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HomeMy WebLinkAbout2351 - Uncodified ORDINANCE NO. 2351 (UNCODIFIED) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, AMENDING UNCODIFIED ORDINANCE NO. 2276 AND REAUTHORIZING THAT ORDINANCE AS AMENDED, INCLUDING THE FEE PAID TO THE CITY BY STATE VIDEO FRANCHISE HOLDERS FOR PUBLIC, EDUCATIONAL, AND GOVERNMENT ACCESS PURPOSES WHEREAS, in 2006, the Digital Infrastructure and Video Competition Act was signed into law and codified at California Public Utilities Code section 5800, et seq., ("DIVCA"); and WHEREAS, DIVCA established a state video franchising system that replaced local cable franchising but also recognized the continued need to protect local revenues and control of public rights of way; and WHEREAS, DIVCA provides that state video franchises are issued by the California Public Utilities Commission ("CPUC") and have a stated term of 10 years; and WHEREAS, DIVCA provides that a local entity may, by ordinance, establish a fee to support public access, educational, and government ("PEG") purposes payable by state video franchise holders; and WHEREAS, the City Council of Arcadia adopted Ordinance No. 2276, which amended Uncodified Ordinance No. 2206 in order to address holders of State video franchises issued by the CPUC pursuant to DIVCA, including providing for the payment of a fee of 1% of gross revenues of each State video franchise holder which operates within the City, to support public, educational, and government ("PEG") access purposes; and 1 WHEREAS, the State video franchises of Spectrum (formerly Time Warner Cable), AT&T, Frontier (formerly Verizon) and Giggle Fiber, currently entitle them to serve Arcadia, some of which have recently expired and been renewed by the CPUC, and others which will expire and may be renewed in the future; and WHEREAS, DIVCA provides that the ordinance establishing a PEG fee shall expire, and may be reauthorized, upon the expiration of the State video franchise, but there is uncertainty as to the circumstances, if any, under which the provision applies to Arcadia's PEG fee ordinance; and WHEREAS, to the extent any action is required of Arcadia, it is deemed to be in the best interests of Arcadia to adopt an ordinance amending and reauthorizing Ordinance No. 2276 including the PEG fee so that as each State video franchise expires and is renewed by the CPUC now and in future years, State video franchise holders continue to pay PEG fees. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA DOES ORDAIN AS FOLLOWS: SECTION 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein by this reference. SECTION 2. Section 1 of Uncodified Ordinance No. 2276 which amended Section 60 of Uncodified Ordinance No. 2206, is hereby amended as follows: 1. The text of Subsection 60(C) is amended, to read in its entirety as follows: (C) (1) For any State video franchise holder operating within the boundaries of the City of Arcadia, there shall be a franchise fee paid to the City equal to five percent (5%) of the gross revenue of that State video franchise holder, and an additional fee paid to the City equal to one percent (1%) of the gross revenue of that State video franchise holder, which 1% fee shall be used by the City for public, educational, and government access consistent with State 2 and Federal law. The 1% fee established in this subsection is intended to be a fee authorized by subsection (n) of Section 5870 of the California Public Utilities Code. Gross revenue, for the purposes of this subsection, shall have the definition set forth in California Public Utilities Code Section 5860. (2) To the extent reauthorization is required by law, this Section 60, including the PEG fee specified in paragraph (1) of this subsection (C) in the amount of one percent (1%) of gross revenues, is automatically reauthorized as to each affected State video franchise holder upon the expiration of any State video franchise. Any and all reauthorizations shall be effective for so long as such reauthorization is required by law. 2. New subsections I and J are added to Section 60, to read in their entirety as follows: (I) Except as expressly provided in this Section, the provisions of Article VII (Public Works), Chapter 3 (Street Excavations) of the Municipal Code, and all City administrative rules and regulations developed pursuant to Article VII, Chapter 3 as now existing or as hereafter amended, shall apply to all work performed by or on behalf of a State video franchise holder in any right-of-way in the City. (J) (1) Prior to commencing any work for which a permit is required by Article VII, Chapter 3 of the Municipal Code, a State video franchise holder shall apply for and obtain a permit in accordance with the provisions of Article VII, Chapter 3. A permit application is complete when the State video franchise holder has complied with all applicable laws and regulations, including but not limited to all City administrative rules and regulations, and all applicable requirements of Division 13 of the California Public Resources Code, section 21000 , and following, (the California Environmental Quality Act) and preparation of plans and specifications as required by the Development Services Director or his or her designee. (2) The Director shall, in the exercise of reasonable discretion as permitted by State law, either approve or deny a State franchise holder's application for any permit required under Article VII, Chapter 3 within sixty (60) days of receiving a complete permit application from the state video franchise holder. (3) If the Director denies a State video franchise holder's application for a permit, the Director shall, at the time of notifying 3 the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial. (4) Notwithstanding Section 7300.29 of the Municipal Code, a State video franchise holder that has been denied a permit by the Director may appeal to the City Council by filing a written notice of appeal with the City no later than thirty (30) days from the date of the Director's decision. All decisions of the Director shall be final unless appealed to the City Council within the time period prescribed. The written notice of appeal shall be signed by the applicant, filed in duplicate with the City Clerk, shall have attached a copy of the application as filed with the Director or his/her designee, shall recite such other items as have been filed, and shall state clearly and concisely the grounds upon which the appellant relies in his appeal. The City Clerk shall forthwith transmit one copy of the notice of appeal to the City Council, set the matter for a hearing within thirty (30) days after the notice of appeal is filed and shall notify the State video franchise holder and the Director or his/her designee of the time and place of the hearing. At the hearing, the State video franchise holder shall establish to the reasonable satisfaction of the City Council that he is entitled to the issuance of a permit pursuant to the provisions of Article VII, Chapter 3 of the Municipal Code. The Director or his/her designee may present his grounds for the denial of the permit. The decision of the City Council shall be final. (5) The issuance of a permit under Article VII, Chapter 3 of the Municipal Code is not a franchise, and does not grant any vested rights in any location in the City right-of-way, or in any particular manner of placement within the right-of-way. A permit to place cabinets and similar appurtenances aboveground may be revoked and the State video franchise holder required to place facilities underground, upon reasonable notice to the State video franchise holder. SECTION 3. Ordinance No. 2276, as amended by this Ordinance, is hereby reauthorized. SECTION 4. CEQA. The City Council finds that this Ordinance is not a project within the meaning of Section 15378 of the State of California Environmental Quality Act ("CEQA") Guidelines, because it has no potential for resulting in physical changes in the environment, directly or indirectly. The City Council further finds, under Title 14 of the 4 California Code of Regulations, Section 15061(b)(3), that this Ordinance is nonetheless exempt from the requirements of CEQA in that the activity is covered by the general rule that CEQA only applies to projects which have the potential to cause a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. The City Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of Los Angeles in accordance with CEQA Guidelines. SECTION 5. Custodian of Records. The documents and materials which constitute the record of proceedings on which this Ordinance is based are located at the City Clerk's Office located at 240 West Huntington Drive, Arcadia, CA 91007. The Custodian of these records is the City Clerk. SECTION 6. Severability. If any section, sentence, clause, or phrase of this ordinance or the application thereof to any entity, person, or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The City Council of the City of Arcadia hereby declares that it would have adopted this Ordinance and each section, sentence, clause, or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses, or phrases be declared invalid or unconstitutional. SECTION 7. Effective Date. This Ordinance shall become effective upon the thirty-first (31st) day following its adoption by a majority vote of the City Council. 5 SECTION 8. Publication. The City Clerk shall certify to the adoption of this Ordinance and shall cause a copy of the same to be published in the official newspaper of the City of Arcadia within fifteen (15) days after its adoption. Passed, approved and adopted this 5th day of De ember , 2017. f'.yor of the City of Arcadia ATTEST: .44- 1111(- -- City lerk �1 APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 6 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, GENE GLASCO, City Clerk of the City of Arcadia, hereby certifies that the foregoing Ordinance No. 2351 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 5th day of December, 2017 and that said Ordinance was adopted by the following vote, to wit: AYES: Beck, Chandler, Verlato, Tay, and Amundson NOES: None ABSENT: None ABSTAIN: None City/Clerk 6f the City of Arcadia 7