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HomeMy WebLinkAbout643ORDINANCE NO. 643 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE, CALIFORNIA, AMENDING CHAPTERS 5.32 AND 12.04 OF THE IRWINDALE MUNICIPAL CODE PERTAINING TO STATE VIDEO FRANCHISE HOLDERS OPERATING WITHIN THE CITY Summary: This Ordinance would update Charter 5.32 of the Irwindale Municipal Code to adopt a schedule of penalties for state video franchisee violations. WHEREAS, the Legislature of the State of California ("State") has adopted the Digital Infrastructure and Video Competition Act of 2006 ("DIVCA"); and WHEREAS, DIVCA, establishes a regulatory structure for the State to issue franchises to video service providers ("state franchise(s)"); and WHEREAS, DIVCA establishes that local entities, such as the City of Irwindale ("City"), are responsible for the administration and implementation of certain provisions of DIVCA and requires that the City establish, by ordinance, a fee to support Public, Educational and Governmental ("PEG") channel facilities, which the City reserves the right to establishes by way of amendment to this ordinance in the future of up to one percent (1%), or other amount as permitted by law, of a franchise holder's gross revenues to support PEG facilities to be paid by any franchise holder operating within the boundaries of the city to the extent permitted under law and as authorized by Section 5870(n) of the CPUC; and WHEREAS, the City will receive a fee of five percent (5%) of gross revenues from each state franchise holder which operates within the City for use of the public rights-of-way unless the City opts to waive collection of the fee; and WHEREAS, the City does not currently opt to waive the collection of the five percent (5%) franchise fee; and WHEREAS, the City may audit the business records of a state franchise holder once annually to ensure compliance with the payment of the franchise and PEG fees; and WHEREAS, DIVCA also requires that the City adopt a schedule of penalties for any material breach by a state franchise holder for violation of customer service and protection standards that the City is permitted to enforce; and NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 5.32 of the Irwindale Municipal Code is hereby amended to delete the existing Chapter 5.32 titled "Cable Television Franchises" and add a new Chapter 5.32 to read in its entirety as follows: Ordinance No. 643 Page 1 "State Video Franchises § 5.32.010 Definitions. A. For the purposes of this division "CPUC" shall mean the California Public Utilities Code. B. For the purposes of this division "franchise holder" shall mean a "holder of a state franchise" as that term is defined at section 5830 of the CPUC. C. For the purposes of this division "gross revenues" shall have the definition as set forth at Section 5860 of the CPUC. § 5.32.020 State Video Franchise. A. Any franchise holder operating within the boundaries of the city, shall calculate and remit to the city a franchise fee of five percent (5%) of its gross revenues in accordance with the following: 1. The fee shall be payable to the city quarterly no later than June 1, September 1, December 1 and March 1 for the preceding calendar quarter for which the payment is due. However, in accordance with CPUC Section 5860(a) the first remittance by a franchise holder shall not be due until one hundred and eighty (180) days after the provision of service began. 2. As required by Section 5860(h) of the CPUC, the payment shall be accompanied by a summary explaining the basis for the calculation of the franchise fee. 3. Per Section 5860(h) of the CPUC, if the franchise holder does not pay the franchise fee when due, the franchise holder shall pay a late payment charge at a rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent (1%). § 5.32.030 Audit Authority. Not more than once annually, the city manager or his designee may examine and perform an audit of the business records of any franchise holder to ensure compliance with section 5.32.020 or any other fee or tax as permitted by law. § 5.32.040 Customer Service Penalties. A. Any franchise holder shall, at minimum, comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service. B. The city manager or his designee will provide a franchise holder with written notice of any material breach of applicable customer service and protection Ordinance No. 643 Page 2 standards, and will allow the franchise holder at least thirty (30) calendar days from the receipt of the notice to remedy the specified material breach. A material breach that is not remedied by the franchise holder within the remedy period shall subject the franchise holder to the following penalties to be imposed by the city: 1. For the first occurrence of a material breach, a penalty of not more than five hundred dollars ($500) for each day of each material breach, not to exceed one thousand five hundred dollars ($1,500) for each occurrence of a material breach. 2. For the second violation of the same nature within twelve (12) months, a penalty of one thousand dollars ($1,000) for each day of each material breach, not to exceed three thousand dollars ($3,000) for each occurrence of the material breach. 3. For a third or further violation of the same nature within twelve (12) months, a penalty of two thousand five hundred dollars ($2,500) for each day of each material breach, not to exceed seven thousand five hundred dollars ($7,500) for each occurrence of the material breach. C. The franchise holder may appeal any imposition of penalties to the city council. Any appeal must be made within thirty (30) calendar days of the city's delivery of the notice regarding the imposition of penalties. All appeals must be timely submitted in writing to the city clerk to be placed on a city council agenda for consideration. Any appeal must contain a detailed explanation of why the applicant believes that the finding of material breach or the imposition of penalties was inconsistent with statutory requirements or authority. D. The city council shall hear all evidence and relevant testimony and may uphold, modify or vacate the penalty. The city council's decision on the imposition of a penalty shall be final. E. The city and any franchise holder may mutually agree to extend the time periods specified herein. Any such agreement shall be in writing and executed by the city manager, or his designee, and an authorized representative of the franchise holder. F. Any penalty imposed on the franchise holder pursuant to this section shall be paid to the city. As provided for in Section 5900(g) of the CPUC, the city shall submit one-half of all penalties received from a franchise holder to the Digital Divide Account established in Section 280.5 of the CPUC. § 5.32.050 City Response to Franchise Holder Applications. A. Applicants for state video franchises within the boundaries of the city must concurrently provide complete copies to the city of any application, or amendments to applications, filed with the CPUC. One complete copy must be provided to the city clerk. Ordinance No. 643 Page 3 B. Within thirty (30) days of receipt of any documents described in subsection A above, the city manager will provide any appropriate comments to the CPUC regarding an application or an amendment to an application for a state video franchise. § 5.32.060 Indemnification & Insurance Requirements for State Franchisees A. Defense of Litigation. 1. The franchise holder shall at the sole risk and expense of franchise holder, upon demand of the city, made by and through the city attorney, appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi- judicial, administrative, legislative, or otherwise, brought or instituted or had by third person or duly constituted authorities, against or affecting the city, its elected officers, boards, commissions, agents or employees, and arising out of or pertaining to the exercise or the enjoyment of such state video franchise. 2. The franchise holder shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand rendered, made or issued against the franchise holder, the city, its elected officers, boards, commissions, agents, or employees in any of these premises; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise; provided, that neither the franchise holder nor city shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other proceeding, without first obtaining the written consent of the other. 3. Insurance Required. Upon being granted a state franchise, the franchise holder shall file with the city attorney and shall thereafter during the entire term of the installation and/or occupation in the public rights-of-way with any of the franchise holder's equipment and maintain in full force and effect at its own cost and expense, each of the following policies of insurance: (i) General comprehensive liability insurance in the amount of one million dollars, together with bodily injury liability insurance in an amount not less than one million dollars for injuries including accidental death, to any one person, and subject to the same limit for each person in an amount not less than five hundred thousand dollars on account of any one occurrence, and property damage liability insurance in an amount not less than one hundred thousand dollars resulting from any one occurrence; provided, however, as follows: (ii) The city shall be named as an additional insured in any of such insurance policies; and (iii) Where such insurance is provided by a policy which also covers the franchise holder or any other entity or person, it shall contain the standard cross- liability endorsement which excludes cross-liability suits. Ordinance No. 643 Page 4 § 5.32.060 Undergrounding (a) In those areas and portions of the city where the transmission or distribution facilities of both the public utility provided telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the franchise holder shall likewise construct, operate and maintain all of its transmission and distribution facilities underground. (b) When the franchise holder's conduits and other facilities are not being installed underground, the franchise holder shall utilize its existing poles, conduits or other facilities (collectively, "system") to the extent feasible, as reasonably determined by the city engineer, and shall remove all portions of the above-ground system which will no longer be utilized. In addition, all facilities which are installed above ground shall utilize anti-graffiti surfaces. (c) Should the city undertake a program to cause all conduits and other facilities to be located beneath the surface of the streets in any area or throughout the city, upon reasonable notice to a franchise holder utilizing poles, conduits or other above- ground facilities, any such conduits or other facilities of the franchise holder shall be constructed, installed, placed or replaced beneath the surface of the streets. Any construction, installation, placement, replacement or changes which may be so required shall be made at the expense of the franchise holder, whose costs shall be determined as in the case of public utilities." § 5.32.070 Compliance with other codes. All franchise holders shall comply with all other applicable laws including Chapter 12.04 this Code, if applicable." SECTION 2. The subsection (D) of section 12.04.020 of Chapter 12.04 shall be added to existing section 12.04.020 to read in its entirety as follows. Section 12.04.020 shall also be re-titled as follows. All other subsections of 12.04.020 shall remain unchanged: "12.04.020—Non-liability of city—Payment of issuance fee and bond required. (D) The city engineer shall require a bond, letter of credit or other security instrument for all permits issued pursuant to this chapter. Said bond shall be in an amount deemed adequate by the city engineer based on the cost of construction, repair, removal or other reasonable factors." SECTION 3. The following sections of Chapter 12.04 shall be deleted and replaced with following sections to read in their entirety as follows: "12.04.120 Permit--Issuance. Ordinance No. 643 Page 5 A. When a completed application for a permit, issued pursuant to this chapter, is submitted to the city by a franchise holder, the application shall be approved or denied by the city engineer, or his or her designee, within sixty days of the date of receipt. B. An application for a permit sought pursuant to this chapter shall not be complete until the applicant has complied with all requirements, including any analysis required under the California Environmental Quality Act, and has paid the required fee as established by a resolution of the city council. C. If the applicant complies with every provision of this chapter and with all applicable provisions of this code, the city engineer may issue to the applicant a written permit to perform the work set forth in the application. D. Any permit shall be subject to any reasonable conditions or limitations imposed thereon to assure the elimination or avoidance of adverse effects. E. In the event the city engineer denies an application for a permit, the director shall notify the applicant of the denial and furnish to the applicant a detailed explanation of the reason(s) for the denial. 12.04.130 Permit--Application to city council when permit denied or revoked. In the event that an applicant wishes to appeal the city engineer's decision to deny an application or revoke a permit issued pursuant to this chapter, the decision may be appealed to the city council. An appeal shall be filed by submitting to the city clerk, within fifteen days from the city engineer's notification of a decision on the application, a notice of appeal stating the grounds for the appeal along with a filing fee in an amount established by resolution of the city council. If the fifteenth day falls on a weekend or legal holiday recognized by the city, the final appeal day shall be the next regular business day of the city. Within thirty days of the receipt of a timely appeal, the city clerk shall agendize a city council hearing to consider the appeal. SECTION 4. If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have adopted this ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion or the ordinance would be subsequently declared invalid or unconstitutional. SECTION 5. The Deputy City Clerk shall certify to the passage of this ordinance and cause it to be posted in three conspicuous places in the City of Irwindale, and it shall take effect on the thirty-first (31 st ) day after it is approved by the City Council. Ordinance No. 643 Page 6 PASSED, APPROVED and ADOPTED this 11 th day of August 2010. H. Manuelbrtiz, Mayor ATTEST: STATE OF CALIFORNIA COUNTY OF LOS ANGELES } ss. CITY OF IRWIN DALE I, Linda J. Kimbro, Deputy City Clerk of the City of Irwindale, California, do hereby certify that the foregoing Ordinance No. 643 was duly introduced at a regular City Council meeting held on the 28 th day of July 2010, and adopted at a regular meeting of the City Council held on the 11 th day of August 2010, by the following roll call vote: AYES: Councilmernbers: Breceda, Burrola, Garcia, Fuentes, Mayor Ortiz NOES: Councilmembers: None ABSENT: Councilmembers: None ABSTAIN: Councilmembers: None Li J7KimbkyMC Dep`uty City Clerk AFFIDAVIT OF POSTING I, Linda J. Kimbro, Deputy City Clerk, certify that I caused a copy of Ordinance No. 643, adopted by the City Council of the City of Irwindale at its regular meeting held August 11, 2010, to be posted at the City Hall, Library, and Post Office on August 12, 2010. Linda J. Kirnbio)MMC' \.Deputy City C Dated: August 12,2010 Ordinance No. 643 Page 7