliminated local video service franchising authority and created a state- wide video programming franchise process; and WHEREAS, AB 2987 allows current franchise holders to continue operating under the local franchise until the franchise expires or is terminated; and WHEREAS, pursuant to AB 2987, potential video service providers apply to the California Public Utilities Commission for state-wide video service franchises and, if granted, can provide video programming services anywhere in the State; and WHEREAS, AB 2987 requires local entities to enforce regulations regarding such programming services and to adopt penalties for violations of the regulations; and WHEREAS, additionally, AB 2.987 requires local entities to have a mechanism in place whereby video service providers can appeal the decision of the Public Works Department to deny an encroachment permit or a permit allowing work in city streets or rights-of-way; and WHEREAS, AB 2987 requires that such appeal be heard by the City Council. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Chapter 5.48 is hereby amended to read as follows: Chapter 5.48 VIDEO SERVICE PROVIDERS 5.48.010 Definitions 5.48.A4A Q24 Grant of franchise to Time Warner Entertainment- Advance/Newhouse, a general partnership under the laws of the state of New York. 5.48.A2A ~ Grant of franchise to Cebridge Acquisitions, L.P., a Delaware limited partnership doing business in California as Cebridge Connections. 5 48.040 Regulations 5 48 050 Notice of Violation 5 48 060 Penalties 5 48 010 Definitions. (a) "Cable Operator" means anv aerson arouo of oersons or business entity grovidina cable television service in the city limits pursuant to a franchise aareement with the Citv entered into prior to January 1.2007. (bl "State Franchise Holder" means anv person arouo of persons or business entity grovidina video proarammina service pursuant to a franchise aranted by the State of California throuah the Public Utilities Commission after January 1.2007. (cl "Video Service Provider" means both a Cable Operator and a State Franchise Holder. 5.48.8-A 92Q Grant of franchise to Time Warner Entertainment- Advance/Newhouse, a general partnership under the laws of the state of New York. Pursuant to Charter Section 116 the city of Bakersfield hereby grants to Time Warner Entertainment-Advance/ Newhouse, a general partnership under the laws of the state of New York the nonexclusive right, privilege and franchise to lay and use lines, wires, coaxial cable and appurtenances for transmitting, distributing and supplying radio and television antenna service along, across and upon the public streets, ways, alleys and places within the city of Bakersfield effective upon the execution of a franchise agreement as approved by the city council of the city of Bakersfield and subject to all the terms and conditions contained in such franchise agreement approved by the city council of the city of Bakersfield. 5.48.828 9,~Q Grant of franchise to Cebridge Acquisitions, L.P., a Delaware limited partnership doing business in California as Cebridge Connections. Pursuant to Charter Section 116, the city of Bakersfield grants to Cebridge Acquisitions, L.P., a Delaware limited partnership doing business in California as Cebridge Connections the nonexclusive right, privilege and franchise to lay and use lines, wires, coaxial cable and appurtenances for transmitting, distributing and supplying radio and television antenna service along, across and upon the public streets, ways, alleys and places within the city of Bakersfield effective upon the execution of an amendment to a franchise agreement as approved by the city council of the city of Bakersfield and subject to all the terms and conditions contained in such franchise agreement approved by the city council of the city of Bakersfield. 5.48.040 Regulations. All Video Service Providers must comply with the provisions of Section 53.055. 53055.1. 53055 2 and 53088 2 of the California Government Code Section 637.5 of the California Penal Code and 47 U S C 551 et sea All Vide_ o Service Providers must comply with customer service standards pertainina to the provision of video service P~tablished by federal law or reaulation or adopted by subseauent enactment of the -_ alifornia Leaislature Additionallv Cable Operators must comply with all terms of their franchise aareements until such aareements are terminated or expires. 5.48.050 Notice of Violation. If the Citv determines that a Video Service Provider is in violation of anv laws set forth in Section 5.48.040 or in the case of a Cable Operator. the terms of the franchise aareement Citv shall notifv the Video Service Provider of the violation(s) in writina. The Video Service Provider shall have thirty (301 davs to correct the violation. If the violation is not corrected a fine or other penalty shall be imposed pursuant to Section 5.48.060. A violation of anv law or regulation referenced in Section 5.48.040 or anv other law cited in anv amendment to the Digital Infrastructure and Video Competition Act of 2006 __ ~('alifornia Public Utilities Code section 5800 et seal shall result in a fine of $500.00 per day for each day the violation continues. not to exceed $1.500.00. A second violation occurring and not corrected in a 12-month period shall result in a fine of $1.000.00 per day for each day the violation continues. not to exceed $3.000.00. A third or subseauent violation in that same 12-month period shall result in a fine of $2.500.00 per __- dav for each day the violation continues. not to exceed $7.500.00. City shall notifv the Video Service Provider of the fine(s) in writina and the Video Service Provider shall pay such fine(s) to the Citv within ten (101 davs of the mailing of the notice by City or file a written reauest for an appeal of the fine with the Citv Clerk. Upon timely receipt of a written reauest for an appeal. the Citv Clerk shall schedule the matter for hearing with he Citv Manager or desianee within sixty (601 davs of receipt of reauest for appeal. After the time for appeal has run or if the Citv Manaaer or desianee upholds of the fine. the Citv may take anv action allowed by law to recover an unpaid fine. Additionallv. failure to pay the fine shall be reported to the Public Utilities Commission. Nothing in his section precludes the City from terminating a franchise aareement with a Cable Q~ rator for breaching the terms of the franchise aareement. One half of anv fine collected by City shall be submitted to the Diaital Divide Account established in Section ~Rn 5 of the Public Utilities Code. SECTION 2 Section 12.16.060C of the Bakersfield Municipal Code is hereby amended to read as follows: 12.16.060 Action on applications for permits to excavate. C. If the application is denied, the department shall advise the applicant in writing of the basis for denial. The applicant shall have ten (101 davs from the mailina of such denial by City to aaaeal The written reauest for aaaeal must be received by the itv Clerk within such time period Uaon timely receiat of a written reauest for an a:.~2a1 the Citv Clerk shall schedule the matter for hearina with the City Manaaer or desianee within sixty (601 davs of receiat of the reauest. If the aaalicant is a Video ~~rvice Provider as defined in Section 5 48 010 of this Code pursuant to Section 5885 of the Public Utilities Code the applicant shall have ten (101 davs from the mailina of such denial by City to aaaeal The written reauest for aaaeal must be received by the City Clerk within such time aeriod Uaon timely receiat of a written reauest for an aaaeal. the City C~~~ncil shall schedule the matter for hearina at the next avanaaie City Council meetina. SECTION 3. Section 12.20.0206 of the Bakersfield Municipal Code is hereby amended to read as follows: 12.20.020 Permit requirements-Revocation. B. Any person, firm or corporation desiring to place, erect or maintain any such encroachment as defined in Section 12.20.010 shall make application for a permit at the office of the city engineer. Such application shall contain the name and address of the applicant, a description of the proposed encroachment and the proposed location thereof, the period of time for which such encroachment is proposed to be maintained, and such other information as may be required by the city engineer. Such application shall further contain an agreement on the part of the applicant that if such application is granted, the applicant will indemnify and save and hold harmless the city, its agents, officers and employees against and from all damages, judgments, claims, demands, expenses, costs and expenditures, and against all loss or liability which the city or such officers, agents or employees may suffer, or which may be recovered from or obtainable against the city or such officers, agents or employees, legally caused by, growing out of, or in any way connected with, the placing, erection or maintenance of such encroachment, and upon the expiration of such permit or the revocation thereof, the applicant will, at his own cost and expense, remove the same from the public property or right-of-way where the same is located and restore such public property or right-of- way to the condition as nearly as that in which it was before the placing, erection, maintenance or existence of such encroachment. Such application shall also contain an agreement on the part of the applicant to keep all liability insurance required by the city manager in full force and effect for however long the encroachment remains. Upon the receipt of such application, the city engineer shall make an investigation to determine if the maintenance of such encroachment will substantially interfere with the use of the public property, right-of-way or other public place where the same is proposed to be placed, erected or maintained, and whether the placing, erection or maintenance of such encroachment will constitute a hazard to persons using such public property, right- of-way or other public place. Upon the completion of such investigation, the city engineer shall, at his discretion, either grant or deny the applicant a permit to place, erect and/or maintain such encroachment. Such permit, if granted, may be granted for a definite time or for annual renewal, and the city engineer may impose such conditions to the granting of the same as in his discretion will best serve the public interest. In any event, a permit granted by the city engineer pursuant to this section is revocable at any time by the city engineer. If the application is denied the department shall advise the applicant in writina of the basis for denial. The applicant shall have ten (101 davs from the mailina of such denial by City to appeal. The written reauest for appeal must be r ~Pived by the Citv Clerk within such time period Uaon timely receipt of a written roc -~PSt for an appeal the Citv Clerk shall schedule the matter for hearina with the Citv Manaaer or desianee within sixty (601 davs of receipt of the reauest. If the applicant is a Video Service Provider as defined in Section 5 48 010 of this Code. pursuant to Section 5885 of the Public Utilities Code the applicant shall have ten (101 davs from the mailina of such denial by City to appeal The written reauest for appeal must be received by the Citv Clerk within such time period. Upon timely receipt of a written r auest for an appeal the Citv Council shall schedule the matter for hearina at the nex available Citv Council meetina. Upon the revocation of any such permit, the city engineer shall give notice in the form and manner specified in Section 12.2.0.030 to the applicant for such permit or to the person maintaining such encroachment. It is unlawful for a person, firm or corporation to place, erect or maintain or to permit the placing, erection, maintenance or existence of an encroachment upon, over or under any street, avenue, lane, alley, sidewalk, court, place, public way, property or right-of-way after his permit has expired, after his permit has been revoked and the time specified in the notice from the city engineer for removal of the same has expired, or after required insurance has expired, lapsed, been reduced or revoked. An encroachment permit may be granted in the Central Business Zone and Commercial Center Zone for restaurants or other establishments serving food or beverages in the encroachment area; however, all the requirements of Sections 12.20.020(c) and (D) shall be followed in addition to all other requirements of this chapter. Fees or charges for the issuance of any permit under this chapter may be imposed by resolution or ordinance of the city council. SECTION 4. This Ordinance shall be posted in accordance with the provisions of the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. -----00000----- 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 NOES: COUNCILMEMBER ABSTAIN: COUNCILMEMBER ABSENT: COUNCILMEMBER APPROVED: By: HARVEY L. HALL, Mayor CITY OF BAKERSFIELD APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By: JANICE SCANLAN Assistant City Attorney CARSON, BENHAM, WEIR, COUCH, HANSON, SULLIVAN, SCRIVNER CITY CLERK and EX OFFICIO of the Council of the City of Bakersfield S:\COUNCIL\Ords\06-07 Ords\5.48.statevideofranchiseamend.doc