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HomeMy WebLinkAboutJuly 19, 2007°, ; : ~•~w, AGENDA O~Q ARCADIA CITY COUNCIL/REDEVELOPMENT AGENCY b,,,~„•` TUESDAY, IULY 19, 2005 This agenda contalns a summary of each item of business which the Council may discuss or act on at this meeting. The complete staff report and all other written documentation relating to each item on this agenda are on file in the office of the City Clerk and the reference desk at the Arcadia Public Librery and are available for public inspection and review. If you have any questions regarding any matter on the agenda, please call the office of the City Clerk at (626) 574-5455. In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a City Council meeting, please contact the City Manager's office at (626) 574-5401 at least three (3) business days before Yhe meeting or time when special services are needed. This notification will help City staff in making reasonable arrangements to provide you with access to the meeting. 6:D0 p.m., City Council Chamber Conference Room ROLL CALL AUDIENCE PARTICIPATION -(5 minutes per person) STUDY SESSION a. Arcadia Transit Performance and Operating Audit RecommendaGons . Recommendation: Review and Discussion CCOSED SESSION ~_ a. Pursuant to Government Code Section 54957.6 to confer about labor contrad negoYiations - California Teamsters Public, Professional and Medical Employees' Union 911 (Confidential, Supervisor; Professional and General Employee Unit and Public Works Employee Unit), Arcadia Police Officers' Association, Arcadia Rrefighters' Association, and unrepresented employees: Departrnent Heads, Division Managers, Supervisors, and Part-time Employees (Ciry Negotiators: William W. Fioyd and Tracey Hause. 7:00 p.m. in the Council Chamber INVOCATION PLEDGE OF ALLEGIANCE - ~ ROLL CALL - ~ SUPPLEMENTAL INFORMATION FROM STAFF REGARDING AGENDA ITEMS REPORT FROM CLOSED SESSION MOTION TO READ ALL ORDINANCES/RESOLUTIONS BY TITLE ONLY AND WAIVE READING IN FULL PRESENTATIONS a. Recognition of inwming and outgoing Boards and Commission Members •.. .~ 1. PUBLIC HEARING - CITY COUNCIL a. Resolution No 6475 - A Resolution of the Citv Council of the CiN of Arcadia California establishinq • processinq charaes for certain cable/OVS franchise purposes. Recommendation: Adopt AUDIENCE PARTICIPATION -(5 minutes per person) REPORTS FROM ELECTED OFFICIALS 2. - CONSENT CALENDAR - ARCADIA REDEVELOPMENT AGENCY a. Minutes of the ]ulv 5, 2005 Reaular Meetino. Recommendation: Approve CONSENT CALENDAR - CITY COUNCIL b. Minutes of the Julv 5. 2005 Reaular MeetlnQ Recommendation: Approve ~ c. Renewal of Local Emergency Proclamation For Winter Storm Damaae. Recommendation: Approve d. Award a contract extension to Traffic O~eretion. Inc. for street strioinq and pavement markina services in the amount of $75,704. Recommendation: Approve e. Resolution No. 6469- A Resoiution of the City Council of the Ciri of Arcadia. Califomia, establishinq procedures and requirements for consideration of Develooment Agreements. Recommendation: Adopt f. Authorize the Citv Manaaer to enter into a contract eMension with National Services Inc. in the ~ amount of ~60 000 for the Annual Sewer Closed Circuit Television Insoection Proaram. Recommendation: Approve g, Introduce Ordinance No 2209 Amendina Article III Chaoter 9 of the Arcadia Municioal Code Relating to Public Safetv Alarms. Recommend ation: Introduce h. Aoorooriate ~25 000 in Probosition C Local Return Funds aenerated from the $3,000 OOD Prooosition C Reserve AccounG for various~technical document expenses oertaining to the Gold Line Phase II. Rerommendation: Approve 3. CITY MANAGER a. Ordinance No. 2206 - Regulatina cable, video. and telecommunications service. Recommendation: Adopt b. Gold Line Light Rail Station Desian and Art Review Committee Final Artist Selection and Proposed Station Platform Elements. Recommendation: Approve and Provide Direction ~, Reauest from Dave and Buster's for interoretation of Resolution No 6199 to allow for outdoor enter[ainmenk ~ . Recommendation: Deny request • . ~. d. Arcadia Transit Performance and Ooeratina Audit Recommendations • Recommendation: Implement Recommendations AD70URNMENT. The City Council will adjourn this meedng in memory of Chris Bade to August 2, 2005, 6:00 p.m. in the Council Chamber Conference Room. • • Y ~ z.,, , o ,.r STUDY SESSION a. CLOSED SESSION ANNOTATED AGENDA ARCADIA CITY COUNCIL/REDEVELOPMENT AGENCY TUESDAY, JULY 19, 2005 Arcadia Transit Pertormance and Operating Audit Recommendations Recommendation: Review and Discussion No reportable action a. Pursuant to Government Code Section 54957.6 to confer about labor mntract negotiatlons - California Teamsters Public, Professional and Medical Employees' Union 911 (Confidential, Supervisor, ~ Professional and General Employee Unit and public Works Employee Unit), Arcadia Police Officers' No reportable Association, Arcadia Firefghters' Association, and unrepresented employees: Department Heads, action Division Managers, Supervisors, and Part-time Employees (City Negotiators: William W. Floyd and Tracey Hause. ~ MOTION TO READ ALL ORDINANCES/RESOLUTIONS BY T1TLE ONLY AND WAIVE READING IN FULL A motlon was made hy Council Member seconded by Council Member and carried without objection to read all ordinances/resolutions by title only and waive reading in full. 1. PUBLIC HEARING - CIfY COUNCIL a. Resoludon No. 6475 - A Resolution of the CiN Council of the Citv of Arcadia Califomia establishinq p~ng charaes for certain cable/OVS franchiae Rurooses . Recommendation: Adopt 2. CONSENTCALENDAR-ARCADIAREDEVELOPMENTAGENCY a. Minutes of the ]uly 5, 2005 Reoular Meetino Recommendation: Approve CONSENTCALENDAR-CIfYCOUNCIL b. Minutes of the ]ulv 5. 2005 Reaular Meetina. Recommendation: . Approve c. . ~ewal of Local Emeraencv Prodamation for Winter Storm Damaae . Recommendation: Approve d. Award a contract erztension t o Traffc Ooeration Inc for street strioina and oavement m arkina ~ services in the amount of $75 .704 Recommendation: Approve e. Resoludon No. 6469 - A Reso lution of the CiN Council of the CiN of Arcadia California, e stablishino Qr4cedures and reauirements for consideration of Develooment AgreemenTs Recommendatlon: Adopt f. Authorize the Ciri Manaaer to enter into a contract extension with National Services. Inc in the amount of 860.000 for [he An nual Sewer Closed Circuit Television Insoection Proaram Recommendation: Approve - y, Lntroduce Ordinance No 220 9 Amendino~Article III Chaoter 9 of the Arcadia Municioal Code Relatlna to Public Saferi Alarms Recommendation:Introduce ~ h. ARpropriate $25.000 in Pro[w sition C local Return Funds, aenerated from the $3 OOO.ODO Pro osition C Reserve Account for variou s technical document exRenses oertainina to the Gold Line Phase II Recommendation: Approve ~~~ ~ APPROVED 5-0 APPROYED 5-D APPROVED 5-0 APPROVED 5-0 APPROVED 5-0 APPROVED 5-0 APPROVED(as amended) s-o APPROYED 5-0 APPROVED 5-0 APPROVED 5-0 ;- 3. CITY MANAGER a. ~Ordinan[e No. 2206 - Reaulating ca61e, video. and tele[ommunications service Recommendation: Adopt b. Gold Lin jght Rail Station Desian and Art Review Committee Final Artist Selection and Prooosed ~ Station Platfortn Elementr. Recommendation: Approve and Provide Direction ~, Reouest from Dave and Buster's for intemretation of Resolution No 6199 to allow for outdoor ~ entertainment. Re[ommendation: Deny request . d. Ar[adia Transit Performance and O erating Audit Recommendations Re[ommendation: Implement Recommendations APPROVED 5-0 APPROVED 5 - 0; Michael Davis selected as artist APPROVED (to Denyrequest) 5-0 APPROVED3-2 Segal•"Na"~ Kovacic - "NO" 47:0066 ~,~now~, •'^^'~ e~KsB MINUTES ARCADIA CITY COUNCIL/REDEVELOPMENT AGENCY TUESDAY, 7ULY 19, 2005 ~~~ ~ 6:00 p.m., City Council Chamber Conference Room ROLL CALL PRESENT: Council/Agency Members Chandler, Kovacic, Marshall, and Wuo ABSENT: Council/Agency Member Segal AUDIENCE PARTICIPATION -(5 minutes per person) STUDY SESSION a. CLOSED SESSION None. Arcadia Transit Performance and Operating Audit Recommendations Recommendation: Review and Discussion Don Penman, Assistant City Manager/Development Services Director summarized the Arcadia Transit Performance and Operating Audit recommendations item that would be appearing on tonighYs Regular Meeting Agenda; staff and Council discussed the various impacts of discontinuing the exclusive morning service to Arcadia schoolchildren and the elimination of the General Public monthly pass. Council/Agency Member Segal arrived at 6:20p.m. The Council did not take any ac[ion on this study session item. a. Pursuant to Government Code Section "54957:6 to confer about labor contract ~egotiations - California Teamsters Public, Professional and Medical Employees' Union 911 (Confidential, Supervisor, Professional and Generel Employee Unit and Pubtic Works Employee Unit), Arcadia Police Officers' Association, Arcadia Firefghters' Association, and unrepresented employees: Department Heads, Division Managers, Supervisors, and Part-time Employees (City Negotiators: William W. Floyd and Tracey Hause. 7:00 p.m. in the Council Chamber INVOCATION Reverend Brenda Simonds PLEDGE OF ALLEGIANCE Peter Ulrich ROLL CALL PRESENT: Council/Agency Members Chandler, Kovacic, Marshall, Segal, and Wuo ABSENT: None SUPPLEMENTALINFORMATION FROM STAFF REGARDING AGENDAITEMS None. REPORT PROM CLOSED SESSION Steve Deitsch, City Attorney, reported that the City Council/Redevelopment Agency did not take any reportable action on item a. on tonight's Study Session or item a. on tonighYs Closed Session agenda. o~-i s-os 47:0067 MOTION TO READ ALL ORDINANCES/RESOLUTIONS BY TITLE ONLY AND WAIVE READING IN PULL A motion was made by Council Member Chandler, seconded by Council Member Marshall, and carried without o6jedion to read ali ordinances(resolutions by titte onfy and waive reading in full. PRESENTATIONS a. Recognition of incoming and outgoing Boards and Commission Members The following Board and Commission members served two-full terms and were recognized for their oustanding dedication to the community: Gary Brewer, Arcadia Beautiful Commission Peter Ulrich, Library Board of Trustees ]im Lewis, Senior Citizens' Commission Arlene Okamoto, Senior Citizens' Commission The following incoming Board and Commission members were administered the Oath of Office and were duly sworn in by the Chief Deputy City Clerk: Peter Amundson, Arcadia Beautiful Commission Meredith Brucker, l.ibrary Board of Trustees Frank Lee, Senior Citizens' Commission Vern Whitaker, Senior Citizens' Commission 1. PUBLIC HEARING - CI'fY COUNCIL a. Resolution No 6475 - A Resolution of the City Council of the Citv of Arcadia California establishinq processing charoes for certain cable/OVS frenchise ourooses Recommendation: Adopt Staff Report Tracey Hause, Administrative Services Director, presented the report; Ordinance No. 2006 is scheduled for adoption on tonight's agenda and sets forth policies governing the manner in which a cable television operator, a multichannel video programming provider, OVS or other video programming provider that uses the public rights way to deliver services applies for, qualifies for, and is granted a franchise agreement, regardless of the technology being proposed; tonighYs proposed Resolution No. 6475 establishes processing charges under which the City would be able to recoup the actual cost of providing the service for which the charge is imposed. Public Hearing Philio Rubina, Adephia Communications, Carlsbad, appeared to speak in opposition to certain charges proposed Testimony Motion to Close A motlon to close the public hearing was made by Council Member Segal, seconded by Council Member Public Hearinq Marshall, and was carried unanimously. Council Council Member Kovacic inquired whether it was within the Council's legal authority to enad the processing Deliberation charges recommended by the proposed Resolution; Steve Dietsch, City Attorney, noted that all actions proposed by staff regarding Resolution No. 6475 werelegal. Motion A motion was made by Council Member Chandler, seconded by Council Member Segal, and carried on roll call vote to adopt Resolutlon No. 6475, A Resolution of the City of Arcadia, California, establishing processing charges for certain cable/OVS franchise purposes 07-19-05 47:0068 RoIPCalI Ayes: Council/Agency Member Chandler, Kovacic, Marshall, Segal, and Wuo Noes: None AUDIENCE PARTICIPATION -(5 minutes per person) Fred Powers, 316 Oxford Drive, appeared to speak regarding an increase in peacock activity in his neighborhood. Burt Wona, 334 Ozford, appeared to speak regarding an increase in peacock adivity in his neighborhood. Per Council majority vote (Segal, Kovacic, and Marshall) this item will be placed on a future agenda for discussion and potential action by the City Council; in the interim, 8ill Kelly, City Manager, wiil begin a staff level review of the peacock activity in this area and bring back a report for the Council's discussion. REPORTS FROM ELECTED OFFICIALS MARSNALL Noted the recent Whiskers and Tails event and thanked Kristen Olafson and the Parks and Recreation Department for their participation; Thanked Congressman David Dreier who was able to fund several water projects in the city; Announced the upcoming Military Tribute Sign unveiling and invited members of the public to attend. SEGAL No items to report. CHANDLER Thanked Congressman David Dreier for his assistance in procuring funding for regional water projects. KOVACIC Noted that the outgoing Boards and Commission Members had served two full terms and were not eligibie for reappointment, but exclaimed that each would have gladly served additional terms if allowed. WUO Commented that he and Council Member Chandler attended a recent Arcadia Chinese Association "Get to Know You" event; thanked the outgoing and inmming Board and Commission Members. 2. CONSENT CALENDAR - ARCADIA REDEVELOPMENT AGENCY a. Minutes of the Julv 5. 2005 Reaular Meetina. Recommendation: Approve CONSENT CALENDAR - CITY COUNCIL b. Minutes of the Julv 5. 2005 Regular Meeting. Recommendation: Approve c. Renewal of Local Emergencv Proclamation for Winter Storm Damage. Recommendation: Approve d. Award a contract extension to Traffc Ooeration. Inc. for street stri i~na and pavement marking services in the amount of ~75.704. Recommendation: Approve e. Resolution No. 6469 - A Resolution of the Citv Council of the CiN of Arcadia. Califomia, establishinq ~rocedures and requirements for consideration of Development Aareements. Recommendation: Adopt f. Authorize the Citv Manaqer to enter into a contract extension with National Services. Inc. in the amount of $60 000 for the Annual Sewer Closed Circuit Television Inspection Program. Recommendation: Approve 07-19-05 47:0069 g, Introduce Ordinance No. 2209. Amendina Article III, Chaoter 9 of the Arcadia Municioal Code Relating to Public Safety Alarms. Recommendatio n: Introd uce h. Aporopriate $25 000 in Prooosition C Local Return Funds. aenerated from the ~3,000,000 P~oposition C Reserve Account. for various technical document ex~enses oertainina to the Gold Line Recommendation: Approve Council Member Kovacic had questions regarding item 2.e. on the Council agenda regarding Development Agreements; the Council noted that the language of Resolutlon No. b469, Section 106 should be amended to read "each application shall include without limitation a physical representatlon in such scale and detail as approved by the City Manager." Motion A motion was made by Agency/Council Member seconded by Agency/Council Member and carried on rofl call vote to approve items 2.a. through 2.h. on the Redevelopment Agency/City Council Consent Calendars item, exclusive of item 2.e, which was amended, then approved, by the City Council/Redevelopment Agency. Roll Call Ayes: Council/Agency Member Chandler, Kovacic, Marshall, Segal, and Wuo Noes None 3. CITY MANAGER a. Ordinance No. 2206 - Regulating cable, video. and telecommunications service. Recommendation: Adopt Mr. Deitsch presented the staff report; he noted that the City's charter allows the City to establish, by ordinance or resolution, procedures governing the granting of franchises; since 1985, the City has not had an ordinance in place governing the granting of cable television franchises; due tn many changes in technology and in state and federal laws during the past twenty years, City staff believe that it is necessary to recommend the adoption of new governing policies for cable television, open video systems, and multichannel video progremming providers that use the public rights of way; tonighCs proposed ordinance sets forth policies for the manner in which a cable television operator, a multichannel video programming provider, OVS or other video programming provider that uses the public rights of way within the City to deliver service, applies for, qualifies for, and is granted a franchise agreement, regardless of the technology being proposed; underthe proposed ordinance, OVS operators take essentialty the same form as a traditional cable N frenchise albeit with some important differences; in all cases, the City retains rights to require an application fee, rights to evaluate the applicant's financial, technical ,and legal qualifications, and rights to require public benefts in light of community needs; staff recommendation is to adopt proposed Ordi Phil Rubina, Adelphia Communications, appeared to speak regarding the proposed cable ordinance. The City Council engaged in discussion regarding impacts of the proposed Ordinance, and the City Attomey responded to several questions posed by the representative from Adelphia Communications; the City Attorney also su6mitted for the official record a ietter from SBC proposing language amendments to the proposed Ordinance; the City Attorney did not recommend any changes to the language proposed by the Ordinance and recommended approval of the Ordinance as written. 07-19-05 47:0070 Motion A motion was made by Council Member Segal, seconded by Council Member Chandler and carried on roll call vote to adopt Ordinance No. 2206, An Ordinance of the City Council of the City of Arcadia, California, regulating cable, video, and telecommunications service. Roll Call Ayes: Council/Agency Member Chandler, Kovacic, Marshall, Segal, and Wuo Noes: None b. 6old Line Liaht Rail Station Design and Art Review Committee Final Artist Selection and Prooosed Station PlatForm Elements. Recommendation: Approve and Provide Direction Staff Report Martha Eros, Transportation Services Officer, presented the staff report; On November 2, 2004, the Arcadia City Council reviewed staffs recommendation to create a Station Design and Art Review Committee that helped formulate the City's vision of public art at the future Goid Line light 2il transit station; On November 16, 20D4 the Arcadia City Council appointed, six (6) community members to the Art Committee to determine the aesthetic aspects of the future rail staUOn; Following a series of planning meetings and scrupulous discussion, the Art Committee has ranked the top three (3) artists for City Council consideretion; the three artists are Michael Davis, Cheri Gaulke,and Lynn Goodpasture. The City Council moved to the City Council Conference Room to continue the meeting and examine samoles of each artist's work. Thev then retumed to the Council Chamber. Motion Roll Cail A motion was made by Council Member Segal, seconded by Council Member Marshall, and carried on roll call vote to select Michael Davis as the final Gold Line Station Artist as recommended by the Station Design and Art Review Committee, and approve the architectural elements and station components for the station. Ayes: Council/Agency Membe[ Chandler, Kovacic, Marshall, Segal, and Wuo Noes: None ~, Reouest from Dave and Buster's for interoretation of Resolution No. 6199 to ailow for outdoor entertainment. Recommendation: Deny request Mr: Penman presented the staff report; Dave and Buster's opened at Westfiield Santa Anita in Octo6er 2004 as part of the expansion of the Mall; .the owner's have requested that they would like to host karaoke and/or live music o~ the outfoor roof top area; staff has determined that this type of use is not permitted per Resolution No. 6199, which in part governs allowable uses at the Mall; the owners disagree with this staff interpretation and have requested an interpretatlon by the City CounciL Brian Soain, representlng Dave and Busters, appeared to request City Councii interpreWtion of the Resolution. Steve Burn, 408 Cambridge Drive, representing the Rancho Santa Anita Homeowners Associatlon, appeared to support staff's recommendation that the City Councii concure with staffs interp2lation of Resolution No: 6199. Staff responded to several inquires from Mr. Spain and the City Council regarding this matter, it was the Council's opinion that Dave and Buster's owners may apply for a Conditional Use Permit. 07-19-05 47:0071 Motion A motion was made 6y Council Member Marshall, seconded by Council Member Chandler, and carried on roll call vote to concur with the staff interpretation of Section 2, Paragraph 16, of Resolution No. 6199 that outdoor live music is not a permitted use and that should Dave and Buster's wish to pursue such a use they would need to apply for a Conditional Use Permit per the Resolution. Roll Call Ayes: Council/Agency Member Chandler, Kovacic, Marshall, Segal, and Wuo Noes: None ~ d, Arcadia Transit Performance and Ooeratinq Audit Recommendations Recommendation: Implement Recommendations Martha Eros, Transportation Services Officer presented the staff report; as a recipient of federal and state funds the City of Arcadia participates in performance audits that provide suggested recommendations in order for Arcadia to remain an eligible fund recipient; based upon the latest audits, staff is recommending changes in the level of service with the elimination of all morning school trips and elimination of the General Public monthly pass. Council Member Kovacic noted that he is in disagreement with staffs recommendation to eliminate the morning school trips as they provide a needed service to many students in the area. Motion A motion was made by Council Member Chandler, seconded by Council Member Marshall, and carried on roll call vote to approve the recommendation to eliminate moming school service to all Arcadia area schools beginning Fall 2005 and eliminate the $22 general public monthly pass program. Roll Call Ayes: Council/Agency Members Chandler, Marshall, and Wuo Noes: Council/Agency Members Segal, Kovacic AD)OURNMENT At the City Council adjourned this meeting at 10:20 p.m. in memory of Chris Bade to August 2, 2005, 6:00 p.m. in the Council Chamber Conference Room. James H. Barrows U~a,~~ By: Vida Tolman Chief Deputy City Clerk/Records Manager 07-19-05 }, q~ ~ STAFF REPORT Administrative Services Department DATE: July 19, 2005 TO: Mayor and City Council FROM: Tracey L. Hause, Administrative Services Direct~ By: Chris Ludlum, Senior Management Analyst~ SUBJECT: Resolution No. 6475 - Establishina arocessina charaes for certain cable/OVS franchise purposes Recommendation: Adopt BACKGROUND: The City is currently involved in separate matters involving both of its two cable television providers. In June of 2002, Adelphia Communications (Adelphia) announced iis intention to reorganize under federal bankcuptcy protection. In addition, in March of 2004, Altrio Communications (Altrio) announced an asset sale to Champion Broadband, LLC (Champion). The City expects Adelphia to emerge from bankruptcy this year or to be sold to another company. Meanwhile, Champion is in the process of applying for a request to transfer Altrio's franchise agreement to Champion or, as Champion has more recently suggested, to apply for a new franchise altogether. Adelphia operates throughout Southern California as a traditional cable television company and is governed under local, state and federal cable television laws. Altrio and Champion are Competitive Local Exchange Carriers (CLECs) and operate in Arcadia as a cable television provider. However, in nearby Pasadena and Monrovia, Altrio and Champion operate as "Open Video Service Providers" (OVS Providers). Champion has requested that, if it applies for a new franchise agreement with the City, be granted an "OVS" franchise agreement. As such, after conducting the public hearing, it is recommended that the City Council adopt Resolution No. 6475 establishing processing charges for certain cable/OVS franchise purposes. ~ Mayor and City Council • July 19 2005 Page 2 DISCUSSION: Ordinance No. 2206 is scheduled for adoption on tonighYs agenda. This proposed Ordinance sets forth policies governing the manner in which a cable television operator, a multichannel video programming provider, OVS or other video programming provider that uses the public rights of way to deliver services applies for, qualifies for, and is granted a franchise agreement, regardless of the technology being proposed. Under the proposed ordinance, a franchise for OVS. operators takes essentially the same form as a traditional cable N franchise, albeit with some important differences. In all cases, the City retains rights to require an application fee, rights to evaluate the applicanYs financial, technical, and legal qualifications, and rights to require public benefits in light of community needs. Resolution No. 6475 establishes processing charges under which the City would be able to recoup the actual cost of providing the service for which the charge is imposed. • FISCAL IMPACT: If the proposed processing charges were approved, the City would be able to recoup the actual cost of providing the service for which the charge is imposed. RECOMMENDATION: it is recommended that the City Council: 1: Conduct a public hearing and receive public comments. 2. Adopt Resolution No. 6475 establishing processing charges for certain cablelOVS franchise purposes. Approved: ~~~ VVilliam R. Kelly, City Manager • :,. ~. RESOLUTION NO. 6475 A RESOLUTION OF THE CITY COUNCIL OE TI~ CITY OF ARCADIA, CALIFOIZNIA, ESTABLISHING PROCESSING CHARGES FOR CERTAIN CABLE / OVS FRANCHISE PURPOSES WHEREAS, on July 19, 2005, the City Council ("City Council") of the City of Arcadia, California ("City") adopted Ordinance No. 2206 authorizing the City to enter into cable franchise and similar agreements for the use of the City's rights of way for the provision of telecommunication services ("Franchise Ordinance"); and WHEREAS, pursuant to the Franchise Ordinance, the City is authorized to establish and impose certain processing charges in order to defray the costs incurred by the City in ixnplementing the Franchise Ordinance; and WHEREAS, pursuant to Government Code Section 66014, the City may not charge processing charges in excess of the estimated reasonable cost of providing the service for which the charge is imposed; and WHEREAS, prior to the adoption of this Resolurion, notice of the time and place of the meeting, including a general explanation of the matter to be considered, was published in accordance with law; and WHEREAS, in accordance with Govemment Code Section 66018, prior to adopring this Resolution, the City held a public hearing, at which oral or written presentarions could be made, as part of a regularly scheduled Gity Councii meeting; and WHEREAS, the City Council finds that the most effective manner in which to ensure that the processing fees imposed pursuant to the Franchise Ordinance do not exceed the estimated reasonable cost of providing the service for which they are imposed is to adopt a deposit system by which the City's actual costs incurred in processing the applicable services are charged against funds deposited by the applicant with the City. NOW THEREFORE, CITY COUNCIL OF THE CITY OF ARCADIA, CALIFOItNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. Pursuant to Ordinance No. 2206, the City hereby adopts the following deposit schedule for the following applicarions: New Franchise/OVS Agreement: $30,000 Amendment/Renewal of Exisring Franchise/OVS Agreement: $15,000 Transfer of Franchise/OVS Agreement $15,000 Administxative Hearing: $1,000 The applicant for one or more of the foregoing approvals or matters, shall deposit with the City at the rime of applicarion the applicable deposit in order for the applicarion to be deemed complete. SECTION 2. If the City's actual costs in processing, reviewing and taking action upon the applicarion are less than the amount of the deposit set forth in Section 1 of this Resolution, any remaining funds from the deposit shall be refunded to the applicant within sixty (60) days after final approval, condirional approval or denial of the applicarion. In the event that the deposit is less than the City's actual costs, the applicant shall pay such addirional costs to the City within thirty (30) days after written notice from the City that suEh additional payment is required. If payment of such amount is not made within such time, the City shall cease all further proceedings in connection with the application and any approval or condirional approval shall be deemed to be of no further force or effect. SECTION 3. This Resolution shall be effecrive upon adoprion. SECTION 4. The City Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this 19tn day of July , 2005. /SI ~~HN Mayor of the City of Arcadia ATTEST: !SI ~AMES Ha ~~ARROl~VV~ City Clerk of the City of Arcadia APPROVED AS TO FORM: ~' ~~,.~.~~`- P• ~3~~ City Attorney of the City of Arcadia ~ STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolurion No. 6475 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 19th day of July, 2005 and that said Resolution was adopted by the following vote, to wit: AYES: Council Member Chandler, Kovacic, Marshall, Segal and Wuo NOES: None ABSENT: None IS! JA~ES Ha ~~ S City Clerk of the City of Arcadia f cl , e U~ • '*°~Rp~~T~9~~°`` STAFF REP~RT Office of the City Cierk DATE: February 1, 2005 TO: Honorable Mayor and Members of the City Council FROM: Vida Tolman, Chief Deputy City Clerk/Records Manager~ SUB]ECT: PROCLAMATION OFtOCAL EMERGENCY _ __. Recommendation: Renew the Director of Emergency Services issuance of a local emergency proclamation. SUMMARY: Ordinance No. 1432 of the City of Arcadia empowers the Director of finergency Services to proclaim the existence or threatened existence of a local emergency when said City is affected or likely to be affected by a public calamity and the City Council is not in session. `• The Director of Emergency Services (Director) of the.Gty of Arcadia found that conditions of extreme peril to the safety of persons and property arose within Arcadia caused by torrential rain, which began on 7anuary 8, 2005. The Director signed and issued a local emergency proclametion on January 13, 2005 (see attached). Pursuant to Ordinance No. 1432, Section 2213.2.1., whenever a local emergency is proclaimed by the Director, the City Council shall take action to ratify the proclamation within seven (7) days thereafter or the proclamation shall have no further force or effect. In addition, the City Council must act to renew the proclamation at each of their subsequent meetings until final termination of the emergency. At their January 18, 2005 meeting, the City Council acted to approve the local emergency proclamation via Resolution No. 6459, which reads as follows: A RESOLUITON OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, RATIFYING THE PROCLAMATION OF THE IXISTENCE OF A LOCAL EMERGENCY WIfHIN SAID C1TY PERTAINING TO TtiE TORRENTIAL RAIN AND RELATED MATfERS COMMENCING ON JANUARY 8, 2005. RECOMMENDATION: It is stafPs recommendation .that the City Council act to renew the local emergency proclamation by again approving Resolution No. 6459. • APPROVED: '~"" '~ ~Iliam R. Kelly, City Manager Page 1 of 1 . _i CITY OF ARCADIA PROCLAMATION . ?m..__ .H°A~• . . WHEREAS, Ordinance No. 1432 of the City of Arcadia empowers the Director of Emergency Services to proclaim the existence or threatened existence of a local emergency when said City is affected or likely to be affected by a public calaxnity and the City Council is not in session, and; WHEREAS, the Director of Emergency Services of the City of Arcadia does hereby fmd; that conditions of extreme peril to the safety of persons and property have arisen within said City caused liy torrential rain; which began on the 8`h day of 7anuary, 2005. and; _ -- : -_ _ That these conditions aze or are likely to be beyond the control of the services, personnel, equipment and facilities of said City, and; ' ° ' That the City Council of the City of Arcadia is not in session and cannot immediately be called into session; NOW, THEREFORE, IT IS FI~REBY PROCLAIMS that a local emergency now exists throughout said City, and; ' TT IS FURTHER PROCLAII~~IED. AND ORDERED that during the existence of said local • emergency the powers, functions and dnties of the emergency organization of the trus City shall be those prescribed by state law, by ordinances and resolutions. of this City, and; that this emergency proclamation shall expire in 7 days after issuance unless confirmed and ratified by the governing body of the City of Arcadia. January 13, 2005 By: 1,~11 b~ William R. Kelly , City Manager/Director of Emergency Services • '~ - RESOLUTION NO. 6459 • A RESOLUTTON OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, RATIFYING TI~ PROCLAMATION OF 1'HE EXISTENCE OF A LOCAL EMERGENCY WITHIN SAID CITY PERTAINING 'I'O THE TORRENTIAL RAIN AND RELATED MATTER~ COMMENCING ON JANUARY 8, 2005 . WHEREAS, Ordinance No. 1432 of the City of Arcadia empowers the Director of Emergency Services to proclaim tlie existence or threatened existence of a local emergency when the Ciiy Council is not in session, subject to ratification by the City Council within seven (7) days; and WHEREAS, conditions of extreme peril to the safety of persons and property have. arisen within this City,. caused torrential rain commencing on ~ January 8, 2005, at which time the City Council was not in session; and Wf~REAS, said City Council does hereby find that the aforesaid conditions of extreme peril did warrant and necessitate the proclamation of the existence of a local emergency; and WHEREAS; the Director of Emergency Services did proclaim the existence of a local emergency within said City on the 13~' day of January, 2005. NOW, THEREFORE, THE CITY COUNCIL OF T`I~ CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: ~ 1 • i SECTION 1. That said local emergency proclamation is hereby ratified and confirmed by the Arcadia City. Council and shail be deemed to continue to . exist until its terrriination is proclaimed by the City Council of the City of Arcadia, State of Califomia. SECTION 2. The City Clerk shall certify to the adoption of this Resoliztion. - Passed, approved arid adopfed this 18th day of .Tanuary ~ 2005. ~ ~ . i 9eiH. . ~~ ~e ~o~~V 0~ ~ . Mayor of tha City of Arcadia ATTEST: ~ ~. ~ ~~~e' City Attorney • 2 '~ . STATE OF CALIFOItNIA } ~ COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JA1vIES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6459 was passed and actopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meehng of said Council ~held on th~th day of January, 20~5 and that said Resolution J was adopted by the following vote, to wit: AYES: Council Member Chandler, Marshall, Sega1; Wuo and Kovacic NOES: None . ABSENT: None . . - 1 ~~ H. ~~R~~~ ity er c~of the City of Arcadia 3 ~ ~ ~ ~~ ~J R+'onsxs9' ."~ °`° . STAFF REP~RT Public Works Services Department July 19, 2005 TO: Mayor and City Council FROM: Pat Malloy, Public Works Services Dire or I Prepared by: Tom Tait, Field Services Manager Dave Thompson, Street Superintendent • SUBJECT: Recommendation: Award a one (1) year contract extension in the amount of $75,704 to Traffic Operations, Inc. for street striping and pavement marking services. SUMMARY On July 1, 2003, the City Council approved a one (1) year agreement with Traffic Operations, Inc. for $74;646 to perform citywide street striping and pavement marking serVices. On May 4, 2004, the City Council approved its first contract extension and is now reaching the end of their Agreement. Traffic Operations, 'Inc. has submitted a written offer to extend the contract in accordance with the existing agreement. The contractor's offer of extension includes a 2.0% Cost Of Living Adjustment (COLA) to heip offset rising fuel costs. To ensure that the City- continues to receive the outstanding service provided by the contractor, staff recommends that the City Council approve a one {1) year contract extension in the amount of $75,704 to Tra~c Operations, Inc. for street striping and pavement marking services. DISCUSSION , The existing street striping and pavement marking program includes annual striping on all major arterial streets i.e. Santa Anita Avenue, Huntington Drive and Baldwin Avenue. Coliector streets are painted once every two (2} years and commercial streets once every three (3) years. Residential streets are scheduled once every three (3) years. Additionally, all yellow school maricings will continue to be painted in August before school begins. Miscellaneous striping, service requests, and areas requiring more frequent painting will be handled on an as-needed basis. • Mayor and City Council July 19, 2005 Page 2 • The current Agreement provides for one (1) year contract e~ensions. Traffic Operations, Inc. is currently approaching the"end of their contract and has submitted a written offer to extend the term of this contract for an additional one (1) year in accordance with-the existing Agreemerrt and the consideration of a 2:0%a COLA increase due to rising costs of gas. The offer indicates no other changes in compensation or conditions of the existing Agreement. During the past three (3) years the City has spent on average $64,300 for street striping services. This is predicated on special requests that are received by other departments in addition to routine street striping. Staff believes that the one (1) year e~ension would be beneficial to the City, resulting in the corrtinuance of outstanding street striping and pavemenf marking services provided by the contractor. Staff is recommending that the City Council award a one (1) year corrtract extension in the amount of $75,704 to Traffic Operations Inc. for Street striping and pavement marking services.,: •:. FISCAL IMPACT Funds in the amount of $75,704 have been budgeted in the 2005-2006 Operating Budget for street striping and pavement marking operations. ` • RECOMMENDATION 1, Award a one (1) year contract extension in the amount of $75,704 to Traific ` Operations, Inc. for the painting of street striping and pavement ma,rking services for Fiscal=Year 2005-2006. ' " 2. ,Authorize the Ciry: Manager and City Clerk to execute a contract in a fortn approved by the Citji Attomey. Approved by: ~"'~ -~ William R. Kelly, City Manager'" PM:T"I".DT:dw n ~ Development Services Department iluly 19, 2005 TO: Mayor and City Council FROM: Don Penman, Assistant City ManagedDevelopment Services Director~ SUBJECT: Recommendation: Adopt SUMMARY Development agreements are a commonly used planning tool that cities throughout • California have employed to advance local planning policies. These agreements, as authorized under Government Code Sections 65864 through 65869.9, are contracts that a public agency and development interest enter into that allow the parties to negotiate land uses and other terms and conditions of approval on a project. In order to even consider a development agreement, an agency must adopt procedures and requirements for consideration of applications for a development agreement. Staff is recommending tfiat the City Council adopt Resolution No. 6469 establishing those procedures and requirements for consideration of development agreements. BACKGROUND The State Legislature enacted development agreement law in 1979. Many jurisdictions throughout the stafe have utilized these provisions of the law and entered into development agreements with property owners and developers. Development agreements have three defining characteristics: • They allow greater latitude than other methods of approval to advance local land use policies in sometimes new and creative ways, They allow public agencies greater flexibility in imposing conditions and requirements on propdsed projects; and ~ ~~, ~ Mayor and City Council July 19, 2005 Page 2 • They afford project proponents greater assurance that once approved, their • projects can be built. More specifically, they can heip promote general plan policies which may not be po"ssible in certain instances under literal compliance with the zoning ordinance; they can create greater latitude to incorporate land use concepts and components that are tailored specifically to address community concerns; and they create flexibility in implementing projects that promote uniqueness and better overall planning. Actual development agreements must be approved by ordinance, though the enabling action establishing procedures and requirements may be implemented by either ordinance or resolution. Staff is recommending a resolution because it is more flexible and less time consuming to change shouid that be necessary at a later day. DISCUSSlON- Development agreements themselves are adopted by ordinance, and as such they can implement creative land use approaches as long as they are consistent with the General Plan and any applicable specific plan. These agreements provide public agencies greater flexibility in imposing requirements on a proposed development such as conditions, exactions and fees because constrain4s and uncertainties that affect a local agency's ability to unilaterally impose such requirements do not apply to mutually • agreed upon development agreement provisions. For example, a development agreement can become the mechanism for a deveioper to finance a community improvement or facility'that othenvise may be di~cult to require of a single developer. At the same time, a development agreement can often provide a developer greater assurance that they can build out their project once it receives approval from the legislative body and that the project can be built under the regulations that were in place at the time of approval. Fo~ exampie, a project is not vested until it has received a building permit and substantial work has been performed. However, even before a building permit is issued, it is typical for a developer to expend substantial sums of money on plans, preparing a site based on a grading permit and constructing infrastructure. However,` it is not vested at that point. A development agreement can address this vesting issue. " • While there is no proposal for a development agreement before staff, it is possibie that one may be desirable for the proposed Santa Anita Park Specific Plan project, ENVIRONMENTALIMPACT Approval of the attached resolution establishing procedures and requirements for development agreements is not a project subject to the requirements of the California Environmental Quality Act because it is an organizational or administrative activity of • _ ; Mayor and City Council July 19, 2005 Page 3 • government which is political and which will not cause a direct or reasonable foreseeable indirect change in the environment. RECOMMENDATION It is recommended that the City Council of the City of Arcadia adopt Resolution No. 6469 establishing procedures and requirements for the consideration of development agreements under Government Code Sections 65864 through 65869.5 inclusive. Approved: ~'~-'~+ William R. Kelly; City Manager • • RESOLUTION NO. 6469 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORIVIA, ESTABLISHING PROCEDURES AND REQUIREMENTS FOR THE CONSIDERATION OF DEVELOPMENT AGREEMENTS UNDER GOVERNMENT CODE SECTIONS 65864 THROUGH 65869.5, INCLUSIVE WHEREAS, Governiment Code sections 65864 through 65869.5, inclusive, authorize cities and counties to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property and authorizes the City to establish procedures and requirements for consideration of applications for such agreements; and WHEREAS, it is in the public interest to adopt such procedures and requirements and the public health, safety and welfare will be promoted thereby; and WHEREAS, the adoption of procedures and requirements for consideration of applicarions for development agreements is not a"project" subject to the requirements of the California Environmental Quality Act because it is an organizational or administrative activity of government which is political and which will not cause a direct or reasonably foreseeabie indirect change in the environment as set forth in Public Resources Code Secrion 21083 and Section 15378 of the California Environmental Quality Act Guidelines. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. Any existing policies, procedures, or regulations in conflict with the provisions of this resolution are hereby repealed in their entirety and are hereby replaced with the terms and conditions of this Resolurion No. 6469. SECTION 2. The procedures and requirements for the considerarion of developrnent agreements as set forth in Exhibit "A" attached to this resolution and made a part by this reference, are hereby adopted. SECTION 3. The City Manager is directed to prepare and adopt such application forms, checklists and other documents as he/she considers necessary to implement the attached procedures and requirements. SECTION 4. The City Clerk shall certify to the adoprion of this Resolurion. 2 Passed, approved and adopted this 19th day of .ruiy , 2005. /S/ JOHN ~V~~ Mayor of the City of Arcadia ATTEST: ~~ J~ ES H. RROWS City Clerk APPROVED AS TO FORM: c~.Pn~ ~. ~ City Attorney STATE OF CALIFORr1IA } COUNTY OF LOS ANGELES ) SS: CTTY OF ARCADIA ) I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies that the foregoing Resolution No. 6469 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 19th day of July, 2005 and that said Resolution was adopted by the following vote, to wit: AYES: Council Member Chandler, Kovacic, Marshall, Segal and Wuo NOES: None ABSENT: None /SI JW ES ~~ ~~ R ~ City Clerk of the City of Arcadia 4 Exhibit "A" CITY OF ARCADIA REGULATIONS ESTABLISHING PROCEDURES AND REQUIREMENTS FOR CONSIDERATION OF DEVELOPMENT AGREEMENTS Table of Articles Article 1. Applicarions Article 2. Form and Content of Development Agreements Article 3. Notices and Hearing Article 4. Standards of Review, Findings and Decision Article 5. Amendxnent and Cancellation of Agreement by Mutual Consent Article 6. Recordation Article 7. Periodic Review Article 8. Modification or Termination Article 1. Applicarions Section 101. Authority for Adoption Section 102. Forms and Informarion Section 103. Fees Section 104. Qualifications as an Applicant Section 105. Proposed Business Terms of Agreement Secrion 106. Review of Applicarion Section 101. Authority for Adoption. These regulations aze adopted under the authority of Government Code Sections 65864 through 65869.5, inclusive. Section. 102. Forms and Information. (a) The City Manager or designee shall prescribe the form for each application, notice and documents pmvided for or required under these regulations for the preparafion and implementation of development agreements. (b) The City Manager or designee may require an applicant to submit such information and supporting data as considered necessary to process the applicarion. Section 103. Fees. The City Council shall, by separate resolution, fix the schedule of fees and chazges imposed for the filing and processing of each application and document provided for or required under these Tegulations. Section 104. Qualifications as an Applicant. Only a qualified applicant may file an application to enter into a development agreement. A qualified applicant is a person who has legal or equitable interest in the real property located within the municipal boundaries of the City, or real property to be annexecl to the City, which is the subject of the development agreement. A qualified applicant includes the authorized agent of the applicant. The City Manager may require an applicant to submit proof of his/her interest in the real property and of the authority of the agent to act for the applicant. Such proof may include a prelnninary report issued by a title company licensed to do business in the State of California evidencing the requisite interest of the applicant in the real property. Before processing the application, the City Manager may obtain the opinion of the City Attomey as to the sufficiency of the applicanYs interest in the real property to enter into a development agreement. Section 105. Pmposed Business Terms of Agreement. Each application shall be accompanied by a document setting forth those business terms proposed by the applicant to be included in a development agreement. Section 106. Review of Application. The City Manager shall endorse on the applicarion the date it is received. He/she shall review the application and may reject it if it is incomplete or inaccurate. If he/she finds that the application is complete, it shall be accepted for filing. The City Manager shall review the application and determine any addirional requirements necessary to complete the application. After receiving the required information, he/she shall prepaze a report and recommendation and shall state whether or not the business terms proposed or in an amended foxm would be consistent with the general plan, any applicable specific plan and these regulations. ~ Article 2. Form and Content of Development Agreements. Section 201. Contents Section 202. Payment of Impact Fees, Deferral Section 203. Term of Development Agreement Section 204. Reservarion of Rights Section 201. Contents. A proposed development agreement shall include the following provisions: (a) A legal description of the property subject to the development agreement; (b) The duration of the agreement, the permitted uses of the pmperty, the density or intensity of use, the maximum height and size or proposed buildings, and provisions for reservation or dedication of land for public purposes; (c) Condirions, terms, restdctions, and requirements for subsequent City discretionary actions, provided that such condirions, terms, restrictions and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement; (d) The time when construction will be commenced and completed, including a phasing plan for the public and private improvements; 2 (e) A schedule of payment of impact fees or deferral in accordance with Section 202; (~ A provision to the effect that any financing for the acquisidon, construction and maintenance of infrastructure improvements through the use of any type of public financing mechanism shall be in accordance with and shall not deviate from adopted City policies regazding the same; (g) Such other information as is deemed necessary by the City Manager to assure that the proposed development agreement is consistent with the provisions of State law, the General Plan, applicable Specific Plans, and any other laws and regulations of the City and all other local agencies. (h) Sufficient information to enable the City Manager to perform an Initial Study in accordance with procedures and guidelines enacted pursuant to Sections 21082 and 21083 of the Public Resources Code of the State and Section 15063 of State CEQA Guidelines. Section 202. Payment of Impact Fees, Defeaal, In Lieu Dedications. An application shall include a schedule of impact, public facilities and service mirigation fees due and payable from the app]icanUowner at those rimes and in those amounts as established by separate resolurion of the City, wluch is in effect at the tune of execution of the development agi~eement. A proposed development agreement may provide for the limitarion upon increases of applicable impact, public faciiiries and service mitigation fees. The period for which the fee shall be lunited shall be established in the ageement not to exceed five (5) years from the execution of the development agreement. Upon expirarion of the limitarion period, the full amount of applicable impact, public facilities and service mitigation fees as set forth in then- existing City ordinances or resoludons shall be payable in connection with the development project. A development agreement may provide, as determined by the City on a case by case basis, for the deferral of payment of impact fees, for those times and on those tem~s to be set forth in the development agreement. A development agreement may also provide for the owner's construction and dedication of public improvements to partially or fully satisfy those impact fees applicable to the development pmject. The development agreement shall specifically set forth the public improvements to be constructed and dedicated to the City as sepazate exhibits and the aznount of fees to be satisfied by such construction and dedication. Section 203. Term of Development Agreement. The maxunum inirial term of a development agreement shall be ten (10). years. The term of a development agreement may provide for an extension of the term for an additional five (5) years following expiration of the initial term, provided the following have occurred: 3 (a) . Developer provides at least 180 days notice to City prior to expiration of the initiai term; (b) The developer has made substantial progress in completing the project as determined in the sole discretion of the City Council; (c) The City may impose additional terms and condirions upon an extension to the term; (d) Developer is not then in uncured default of the development agreement. Section 204. Reservation of Rights. Unless othenvise reserved by the City under the development agreement, the rules, regularions, and official policies governing permitted uses of the land, density and intensity of use, design, improvement, and construcrion standards and specifications, applicable to development of the property subject to a development agreement, sha11 be those rules, regulations, and official policies in force at the dme of execution of the development agreement. Notwithstanding the pazagraph above, a development agreement shall provide for the following reservations of rights, and the City shall not be prevented from applying new rules, regulations and policies upon the applicanUowner, nor shall a development agreement prevent the City from denying or conditionally approving any subsequent development project application on the basis of such new rules, regulations and policies where the new rules, regulations and policies consist of the following: (a) Processing fees by City to cover costs of processing applications for development approvals or for monitoring compliance with any development approvals; (b) Procedural regulations relating to hearing bodies, pedrions, applications, notices, findings, records and any other matter of procedure; . (c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including all uniform codes adopted by the City and any local amendments to those codes adopted by the Gity; (d) Reguladons which may conflict with the deveIopment agreement and any approved plan for development but which aze reasonably necessary to protect the residents of the project and/or of the immediate community &om a condition perilous to their health or safety; (e) Regulations that do not conflict with those rules, reguladons and policies set forth in the development agreement or any approved plan for development; (~ Regulations wluch may conflict but to which the developer consents. 4 The development agreement may provide for additional rights to be reserved to the City. Article 3. Norices and Hearing. Section 301, Notice Section 302. Requirements for Form and Time of Notice of Intention to Consider Adoption of Development Agreement. Section 303. Failure to Receive Notice. Section 304. Rules Governing Conduct of Hearings. Section 305. Irtegularity in Proceedings. Section 301. Notice. The City Manager shall give norice of intention to consider adoption of development agreement and of any other public hearing required by law or these rules. Section 302. Requirements for Form and Time of Notice of Intention to Consider Adoption of Development Agreement. (a) The notice of intention to consider adoption of a d'evelopment agreement shall contain the following informarion: (1) The date, dme and place of the public hearing; (2) The identity of the hearing body (i.e., Planning Commission and/or City Council); (3) A general explanation of the matter to be considered, and a general description, in text or by diagram, of the location of the real property subject to the proposed development agreement; (4) Other information required by law, these regulations or which the City Manager considers necessary or desirable. (b) Time and Manner of Notice. The time and manner of giving notice shall be in accordance with Government Code Secrion 65867. (c) Deciaration of Existing Law. The norice requirement referred to in subsections (a) and (b) aze declaratory of existing law (Government Code Sections 65867, 65090 and 65091). If state law prescribes a different notice requirement, notice shall be given in that manner. The notices required by this Section are in addirion to any other norices required by law for other actions to be considered conciurently with a development agreement. (d) Additional Notice. The Plazu~ing Commission and/or City Council, as the case may be, may direct that notice of the public hearing to be held before 5 it shall be given in a manner that exceeds the notice requirements prescribed by state law. Section 303. Failure to Receive Norice. The failure to receive notice by any person entitled to notice required by law or these regulations does not affect the authority of the City to enter into a development agreement. Section 304. Rulas Goveming Conduct of Hearings. The public hearing shall be conducted as nearly as may be in accordance with the pmcedural standards adopted under Government Code Section 65804 for the conduct of zoning hearings. Bach person interested in the matter sha11 be given an opportunity to be heazd. The applicant has the burden of proof at the public hearing on the proposed development agreement. Section 305. Irregularity in Proceedings. Formal rules of evidence or procedure applicable in judicial actions and proceedings shall not apply in any proceeding conceming a development agreement. No acrion, inaction or recommendation regarding the pmposed development agreement shall be held void or invalid or be set aside by a court on the ground of the improper admission or rejection of evidence or by reason of any error, irregularity, informality, neglect or omission ("error") as to any matter pertaining to petition, application, notice, Snding, record, hearing, report, recommendation, or any matters of procedure whatever unless after an examination of the entire case, including the evidence, the court is of the opinion that the error complained of was prejudicial and that by reason of the error the complaining party sustained and suffered substantial injury, and that a different result would have been probable if the error had not occurred or existed. There is no presumption that eaor is prejudicial or that injury was done if error is shown. Article 4. Standards of Review, Findings and Decision. Section 401. Determination by Planning Commission Section 402. Decision by City Council Section 403. Approval of Development Agreement Section 401. Determination by Planning Commission. All development agreements shall be considered at a public hearing before the Planning Commission. After the hearing by the Planning Commission, the Planning Commission shall make its recommendadon in writing to the City Council. The recommendation shall include the Planning Commission's determinarion whether or not the development agreement proposed: (a) Is consistent with the objectives, policies, general land uses and programs specified in the general plan and any applicable specific plan; (b) Is compadble with the uses authorized in, and the regularions prescribed for, the land use district in which the real property is located; (c) Is in conformity with public convenience, general welfare and good land use practice; (d) Will be beneficial to the health, safety and general welfaze; and 6 (e) Will adversely affect the orderly development of property or the preservation of property values. The recommendation shal] include the reasons for the recommendation. Secrion 402. Decision by City Council. (a) After receipt of the recommendation of the Planning Commission, the City Council shall hold a public hearing to consider adoprion of the development agreement, after providing notice of the hearing in the same manner prescribed by Section 302. (b) After the City Council completes the public hearing, it may accept, modify or disapprove the recommendation of the Planning Commission. It may, but need not, refer matters not previously considered by the Planning Commission during its hearing back to the Planning Commission for report and recommendation. The Planning Commission may, but need not, hold a public hearing on matters referred back to it by the City Council. (c) The City Council may not approve the development agreement unless it finds that the provisions of the agreement aze consistent with the general plan and any applicable specific plan. Section 403. Approval of Development Ageement. (a) If the City Council approves the development agreement, it shall do so by the adoption of an ordinance. The ordinance shall refer to and incorporate by reference the text of the development agreement. (b) After the ordinance approving the development agreement takes effect, the City may enter into the agreement. A development agreement shall be signed by the Mayor. Article 5. Amendment and Cancellation of Agreement by Mutual Consent. Section 501. Initiation of Amendment or Cancellarion by Mutual Consent Section 502. Procedure Sec6on 501. Initiation of Amendment or Cancellation by Mutual Consent. Either party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of the development agreement previously entered into. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided under Article 8 of these regularions and Govemment Code Section 65865.1. Section 502. Procedure. ~ (a) The procedure for proposing and adopting an amendment to or cancellation in whole or in part of a development agreement is the same as the procedure for entering into an agreement in the first instance (Articles 1, 3 and 4 inclusive). (b) However, where the City initiates the proposed amendment to or cancellation in whole or in part of the development agreement, it shall first give norice to the property owner of its intention to initiate such proceedings at least sixty (60) days in advance of the giving notice of intention to consider the amendment or cancellation required by Secrion 302. Articie 6. Recordation. Section 601. Recordation of Development Ageement, Amendment or Cancellation. (a) Within ten (10) days after the City enters into the development agreement, the City Clerk shall have the agreement recorded with the County Recorder. (b) If the parties to the agreement or their successors in interest amend or cancel the agreement as provided in Govemment Code Section 65868, or if the City terminates or modifies the agreement as provided in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of the agreement, the City Clerk shall have notice of such action recorded with the County Recorder. Article 7. Periodic Review. Section 701. Time for and Initiation of Review Secrion 702. Notice of Periodic or Special Review Section 703. Public Hearing Section 704. Findings upon Public Hearing Section 705. Procedure upon Findings Section 701. Time for and Initiation of Review. (a) The City shall review the development agreement every twelve (12) months from the date the agreement in entered into in order to ascertain the good faith compliance by the property owner witYi the terms of the agreement. The property owner shall submit an Annual Monitoring Report, in a form acceptable to the City Manager, witkun ten (10) days after written notice from the City Manager. (b) The time for review may be shortened or a special review called either by agreement between the parties or by initiation in one or more of the following ways: 8 (1) Recommendarion of the City Manager or his/her designee; (2) Affirmative vote of at least three ~3) members of the Planning Commission; or (3) Affirmative vote of at least three (3) members of the City Council. Section 702. Notice of Periodic or Special Review. The City Manager shall begin the review proceeding by giving notice that the City intends to undertake a periodic or special review of the development agreement to the property owner. The City Manager shall give the notice at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission. Secrion 703. Public Hearing. The Planning Commission shall conduct a public hearing at which the property owner must demonstrate good faith compliance with the terms of the agreement. The burden of proof on this issue is upon the property owner. Section 704. Findings Upon Public Hearing. The Planning Commission shall detemvne upon the basis of substanrial evidence whether or not the property owner has, for the period' under review, complied in good faith with the terms and conditions of the agreement. Secrion 705. Procedure Upon Findings. (a) If the Plannnig Commission fmds and detemvnes on the basis of substantial evidence that the property owner has complied in good faith with the .terms and conditions of the ageement during the period under review, the Planning Commission's findings and detemunations shall be transmitted to the City Council. The City Council shall then either (i) receive and file the Planning Commission's report, thereby accepting the Planning Commission's fmdings and deternunations without further action, or (ii) set this matter for public hearing, in wluch event, the City Council shall proceed to conduct the public hearing as set forth in Article 8 hereof. (b) If the Planning Commission finds and determines on the basis of substanrial evidence that the property owner has not complied in good faith with the terms and conditions of the agreement during the period under review, the Planning Commission's findings and determinations shall be transmitted to the City Council. The Planning Commission may recommend to the City Council that the agreement be modified or terminated. Article S. Possible Modification or Termination of Agreement. Secrion 801. Proceedings Upon Potential Modification or Terminarion Section 802. Hearing on Modification or Termination Section 801. Proceedings Upon Potentiai Modification or Termination. Any public hearing conducted by the City Council pursuant to Section 705 shall be subject to the following procedures and requirements. The City shall give norice to the property owner of its intention to conduct a public hearing whici~ might result in modification or termination of the Agreement. The ~notice shall contain: (a) The time and place of the hearing; (b) A statement as to whether or not the City proposes to temvnate and/or modify the development agreement; and (c) Other information which the City considers necessary to inform the proper[y owner of the nature of the proceeding. Secdon 802. Public Hearing. At the time and place set for the public hearing, the property owner sha11 be given an opportunity to be heard. The property owner shall be required to demonstrate good faith compliance with the terms and conditions of the agreement. The burden of proof on this issue shall be on the property owner. If the City Council finds, based upon substantial evidence in the administrative record, that the property owner has not complied in good faith with the terms and conditions of the agreement, the City Gouncil may, among other remedies, terminate or modify the agreement and impose those conditions as part of the action it takes as it considers necessary to protect the interests of the City. The decision of the City Council is Snal. *Any reference to City Manager herein shall be deemed to include his/her designee. "` END OF REGULATIONS * 10 ~ . ~', ~ -. r.. ~ July 19, 2005 STAFF REPORT Public Works Services Department T0: Mayor and City Council FROM: Pat Malloy, Public Works Services Directo ~ Prepared by: Gary F. Lewis, General Services Ma ager Rafael Fajardo, Assistant Engineer SUBJECT: Annual CCN Sewer Inspection Recommendation: Authorize the City Manager to enter into a contract extension with Nationai Plant Services Inc. in the amount.of $60,000.00 for the Annual Sewer Closed Circuit Television Inspection Program SU M MARY • On January 7, 2003, the City Council approved an annual Agreement with National Plent Services, Inc. to perform Closed-Circuit Television (CCN) inspection services of the sanitary sewer system. The Agreement provides for one (1) year contract extensions, contingent upon acceptance by the City Council. On June 1, 2004, the City Council approved its first contract extension. National Plant Services Inc. has once again submitted a written offer to extend the contract in accordancs with Section 2 of the existing Agreement. This is their second requested extension. The contractor's offer indicates no changes in the contract cost, or in the conditions of the Agreement. The service contract provides accurate and reliabie information regarding the condition of the City's sanitary sewer collection system to assist staff in identifying and correcting problem maintenance areas. Staff therefore recommends that the City Council award a one (1) year contract extension in the amount of $ 60,000.00 to Nationai Plant Services Inc. for the Annual City-wide Sewer CCN Inspections. DISCUSSION The City owns and maintains over 148 miles of sanitary sewer collection lines that have been in service for fifty years or longer. The Sewer Master Plan identified Closed Circuit Television (CCN) inspection of the entire sewer system as one of the more important projects to be completed. Since the introduction of the program, the City has . inspected approximately 125 miles of the system. The data gathered from these inspections will be very valuable as part of the City's program to meet a new Federal Mandate under the proposed Capacity Management Operetions and Maintenance regulations (CMOM). This new program will require all sewer collection systems to be inspected and maintained at a level that will allow for zero system overflows. Mayor and City Council July 19, 2005 • Page 2 This is the final phase of this project and once completed, all 140 miles of sewer line will have been inspected through CCN and all of the tabulated data will be used for future reference. Following this year, staff anticipates reducing the contract to maintenance only, pertorming periodic inspections on an as-needed basis. The annual CCN sewer inspection program is designed to locate root intrusions, grease accumulation, broken lines, cracks and potential restrictions from poorly installed laterals. Following completion of sewer line cleaning and CCN inspection of each segment, staff, with the assistance of an Engineering consultant, will analyze the data identifying sewer line sections with significant damage and/or sections that will need increased maintenance due to tree root intrusion, grease build up, etc. Capital Improvement project recommendations will 6e submitted es part of the Capital Improvement Budget and maintenance schedules will be adjusted to prevent sewer system overFlows. ~ . The current contractor has demonstrated excellent service during the previous years per terms of the Agreement. The work assigned to National Plant Services Inc. is performed in a timely and efficient manner. National Plant Services, Inc. has submitted a written offer to renew its contract in • accordance with Section 2 of the existing Agreement. The offer indicates no changes in compensation or the conditions of the existing Agreement: Staff concludes that a one (1) year contract extension with National Plant Services Inc. will ensure that their excellent quality of service will continue throughout the fiscal year 2005-06. FISCAL IMPACT Funds in the amount of $73,000.00 are budgeted in the 2005-2006 Capital Improvement for Mnual City-wide Sewer CCN Inspections and engineering analysis from the Sewer Fund. RECOMMENDATION Award a one (1) year contract extension in the amo.unt of $60,000 to National Plant Services, Inc, for closed-clrcuit television inspection services of the sanitary sewer system for fiscal year 2005-2006. 2. Authorize the City Manager and City Clerk to execute an Agreement in a fortn approved by the City Attomey. Approved by: ~""" "~ • William R.. Kelly, City Manager PM:GFL:CL:dw ~ ~ ~~ . ~~~ .: ~~ "_ ~ ,~~ ~~~A .m~ STAFF REPORT Fire Department DATE: July 19, 2005 TO: Mayor and City Council FROM: David R. Lugo, Jr., Fire Chief ~'~~ ~~ By: Kurt Norwood, Battalion Chief/Fire Marshal Heather McDowell, Management Analyst SUBJECT: Report and Recommendation to Introduce Ordinance No. 2209, Amending Article III, Chapter 9 of the Arcadia Municipal Code Relating to Public Safety Alazm Systems Recommendation: Introduce Ordinance SUMMARY The City Council authorized Alarm System Standards, System Regulations, Compliance • Regulations, and Cost Assessments for Public Safety Alarm Systems operating within the City of Arcadia, with the adoption of Ordinance No. 1942, last updated in 1991. Authority for alarm systems exists in Article III, Chaptex 9 of the Arcadia Municipal Code. At this time, the Fire Department wishes to update the Municipal Code to set out language referencing fire alanns to a section separate from security alarms, which are administered by Law Enforcement. Fire Department personnel have conferred with Police Department personnel, who concur with this recommendation. Amending Article III, Chapter 9 will allow the Fire Department to update fees set in place in 1991, in order to recoup the present-day cost of services within the City. In addition, it will allow the Fire and/or Police Depariments to make changes, when necessary, to the Municipal Code regazding their respective alarm systems, without affecting the other departmenYs operations. DISCUSSION The intent of recommending an updated False Fire Alarm ordinance is to recoup reasonable fees for services, and to encourage residents and commercial occupants to properly maintain their fire alann systems. The purpose of this ordinance is to gain compliance and cost recovery. Fire alanns h-iggered by steam, smoke, dust, heat, or other means of normal activation are not normally subject to cost recovery. However, the refusal or inability of an occupant to address a repeated activation caused by these sources can be recoverable. • The Fire Department wishes to clarify language related to fire alann systems and to update false-alann fees. The proposed amendments aze administrative in nature, and contain Mayor and City Council July 19, Z005 . •' Page 2 adjustments to fees for false alarms within the City of Arcadia. The proposed changes will not affect the level of service provided to the public, but will allow, for straightforwazd administration of false-alarm tracking, and for the City of Arcadia to recoup its costs for responding to excessive false alarms. Specifically, the following changes are being proposed: Existing Chapter 9 Sections 3900-3910 remain under a modified title, "Alarm Systems - Law Enforcement Security Alarm Systems." Alarm systems in these sections contain language that references security alarms and also the Fire Department. Language related to fire alarms has been removed from these secrions. A new Chapter 9.5, entitled "Alarm Systems - Fire Department Alarm Systems," has been created, which mirrors the language of the Law Enforcement secrion, except that it is specific to Fire Department alann systems and describes in detail the alann system standazds, system regularions, compliance regulations, and cost assessments unique to the Fire Department. Modifications made to the existing ordinance are outlined below: • • Commencing with the effective date of this Ordinance, a false fire alarm penalty assessment shall be paid to the City on the third false alazm received from any single fire alazm system serving one address or location, in accordance with the following schedule: • For the first and second false alarm during a calendaz yeaz there will be no penalty assessment. • For the third and any subsequent alann during a calendar yeaz, there will be a penalty assessmendcost recovery for the following: the cost of one engine company at the established hourly rate listed in the Fire Department Fee Schedule (Engine/Truck Company Standby) per event. To calculate fees for false alanns, the Fire Depariment utilized the Cost Allocation Plan and Cost of Services Study prepared by Revenue & Cost Specialists, LLC, for commercial and residential false alanns. ~ • For the fifth and all subsequent false alarms during a calendaz yeaz, the owner may be subject to violation notices for corrective actions on failure to maintain fire protections systems, and subject to administrative citations as outlined in Resolution No. 6322 adopted in 7uly of 2002. Staff recommends the City Council introduce Ordinance No. 2209 at tlvs time, setting the adoption for August 2, 2005. . Mayor and City Council • July 19, 2005 Page 3 FISCAL IIvIPACT Staff anticipates increased revenues to the City in an amount to exceed $20,000 annually. No additional costs will be incurred by modifying this Ordinance. RECOMMENDATION It is recommended that the City Council: Introduce Ordinance No. 2209, An Ordinance of the City Council of the City of Arcadia, Califomia, Amending Article III, Chapter 9, of the Arcadia Municipal Code Relating to Public Safety Alann Systems. Approved: ~ }~ William R. Kelly, City Manager ~ • ORDINANCE NO. 2209 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY • OF ARCADIA, CALIFORNIA, AMENDING ARTICLE III, CHAPTER 9, OF TI~ ARCADIA MUNICIPAL CODE RELATING TO PUBLIC SAFETY ALARM SYSTEMS THE CITY COLTNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Article III, Chapter 9 of the Arcadia Municipal Code is hereby deleted in its entirety and new Chapters 9 and 9.5 are hereby added to the Arcadia Municipal Code to read as follows: "CHAPTER 9 ALARM SYSTEMS - LAW ENFORCEMENT SECURITY ALARM SYSTEMS 3900. FINDINGS AND PURPOSE. The City of Arcadia finds and • determines that the regulation of security alarm systems and the control of false seourity alarms are necessary to promote the health, welfare and safety of the people. Many security alarm systems currently in use either mechanically malfuncrion, or are not operated properly by their users, causing an increase in false security alarm reports, thereby constituting a hazard and wasted time for peace officers, coxnmunications personnel and the public in general. The City Council determines and finds that the high rate of "false security alanns" is extreme, and that the remedies set forth in this Ordinance, including without r~ ~~ limitarion cost assessments, are necessary to address and remedy this problem and • its negative impact on the services of the City and the taxpayers of the community. 3901. DEFINITIONS. For the purpose of this Article, the following definitions will apply: A. "Security alann system" is any device designed for the detecrion of an unauthorized entry on or into any building, place, or premises or for alerting others of the commission of an unlawful act and which, when activated, emits a sound or transmits a signal to indicate that an emergency exists, to which police personnel are expected to respond. B. "Security alarm business" shall mean any person, firm or corporarion • conducting or engaging in the business of selling, leasing, maintaining, servicing, repairing, altering, replacing, moving, removing, installing or monitoring a security alarm system in or on any building, place, premises or vehicle. C. "Security alarm agenY' shall mean any person who is self-employed or employed by a security alann business, whose duties include any of the following: selling, maintaining, leasing, servicing, repairing, altering, replacing, moving or installing a security alarm system in or on any building, place, premises or vehicle. D. "Audible security alann" is a device designed to activate upon an unauthorized entry, or attempted entry, into a structure and which sounds an audible signal on the premises. ~ E. "Security alann user" is any person using a security alarm system at his/her residence or place of business. • F. "Direct dial telephone device (automatic dialing device)" is any device interconnected to a voice grade telephone line and which is programmed to select a predetermined telephone number and which transmits by prerecorded voice message or code signal an emergency message indicating a need for an emergency response. G. "False security alarm" shall mean the acrivation of a security alarm system necessitaring response by the Arcadia Police Department where an emergency situation for which the security alarm system was designed or used does not exist. Alarn~s that are acrivated by a person or persons who have a • reasonable belief under the particular circumstances tliat activation was necessary shall not be deemed "false security alarms." "False security alarm" shall not include a security alarm system acrivated as a result of authorized servicing, tesring, maintenance, adjustments, alterations or installarions thereof, provided that the respecrive pernutee or authorized agent thereof notifies the Arcadia Police Communicarions Center as required pursuant to Section 3905.B prior to commencement of any of the aforesaid activities. Security alarn~s that result from natural causes, acts of God, or power failures beyond the control of pernutee are not deemed to be "false security alanns." ~ 3 H, "Person" shall mean any individual, partnership, corporation or other • enrity. I. "Residential" means premises used as dwelling units, which includes without limitarion apartments and lodging houses. J: "Business" shall mean any premises used as nonresidential premises. 3902. EMERGENCY NOTIFICATION CARD. No person shall install, or cause to be installed, used or maintained, or possess a security alann system on any business premises owned or in the possession or control of such person within the City of Arcadia without filing an emergency norificarion card ("Card") and applicarion in accordance with this Section. The Card and application shall be • filed with the City's Business ~License Officer who shall prescribe the form of the Card and application, and request such information as is deemed by the Business License Officer to be reasonable and necessary. The Card and application shall include, at a minimum, the address of the business premises where the security alarm system is to be located and the name, address, and telephone number of the applicant and persons who will render service or repairs to the security alarm system, or its locarion, during any and all hours of the day or night, and any other information required in order to process the Card and application, including without limitation information applicable to Arcadia Municipal Code Sections 3904, 3905 and 3906. ~ 4 3903. CORRECTION INFORMATION. Whenever any change occurs relating to the written informarion provided on the Card and application described • in Section 3902, written notice of such change shall be given to the City's Business License Officer within five (5) working days of any such change in informarion. 3904. SECURITY ALARM SYSTEM STANDARDS. All security atarm systems and appurtenant equipment installed on any premises shall meet or exceed those standards which may hereafter be established by resolution or ordinance of the City Council of the City of Arcadia. The City reserves the right to inspect all security alann systems subject to all applicable laws, including without limitation Code of Civil Procedure Section 1822.50 et seq. (Inspection Warrants). All new security alarm systems shall meet or exceed the minimum standards for security • alarm systems established by this Chapter. 3905. SECURITY ALARM SYSTEM REGULATIONS. A. Automatic deactivation; audible security alarms. Audible residential security alarms shall be equipped with an automatic shut-off or reset mechanism capable of ternunating the audible annunciator after acrivation within fifteen (15) minutes. Audible business security alarm systems shall be equipped with an automatic shutoff or reset mechanism capable of ternunating the annunciator after acrivation within thirty (30) minutes. • 5 B. Maintenance Notification. The security alarm user shall contact the • Arcadia Police Department Communication Supervisor or Watch Commander prior to any service, test, repair, maintenance, alteration or installation of a security alarm system which might produce a false security alarm. Any security alann activated where such prior norice has been given shall not constitute a false security alarm. C. Power Supply. Security alarm systems shall be supplied with an unintemiptible power supply in such a maruier that the failure or interruprion of normal utility electricity will not activate the security alann system. The power supply must be capable of at least four (4) hours of operation without the • assistance of normal utility electricity. D. Repairs. When any false security alann caused by a malfunction of a security alarm system has occurred, the security alann user shall promptly cause the security alarm system to be repaired to eliminate the malfunction. The security alarm system annunciator shall be disconnected while repairs are being made. E. Direct Dial Telephone Devices. No person shall install any security alarm system which directly dials any telephone number of the Arcadia Police Depariment, except as authorized in wriring by the Police Chief. 3906. APPROVAL OF SBCURITY ALARM SYSTEMS/COMPLIANCE WITH STANDARDS. No person shall install any security alarm system without ~ the prior approval or condirional approval of the City's Business License Officer or his/her designee after review by the Police and other City Departments as deemed • necessary by the Business License Officer to assure compliance with the Security Alarm System Standards as established by the City 3906.1. COMPLIANCE WITH REGULATIONS. Whenever it is determined that a security alarm user has failed to meet any of the standards of this Chapter or related resolutions or regularions adopted by the City, the City's Business License Officer is authorized to direct in writing that the user of that security alann system disconnect the system unril it is made to comply with said requirements. Failure to comply with this direcrion shall consritute a misdemeanor. 3907. FALSE SECURITY ALARM COST ASSESSMENT/GRACE • PERIOD. Any person having a security alarm system which results in an Arcadia Police Department response in which the security alann proves to be a false security alann, shall pay a cost assessment fee to the City of Arcadia as set forth as follows or as may be established from time to time by Resolution of the City Council. The following assessment schedule shall not apply to any false security alanns that oecur within thirty (30) calendar days of the inirial completed installarion of a new security alarm system. A false security alarm,cost assessment shall be paid to the City after four (4) false security alarms have been received ~ 7 from any one source from any one (1) security alarm system, in accordance with • the following schedule: A. The first through third false security alarm in any consecutive three hundred sixty-five (365) day period - no cost assessment. B. For each of the fourth and fifth false security alamis in any consecutive three hundred sixty-five (365) day period - Fifty Dollar ($50.00) cost assessment. C. For each of the sixth and all subsequent false security alarms in any consecutive three hundred sixty-five (365) day period - One Hundred Dollar ($100.00) cost assessment. D. For each false security alarm which specifically signals a robbery ~. regardless of any other crime, there shall be a cost assessment of Two Hundred Dollars ($200.00), commencing with the second false security alarm in any consecutive three hundred sixty-five (365) day period. After one (1) "robbery" false security alarm, the City shall issue a waming notice to the security alann user. As set forth in Pena1 Code Secrion 21 i, "robbery" means the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, by means of force or feaz. Notwithstanding any provision herein to the contrary, the cost assessment set forth ~ 8 in this subsection D shall not apply to so-called "panid' alarms which signify any kind of emergency. • The purpose of this Section 3907 is, in part, to assure that assessments shall apply to any person whose security alarm system results in at least four (4) false security alarnis within any consecutive three hundred sixty-five (365) day period. Any false security alann within any three hundred sixty-five (365) day period shall be counted as part of the calcularion of cost assessments set forth herein. Accordingly, a person cannot be cleared of all false security alarms in this deternunation, unless that person's security alarm system does not register any false security alarms for at least three hundred sixty-five days (365) consecurive days. . 3908. PUBLIC NTJISANCE / DEACTNATION ORDER. Any security alarm system that registers seven (7} false security alanns in any consecutive three hundred sixty-five (365) day period is deemed to constitute a public nuisance and shall be subject to an order to deactivate said alann system, subject to reinstatement as set forth in Section 3908.1. The order to deactivate shall be made by the City's Business License Officer by written nofice to the security alarm user. It shall require deactivarion {removal) of the security alarm system so as to place it in a non-response mode. Within three (3) business days of the date of the Notice, the person subjecY to the order may request review of the decision. T'his request ~ 9 must be submitted to the City's Business License Officer in writing and may • include written materials and communications in support of the request for review. Upon receipt of the request, the Business License Officer shall schedule a meeting with the appellant to review the order. The failure of appellant to appear at the meeting shall constitute a waiver of any right to appear. Within two (2) business days of the date of the meeting or failure to appeaz, the Business License Officer shall render a final decision (Norice) in wriring. Deactivation, if applicable, shall be effective as of the date set forth in the final decision of the Business License Officer. 3908.1. REINSTATEMENT. Upon providing proof sarisfactory to the • Business License Officer, in his/her reasonable discretion, that justifies renewed use of a security alarm system, the system may be reacrivated subject to the following conditions: A. Payment of a reactivarion fee in the amount of Thirly-five Dollars ($35:00) or as otherwise established by resolution of the City Council from rime to time. B. Inspecrion of the security alann system and premises to be protected by the Police Deparhnent. C. Any other conditions deemed necessary by the Chief of Police. ~ 10 3909. PENALTIES/ENFORCEMENT. Any person who violates any provision of this Chapter, including without limitation, noncompliance with the ~ Business License Officer's Final Deacrivarion Notice, shall be guilty of a misdemeanor. The conviction or punishment of any person for violarior~ of the provisions of this Chapter or for failing to deactivate as required by this Chapter shall not relieve such person from paying any fee or cost assessmenf due and unpaid at the rime of such conviction, nor shall the payment of any cost assessment prevent criminal prosecution for the violarion of any of the provisions of this Chapter. All remedies shall be cumularive, and the use of one or more remedies by the City shall not bar the use of any other remedy for the purpose of enforcing the provisions of this Chapter. The amount of any fee or charge shall be deemed a debt • to the City. An action may be commenced in the name of the City in any court of competent jurisdiction for recovery of the amount of any delinquent fees or cost assessments. All fees and cost assessments shall be deemed delinquent if the City does not receive them within ten (10) calendaz days after they are due and payable. A person shall be guilty of a separate offense for each and every day during any portion of which any violatiori of any provision of this Chapter is committed, conrinued, or permitted by such person. ~ 11 3909.1 CONFIDENTIALITY. Subject to the Califomia Public Records Act, ~ information furnished and secured pursuant to this Chapter sha11 be deemed confidenrial in character and shall not be subject to public inspecrion. ARTICLE III PUBLIC SAFETY CHAPTER 9.5 ALARM SYSTEMS - FIItE DEPARTMENT ALARM SYSTEMS 3950. FINDINGS AND PURPOSE. The City of Arcadia finds and determines that the regulation of fire alarm systems and the control of false fire alarms are necessary to promote the health, welfare and safety of the people. Many fire alarm systems currently in use either mechanically malfunction, or are not operated properiy by their users, causing an increase in false fire alann reports, • thereby constituring a hazard and wasted rime for fire personnel and the public in general. The City Council determines and finds that the high rate of "false fire alarms" is extreme, and that the remedies set forth in this Ordinance, including without limitarion cost assessments, are necessary to address and remedy trus problem and its negative impact on the services of the City and the taxpayers of the community. 3951. DEFINITIONS. For the purpose of this Article, the following definitions will apply: A. "Fire alann system" is a system of devices designed to detect the • presence of fire within a strucriue or structures and which when activated, emits a 12 sound or transmits a signal to indicate that an emergency exists, to which fire personnel are expected to respond. • B. "Fire alarm business" shall mean any person, firm or corporation conducting or engaging in the business of selling, leasing, maintaining, servicing, repairing, altering, replacing, moving, removing, installing or monitoring of a fire alann system in or on any building, place, or premises. C. "Fire alann agenY' shall mean any person who is self-employed or employed by a fire alarm business, whose duties include any of the following: selling, maintaining, leasing, servicing, repairuig, altering, replacing, moving or installing an alarm system in or on any building, place, or premises. D. "Audible fire alann device" is a device which is designed to activate • upon a signal from a fire alarm panel of the detection of smoke or fire and which sounds an audible signal on the premises. E. "Fire alarm user" is any person using a fire alann system at his/her residence or place of business. F. "False fire alarm" shall mean the acrivation of a fire alarcn system necessitating response by the Arcadia Fire Department where an emergency situation for which the alarm system was designed or used does not exist. "False fire alarm" shall also include a fire alarm system activated as a result of servicing, testing, maintenance, adjustments, alterations or installations necessitating ~ 13 response by the Arcadia Fire Department where an emergency situation for which ~ the alarm system was designed or used does not exist, unless the Arcadia Fire Chief or his/her designee is formally notified in advance of the specific time of such servicing, testing, maintenance, adjusiments, alterations or instaliations, as required pursuant to Secfion 3953.A. Fire alarms that are acrivated by a person or persons who have a reasonable belief under the particular circumstances that activation was necessary shall not be deemed "false fire alarms." Fire alanns that result from natural causes beyond the control of pemutee are not deemed to be "false fire alanns." G. "Person" shall mean any individual, partnership, corporation or other • entity. H. "Residential" means premises used as dwelling units, which includes without limitarion, apartments and lodging houses. I. "Business" shall mean any premises used as nonresidenrial premises. 3952. FIRE ALARM SYSTEM STANDARDS. Ail fire alarm systems and appurtenant equipment installed on any premises shall meet or exceed those standards, which may hereafter, be established by resolution or ordinance of the City Council of the Ciry of Arcadia. The City reserves the right to inspect a11 fire alarm systems subject fo all applicable laws, including without limitation, Code of Civil Procedure Secrion 1822.50 et seq. (Inspection Warrants). ~ 14 All new fire alann systems shall meet or exceed the minimum standards for fire alarm systems established by this Chapter and Arhicle III, Chapter 1. ~ 3953. FIRE ALARM SYSTEM REGULATIONS. A. Maintenance Norification. The fire alarm user shall nofify the fire alarm system monitoring station of the Arcadia Fire Department prior to, and shall specify the time of, any service, test, repair, mauitenance, alteration or installarion of a fire alarm system which might produce a false fire alarm. Any fire alarm acrivated where such prior notice has been given shall not constitute a false fire alarm. B. Repairs. When any false fire alann caused by a malfunction of a fire alarm system has occurred, the fire alann user shall promptly cause the fire alarm • system to be repaired to eliminate the malfuncrion. The fire alarm system shall be disconnected while repairs are being made. C. Direct Dial Telephone Devices. No person shall install any fire alarm system which directly dials any telephone number of the Arcadia Fire Department, unless authorized in writing by the Fire Chief. 3954. APPROVAL OF FIRE ALARM SYSTEMS/COMPLIANCE WITH STANDARDS. No person shall install any fire alarm system without the prior approvat or conditional approval of the Arcadia Fire Department to assure compliance with the Fire Alarm System Standards as established by the City. ~ 15 3955. COMPLIANCE WITH REGULAT'IONS. Whenever it is deternuned ~ that a fire alann user has failed to meet any of the standards of this Chapter or related resolurions or regulations adopted by the City, the Arcadia Fire Department is authorized to direct in writing that the user of that fire alarm system disconnect the system unril it is made to comply with said requirements. Failure to comply with this direcrion shall constitute a misdemeanor. An approved Fire Watch may also be required by the Arcadia Fire Department during the time the fire alarm system is disconnected. 3956. FALSE FIRE ALARM COST ASSESSMENT/GRACE PERIOD. Any person having a fire alarm system which results in an Arcadia Fire - • Department response in which the alann proves to be a false fire alarm, shall pay a cost assessment fee to the City of Arcadia as set as follows or as may be established by resolurion of the City Council from rime to rime. The following assessment schedule shall not apply to any false fire alanns that occur within thirty (30) calendar days of the initial completed installation of a new fire alann system. The assessment schedule shall also not apply to any false fire alarms that occur within a tenant improvement space within thirty (30) calendar days of its completed installarion. A false fire alarm cost assessment and other penalties and remedies as applicable, shall be paid to the City, or due from the fire alarm user, on the third C~ ~ 16 false fire alann received from any single fire alarm system serving one address or locarion, in accordance with the following schedule: ~ A. The first and second false fire alarm during the calendar yeaz - no cost assessment. B. For each of the third and all subsequent false fire alarms during the calendar year - cost assessment equivalent to one engine company at the established hourly rate (the full hourly rate shall also apply to any fraction of an hour) listed in the Fire Department Fee Schedule (Engine/Truck Company Standby) set forth by resolution of the City Council from time to time. C. For each of the fifth and all subsequent false fire alarms during the calendar year - issuance by the Fire Department of violation norices for corrective • actions for failure to maintain fire alarm systems, and issuance of administrative citations. T'he purpose of this Secrion 3956 is, in part, to assure that assessments, and other penalties and remedies, shall apply to any person whose fire alarm system results in at least three (3) false fire alarms during the calendar year period. Any false fire alarm during the calendaz year period shall be counted as part of the calculation of cost assessments set forth herein. Accordingly, a person cannot be cleared of a11 false fire alanns until the beginning of the next calendar year. n ~~ 17 3957. PENALT'IES/ENFORCEMENT. Any person who violates any ~ provision of.this Chapter shall be guilty of a misdemeanor. The convicrion or punishment of any person for violarion of the provisions of this Chapter shall not relieve such person from paying any fee or cost assessment due and unpaid at the rime of such conviction, nor shall the payment of any cost assessment prevent criminal prosecurion for the violarion of any of the provisions of this Chapter. All remedies shall be cumulatiye, and the use of one or more remedies by the City shall not bar the use of any other remedy for the purpose of enforcing the provisions of this Chapter. The amount of any fee or charge shall be deemed a debt to the City. An acrion may be commenced in the name of the City in any court of • competent jurisdicrion for recovery of the amount of any delinquent fees or cost assessments, or any other remedy. All fees and cost assessments shall be deemed delinquent if the City does not receive them within ten (10) calendar days after they are due and payable. A person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this Chapter is committed, continued, or permitted by such person. 3958. CONFIDENTIALITY. Subject to the California Public Records Act, information furnished and secured pursuant to this Chapter shall be deemed confidenrial in character and shall not be subject to public inspection." C~ 18 SECTION 3. The City Clerk shall certify to the adoprion of this Ordinance and shall cause a copy of the same to be published in the official newspaper of said ~ City within fifteen (15) days after its adoption. Passed, approved and adopted this day of , 2005. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: . ~~=~~.r,~,°~? ~~ City Attomey • r~ L 19 ~2 ~~ - ~ ~~ JNCORp~x~T~9'y9og STAFF REPORT Developrnent Services Departxnent DATE: July 19, 2005 TO: Mayor and City Council FROM: Don Penman, Assistant City Manager/Development Services Director~ Philip A. 1Nray, City Engineer/Engineering Services Administrator ~ SUBJECT: Gold Line Phase II Technical Document Expenses Recommendation: Appropriate $25,000 in Proposition C Local Return Funds, generated from the $3,000,000 Proposition C Reserve Accounf, for various technical document expenses pertaining to the Gold Line Phase II SUMMARY • The Advanced Conceptual Engineering (ACE) plans for the Gold Line Phase II are nearing completion and will be submitted for City review in the month of July. The ACE plans are the first phase of design, and represent a 35 percent complete submittal. City staff will have the opportunity to review and comment on these plans. Staff intends to hire a consultant to assist in the technical review of the engineering pians. The Gold Line Phase II Construction Authority is also completing its analysis of the Santa Anita Grade Crossing Analysis as required as part of the EIR/EIS. City staff has requested that, upon completion of the technical analysis, the Authority prepare a computer simulation of the traffic flow at the at-grade Santa Anita Avenue crossing. The purpose of the computer simulation is to present the results in an easily understandable and visual fo~m for the general public. The computer simulation is estimated at approximately $18,000 and the City.and the Authority have agreed to share the cost. Staff recommends the appropriation of $25,000 for technical consulting services and to share the cost of the computer simulation. BACKGROUND The consulting firm of Parsons Brinkerhoff Quade & Douglas (PBQ&D) was hired by the Gold Line Phase II Construction Authority to perform the engineering design for the Gold Line Phase II. The engineering will be separated into three phases: the ACE, the • Preliminary Engineering, and the Design/Build Engineering. PBQ&D is nearing h, Staff Report Gold Line Technical Document Expenses July 19, 2005 Page 2 . completion of the ACE and intends to submit the plans to the Phase II cities for review in July. This is a critical step in the process and an important opportunity for the City to review and comment on the design. In anticipation of receiving the plans, staff is assembling its review team. The Authority has indicated that comments will be due within three (3) weeks of their submittal. Staff is considering hiring a consultant to assist with the technicai review. In order to hire a consultant, funds must be appropriated for this purpose. The extent of the consultant assistance is not known at this time and will not be determined until the plans are received. Staff anticipates the cost for consultant services to be less than $15,000. As part of the EIR/EIS„PBQ&D is required to perform supplemental studies for the at- grade crossings. They are in the process of completing the Grade Crossing Detailed Analysis of Santa Anita Avenue and Santa :Clara Street/First Avenue using the MTA Grade Crossing Policy for Light Rail Transit. This study will provide a detailed traffic analysis of the two at-grade crossings located at Santa Anita Avenue and Santa Clara Avenue based on future conditions. Staff has requested that the results of the analysis for Santa Anita Avenue be provided in a form that can be understood by .the general public. Staff has been informed by the Authority that a computer simulation of the analysis results can be done but was not part of the original scope of work. PBQ&D has • submitted a proposal to the Authority in the. amount of $17,680. The Authority has offered to share 50% of the cost with the City. : Staff is requesting an appropriation of $25,000 to cover the expenses discussed above. FISCAL J MPACT Funds are available in the Proposition C Local Return Fund, generated from the $3,000,000 Proposition C Reserve Account, to cover the $25,000 appropriation. RECOMMENDATION That the City Council Appropriate $25,000 in Proposition C Local Retum Funds, generated from the $3,000,000 Proposition C Reserve Account, for va~ious technical document expenses pertaining to the Gold Line. Phase II. ~ Approved By: ~ „"""~ WILLIAM R. KELLY, CITY MANAGER DP:PAW:pa • 3.a, DATE: July 19, 2005 TO: Mayor and Cify Council FROM: Stephen P. Deifsch, City Attorney ~P. ~~ SUBJECT: Ordinance No. 22o6 - Regulating cable, video, and telecommunications service Recammendation: Adopt BACKGROUND The City is currently involved in separate matters invoiving both of its two cable television proyiders. In June of 2002, Adelphia Communications (Atlelphia) announced its intention to reorganize under federal bank~uptcy protection. In addition; in March of 2004, Altrio Communications (Altrio) announced an asset sale to Champion Broadband; LCC (Champion). The City expects Adelphia to emerge'froin bankruptcy this year or to • be sold to another company. Meanwhile, Champion is in the process of applying for a transfer of Altrio's franchise agreement to Champion, or, as Champion has more recentiy suggested; to apply for a new franchise altogether: Ade~phia, operates throughout Southem Califomia as a traditional ca61e television company and i§ governed under local, state and federal cable television laws. Altrio and Champion are Competitive Local Exchange Carriers (CLECs) and operate in Arcadia as a cable television provider. However, in nearby Pasadena and Monrovia, ~~ ~ Altrio and Champion operate as Open Video Service` Ptovitlers (OVS Providers). Champion has indicated that, if it appiies for a new franchise agreement with the City, it may prefe~ to be granted an "OVS" franchise agreement. The `City's charter atlows the City to estabtish, by ordinance or resolution, procedures go'verning tfie granting of franchises. However, since 1985, the City has not had an ordinance in place gove~ning the granting of cabie television franchises~: Due to many change's in technology and in state and federal laws during the pasf twenty years? City ~ On or about Apgust 1, 1978 the Ciry adopted ORDINANCE NO. 1646, an Ordinance of The City of Atcadia, repe8ling Chaptei 7 of Azticle VII of the Arcadia Mimicipal Code and establishing a new proceduTe goveming francluses for cable television systems in the City of Arcadia. This new ordinance atipulated a process for francluse applicarions. On or about Apri115, 1985, the City adopted Ordinance No. 1814, an ordinance ganting a non- exclusive cable television syatem fianclvse to Cnoup W Cable and repealing Ordinances No. 1646 and 1647. Since that time, City records reAect Wat franclilsea have been ganted, by ordinauce, on a case-b}+-case basis. ~ In 1992 and 1996 Congress passed stdeeping legislation affecting the ways that cable television companies and Open Video Systems are Tegutated Recenfly, telephone corporations snch Verizon Lave applied fot cable television franclrises in Southern Califomia to offer a bundled offering of voice, video; and information services: v Mayor,and City Council July 19, 2005 Page 2 staff believe that it is necessary to recommend the adoption of new governing policies for cable television, open video systems, and multichannel video programming providers that use the public rights of way. On June 7, 2005, the City Councii conducted a first reading of Ordinance No. 2206, an ordinance to regulate cable, video and telecommunications within the City of Arcadia. At the first reading,: several qusstions arose as to the proposed ordinance. This staff report addresses those questions, below. City staff and the City Attomey recommend that the City Councii consider adoption of the attached ordinance. DISCUSSION • The proposed ordinance sets forth policies #or the manner in which a cable television operator, a multichannel video programming provider, OVS or other video programming provider that uses #he public rights of way within the City,to deliver services, applies for, qualifies for; and is granted a franchise agreement, regardless of the technology being proposed. Under the proposed ordinance, OVS operators_take essentially the same form as a • traditional cable N franchise, albeif with some important differences. In all cases, ttie City ~etains rights to reguire an application fee, rights to evaluate the applicanYs financial, technical, and legal qualifications, and righfs 4o require public benefits in light of community needs. The proposed ordinance afso stipulates conditions for. . Quarterly franchise fee: payments equal to five percent of gross annual revenues • Rights of the City to establish terms for construction and rights-of-way matters . Gonditions for undergrounding.aboveground pedestals; maintenance.and inspection standardafor any facilities that must be installed above ground . Rights of the City to request security to guarantee performance of construction obligations as well as other security to assure perFormance of other franchise requirements • Rights of the City to require public, educational, and govemmental (PEG) eccess channeis; complimentary video service in public buildings and live cablecasting connections, as well as grants for PEG capital . Rights of City to condition use of the pu6lic right-of-way . Rights of City to requ'ire compiiance to standaMs established by the Federal Communications Commission regarding technical standards for operation of • both cable television systems and open video systems Mayor and City Council ` July 19; 2005 Page 3 • . Rights of City to require liability insurance and indemnification. . Consumer Protection and Service Standards ^ Operational Standards ^ Service Standards ^ Billing and Information Standards ^ Verification Compiiance with Standards_ ^ SubscriberComplaints and Disputes ^ Disconnection/Downgrades ^ Negative Option Billing Prohibited ^ Deposits ^ Parental Control Options• ^ Additional Requirements ^ Penalties for Noncompliance ^ Additional Consumer Protection and Services Standards • Compatibility with consumer electronics equipment ^ Billing procedures ,~ ^ Refunds ^ Notice of tate increases ^ Non-discrimination and customer privacy • ^ Written or oral notice to enter property ^ Notice regarding channel scrambling ^ A process'for remedying conditions of default by the Franchisee At the June 7, 2005 City Council meeting, several questions arose conceming the proposed ordinance. These questions related to some of the technical terms used in the ordinance, the ordinance's undergrounding requirements, and the ability of the City to require the "bundling" of'utility lines. Technical Terms The proposed ordinance defines some of its terms. However, others are used without definition since they are terms of art within the telecommunication field. For instance, Section 7725 (C) of the ordinance uses the terms "taps" and "pedestals". Th'e term "tap" refers'to the physical connection from a uti(ity pole or underground cable line to the customer's property, i.e., where the customer "taps" into the rest of the cable system. The'term "pedestal" refers to the physical structure on which the tap or connection is placed: Under4roundina At the June 7, 2005 City Council meeting, a question also arose as to why certain utility • boxeslcabinet are not underground when the lines are undergrounded. There are at least two situations in which portions of the cable system cannot be located , Mayor and City Council July 19, 2005 Page 4 • underground. First, in some cases, there is a gas powered generator that needs air in order to operate and, therefore, cannot be undergrounded. More often however; there are simply active electronics (as opposed to mere cable), which cannot be undergrounded because the electronics would be damaged by moisture or water if they were undergrounded. However, Section 7725 of the proposed ordinance requires that, for new cable systems, as much of the cable system as, possible be undergrounded where other utility lines are undergrounded or as the City undertakes undergrounding efforts in the future. A question also arose at the ordinance's introduction as to the ability of the City to require undergrounding of lines on private property. The City currently undergrounds existing utilities in various areas of the City. There are several ways to finance undergrounding of existing utilities. Obviously, the City could simply pay for it. However, most cities in Califomia do not do this, because of the high cost involved. Second, the City can esfablish undergrounding districts, by which the City requires the undergrounding and collects assessments from property owners within such districts to pay for such undergrounding. Finally, ~the City could negotiate with existing franchisees (or their transferees) to provide for undergrounding. The proposed ortlinance will require undergrounding to occur (including on private property) in areas where other utility lines are undergrounded or as undergrounding occurs: • The City has also asked what; if anything, can be done about existing aboVe-ground facilities (i.e., steps, pedestals, etc.) that, because of technological reasons, have to be above-ground. That is, if above-ground facilities must exist, can the-City require the franchisee to mitigate the effects of these facilities; such as by screening (painting, landscaping, etc:) them? The City's existing franchises both address this issue and allow the City to require such mitigation. Future franchises would do so as well. Specifically, Section 16(e) of the existing Adelphia franchise provides, "Whenever any active electronic component is so located above the surface of the ground, all efforts wiil be undertaken by Grantee to ensure that such location does not physicaliy de4ract from the surroundings and does not endangerthe public safety or'public welfare upon design and location approval from the City Manager." Similarly, Section III.B of the City's Underground Construction Requirements`(which are incorporated by reference into the Altrio franchise}, provides, "Above-ground service boxes or vaults may not be installed without the prior approvai of the Public Works Services Department. LandScaping and irrigation' requirements may be imposed by the Rublic Works Services Department." The quoted language from these two franchises would allow the City to impose screening and ongoing maintenance obligations on the franchisees. Moreover, the Underground Construction Requirements can lie amended, from time to time; by the City, to require additional or different construction and maintenance requirements as such methods may be deemed desirable by the City, such as by adding painting requirements. • Mayor and City Council July 19, 2005 Page 5 r~ U City staff was also asked whether the City could preclude the franchisee from requiring customers to pay for the cost of undergrounding. Although the City has several options for. requiring undergrounding, the City would not be permitted to legally prohibit the franchisee. from passing along the cost of undergrounding to customers. This is because the regula#ion of customer rates, which would include the costs of mandatory undergrounding, is a matter granted by law to the FCC. Of'course, the City coultl. negotiate with a franchisee to not pass through these costs to customers. However, such an arrangement would be negotiated and, therefore, the City would likely have to give up something that it otherwise would like in order to get this provision. Bundlin4 The Gity has asked whether the City can require bundfing, i.e, putting utility wires together rather than having multiple lines a foot apart. Fo~ utility lines that are owned by the same utility company, the City can require the utility to bundle them. So, the City could, require Adelphia to bundle all of Adelphia's cables, but only with other Adelphia's cables, As for bundling of lines owned by multiple utility companies,~the Califomia Public~,LJtilities:<Commission has adopted General Qrder 95. This Order requires that there be a one foot (1'}separation befin+een lines owned by different utility companies. • This allows the utility companies to maintain and repair their own lines without interrupting and potentially damaging the lines of other utilities. Therefore, because the issue of bundling of lines by different companies is regulated by the CPUC, the City is not authorized to regulate that aspect and can oniy require bundling of lines owned by the same company. Issues Raised Since Introduction !n addition to the issues caised at the June 7, 2~05 City Council meeting; the City has received letters from Adelphia and SBC Pacific Bell (SBC) commenting on the prop~sed ordinance. Primarily, these comment letters were concemed with the belief by those companies that the City is preempted from enacting some of the provisions of the proposed ordinance. City staff has responded 1o those letters by pointing out that the City recognizes the role of federal and state regulation in this rapidly changing technological field. The ordinance has been drafted as broadly as possible, while at the same time expressly recognizing that future statutory, regulatory or case-law changes may occur that would affect the applicability of the proposed ordinance. The ordinance does not impose regulatory conditions on standard telephone service or other types of telecommunications services to the extent they are regulated by the FCC or Califomia Public Utilities Commission. Therefore, staff •and the City Attorney believe that it is appropriate to move forward with the second reading and adoption of Ordinance No. 2206. • Mayor and City Council July 19, 2005 Page 6 n U FISCAL IMPACT The recomme~ded oMinance would likely have a positive fiscai impact to the City insofa~ as it provides for a method by which the City may grant frenchises, which franchises woultl require a franchise fee to be paitl to the Gity for the use of the City's rights of way. ENVIRONMENTAL IMPACT The proposed ordinance is exempt from environmental review pursuant to State CEQA Guidelines sections 15378(b)(2), (4) and (5) and section 3.01 of the City of Arcadia Local Guidelines for Implementing CEQA because the proposed ordinance concems general policy and procedure making activities and o~ganizationai or administrative activities ttiat will not result in direct or indirect physical changes in the environment. RECOMMENDATION It is `recommended'that the City Council adopt Ordinance No: 2206, an Ordinance of the City'Council of the City of'Arcadla, Californta, regulating cable, video, and' telecommunications senrice. • Approved: ~`"'`'° ~~a~'` William R. Kelly, City Manager . 1 .r UNCODIFIED . O~INANCE NO. 2206 `~ ~RDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, ~G~,ATING CABLE, VIDEO, f1ND TELECOMMUNICATIONS SERVICE WHEREAS, the Communications Act of 1934 (48 Stat. 1064, 15 USC § 21; 47 USC §§ 35, Section 621 [47 U.S.C. 541 ](b)(1) states, except to the extent provided in pazagraph (2) and subsection (fl, a cable operator may not provide cable service without a franchise; and WHEREAS, the Communications Act of 1934 (48 Stat. 1064, 15 USC § 21; 47 USC §§ 35, Section 653. [47 U.S.C. 573] (a) (1) states a local exchange carrier may provide cable service to its cable service subscribers in its telephone service area through an open video system that complies with this section; and V~IEREAS, California Govemment Code Section 53066 (a) states that any city or county or city and county in the State of California may, p~suant to such provisions as may be prescribed by its governing body, authorize by franchise or license the construction of a community antenna television system. In connection therewith, the governing body may prescribe such rules and regulations as it deems advisable to protect the individual subscribers to the services of such community antenna television system; and -i- ~ I wHEREAS, California Gov e~nent Code Section 53066 (b) states the award of the franchise or license may be made on the basis of quality of service, rates to the subscriber,. income .fo the city, county or city ~d county, experience and financial responsibility of ~e applicant plus any other considerarion that will safeguard the local public interest, rather than a cash aucrion bid; and WHEREAS, the federal Telecomrnunicarions Act of 1996 preempts and decIares invalid all state rules that restrict entry or lirrut competition in b and long-distance telephone service; and oth local wHEREAS, the Califomia Public Utiliries Commission ("CPUC") is Pr~narily responsible for the implementation of local telephone competition, and it issues certificates of public corivenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facili ' services provided by other authorized telephone corporations; ~d tles or WHEREAS, Section 234(a) of the G'alifornia Public Urilities Code defines a "teIephone corporation" as "every corporation or person owning, ~onti.ollin operating, or ~a ~ g, ~ng any telephone line for compensarion within this state' ; and -2- ~ WHEREAS, Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line"; and WHEREAS, Section 29o2 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecring the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits-of any public utility on, under, or above any public streets; and WHEREAS, Section 7901 of the California Public Urilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters; and WHEREAS, Section 7901.1 of the California Public Utilities Code confirms the right of municipaliries to exercise reasonable control as to the time, place, and -3- , mamier in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees; and WHEREAS,Section 50030 of the Califomia Government Code provides that any permit fee imposed by a city for the placement, installarion, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation.that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes. NOW, THEREFORE, THE CITY COUNCIL OF TI~ CITY OF ARCADIA DOES ORDAIN AS FOLLOWS: SECTION 1 Short Title and Authority SECTION 2 Definitions SECTION 3 A Franchise is required to operate a Cable System SECTION 4 The City may grant a Cable Franchise SECTION 5 Franchise duration and renewal SECTION 6 Limitations of Franchise _ ' -4- 1 t SECTION 7, . Rights reserved to the City SECTION 8 Transfers and assignments SECTION 9 Franchise Area; annexations SECTION 10 Applicarion for Franchises; contents of applicarion SECTION 11 Selection of Grantee SECTION 12 Franchise renewal SECTION 13 Mulriple Franchises SECTION 14 Franchise application processing costs SECTION 15 Franchise fee for Cable Services SECTION 16 Contents of cable television Franchise SECTION 17 Breach of Franchise; grounds for assessment of penalries and Franchise revocation SECTION 18 Procedure for adjudicarion of breaches of the Franchise SECTION 19 Hearing Officer hearing procedures SECTION 20 City Council hearing procedures SECT'ION 21 Penalties for breach of the Franchise SECTION 22 Alternative remedies -5- , ; SECTION 23 Removal and abandonment; purchase of system SECTION 24 Receivership and foreclosure SECTION 25 Undergrounding SECTION 26 Use of poles SECTION 27 Construction standards SECTION 28 Approvals SECTION 29 Submission of drawings SECTION 30 Relocarion of faciliries and equipment SECTION 31 SECTION 32 SECTION 33 Maintenance Operarional Standards Service Standards SECTION 34 Billing and Information Standards SECTION 35 Verification Compliance with Standards SECTION 36 Subscriber Complaints and Disputes SE.CTION 37 Disconnection/Downgrades SECTION 38 Negative Option Billing Prohibited -6- ~ , SECTION 39 Deposits SECTION 40 Parental Control Oprions SECTION 41 Additional Requirements SECTION 42 Penalties for Noncompliance SECTION 43 Additional Consumer Protection and Services Standards SECTION 44 Compatibility with consumer electronics equipment SECTION 45 SECTION 46 SECTION 47 SECTION 48 SECTION 49 SECTION 50 SECTION 51 Rate regulation Billing procedures Refunds Notice of rate increases Non-discrimination and customer privacy Written or oral notice to enter property Norice regarding channel scrambling SECTION 52 Tenant rights SECTION 53 Continuity of service mandatory SECTION 54 Applicability -7- SECTION 55 Application required SECTION 56 Review of application SECTION 57 Agreement required and Fees SECTION 58 Other multichannel video programining distributors SECTION 59 Video providers-registration; customer service standards SECTION 60 Telecommunications service provided by telephone corporahons SECTION 1. SHORT TITLE AUTHORITY. This title is known and may be cited as the "Cable, Video, and Telecommunicarions Service Providers Ordinance" of the City of Arcadia. This chapter is enacted by the City of Arcadia pursuant to City's charter authority, the Cable Act, the City's police powers, its powers and rights to control the use of the Public RighT-of-Way within the City, and all other applicable laws. SECTION 2. DEFINITIONS. For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, and words in singular number include the plural number. Words not defined by this secrion -8- shall be given the meaning set forth in the Cable Act, and if not defined therein, their common and ordinary meaning. ACCESS, PEG ACCESS OR PEG USE. Refers to the availability or use of a Cable System or Open Video System for public, educational or government use (including Institutional Network use) by public or private agencies, institutions, organizations, groups, and individuals, including, but not limited to Grantor, and its designated Access providers, to acquire, create, and distribute programming not under Grantee's editorial control, including, but limited to, the following: (A) Public Access or Public Use where members of the general public are the primary or designated programmers or users having editorial control over their programnung. (B) Educational Access or Educational Use where educarional institutions are the primary or designated programmers or users having editorial control over their programming. (C) Government Access or Government Use where Crrantor or other governmental institutions designated by Grantor are the primary or designated programmers having editorial control over their progranuning. -9- , , AFFILIATE. The term "affiliate" means a person that (directly or indirectly) owns ar controls, is owned or controlled by, or is under common ownership or control with, another person. For purposes of this paragraph, the term "own" means to own an equity interest (or the equivalent thereo fl of more than 10 percent. CABLE ACT: The Cable Communications Policy AcY of 1984 (47 USC 521 et seq., as'arimended by the Cable Television'Consumer Protection and Competition Act of 1992 (Public Law No. 102-385) and the Telecommunicarions , Act of 1996 (Public Law No. 104-104), and as hereinafter may be amended. CABLE SERVICE. Means the following: (A) the one-way transmission to Subscribers of (i) Video Programming, or (ii) oflier prograrruning service, (B) Subscriber interacrion, if any, that is required for the selecrion or use of such video programining or other programining service, as hereinafter may be amended, regardless of the content of such video progranuning or communicarions or the technology or method used to deliver such programming: CABLE SYSTEM OR SYSTEM. Grantee's facilities, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide video programming and that is provided to multiple Subscribers within the City. Such term does not include: -lo- (A) A facility that serves solely to retransmit the television signals of one or more television broadcast starions; or (B) A facility tHat serves Subscribers without using any Public Right-of- Way; or (C) A facility of a common carrier that is subject, in whole or in part, to the provisions of Subchapter II of Chapter 5 of Title 47 of the United States Code, except that such facility shall be considered a Cable System (other than for purposes of 47 USC'S41(c)) to the extent such facility is used in the transmission of video programming directly to Subscribers, unless the extent of such use is solely to provide interacrive on-demand services; or if such facility is used to provide Cable Service, whether on a common carrier or non-common carrier basis, directly to customers; or (D) An Open Video System, as defined below, that complies with 47 USC Section 573; or (E) Any faciliries of any electric utility used solely for operaring its electric utility systems. CITY. The City of Arcadia, Califomia. -11- CITY MANAGER. The City Manager of the City of Arcadia, or his or her designee. COMMiJNICATIONS ACT. The Communications Act of 1934 (48 Stat. 1064, 15 USC § 21; 47 USC §§ 35, 151--155, 201--221, 301--329, 401--416, 501-- 505, 601--609 (as subsequently amended and as hereinafter may be amended). COMPLETE SYSTEM CONSTRUCTION. The point in time when all transmission equipment, faciliries, and construction work is installed and completed, and when all appropriate tests have been completed such that applicable perfoimance standards pertaining to or dependant upon such construcrion is verified. The term Complete System Construcrion does not include marketing and installation of Subscriber service. CONTROL(ING/ED). The possession, directly or indirectly, of the power to direct, or to cause the direction of, the management and policies of a specified Person, whether through the ownership of voring securities, by contract or otherwise. DISTRIBUTION FACILITY/(IES). Cable equipment that is not specific to a Subscriber, including trunk and distriburion lines, but excluding drop lines to specific locations. -12- , . DROP LINES. The cable and related equipment connecring the Cable System's plant to equipment at the Subscriber's premises. EDUCATIONAL ACCESS CHANNEL, A channel on the Cable System that designates educational institutions as the primary providers of non-commercial programming. FCC. The Federal Communications Commission. FRANCHISE. The right to construct, operate and maintain a Cable System using the City's streets and rights-of-way pursuant to the terms and conditions of this chapter and other relevant provisions of the Municipal Code, the Franchise Agreement, and any Ordinance or Resolurion approving the transfer of the Franchise, and any agreement between the City and Grantee relating to the operarion of the Cable System. FRANCHISE AGREEMENT. An agreement granting a Franchise pursuant to the terms of the agreement and this chapter. Any conflict between the terms of this chapter and the Franchise Agreement shall be resolved in favor of. the Franchise Agreement. In the event a Franchise is in existence as of the effective date of this ordinance, the terms of the Franchise shall govem; provided however, that upon the renewal, extension, amendment or other modification of any such -13- , Franchise, the renewed, extended, amended or otherwise modified Franchise shall comply with this ordinance. FRANCHISE AREA. The geographic area within the Ciry designated in a franchise where Grantee may operate a Cable System, as defined in the Franchise Agreement. GOVERNMENT ACCESS CHANNEL. A channel on the Cable System that is provided by Grantee to Grantor and other governmental institurions , designated by Grantor on which non-commercial informational programming regarding government acrivities and programs may be presented. GRANTEE. Any Person to whom a valid Franchise is granted by the City under this chapter, and the lawful successor, transferee or assignee of such Person. GROSS REVENiJES. All revenue, cash, credits, properly of any nature, and other consideration derived directly or indirectly by Grantee, from or amibutable to the sale or exchange of any Cable Service by or through the Cable System, or from or amibutable to the sale or exchange of any Video Prograinming over the respective Open Video Service System; or in any manner derived from the operation of the Cable System or the respective Video Service System, unless otherwise prohibited by federal or state law. Such revenue and other -14- . . considerarion, regardless of technological platform, includes, without limitation, , the following: (A) Fees received from residential and commercial subscribers to any rier of Cable Service and for all Video Programming services. (B) Fees received for installarion, reconnection, downgrade, upgrade, and similar services. (C) Late fees and interest collected on delinquent subscriber fees or charges. (D) Fees paid for channels that are designated for commercial use. (E) Fees paid in connecrion with the rental, lease, or sale of converters, remote controls, and other equipment. (F) Leased or access channel revenues received in connection with the distribution of any Cable Service. (G) All bad debts that are recovered. (H) All revenue that is received by Crrantee, or its subsidiaries or affiliates, from the conduct of any service-related activity directly involving the video portion of the Cable System, including without limitation revenues derived from advertising sales, the sale of products or services on home shopping channels, and the sale of program guides. -15- , , (I) The fair market value of any nonmonetary consideration received by Grantee in any transaction with another person relaring to the receipt of Cable Service or the operation of the Cable System as it pertains to the offering of Cable Service, such as a barter transacrion, but not less than the customary prices paid in connecrion with equivalent transacrions. (J) All carriage revenues received from video programnung providers, including incentive fees for carriage, contra expense, barters, or other transactions where generally accepted accounting principles would require treatment as revenue. (K) A franchise fee if itemized and added to the bill. The term "Gross Revenues" does not include the following: (A) Refundable deposits, rebates, or credits. (B) Bad debt that is unrecovered or unrecoverable. (C) Taxes imposed by law on subscribers that Grantee is obligated to collect on behalf of any govemmental agency. (D) Revenues collected by unaffiliated video progranuning providers. (E) PEG fees paid to the Grantor per subscriber as required by the Franchise Agreement. 16- ~ ! (F) Advertising commissions paid to advertisers that are not wholly- owned subsidiaries of Grantee. (G) Programming launch fees and marketing support payments where Grantee receives reimbursements for mandatory marketing costs associated with the launch and promotion of services offered. Gross Revenues shall include revenue received by any entity other than the Grantee where necessary to prevent evasion or avoidance of the obligation under this Agreement to pay the Franchise fees. MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTOR A Person such as, but not limited to, a Cable 5ystem operator, an Open Video System Operator, as defined below, a Multichannel multipoint distriburion service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who malces available multiple channels of video programming for purchase by Subscribers or customers. OPEN VIDEO SYSTEM. A facility consisting of a set of transmission paths and associated signal generation, receprion, and control equipment that is designed to provide Cable Services, including video programming, and that is provided to multiple Subscribers within the City, provided that the FCC has certified that such system complies with 47 CFR §§ 1500 et se~c., enritled "Open Video Systems." -17- OPEN VIDEO SYSTEM OPERATOR. Any Person or group of Persons who provides Cable Services over an Open Video System and directly or through one or more Affiliates owns a significant interest in that Open Video System, or otherwise controls oi is responsible for the management and operation of that Open Video System. NORMAL OPERATING CONDITIONS. Service condirions that are within the control of Grantee: Those conditions that are ordinarily within the control of Grantee include, but are not limited to, special promotions, rate increases, regular peak or seasonal demand periods, and scheduled maintenance or upgrade of the Cable System. Those conditions that are not in control of Crrantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. PERSON. Any individual, corporation, partnership, proprietorship, or other organization authorized to do business in the State of California. PUBLIC ACCESS CHANNEL. A channel on the Cable System that is provided by Crrantee for non-commercial programming produced by members of the public or a nonprofit corporation formed by the City to operate and manage such a channel. -18- ~ t PUBLIC RIGHT(S)-OF-WAY. Any of the following that are controlled, used or dedicated for use by the public and located within the City's jurisdictional limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, public utility easements, rights of way and similar public property within which Crrantee may place its facilities for operating a Cable 5ystem. SERVICE INTERRUPTION. The loss or impairment of the Cable Services on one or more channels _or frequency bands of the Cable System used in connection with the provision of Cable Services to any Subscriber. SUBSCRIBER. Any Person who pays for Cable Services provided by Grantee by means of the Cable System. VIDEO PROGRANIMING PROVIDER AND VIDEO 5ERVICE SUPPLIER. Any person, company, or service that provides one or more channels of video programming including any communicarions that are ancillary, necessary or common to the use and enjoyment of the Video Progra,,,m;ng, to or from an address in the City, including to or from a business, home, condominium, or apartment, where some fee is paid, whether directly or included in dues or rental charges for that service, when Public Rights-of-Way are utilized in the delivery of the Video Prograrruning or communications, regardless of the content of such -19- Video Progranuning or communications or the technalogy or method used to deliver such programming. VIDEO PROGRAMMING. Any and all video programming (including, but not limited to, origination programming) provided by tfie Grantee to Subscribers and any communications that are ancillary, necessary or common to the use or enjoyment of such video programnung ." SECTION 3. A FRANCHISE IS REQUIRED TO OFfERATE CABLE SYSTEM. (A) It shall be unlawful for,any Person to establish, operate or carry on the business of distributing to any Persons in the City any Cable Service or Video Programming, by means of a Cable System, unless a Franchise therefore is first obtained pursuant to the provisions of this chapter, and unless such Franchise is in full force arid effect. (B) It shall be unlawful for any Person to construct, install or maintain within any Publia Right-of-Way in the City, or within any other public property of the City, or within any privately owned area within the City which has not yet become a Public Right-of-Way but is designated or delineated as a proposed Public Right-of-Way on any tentative subdivision map approved by the City, any equipment or facilifies for distributing any Cable Services or Video Programming, -20- by means of a Cable System, unless a Franchise authorizing such use of such street or property or area has first been obtained pursuant to the provisions of this chapter, and unless such Franchise is in full force and effect. (C) It shall be unlawful for any Person to make any unauthorized connecrion, whether physically, electronically, acoustically, inductively or otherwise, with any part of a Franchised Cable System within this City for the purpose of enabling him or herself or others to receive any Cable Services carried on a Cable System, without the permission of Crrantee. (D) It shall be unlawful for any Person, without the consent of Grantee, to willfully tamper with, remove, or injure any cables, wires, or equipment used in conjunction with a Cable System. (E) This section shall be construed to require a Franchise in every instance, except to the extent that such requirement is preempted by state or federal law. SECTION 4. THE CITY MAY GRANT A CABLE FRANCHISE. The City may by ordinance or resolution grant a Franchise to any Person, whether operating pursuant to an existing Franchise or not, who offers to provide a Cable Service pursuant to the terms and provisions of this chapter. The Franchise -21- shall be subject to all ordinances and regulations of general applicarion now in effect or subseqizently enacted, including, without limitation, those concerning encroachment pernvts, business licenses, zoning, and building. SECTION 5. FRANCHISE DURATION AND RENEWAL. (A) The term of the Franchise or any Franchise renewal shall be established in the Franchise Agreement. (B) A Franchise may.be renewed by the City upon application of Crrantee pursuant to procedures established by the City, subject to applicable federal and state law. In the event the City does not establish such renewal procedures, the Franchise renewal procedures set forth in the Cable Act shall apply. SECTION 6. LIMITATIONS OF FRANCHISE. (A) Any Franchise granted under this chapter shall be nonexclusive and for the term specified by the Franchise Agreement. (B) No privilege or exemption shall be granted or conferred by any Franchise granted under this chapter except those specifically presented herein. (C) The grant of a Franchise, right, or license to use Public Right-of-Way for purposes of providing Cable Service shall not be construed as a right or license to use such Public Right-of-Way for any other purpose. _22_ (D) Any privilege claimed by Crrantee under a Franchise in a Public Right-of-Way or any other pubiic property shall be subordinate to any prior or subsequent lawful occupancy or use thereof, or easement therein, by the ~ity or other government enrity. (E) A Franchise granted hereunder shall not relieve Grantee of any obligation related to obtaining pole space from any department of the City, utility company, or from others maintaining poles. in the Public Right-of-Way. (F) Any right or power in, or duty imposed upon any officer, employee, department, or board of the City shall be subject to transfer by the City to any other officer, employee, department, or board of the City. SECTION 7. RIGHTS RESERVED TO THE CITY. (A) Subject to those restricrions, if any, that are mandated by state or federal law, neither the granting of any Franchise nor any of the provisions of this chapter shall be construed to prevent the City from granting additional Franchises. (B) Crrantee, by its acceptance of any Franchise, agrees to be bound by all ordinances and regulations of general application now in effect or subsequently enacted (including, without limitation, those that concern encroachment permits, business licenses, zoning and building) and to comply with any action or -23- requirements of the City in its exercise of such rights or power; provided, however, that such ordinances and regulations shall not materially affect Grantee's rights or obligations under the Franchise. (C) Neither the granting of any Franchise, nor any of the provisions of this chapter, shall constitute a waiver or bar to the exercise of any governmental right or power of the City. (D) This chapter shall not be construed to impair or affect, in any way, the right of the City to acquire the property of Grantee through the exercise of the power of eminent domain, in accordance with applicable law. (E) The City Council may do all things that are necessary in the exercise of its jurisdiction under this chapter and may determine any question of fact that may arise during the existence of any Franchise granted under this chapter. SECTION 8. TRANSFERS AND ASSIGNMENTS. (A) No Franchise shall be transferred, sold or assigned, nor shall any of the rights, privileges, interests or property related to the Franchise be transferred, sold, hypothecated or assigned, either in whole or in part, directly or indirectly, voluntarily or involuntarily, to any Person without the prior consent of the City granted by resolution of the City Council. The granting of a security interest in -24- any assets of the Grantee, or any mortgage or other hypothecation, will not be deemed a transfer for the purposes of this section. (B) Transfer of a Franchise includes, but is not limited to, any transacrion in which control of the Franchise is transferred from one Person or group of Persons to another Person or group of Persons, or ownership or other interest in Crrantee or its Cable System is transferred from one Person or group of Persons to another Person or group of Persons, or the rights and obligations held by Grantee under the Franchise Agreement are transfened or assigned to another Person or group of Persons. In addition, a transfer of the Franchise shall be deemed to have occurred upon the transfer on a cumulative basis of ownership or control of 20% of (1) the voting interest of Crrantee, or (2) the Person exercising management authority over Grantee. (C) Grantee shall promptly notify the City in writing of a proposed transfer and shall file with the City Manager an applicarion requesting approval of the proposed transfer ("Transfer Application"). The Transfer Application shall meet the requirements of Section 10 (with the transferee being the applicant), and shall provide complete information on the proposed transaction, including a copy of the bona fide offer, and details on the legal, financiai, technical and other qualifications of the transferee. -25- (D) In making a deternunarion on whether to approve the Transfer Applicarion, the City Council shall consider the legal, financial, technical and other qualifications of the transferee to operate the system, whether the incumbent Cable System operator is in compliance with its Franchise Agreement and this chapter and, if not, the candidate transferee's commitment and plan to cure such noncompliance, whether operation by the transferee would adversely affect Cable Services to Subscribers or otherwise be contrary to the public interest, and such other criteria provided for by applicable state and federal law. (E) A Transfer Applicarion shall not be granted unless the proposed transferee agrees in wriring that it will abide by and accept all terms of this chapter, the Franchise Agreement, and such other agreements, regulations or restrictions that pertain to the Franchise, assume the obligations and liabilities of the previous Grantee under the Franchise, and assume such other conditions as may be prescribed by the City Council resolution approving the transfer. (F) Approval by the City of a Transfer Application does not constitute a waiver or release of any of the rights of the City under this chapter or a Franchise Agreement, whether arising `before or after the date of the transfer. SECTION 9. FRANCHISE AREA; ANNEXATIONS. (A) The Franchise Area shall be established by the Franchise Agreement. -26- (B) Territory annexed to the City (°Annexed Territory") that is not within the Franchise Area of an eacisring Franchise may be added to Grantee's Franchise pursuant to City Council resolurion. (C) All rights acquired under a Franchise or license granted by a public entity other than the City ("Foreign Franchise") shall terininate by operation of law as to Annexed Territory where Crrantee of such Franchise or license has not commenced installation of a Cable System in the annexed territory before the date such annexation becomes effective. Where feasible, City shall provide notice to the holder of,a Foreign Franchise of the City's intent to annex temtory that may result in a ternunarion under this secrion. Failure to provide such notice shall not affect the termination of the Foreign Franchise. (D) Where Grantee of a Foreign Franchise has commenced installation of a Cable System in annexed territory on or before the date such annexation becomes effective, Grantee may continue to provide Cable Services to the annexed territory for the balance of the inirial term of said Franchise (exclusive of any renewal or extension not granted by the City), subject to the terms and conditions then in effect under such Franchise, and the timely payment to the City of all Franchise fees paid in connection with such service (or such other fees imposed by the City up to the maximum permitted by law). -27- SECTION 10. APPLICATION FOR FRANCHISES; CONTENTS OF APPLICATION (A) Applicarions for the grant of a new Franchise may be submitted by any Person pursuant to the requirements of this chapter and subject to the terms of Arcadia Resolution 5784, as such resolution may, from time to rime, be amended. The City may, by advertisement or any other means, solicit applications for a new Franchise pursuant to a request for proposal ("RFP"). (B) An application for a new Franchise to construct, operate, or maintain any Cable System in the City shall be filed with the office of the City Clerk and shall be on forms prescribed by the City. The City reserves the right to waive all application formalities where the City determines that the best interests of the City would be served by such waiver. The City may, at its sole discretion, request new or additional proposals. (C) Unless waived in writing by the City, all applications for a Franchise shall at the minimum contain the following: (A) The name, address, and telephone number of the applicant; (B) A detailed statement of the corporation ar business entity organizarion of the applicant, including, but not limited to, the following: _28_ . (1) The names, residence and business addresses of all officers and directors of the applicant; (2) The names, residence and business address of all officers, Persons and entities having an ownership interest of 5% or more in the applicant and the respective ownership share of each such officer, Person or entity; (3) The names and address of any parent or subsidiary of the appiicant, namely, any other business entity owning or controlling applicant in whole or in part or owned or controlled in whole or in part by the applicant, and a statement describing the nature of any such parent or subsidiary business entity, including but not limited to Cable Systems owned or controlled by the applicant, its parent and subsidiary and the areas served thereby; (4) A detailed description of all previous experience of the applicant in providing Cable Service or other similar or related communications services; (5) A detailed and complete financial statement of the applicant, certified by an independent certified public accountant, for the fiscal year preceding the date of the application. The City may require a statement from an independent certified public accountant or a recognized lending institution, -29- certifying that the applicant has available sufficient financial resources to construct and operate the proposed Cable System in the City; (6) A detailed financial plan (pro forma) for the operarion of the proposed Cable System, during the term of the proposed Franchise, in the format required by the City; and (7) A descriprion of any other Cable System Franchise(s) awarded to the applicant, its parent or subsidiary, including the place and.term of these Franchises; the status of their complerion, the total cost of complerion of each Cable System; and the amount of applicant's and its parent's or subsidiary's resources committed to the completion of these Cable Systems; (C) A detailed descriprion of the proposed plan of operation of the applicant which shall include, but not be limited to, the following: (1) A detailed map indicating all areas proposed to be served, and a proposed time schedule for the constxuction of the Cable System and the installation of all equipment necessary to become operational throughout the entire area to be. serviced; -30- (2) A statement or schedule setting forth ail proposed classifications of rates and charges to be made against Subscribers, including installation charges and other service charges; (3) A detailed statement describing the actual equipment and operarional standards proposed by the applicant; (4) A copy of the form of any agreement, undertaking, or other instrument proposed to be entered into between the applicant and any Subscriber; and (5) A detailed statement describing any e~sring or proposed agreements and undertakings between the applicant and any Person, which materially relates to the application and the granting of the Franchise; (6) A detailed description of the applicanYs plan to provide Public, Educational and Govemment Access Channel capacity services, faciliries and equipment; (7) A detailed description of the applicant's plans to address the institutional network needs of the City (8) A copy of any agreement covering the Franchise area, if existing between the applicant and the local telephone and/or electric utilities -31- providing for the use of any faciliries of the urility including but not limited to poles, lines or conduits; and (9) Any other details, statements, or information pertinent to the subject matter of such application which shall be required or requested by the City. SECTION 11. SELECTION OF GRANTEE. (A) The City may make such investigations as it deems necessary to deternune the ability of an applicant to satisfactorily perform its obligations under a Franchise. The applicant shall timely fumish to the City all such information and data as the City may request. Failure to provide any such information shall constitute sufficient grounds foi rejecrion of any applicafion. (B} Upon receipt of a complete application, with all information required by the City, and after the City staff completes its investigarion and review of the applicarion, the Ci.ty Manager shall prepare a report and make recommendations to the City Council concerning the application. (C) The City Council shall hold a noticed public hearing on the application. Written notice shall be given at least ten (10) days prior to the hearing on the application by U.S. mail, postage prepaid to the applicant and by publication once in a newspaper of general circulation within the City. Within sixty (60) days -32- , after the close of the hearing, unless an extension of time is mutually agreed upon by the City and the applicant, the Council shall make a written decision as to whether the Franchise should be granted, and if granted, subject to what conditions. The Council may grant one or more Franchises, or may decline to grant any Franchise. (D) In making its determinarion as to whether to grant an application for a new Franchise, the City may consider any and all factors which affect the interests of the community including, but not limited to, the quality of the Cable Service proposed, the areas to be served, the rates to be charged, the amourit of Franchise fee to be generated, the experience, character, background, performance history and financial responsibility of an applicant (and its management and owners), the technical performance and quality of equipment, the applicant's willingness and ability to meet construction requirements and a11 other limitations and requirements pertaining to the Franchise, and all other matters deemed pertinent by the City for protecting the interests of the City and the public. (E) Any decision of the City Council concerning the granting or denial of a Franchise pursuant to this chapter shall be fina1. -33- SECTION 12. FRANCHISE RENEWAL. Franchise renewals shall be processed and reviewed in accordance with then applicable law. The City and Crrantee, by mutual consent, may enter into renewal negotiarions at any time during the term of the Franchise. SECTION 13. MULTIPLE FR.ANCHISES. (A) The City may in its sole discrerion limit the number of Franchises granted at any one rime based upon its considerarion of all appropriate criteria which shall include but not be limited to the following: (1) 'The capability of the Public Rights-of-Way to accommodate the facilities of any proposed addirional Cable Systems. (2) The advantages and disadvantages that may result from additional Cable System comperition. (B) The City may require that any Grantee be responsible for its own underground trenching and any associated costs if, in the City's opinion, the Public Rights-of-Way in any area do not feasibly and reasonably accommodate the addirional cables, machinery, equipment, or other items contemplated in connection with the construction, maintenance and operation of a proposed new -34- Cable System. In addirion, Crrantee shall comply vv~th applicable federal and state laws regarding pole attachments. SECTION 14. FRANCHISE APPLICATION PROCESSING COSTS. (A) All charges and fees incidental to awarding, renewing, extending and/or enforcing any Franchise shall be paid by the Franchisee or applicant. No application shall be considered without payment of a deposit with the City covering such fee. If the City's actual costs in processing and reviewing the applicarion are less than the amount of the fee, any remaining funds from the fee shall be refiznded to the applicant within 60 days after final approval or denial of their applicarion. In the event that the deposit is less than the City's actual costs, Grantee shall pay such additional costs to the City within 30 days after written notice from the City that such additional payment is required. If payment of such amount is not made within such time, the City shall cease all fiirther proceedings connected with the application. (B) Any applicarion fees are exclusive of Grantee's obligation to pay other costs and fees required by this chapter, the Franchise Agreement or the Franchise, including without limitarion construction inspecrion fees, pernut fees, and Franchise fees. -35- SECTION 15. FRANCHISE FEE FOR CABLE SERVICES. (A) As compensation for any Franchise granted, and in considerarion of pernussion to use the Public Right-of-Way in the operarion of its Cable System, and because the City will incur costs (other than application fees) in regulating and administering the Franchise, Grantee shall pay to the City a Franchise fee in the amount equal to five percent of Grantee's Gross Revenues, or such other amount as the City Council may set by resolution or specify in the Franchise Agreement. (B) The Franchise fee assessed shall be paid quarterly, to be received by the City Treasurer not later than 45 days after the close of each quarter of Grantee's fiscal year. (C) On a quarterly basis, Grantee shall provide the City a complete and accurate stateinent verified by a financial officer of Grantee indicafing Gross Revenues for the past quarter, lisring every revenue source, and depicring gross revenue computations. (D) On an annual basis, Grantee shall file a complete and accurate statement certified by Grantee's chief financial officer, indicating all Gross Revenues for said year, listing every revenue source, and depicting gross revenue computations. If the City has any concems or objections relating to such report, the City shall have 60 days to notify Grantee and request addirional informarion. -36- Grantee shall. have 60 days to provide additional information to resolve any concerns or objections to the City's sarisfaction. Thereafter, the City may, at its sole discretion, request that such statement be certified by an independent cerrified public accountant, at Grantee's sole cost; provided, however, that any such request sha11 be made within 60 days after Grantee's response is received. (E) At any time during the term of a Franchise, the City shall have the right to conduct, or require Crrantee to obtain, an independent audit by certified public accountants of any and all records of Grantee that are related to Gross Revenue reports or computarions. Grantee sliall pay the costs of such audit not more frequently than once every five years or upon a proposed transfer or change of control of the Franchise. Grantee shall cooperate with any such audit maldng readily available any and ali informarion requested by the City. The certified public accountants shall be required to cerfify in the audit that the Crrantee is in compliance with this chapter and the Franchise Agreement. Grantee sha11 maintain in a readily accessible place all such records for a minimum of four years after any payment period that such record pertains to. This right shall be in addirion to City's right to conduct any other audit. (F) In the• event that any Franchise fee payment is not paid by the due date, interest shall be charged monthly at a monthly.rate of one and one-half -37- percent. In addition, if any Franchise fee is not paid in full within 15 days after receipt of notice from the City as to the delinquency of such payment, a late fee in amount of five percent of the delinquent amount shall be assessed. (G) In the event Grantee claims to have overpaid by more than five percent the amount of Franchise fee actually due during any given quarter, it shall file an application with the City within one year after said payment was made. The failure to timely and properiy make such claim shall consritute a waiver by Grantee of any right to such claimed overpayment, whether by refund, offset, credit or any other accommodarion. All such applications shall state the amount of claimed overpayment, the reason for the claimed overpayment, and sufficient documentation to allow the City to verify Grantee's claim. Upon request by the City, Grantee shall provide any further informarion that is deemed relevant by the City. All such applications shall be considered by the City Council, and the City Council's decision with respect to such applications shall be final. SECTION 16. CONTENTS OF CABLE TELEVISION FRANCHISE (A) The terms and provisions of a Franchise Agreement for the operation of a Cable System may include, without limitation, the following subject matters: (1) The nature; scope, geographical area, and durarion of the Franchise. -38- (2) The applicable Franchise fee to be paid to the City, inciuding the percentage amount, the method of computarion, and the time for payment. (3) Requirements relating to compliance with and implementation of state and federal laws and regulations pertaining to the operadon of the Cable System. (4) Requirements relating to the construction, upgrade, or rebuild of the Cab1e System, as well as the provision ~f special services, such as outlets for public buildings, emergency alert capability, and parental control devices. (5) Requirements relaring to the maintenance of a performance bond, a security fund, a letter of credit, or similar assurances to secure the performance of the Grantee's obligations under the Franchise Agreement. (6) Requirements relating to liability insurance, workers' compensation insurance, and indemnification. (7) Additional requirements relating to consumer protection and customer service standards, including the resolution of Subscriber complaints and disputes and.the protection of Subscribers' privacy rights. (8) , Requirements relaring to the Grantee's support of local cable usage, including the provision of Public, Educarional, and Government Access -39- Channels, the coverage of public meetings and special events, and financial or technical support for Public, Educarion, and Governmental Accessuses. (9) Requirements relating to construction, operation, and maintenance of the Cable System within the Public Rights-of-Way, including compliance with all applicable building codes and permit requirements, the abandonment, removal, or relocarion of facilities, and compliance with FCC technical standards. (10) Requirements relaring to recordkeeping, accounting procedures, reporting, periodic audits, and performance reviews; and the inspection of Grantee's books and records. (11) Acts or omissions constituring material breaches of or defaults under the Franchise Agreement, and the applicable penalties or remedies for those breaches or defaults, including fines, penalties, liquidated damages, suspension, revocation and ternunarion. (12) Requirements relating to the sale, assignment, or other transfer or change in control of the Franchise. -40- (13) The Grantee's obligarion to maintain continuity of service and to authorize, under certain specified circumstances, the City's operation. and management of the Cable System. (14) Such additional requirements, conditions, policies, and procedures as may be mutually agreed upon by the parties to the Franchise Agreement and that will, in the judgment of the City, best serve the public interest and protect the public health, welfare, and safety. SECTION 17. BREACH OF FRANCHISE; GROUNDS FOR ASSESSMENT OF PENALTIES AND FRANCHISE REVOCATION. (A) In addition to all other rights and powers retained by the City under this chapter or otherwise, the City reserves the right to terminate any Franchise and all rights and privileges of Grantee, revoke any Franchise, or assess damages or penalties against Grantee, in the event of any material breach of its terms and conditions. A material breach by Grantee shall inciude, but not be limited to, the following: (1) Violation of any xnaterial provision of this chapter, the Franchise Agreement or any material rule, arder, ragulation or directive issued in connection with the Franchise; -41- (2) Evasion of any material provision of this chapter or the Franchise Agreement, or the practice of fraud or deceit upon the City or its Subscribers and customers; (3) Material misrepresentation of fact in an application for a new Franchise, renewal or transfer of a Franchise, whether by act or omission; (4) Failure to pay any Franchise fee when said payment is due; (5) Failure to restore Cable Service after 72 consecutive hours of interrupted Cable Service, excepY in the event that the City approves in writing a longer period of interruption after making a deternunation that there exists just cause for such longer period of interruption; (6) Failure to provide at least 80% of subscribed Cable Services over the Cable System for a period of five days, except in the event that the City approves in writing a longer period of interruption after making a determination that there exists just cause for such longer period of interruption; (7) Failure to substanrially meet customer service standards established in the Franchise over any consecutive three-month period of time; per Section 49 -42- (S) Failure to initiate or Complete System Construction, or reconstruction within the rime set forth in the Franchise, unless the City Council expressly approves the delay by motion ox resolurion, due to the occurrence of conditions beyond Crrantee's control; (9) Failure to provide or maintain in full force and effect at all times any insurance coverage, letter of credit or bonds required by the Franchise Agreement; (10) Violarion of orders or rulings of any regulatory body having jurisdicrion over Grantee relaring to the Franchise; (11) Failure to provide, upon written request, data, documents, reports or information; and (12) Failure to pay debts and obligafions as they mature in accordance with normal business practices; assignment of Grantee or its assets for the benefit of its creditors; dissolution, liquidarion or ceasing to conduct business; application by Crrantee for (or consent by Grantee to) the appointment of a receiver, trustee, liquidator; or the filing of a banla~uptcy petirion by Grantee to the extent permitted by federal law or the sale of all or substantially all of Crrantee's assets. -43- SECTION 18. PROCEDURE FOR AD7UDICATION OF BREACHES OF THE FRANCHISE. (A) Prior to imposing any liquidated damages, sanction or penalty upon Grantee, including ternunation or revocation of the Franchise, the City Manager, shall demand in writing that Grantee cure such b'reach or diligently commence a cure of such breach within a specified period, which period shall not be less than 30 days foliowing notification. However, only 15 days notice shall be required in the case of failure to pay monies due. In addition, the City may, in an emergency, prescribe a notice less than 30 days consistent with the nature of the emergency. An emergency under this subsecrion (A) means an occurrence or condirion that creates an actual or imminent danger to life or property. (B) Should Crrantee fail to provide sufficient written proof within the specified cure period that corrective action has been taken, or that corrective action is being acrively and expeditiously pursued by Grantee, then the City Manager may, in his or her sole discretion, elect to either place the issue of tetmination, revocation or other penalty before an appropriate hearing officer for his or her deternunation pursuant to section 19 or the City Council pursuant to section 20 of this Ordinance. -~- , .. (C) The City Council, the .City Manager, or any hearing officer authorized to act pursuant to this ordinance shall have the power to issue subpoenas in order to carry out the fact-finding acrivities authorized by this Ordinance. The process for the issuance and enforcement of such subpoenas shall be governed by the California Code of Civil Procedure. SECTION 19. HEARING OFFICER PROCEDURES. (A) The City Manager may, at his' or her sole discrerion and in lieu of the procedures set forth in Secrion 20, refer to a hearing officer any controversy or claim arising out of or relating to the Franchise or its existence, construction, interpretation, perfoimance, enforcement, operarion, breach, continuance or terminarion. Such hearing proceedings shall be initiated by the City Manager by written notice to Crrantee. (B) The procedures set forth in Secrion 49, subdivisions (B)(2)(a)-(~ inclusive shall govern the conduct of such adininistrative hearing. (C) The hearing officer shall be vested with quasi judicial anthority, and shall be authorized to: (1) order Grantee to undertake remedial action to cure any breach of its obligations under its Franchise, -45- (2) assess liquidated damages and%or levy a penalty upon Grantee in accordance with the terms of this chapter and the Franchise Agreement, (3) determine that Grantee has not violated any of its obligarions under its Franchise andlor (4) recommend to the City Council grounds for the revocarion of the Franchise. (D) Failure of Grantee to fully and promptly comply with an order of a hearing officer shall be deemed a material breach of the Franchise. SECTION 20. CITY COUNCIL HEARING PROCEDURES. (A) In the event the City Manager elects, in his sole and absolute discrerion to refer a matter to the City Council pursuant to Section 18, the City Council shall hold a public hearing to determine whether Grantee materially breached the Franchise and the appropriate penalty to be imposed, if any, as a result of such breach. The City shall cause to be served upon Grantee, at least ten days prior to the date of such hearing, written notice of any intent to terminate the Franchise and the fime and place of the hearing. Grantee may appear at such hearing and present such evidence, orally or in wriring that it deems relevant and appropriate to the Council's deliberarions. Based on the evidence presented at the -46- hearing, the City Council shall detennine, in writing, in its discrerion whether or not a material breach occurred and whether to terminate the Franchise or take other appropriate acrion. (B) Should the City Council find that there has been a material breach of the Franchise, but that termination of the Franchise is inappropriate, then the Council may assess and levy or impose such 'other relief as the Council deems appropriate, including, but not limited to, any relief specified in Sections 19(C), 21 or any combination thereof. (C) The City shall cause Crrantee to be served with written notice of any action taken by the City Council following such public hearing. The decision of the City Council as to such matters shall be final, but may be challenged by Grantee in a court of competent jurisdiction. (D) Nothing herein is intended to limit the City Council's right to make other deternunarions thaf are reasonably related to the Franchise, or to seek any other appropriate relief to which the City may be entitled, at law or equity, as a result of any breach by Grantee of its obligarions under the Franchise. -47- SECTION 21. PENALTIES FOR BREACH OF THE FRANCHISE. The hearing officer or City Council may impose the following penalties for any breach of the Franchise, except any breach of Subscriber service standards, which shall be governed by Secrion 49 of this Ordinance: (A) Up to $500 for each day of each material breach, or such other amount provided in the Franchise Agreement. (B) For a second material breach of the same nature occurring within 12 months where a fine or penalty was previously assessed, $1,000 for each day of each material breach. (C) Far a third or further material breach of the same nature occurring within 12 months of the first such breach, where a fine or penalty was previously assessed, up $2,000 for each day of each material breach. SECTION 22. ALTERNATNE REMEDIES. The remedies provided in this chapter are cumularive and in addition to all other rights the City may have at law or equity or under the Franchise Agreement, including but not limited, to liquidated damages, which remedies may be exercised at any time. In no event shall the amount of any insurance, bond, letter of credit or any other security instrument be construed to limit Crrantee's liability for damages. -48- , .. SECTION 23. REMOVAL AND ABANDONMENT; PURCHASE OF SYSTEM. (A) Subject to applicable_]aw, in the event that a Franchise is terminated, revoked, or is not renewed upon expiration, then Crrantee shall, upon demand of the City, and at its sole expense, promptly remove all or any portion of its Cable System. In remov_ing its Cable System, Grantee shall restore all streets to the City's standard specifications and repair any damage to urilities or other infrastructure caused by such removal. The liability, indemnity, insurance, security fund and bonds required under_ the Franchise shall conrinue in full force and efFect until such removal is accepted as complete by the City. . (B) Subject to applicable law, in the event that a Franchise is not renewed and the City acquires ownership of a Cable System or effects a transfer of ownership of a Cable System to another Person, any such acquisition or transfer shall be at fair market value, detemuned on the basis of the Cable System valued as a going concern, but with no value allocated to the Franchise itself. If a Franchise is revoked for cause and the City acquires ownership of the Cable System or effects a transfer of ownership of the Cable System to another Person, any such acquisirion or transfer shall be at an equitable price. The value of a Cable System (fair market value or equitable price) shall be determined by an appraisal -49- committee consisting of three disinterested appraisers. The City and Grantee shall each select one appraiser, and the two selected appraisers shall agree upon and appoint a third appraiser. (C) If a Grantee's plant, or a portion thereof; is deacrivated for a continuous period of 30 days, (except for reasons beyond the Grantee's control), and without prior written notice to and approval by City, then the Grantee must, at City's option and demand, and at the sole expense of the Grantee, promptly remove all of the Grantee's property from any streets or other Public Rights-of-Way. The Grantee must promptly restore the streets or other public areas from which its property, including Distribution Faciliries, has been removed to the condition existing prior to the Grantee's use. (D) City may, upon written application by a Grantee; approve ` the abandonment in piace by a Grantee of any properiy, under such terms and conditions as City may approve. Upon City-approved abandonment in place of any property, the Grantee must cause to be executed such instruments as the City may prescribe in order to transfer and convey ownership of the abandoned property to the City. -50- # , SECTION 24. RECEIVERSHIP AND FORECLOSURE. (A) Subject to applicable provisions of the United States Banlmiptcy Code, any Franchise shall, at the oprion of the City, cease and terminate 120 days after the appointment of a receiver or trustee to take over and conduct the business of Grantee whether in a receivership, reorganization, banlmzptcy or other action or proceeding unless such receivership or irusteeship shall have been vacated prior to the expiration of said 120 days, or unless: (1) Such receiver or trustee shall have, within 120 days after his or her elecrion or appointment, fully complied with all terms of the Franchise and remedied a11 breaches of the Franchise or provided a plan for the remedy of such breaches which is approved in writing by the City; and, (2) Such receiver or trustee shall, within said 120 days, execute an agreement duly approved by the Court having jurisdiction, under which such receiver or trustee agrees to be bourid by each and every term, provision and limitation of the Franchise. (B) Upon the foreclosure or other judicial sale of all or a substantial part of a Cable System, Grantee shall norify the City of such fact, and such notification shall be treated as a notificarion that a change in ownership of Grantee has taken place and the provisions of this chapter goveining such changes shall apply. -51- SECTION 25. UNDERGROUNDING. (A) At no time shall Grantee place cable underground without appropriate authorizarion from the City. (B) The Cable System shall be placed underground in all portions of the Francluse area where either telephone or electric lines are underground: Whenever the poles on which the Cable System is constructed are eliminated, Crrantee shall concurrently replace its aerial faciliries with underground facilities. At no time shall the Cable System be the only aerial facility in any given area. (C) Where the Cable System is installed underground, line extenders, amplifiers, taps, power supplies, traps and related electronic equipment and components may be placed in appropriate housings above the surface of the ground to the extent that the method employed is compliant with any and all applicable City, state, federal or other regulations, and consistent with any other generally applicable guidelines, policies or procedures that may, from time to time, be adopted by the Ciry or other applicable government agency. Grantee sha11 provide a procedure for undergrounding taps and pedestals, the cost of which the Subscriber will bear, and relocating the taps and pedestais within the. technical constraints of the Cable System. -52- SECTION 26. USE OF POLES. Grantee shall be authorized to ufilize exisring poles, conduit, and other facilities of a public utility, but shall not be authorized to construct or install any new, different, or additional poles in any City streets without prior written approval by the City. SECTION 27. CONSTRUCTION STANDARDS. Grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with applicable California Public Utilities Commission pole attachment standards, elecirical codes and indusiry standards of the Cable television industry generally applicable to the type of Cable System which Grantee has constructed, owns or operates any applicable pole agreements, and all Franchise Agreement requirements. Grantee shall adhere to all building and zoning regularions curreritly in force or hereafter enacted. Grantee shall repair and restore any cuts and/or trenching in the roadway or sidewalks to City standards. Grantee shall locate and maintain its lines, cables, and other appurtenances, on public property, in such a manner as to cause no unreasonable interference with the use of such public property by any Person. -53- SECTION 28. APPROVALS. The City Engineer shall approve the locarion and method of construction of all underground facilities and equipment located on Public Right-of-Ways (including any above-grade portion of such facilities and equipment). The City Engineer also shall approve the location and installation of all new aerial faciliries. All construction shall be subject to City pernut and inspection fees as may be required by other applicable laws or regularions. SECTION 29. SUBMISSION OF DRAWINGS. Cnantee shall file with the City "as-built" drawings of the entire Cable System, excluding technical specificarions, Additionally, within 30 days after completion of any material modificarion of the Cable System (e.g., a system rebuild or Distribution Facility replacement), Grantee shall~ file with the City "as- built" drawings, excluding technical specifications; of the modified Cable System. The City may require that the "as-built" drawings be submitted in an electronic format specified by the City. SECTION 30. RELOCATION OF FACILITIES AND EQUIPMENT. (A) Grantee shall remove or relocate at its sole cost any facilities installed, used or maintained in connection with the Franchise if and when such removal or -54- reiocation is made necessary by any project. For purposes of this section, the word "projecY' means any change of grade, alignment or width of any public street, way, alley or place, including but not limited to, the construction of any subway or viaduct, that the City may initiate, either by or through itself or any redevelopment agency, community facility district, assessment district, undergrounding district, reimbursement agreement or generally applicable impact fee program. (B) In the event that such removal or relocation is required, Grantee shall commence physical .fieldwork on the removal or relocarion on or before 120 days after written notice of~ such requirement is provided by the City Manager. If, despite its reasonable efforts, Grantee is unable fo commence removal or relocation within such period, Grantee sha11 provide the City Manager with written norice explaining in detail the reasons for the delay and a date certain upon which such removal or relocation is expected to commence. Grantee shall diligently proceed and promptly complete all such removal or relocation after it is commenced. SECTION 31. MAINTENANCE. Should Grantee fail, refuse or neglect to properly perform any maintenance or construcrion work required by the Franchise following due notice from the City and a reasonable opportwuty to cure as provided for under this chapter, or should Grantee fail to commence performance of such work within the required period of -55- time, or fail to diligently proceed and promptly complete such work thereafter, the City Manager may, upon five days prior written norice to Grantee (except in cases of emergency), cause such work or other act to be completed in whole or in part by the City forces or others, and upon so doing shall submit to Grantee an itemized statement of the costs thereof. Grantee shall pay to the City the entire amount due, without offset or deducrion, within thirty (30) days from the date of such statement. SECTION 32. OPERATIONAL STANDARDS (A) Grantee must maintain the necessary facilities, equipment, and personnel to comply with the following consumer protecrion and service standards under "normal operaring condirions" as that term is defined below in subsection ~)~ (1) Provide sufficient toll-free telephone line capacity during normal business hours to ensure that telephone ca11s are answered promptly. Telephone answer time by a customer service representative, including wait time, shall not exceed 30 seconds when the connecrion is made. Callers who must be transferred may not be required to wait more than 30 seconds before being connected to a service representative. (2) . Under normal operating condirions, callers may not receive a busy signal more than three percent of the time, measured on a quarterly basis. -56- (3) Provide emergency toll-free telephone line capacity on a 24-hour basis, including weekends and holidays. After normal business hours, the telephone calls may be answered by a service or an automated response system, including an answering machine. Calls received after normal business hours must be responded to by a trained company representative on the next business day. (4) Provide a conveniently-located local business and service or payment office open during normal business hours at least eight hours daily on weekdays, and af least four hours weekly on evenings or" weekends, and adequately staffed with trained customer service representatives to accept subscriber payments and to respond to service requests, inquiries, and complaints. (5) Provide an emergency system maintenance and repair staff, capable of responding to and repairing major system malfunctions on a 24-hour per day basis. (6) Maintain a trained installarion staff to provide service to any subscriber requiring a standard installarion withiri seven days after receipt of a request, or such longer rime as may be requested by the subscriber, in a11 areas where trunk and feeder cable have been activated. "Standard installations" are those that are located up to 150 feet from the existing distribution system, unless otherwise defined in the franchise agreement. -57- ~ , (7) The Grantee must scfiedule, within a specified four-hour rime period Monday through Saturday (legal holidays excluded), all appointments with subscribers for installatiori of service, service calls, and other activities at the subscribex's location. The Grantee may schedule installarion and service calls outside of norrimal business hours for the convenience of the subscriber. The Grantee may not cancel an appoinhnent with a subscriber after -the close of business on the business day prior to the scheduled appointment. If a Grantee representative is delayed in keeping an appointment with a subscriber and will not be able to honor the scheduled appointment, the subscriber must be. contacted prior to the time of the scheduled appointment, and the appointment must be rescheduled, as necessary, at a rime that is convenient for the subscriber. The Grantee must undertake appropriate quality controi measures to ensure that the customer is satisfied with the work.~ (8) Subscribers who have experienced a late or a missed appointment due to the fault of the Grantee will either receive an installation free of charge or a$20 credit. (9) . Upon a subscriber's request, the Grantee will arrange for pickup or replacement of converters or other equipment provided by the Grantee at the -58- subscriber's address within 14 days after the request is made if the subscriber is mobility-limited. (B) Under normal operaring conditions, the standards of subparagraphs (1), (2), (3), (4) and (7) above must be met not less than ninety percent of the time, measured on a quarterly basis. (C) As used in this paragraph (A), the term "normal business hours" means those hours during which : most` similar businesses in the community are open to serve customers. In a11 cases, "normal business hours" must include some evening hours at least one night per week and/or some weekend hours. (D) As used in this paragraph (A), the term "normal operating condirions" means those service conditions that are within the control of the cable operator. Conditions that are not within the control of the cable operator include, but are not limited to, natural disasters, civil disttubances, power outages, telephone network outages, and severe or unusual weather conditions. Conditions that are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rata increases, regulaz peak or seasonal demand periods, and maintenance or upgrade of the cable system. -59- SECTION 33. SERVICE STANDARDS (A) The Grantee will render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest rime possible. Except in emergency situations, scheduled interruptions will occur during a period of minimum use of the cable system, preferably between midnight and 6:00 a.m. Unless the scheduled interruption lasts for no more than two hours and occurs between midnight and 6:00 a.m. (in which event 24-hours prior notice must be given to the City), 48-hours prior notice must be given to subscribers. (B) The Crrantee will maintain a repair force of technicians who will respond to subscriber requests for service within the following time frames: (1) For a system outage: Within two liours, including weekends, of receiving subscriber calls or requests for service that by number identify a system outage of sound or picture of one or more channels, affecting five or more subscribers of the system. (2) For an isolated outage: Within 24-hours, including weekends, of receiving requests for service identifying an isolated outage of sound or picture for one or more channels. -60- (3) For inferior signal quality: No later than the following business day, excluding Sundays and holidays, after a request for service idenrifying a problem concerning picture or sound quality. (C) The Grantee will be deemed to have responded to a request for service under the provisions of this paragraph (B) when a technician arrives at the service location and begins work on a problem that cannot be corrected from a remote location. If a subscriber is not home when the technician arrives, the technician must leave written notification of arrival. (D) The Grantee may not charge for the repair or replacement of defective or malfunctioning equipment provided by the Grantee to subscribers, unless the defect or malfunction was caused by the subscriber. (E) The Grantee must deternune the nature of the problem within 24 hours after commencing work and resolve all cable system related problems within three business days, unless technically infeasible. SECTION 34. BILLING AND INFORMATION STANDARDS (A) Subscriber bills must be clear, concise, and understandable. Bills must be fully itemized, with itemizarions including, but not limited to, basic and premium service charges and equipment charges. Bi11s also must clearly delineate -61- all activity during the billing period, including ,optional charges, rebates, and credits. (B) The first billing to a subscriber after a new installarion or service change must be prorated based upon when the new or changed service commenced. Subscribers must not be charged a late fee or otherwise penalized for any failure attributable to the Grantee, including the failure to rimely or correctly bill the subscriber. (C) In case of a billing dispute, the Crrantee must respond in writing to a written complaint from a subscriber within 10 days after receiving the complaint at the office specified on the billing statement for receiving that complaint. (D) Upon request by a subscriber, credits or refunds must be provided by Grantee to subscribers who experience an outage, interruption, or disconnection of service of four or more consecutive hours, provided that such loss of service is neither caused by the subscriber nor attributable to scheduled repairs, maintenance, or construction in circumstances where Grantee;has provided advance written notice to a subscriber, and the loss of service does not exceed the time period specified by Grantee. For subscribers ternunaring service, credits or refunds must be issued promptly, but no later than 30 days after the return of any Grantee- supplied equipment. -62- (E) The Grantee must provide written informarion on each of the following matters at the time of the installation of service, at least annually to all subscribers, and at any time upon request: (1) Products and services offered. (2) Prices and options for programming services and conditions of subscription to programining and other services. (3) Installation and service maintenance policies. (4) Instructions on the use of the cable service. (5) Channel positions of programming carried on the system. (6) Billing and complaint procedures, including the address and telephone number of the City's office designated for dealing with cable-related issues. (7) Consumer protection and service standards and penalties for noncompliance. (F) Subscribers must be notified of any changes in rates, programming services, or ehannel positions as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minunum of 30 days in advance of those changes if the change is within the control of the Grantee. -63- In addition, Grantee will endeavor to notify the City of those changes at least five working days before subscribers are notified. (G) The Grantee must maintain a public file containing all notices provided to subscribers under these consumer protection and service standards and all published promorional offers made by Grantee to subscribers. These documents must be maintained for a minimum period of rivo years. SECTION 35. VERIFICATION COMPLIANCE WITH STANDARDS (A) Upon 30 days prior written notice, the City may require the Grantee to provide a written report demonstraring its compliance with any of the consumer service standards specified in this section. The Grantee must provide sufficient documentation to enable the Grantor to verify compliance. (B) A repeated and venfiable pattem of noncompliance with the consumer protection and service standards of tHis secrion, after the Grantee's receipt of written notice and an opportunity to cure, may be deemed a material breach of the franchise agreement. SECTION 36. SUBSCRIBER COMI'LAINTS AND DISPUTES (A) The Grantee must establish written procedures for receiving, acting ~ upon, and resolving subscriber complaints without intervention by the City. The -64- , , written procedures must prescribe the manner in which a subscriber may submit a complaint, either orally or in writing, specifying the subscriber's grounds for dissatisfaction. The Grantee must file a copy of these procedures with the City. These procedures must include a requirement that the Grantee respond in writing to any written complaint from a subscriber within 10 days after receiving the complaint at the office specified on the billing statement for receiving that complaint, as provided for above in Section 32(A)(4). (B) Upon request, and subject to applicable Iaw protecting subscriber privacy rights, the City has the right to review the Grantee's response to subscriber complaints. (C) All subscribers have the right to continue receiving service so long as their financial and other obligarions to the Crrantee are honored. If the Crrantee elects to rebuild, modify, or sell the system, or if the City gives norice of intent to ternvnate or not to renew the franchise, the Crrantee must act so as to ensure that all subscribers receive service while the franchise remains in force. (D) Upon a change of conizol of the Grantee, or if a new operator acquires the cable system, the original Grantee must cooperate with the City, the new Grantee, or the new operator in maintaining continuity of service to aIl subscribers. -65- During that transition period, the Grantee is entitled to the revenues derived from its operation of tlie cable system. SECTION 37. DISCONNECTION/DOWNGRADES (A) A subscriber may terminate or downgrade service at any rime, and the Grantee must promptly comply with the subscriber's request within seven days or at any later time requested by the subscriber. No period of notice prior to ~.. voluntary ternunarion or downgrade of service may be required of subscribers. Grantee will impose no charges for the voluntary ternunation or downgrade of service unless a visit to the subscriber's premises is required to remove a converter box or other equipment or property owned by Crrantee. Grantee may, in accordance with applicable law, charge a fee to downgrade service if a service call is required. (B) The Crrantee may disconnect a subscriber's service in compliance with paragraphs (i), (j), and (k) of Section 53088.2 of the California Government Code. If service is disconnected for nonpayment of past due fees or charges, the Grantee must promptly reinstate service upon payment in full by the subscriber of all such fees and charges, including late charges. -66- ~ . (C) Notwithstanding the requirements of subsection (B) above, the Grantee may immediately disconnect service to a subscriber if the subscriber is damaging or destroying the Grantee's cable system or equipment. (D) The Grantee may also disconnect service to a subscribe,r when it causes signal leakage exceeding federal limits. If service is disconnected, the Grantee will immediately resume service without charge upon the satisfactory correction of the signal leakage problem if the signal leakage problem is attributable to the Grantee. (E) The Grantee may also disconnect service in case where customers are stealing service or have threatened Grantee's personnel with physical violence. (F) Upon ternunation of service to a subscriber, the Grantee will remove its equipment from the subscriber's premises within 30 days. The equipment will be deemed abandoned if it is not removed within such time period unless the Grantee has been denied access to the subscriber's premises. -67- SECTION 38. NEGATIVE OPTION BILLING PROHIBITED No charge may be imposed for any service or equipment that the subscriber has not affirmatively selected. Payment of the regular monthly bill will not by itself constitute.an affirmative selection. SECTION 39. DEPOSITS Grantee may require a reasonable, nondiscriminatory deposit on equipment provided to subscribers. Such deposits must be placed in an interest-bearing account. The deposit must be retumed, with interest earned to the date of repayment, within 30 days after the equipment is returned to the Grantee. SECTION 40. PARENTAL CONTROL OPTIONS Grantee must provide parental control devices at no charge to all subscribers who desire to block the video or audio portion of any pay channels providing adult programming that the subscriber finds objectionable. For other programming, such devices will be provided at a reasonable charge to the subscriber. SECTION 41. ADDITIONAL REQUIREMENTS (A) All officers, agents, and employees of the Crrantee, or of its contractors or subcontractors, who, in the normal course of work come into contact with members of the public, or.who require entry onto subscribers' premises, must -68- , . display a photo- identificarion card. The Grantee must account for all identification cards at all times. All vehicles of the Grantee or its subcontractors must be clearly identified as vehicles engaged in providing services for the Grantee. (B) Additional standards relating to service, consumer protection, and response by the Grantee to subscriber complaints not otherwise provided for in this section may be adopted by ordinance, and the Grantee must comply with those standards in the operation of the cable television system. A verified and continuing pattern of noncompliance may be deemed a material breach of the franchise agreement, provided that the Crrantee receives written norice and an opportunity to cure before any penalty or other remedy is imposed. SECTION 42. PENALTIES FOR NONCOMPLIANCE (A} Purpose The purpose of this paragraph is to authorize the imposition of monetary penalties for the violation of the customer service standaids established by this Ordinance. The imposition of penairies authorized by this section 42 will not prevent the City or any other affected party from exercising any other remedy to the extent pernutted by law, including, but not limited to, any judicial remedy as provided below in subsecrion (B)(4) or otherwise by this Ordinance. -69- (B) Administrarion and Appeals. (1) The City Manager or the City Manager's designee is authorized to adininister this secrion 42. Decisions by the City Manager to assess monetary penalties against the Grantee must be in writing and must contain findings supporting the decisions. The written decision shall be filed with the City Clerk and a copy thereof shall be served on the Appellant in accordance with Section 1094.6 of the California Code of Civil Procedure. (2) If tlie Grantee or any interested person ("AppellanY') is aggrieved by a decision of the City Manager made pursuant to tliis Section, the aggrieved party may, within 10 days of the written decision, appeal that decision in writing to the City Clerk. Such appeal shall be in a form prescribed by the City Clerk. The appeal letter must be accompanied by the fee established°by the City Council for processing the appeal. The City Clerk will refer the matter to the City Manager who will iniriate the administrative hearing process outlined below: (a) The .hearing officer shall be selected by the City Manager and compensated for the time expended in providing such service based upon a written agreement for that purpose. The hearing officer's employxnent or compensation shall not be based on the outcome rendered by the hearing officer. If the appellant -'10- ~ so elects in writing prior to the hearing, the appellant shall be entitled to pay for one half (1/2) of the costs of the services of the hearing officer. (b) The hearing shall be conducted by the hearing officer on the date, time and place specified by the hearing officer. The hearing sha11 proceed solely on the issues or defenses raised in the request for a hearing filed by the Appellant; and all matters not contested in said request shall be deemed admitted. (c) The Appellant shall have the burden to establish, by a preponderance of the evidence, that either: (1) the City Mariager has proceeded without, or in excess of jurisdicrion; (2) there was not a fair trial; or (3) there was any prejudicial abuse of discrerion. Abuse of discretion is established if the City Manager has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. The City Manager's written decision and findings shall be admitted into evidence and shall constitute prima facie evidence of all matters contained therein. The parties may present such other evidence and reports as may be necessary or helpful to the hearing officer to resolve the issues raised by the citee. (d) The parties shall be given the opportunity to testify and to present evidence relevant to the matters raised in the appeal. -71- (e) The City Manager's written decision'and findings, and other reports prepared by the City Manager, or at his or her request, concerning the alleged violation or violations or their attempted correcrion shall be accepted by the hearing officer as prima facie evidence of the violation or violarions. ( fl The hearing shall be conducted informally and the rules of evidence need not be followed; provided however that the d'ecisiori of the hearing officer on any material issue may not be based upon hearsay evidence alone. The hearing officer may adopt such supplementary rules. of procedure and evidence as may be useful in a determination of the issues involved, to the extent such rules are not otherwise provided for herein. (g) The failure of the Appellant to appear at the hearing shall constitute a waiver of his or her contest to tlie City Manager's decision and a failure to exhaust administrative remedies concerning the City Manager's decision. Such failure to appear shall consritute an admission of the truth of all matters contained in the City Manager's decision, which sha11 be ordered in the decision of the hearing officer. (h) The hearing officer may continue the hearing upon the request of the Appellant, or the Appellant's representative, or the,representarive of the City, or on the hearing officer's own motion, upon a showing of good cause. All continuance _7z_ requests shall be made in writing. If the continuance is granted, a new heanng date shall be set, which continued hearing date shall be within fifteen days. (i) After considering all the evidence and tesrimony submitted at the heating, the hearing officer sha11 issue his or her written decision within five business days following the conclusion of the hearing. The decision of the hearing officer shall, either uphold or deny the City Manager's decision or any portion thereof and state the facts and reasons supporting the decision. The hearing officer also shall order any remedy necessary to effectuate the hearing officer's decision, including, but not limited to, a revision of the amount of money owed by the Grantee after due consideration of the circumstances pursuant to subparagraph (B)(6)(b), below. The written decision shall be filed with the City Clerk and a copy thereof shall be served on the Appellant in accordance with Section 1094.6 of the California Code of Civil Procedure. (j) All decisions and orders of a hearing officer shall become final unless appealed as provided herein. (k) The Appellant or the City may seek judicial review of the decision of the hearing officer by filing an appeal with the Superior Court within ninety (90) in accordance with applicable law, including the provisions of California Code of Civil Procedure Section 1094.6. No appeal shall be permitted from a decision -73- . ~ based upon the failure of the Appellant to appear at the administrative hearing or upon any other waiver of the administrative hearing by the Appellant. (~ If an appeal of any decision or order of a hearing officer that ordered the Appellant to pay any amount due is affirmed by the reviewing court, in whole or part, the court shall enter an order requiring the Appellant to pay such amount and said order shall constitute a money judgment. (3) Schedule of` Penalties. The following schedule of monetary penalries may be assessed against the Grantee for.the material violation of the provisions of the customer service standards. set forth in this section, provided that the violation is within the reasonable control of the Grantee: (a) The maximum penalty for a first material violation is two hundred dollars ($200) for each day of the material violation. (b) For a second material violation of the same nature within a 12-month period for which the City has provided notice and a penalty has been assessed, tlie maximum penalty is five hundred dollars ($500) for each day of the material violarion. (c) Far a third or further material violation of the same nature witkun a 12-month period for which the City has provided norice and a -74- penalty has been assessed, the maYimum penalty is seven hundred fifty dollars ($750) for each day of the material violation. (4) Judicial Remedy. This paragraph does not preclude any affected party from pursuing any judicial remedy available to that pariy without regard to this P~'a~'aPh ~)• (5) Norice of Violation. The City must give the Crrantee written notice of any alleged violation of the consumer service standards and allow the Grantee at least 30 days from receipt of the notice to remedy the specified violation. (6) Assessment of Monetary Penalties. (a) If a violation has not been corrected or cured by Grantee within the time specified by the City, the monetary penalries specified above in subparagraph (c) may be assessed from the date of delivery to Grantee of the City's written norice of violation. (b) In assessing monetary penalties under this paragraph (k), the City Manager, Hearing Officer, or the City Councii, as applicable, may take into account the nature, circumstances, extent and gravity of the violation and, with respect to the Grantee, the degree of culpability, any history of prior violarions, and such other matters as may be relevant. If warranted under the circumstances, the -75- monetary penalty to be assessed may be less than the maicimum penalty amount specified above in subparagraph (c). SEGTION 43. ADDITIONAL CONSUMER PROTECTION AND SERVICES STANDARDS (A) In addition to the consumer protection and service standards that are specified above in secrion 32 -secrion 50, the franchise agreement with a Grantee ~ may require compliance with the following: (1) Federal statutes, and the rules; regularions, and orders of the Federal Communicarions Commission, including the following: (a) The provisions of Section 76.309(c) of Title 47 of the Code of Federai Regulations, as it now exists or may later be amended. (b) The provisions of Section 76.630 of Title 47 of the Code of Federal Regulations, as it now exists or may later be amended. (c) The provisions of Section 551 of Title 47, United States Code, as it now exists or may later be amended. (d) The provisions of Califomia Government Code Sections 53054, et seq., enritled the "Cable Television and Video Provider Customer Service and ~ Information Act." -76- (e) The provisions of Califomia Government Code Section 53088, et seq., enritled the "Video Customer Service Act." ( fl The provisions of California Civil Code Section 1722(b)(1)-(6) relating to service or repair transactions between cable television companies and their subscribers. (g) The provisions of California Penal Code Section 637.5 relating to subscribers' rights to privacy protection. (B) The City may, in its discretion, incorporate in a franchise agreement those customer service and protection standards referenced above in this paragraph (A) that are the most stringent, and that afford the greatest protection to consumers. These standards will apply, to the extent authorized by law, to all video, voice, and data services that are provided by the Grantee to its subscribers within the franchise service area. SECTION 44. COMPATIBILITY WITH CONSUMER ELECTRONICS EQUIPMENT. (A) .The Granfee shall not scramble or otherwise encrypt signals carried on the basic service tier. Requests for waivers of this prohibition must demonstrate _~~_ either a substantial probiem with theft of basic rier service or a strong need to scramble basic signals for other reasons. (B) The Grantee sha11 comply with equipment compatibiliTy rules and commercial availability of navigation equipment rules of the FCC. (C) The Crrantee shall offer Subscribers' the oprion to receive an A/B switch at the time of inirial. Cable Service installarion and shall provide Subscribers with written information as to how to use such a switch. The Grantee may charge a reasonable price for said switch. Upon Subscriber request, the Grantee shall provide an A/B switch after the inirial installation of Cable Service. , If the Subscriber requests, installation of such a switch (to receive broadcast television without Cable hookup), the Grantee may charge reasonable fees for such installarion and equipment. SECTION 45. RATE REGULATION. The City may regulate a Grantee's rates; charges, and prices to the maximum extent pernutted by law now or at a furizre time. (A) Filing of Rates and Charges. Throughout the term of any Franchise Agreement entered into pursuant to this chapter,, Crrantee shall maintain on file .~g_ with the City a complete schedule of a11 rates and charges related to providing Cable Services under the Franchise, in a form satisfactory to the City. (B) Changes in Rates and Charges. Grantee shall provide written notice to the City and Subscribers at least thirty (30) days in advance of any proposed change in rates and charges within the control of Grantee. Such notice shall be provided in the Subscriber's bill, or in a separate mailing.. (C) Regularion of Equipment for Hearing-Impaired. To the extent authorized by law, the City reserves the right to require and regulate tlie installation or rental of equipment that facilitates the receprion of Cable Service by hearing impaired individuals. SECTION 46. BILLING PROCEDURES. Billing procedures shall be as follows: (A) Bills will be clear, concise, and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all acrivity during the billing period, including: (1) A list of each service or package received for that billing period; (2) The rate or charge for each service or package received; -79- (3) The period of time over which said services are billed; (4) The total charges due far the monthly period, separate from any previous balance due; (5) Credits posted during the month; (i) Credits for service will be issued no later than the Subscriber's next ~ billing cycle following the deternunation that a credit is warranted. (6) A specific date by which payment is required; and (7) The custoiner service telephone number to which billing inquiries or complaints can be directed. (B) A Grantee's first billing statement after a new installation or service change shall be prorated as appropriate and shall reflect any security deposit. (C) A Grantee's billing statement must show a specific payment due date, and no late payment fee may be imposed on a Subscriber eariier than thirty (30) calendar days from the due date on the billing statement. Any balance not received within thirty (30) calendar days of the due date may be assessed a late fee consistent with this Chapter. Any late fee assessed must appear on the following month's billing statement. -80- (D) A Gfantee must notify the Subscriber that he or she can remit payment in Person at the Grantee's office located in or near the City and inform the " Subscriber of the address of that office. (E) Every customer who pays his or her bill directly shall have at least fifteen (15) days from the date of the bill for services is mailed to pay the listed charges. Customer payments shall be posted promptly. The Grantee shall not terminate any residential service for nonpayment of a delinquent account without fifteen (15) days prior written notice. Such notice shall not be mailed until after the sixteenth (16th) day from the time the bill for services was mailed to the customer. The Crrantee may not assess a late charge earlier than the twenty-second (22nd) day from the time the bill for services has been mailed. (P) In case of a billing dispute, the Grantee must respond to a written complaint from a Subscriber within thirty (30) days. (G) At the time of the inirial complaint, Grantee shall provide written or verbal norice to customers that in the event of a billing dispute, the Crrantee, upon resolution of the dispute when Grantee is at fault, shall waive a late fee. (H) Subscribers shall not be charged a late fee or otherwise penalized for any failure by the Crrantee, its employees, or contractors, including failure to timely -81- or correctly bill the Subscriber, or failure to properly credit the Subscribers for a payment made in a timely manner. (I) Every norice of temunation of service shall include: name and address of Subscriber whose account is delinquent; the amount of the delinquency; the date by which payment is required in order to avoid tennination of service; the telephone number of the Grantee for addirional information and/or to handle complaints or initiate an investigation concerning service and charges in question. (J) Service may only be ternunated on days and at times in which the Subscriber can reach a Customer Service Representative of the Grantee either in Persori or by telephone. (K) The Grantee shall afford each Subscriber of the Cable System with a right to rescind the Subscriber's ordering of service within three (3) days after ordering, provided that such right of rescission sha11 end upon activation of the service ordered. (L) The Grantee shall assess any late fees in accoidance with California law. In no event shall a late fee exceed the maximum amount permissible under Califomia law. _82_ (M) Any Franchise Agreement entered into pursuant to this chapter may contain provisions for a discount on basic and Cable progra,,,ming tiers or any other Cable Services for Persons with specific income and disability qualifications. (1~ Grantee wi11 set rates for equipment deposits no higher t12an the actual replacement value of the equipment for which the deposit is applied. Equipment deposits shall be promptly retumed to Subscribers upon the return in .good working condition to the Grantee of the equipment for which said deposit was required. SECTION 47. REFIJNDS. (A) Refund checks will be issued promptly, but no later than either: (1) the Subscriber's next biliing cycle following resolurion of the request or thirty (30) days, whichever is earlier, or (2) in cases involving the return of the equipment supplied by the Grantee if service is ternunated for any reason, by the Subscriber's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier. (B) If the Grantee does not mail a check for a refund to any Subscriber disconnecting service with an outstanding credit within the next billing cycle or thirty days, whichever is earlier, the Subscriber may request and is enritled to receive a ten dollar ($10.00) payment. _83_ SECTION 48. NOTICE.OF RATE INCREASES. Grantee sha11 provide written notice to the City and Subscribers at least 30 days in advance of the implementarion of changes in any of its rates and charges which are not subject to regulation by the City. SECTION 49. NON-DISCRIMINATION AND CUSTOMER PRNACY. (A) Service Availability. (1) No Person, firm or corporation in the elcisting service area of a Grantee shall be arbitrarily refused service; provided, however, that the Grantee shall not be required to provide service to any Subscriber who does not pay the appiicable connection fee or monthly service charge hereby authorized. (2) A Grantee may not require the subscription to any tier other than the basic service rier as a condition of access to video progrannlung offered on a per channel or per program basis. A Grantee may not discriminate between Subscribers to the basic service tier and other Subscribers with regard to the rates charged for video programming offered on a per channel or per program basis. (3) A Crrantee will abide by all customer privacy requirements of federal and State law. At least annually, a Grantee shall provide norice in the form of a -84- separate, written statement to each Subscriber, which clearly and conspicuously informs tl~e Subscriber of: (a) the nature of personally identifiable information collected or to be collected with respect to the Subscriber and the nature of the use of such informarion; (b) the nature, frequency and purpose of any disclosure, which may be made of such information, including the identificarion of the types of Persons to whom the disclosure may be made; (c) the period during which such information will be maintained by the Grantee; (d) the rimes and place at which the Subscriber may have access to such informarion in accordance with federal and State law; and (e) the limitations provided in federal and State law with respect to the collection and disclosure of information by a Grantee and the right of the Subscriber under law. (B} Data Collecrion. -85- A Grantee's data collection and dissemination practices regarding Subscribers shall be in compliance with the Cable Act (including Secrion 631) and this Chapter. (C) Revealing Subscriber Preferences. (1) A Grantee shall not reveal individual Subscriber preferences, viewing habits, beliefs, philosophy, creeds or religious beliefs to any third Person, firm, agency, governmental unit or investigaring agency without court authority or prior written consent of the Subscriber. (2) Such written consent, if given, shall be limited to a period of time not to exceed one (1) year or a term agreed upon by the Grantee and Subscriber. (3) A Grantee shall not condition the delivery or receipt of Cable Services to any Subscriber on any such consent. (4) Such a Subscriber may revoke without penalty or cost any consent previously made by delivering to the Grantee in writing a substantial indication of his intent to so revoke. (D) Revealing Subscriber Lists. A Grantee shall not reveal, or sell, or pernut the release or sale of its Subscriber list without the prior affirmative written consent of each Subscriber, -86- provided that the Grantee may use its Subscriber list as necessary for the construction, markering, and maintenance of the Grantee's services and facilities authorized by its Franchise, and the related billing of Subscribers for Cable Services. Consistent with applicable law, City may use Grantee's Subscribers list for the purpose of communication with Subscribers in connecrion with matters re]ating to operation, management, and maintenance of the Cable System. (E) Other Persons Affected. This Section shall apply to all of the following as well as to any Grantee: (1) Officers, directors, employees and agents of the Grantee; (2) General and limited partners of the Grantee; (3) Any Person or combinarion of Persons owning holding or Controlling five percent (5%) or more of any corporate stock or other ownership interest of the Crrantee; (4) Any affiliated or subsidiary entity owned or Conirolled by the Grantee, or in which any officer, director, stockholder, general or limited partner or Person or group of Persons owning, holding or Controlling any ownership interest in the Grantee, shall own, hold or Control five percent (5%) or more of any corporate stock or other ownership interest; -87- (5) Any Person, firm or corporarion acring or serving in the capability of holding or Controlling company of the Grantee. SECTION 50. WRITTEN OR ORAL NOTICE TO ENTER PROPERTY. Under Normal Operating Conditions, Grantee shall provide written or oral notice, in light of circumstances, prior to entering any private property. SECTION 51. NOTICE REGARDING CHANNEL SCRAMBLING. Subscribers shall be given at least thiriy (30) days written norice of any scrambling of a channel, and any de-scrambling of a channel(s) containing R-rated or stronger progranuning. Subscribers do not need to be notified of blackout periods required of the Grantee by programmers. . SECTTON 52. TENANT RIGHTS. It is the City's intent that tenants not be discriminated against in the ability to subscribe to Cable Services. Grantee shall be required to provide service to tenants in individual units of a mulriple housing facility with all services offered to other dwelling units within _the Franchise Area, so long as the owner of the facility consents in writing, if requested by Grantee, to the following: (A) Grantee's providing the service to uriits of the facility on such terms and conditions as are reasonable, provided that _gg_ (1) the owner of the facility shall not seek to charge Grantee any fee or considerarion for accass to the facility or for the right of providing Cabie Service to the dwelling units within the facility, (2) Grantee shall not seek to charge the owner of the facility any fee or considerarion for installing such service other than its actual costs as provided for herein, and (3) such terms and conditions shall be in compliance with applicable law; ($) Reasonable access to the premises by Crrantee for installation, maintenance, and inspecrion of the system on the premises; (C) Reasonable conditions promulgated by Crrantee to protect Grantee's equipment and to encourage widespread use of the system; (D) The owner shall not discriminate in rental charges, or otherwise, between tenants who receive Cable Service and those who do not; and (E) The owner shall provide all easements, rights-of-way, and other rights of access deemed reasonably necessary or appropriate by Grantee for purposes of providing Cable television service to the facility. -89- SECTION 53. CONTINUITY OF SERVICE MANDATORY. (A) Subscribers shall have the right to continue to receive service so long as their financial and other obligations to Grantee are honored. Grantee shall at all times, and under all conditions, to the greatest extent economically and technically possible, maintain continuity of service. In the event of an assignment of the Cable System, the assignor shall cooperate with the City and the assignee in order to maintain continuity of service to all Subscribers. (B) In the event Grantee willfully fails to' operate the Cable System for a period of five consecurive days without prior approval of the City, the City may, in its sole discretion, elect to operate the Cable System or designate an operator until Grantee restores service under conditions acceptable to the City, or until the City selects a permanent operator. During the entire period while the City operates the Cable System on behalf of Crrantee, or causes another party to do so, the City shall be entitled to collect any and all revenues from the operation of the Cable System, and Grantee shall reimburse the City for all reasonable costs or damages in excess of the revenues collected by the City that are caused by Grantee's failure to perform. SECTION 54. APPLICABILITY. -90- The provisions of this chapter apply to an Open Video System Operator that intends to deliver video programming to consumers in the City over an Open Video System. 3ecrion 55. APPLICATION REQUIRED. (A) Before commencing the delivery of Video Programming services to consumers in the City over an Open Video System, the Open Video System Operator must file an application with the City. That.applicarion must include or be accompanied by the following, as applicable: (1) The idenrity of the applicant, including a11 Affiliates of the Applicant. (2) Copies of FCC Form 1275, all "Notices of Intent" filed under 47 CFR secrion 76.1503(b)(1), and the Order of the FCC, all of which relate to certificarion of the applicant to operate an Open Video System in accordance with Secrion 653(a)(1) of the Communications Act and the FCC's rules. (3) The area or areas of the City that the applicant desires to serve. (4) A description of the Open Video System services that will be offered by the applicant over its exisring or proposed facilities. (S) A description of the transmission medium that will be used by the applicant to deliver the Open Video System services. -91- (6) Information in sufficient detail to establish the applicant's technical qualifications, experience, and expertise regarding the ownership and operation of the Open Video System described in the application. (7) Financial statements prepared in accordance with generally accepted accounting principles that demonstrate the applicant's financial ability to: `(a) Construct, operate, maintain and remove any new physical plant that is proposed to be consmicted.in the City. '' (b) Comply with the City's Public, Educational; and Government Access Channel requirements as specified below in Section 57 B(4). (c) Comply with the City's requirement that gross revenue fees be paid in the sum of 5 percent (5%), as specified below in Section SZ (B)(2). (8) An accurate map showing the' location of any existing telecommunicarions facilities in the City that the applicant intends to use, to purchase, or to lease. (9) If the applicant's operarion of the Open Video System will require the construction of new physical plant in the City, the following addirional information must be provided: -92- , (a) A preliminary construcrion schedule and completion dates. (b) Preliminary engineering plans, specifications, and a network map of any new facilities to be constructed in the City, in sufficient detail to identify: (i) The location and route requested for the applicant's proposed facilities. (ii) The locarions, if any, for interconnectiom with the facilities of other telecommunications service providers. (iii) The specific structures, improvements, facilities, and obstrucrions, if any, that the applicant prop'oses to remove or relocate on a temporary or permanent basis. (c) The applicant's statement that, in construcring any new physical plant, the applicant will comply with all applicable ordinances, rules, and regulations of the City, including the payment of all required pernut and processing fees. -93- (10) The information and documentation that is required to be submitted to the City by a Video Provider, as specified below in paragraph (B) of Section 59. (11) Such additional information as may be requested by the City Manager (12) A nonrefundable filing fee in an amount established by resolution of the City Council. (B) If any item of informarion specified above in paragraph (A) is deternuned under paramount federal or state law to be unlawful, the City Manager is authorized to waive the requirement that such;information be included in the application. SECTION S5. REVIEW OF APPLICATION. Within 30,days after receipt of an application filed under Section 55 that is deemed to be complete, the City Manager will give written notice to the applicant of the City's intent to negotiate an agreement setring forth the terms and condirions under which the operation of the proposed Open Video System will be authorized by the City. The commencement of those negotiations will be on a date that is mutually acceptable to the City and to the applicant. -94- I 1 SECTION 56. AGREEMENT REQLJIRED AND FEES. (A) No Video Programniing services may be provided in the City by an Open Video System operator unless the operator and the City have executed a written agreement, which may be designated as a Franchise, setting forth the terms and condirions under which the operarion of the proposed Open Video System will be authorized by the City. (B) The agreement between the City and the Open Video System operator may contain terms and conditions that relate to the following subject matters, to the extent that such terms, condirions, and subject matters are not preempted by federal statute or regulations: (1) The nature, scope, and durarion of the agreement, including provisions for its renewal or extension. (2) The obligarion of the Open Video System operator to pay to the City, at specified times, fees on the gross revenue received by the operator, as authorized by 47 CFR secrion 76.1511, in accordance with the following standards and procedures: -95- 1 ~ (a) The amount of the fees on the gross revenue will be five percent (5%), and will be paid in lieu of the Franchise fees authorized under Section 622 of the Communications Act. (b) The term "OVS Gross Revenue" means all gross revenue as defined in Section 02 and (i) all revenue all carriage revenue received from unaffiliated video progranui~ing providers; and (ii) all other revenue derived directly or indirectly from or attributable to the operation of Open Video system.. The term "OVS Gross Revenue" does not include revenue, such as Subscriber or advertising revenue, collected by unaffiliated video prograinming providers and other exclusions described in the definirion of "Gross Revenues" defined within Section 02 of this Ordinance (3) The obligarion of the Open Video System operator to comply with requirements relating to informatiori collection and recordkeeping, accounting procedures, reporting, periodic audits, and inspection of records in order to ensure the accuracy of the fees on the OVS Gross Revenue that are required to be paid as specified above in paragraph (B)(2). (4) The obligation of the Open Video System operator to meet the City's requirements with respect to Public, Educational, and Govemmental Access Channel capacity, services, facilities, and equipment, as -96- provided for in 47 CFR section 76.1505. In this regard, the following standards and procedures are applicable: (a) The Open Video System operator is subject to the same Public, Educational, and Governmental Access Channel requirements that apply within the cable television Franchise service area with which its system overlaps. (b) The Open Video System operator must ensure that all Subscribers receive all Public, Educarional, and Government Access Channels within the Franchise service area in which the City's Subscribers are located. (c) The Open Video System operator may negotiate with the City to establish the operator's obligations with respect to Public, Educarional, and Government Access Channel capacity, services, facilities, and equipment. These negotiations may include the City's Franchised cable operator if the City, the Open Video System operator, and the Franchised cable operator so desire. (d) If the Open Video System operator and the City are unable to reach an agreement regarding the operator's obligations with respect to Public, Educational, and Government Access channel capacity, services, -97- facilities; and equipinent within the City's jurisdiction, then the following obligations will be imposed: (i) The Open Video System operator must satisfy the same Public, Educational, and Government Access Cl~annel obligations as the City's Franchised cable operator by providing the same amount of channel capacity for public, educational, and governmental access and by matching the City's Franchised cable operator's annual financial contributions in support of Public, Educational, and Govemment Access services, facilities, and equipment that are actually used by the City. For in-kind contributions, such as cameras or production studios, the Open Video System operator may satisfy its statutory obligation by negotiating mutually agreeable terms with the City's Franchised cable operator, so that public, educational, and governmental access services to the City are improved or increased. If such terms cannot be agreed upon, the Open Video System operator must pay to the City the monetary equivalent of the Franchised cable operator's depreciated in-kind contribution, or, in the case of facilities, the annual amortization value. Any matching contriburions provided by the Open Video System operator must be used to fund activities arising under Section 611 of the Communications Act. , -98- (ii) The City will impose upon the Open Video System operator the same rules and procedures that it imposes upon the Franchised cable operator with regard to the Open Video System operator's use of channel capacity designated for Public, Educarional, and Government Access Channel use when that capacity is not being used for such purposes. (e) The City's Franchised cable operator is required under federal law to permit the Open Video System operator to connect with its Public, Educarional, and Govemment Access Channel feeds. The Open Video System operator and the Franchised cable operator may decide how to accomplish this connecrion, taking into consideration the physical and technical chazacteristics of the cable and the Open Video Systems involved. If the Franchised cable operator and the Open Video System operator cannot agree on how to accomplish the connection, the City has the right to decide. The Ciry may require that the connecrion occur on City-owned property or on Public Rights-of-Way. ( fl All costs of connection to the Franchised cable operator's Public, Educational, and Government Access Channel feed must be bome by the Open Video System operator. These costs will be counted towards the Open Video System operator's matching financial contriburions set forth above in subparagraph (d)(i). -99- (g) The City will not impose upon the Open Video System operator any Public, Educational, or Government Access Channel obligarions that are more favorable or less burdensome than those imposed upon the Franchised cable operator. . (h) If there is no existing Franchised cable operator; the provisions of 4'7 CFR section 76.1505(d)(6) will be applicable in determining the obligations of the Open Video System operator. (i) The Open Video System operator must adjust its system to comply with new Public, Education, and Access Channel obligations imposed on the City's Franchised cable operator following a renewal of the cable television Franchise; provided, however, that the Open Video System operator will not be required to displace other programmers using its Open Video System to accommodate Public, Educarional, and Government Access Channels. 'The Open Video System operator must comply with such new Public, Educarional, and Govemment -Access Channel obligations whenever additional capacity is or becomes available, whether it is due to increased channel capacity or to decreased demand for channel capacity, (5) If the City and the Open Video System operator cannot agree on the application of the FCC's rules regarding the Open Video System -100- operator's obligations to provide Public, Educational, and Government Access Channel under the provisions of subsecrion (4) set forth above, then either party may file a complaint with the FCC in accordance with the dispute resolution procedures set forth in 47 CFR section 76.1514. No agreement will be executed by the City until the dispute has been finally resolved. (6) If the Open Video System operator intends to maintain an institutional network, as defined in Section 611(~ of the Communicarions Act, the City will require that Educational and Government Access Channels be designated on that insritutional network to the same e~tent that those channels are designated on the institurional network of the City's Franchised cable operator. In addition, to the extent authorized by federal law, the Open Video System operator may be required by the City to satisfy the same financial obligations and other requirements that are imposed upon the Franchised cable operator to support data- transmission and related services that are provided by the insritutional network. (7) The authority of an Open Video System provider to exercise editorial control over any Public, Educational, or Government use of channel capacity will be restricted in accordance with the provisions of 47 CFR section 76.1505(fl. -101- (8) The obligation of the Open Video System operator to comply with all applicable federal, state, and local statutes, ordinances, and regulations relating to customer service standards, including the Cable Television and Video Customer Service and Information Act (Government Code §§ 53054, et se~c.), the Video Customer Service Act (Government Code §§ 53088, et se .), and Section 18.04.050 of Chapter 18.04 of this ritle. (9) If a new physical plant is proposed to be consiructed within the City, the obligarion of the Open Video System operator to comply with the following rights-of-way use and management responsibilities that are also imposed by the City upon other telecommunicarions service providers in a nondiscriminatory and competitively neutral manner: (a) Compliance with all applicable City codes, including applications for excavation, encroachment, and construcrion permits and the payment of all required pernut and inspection fees. (b) The coordination of consixuction activities. (c) Compliance with established standards and procedures for constructing lines across private property. -102- (d) Compliance with all applicable insurance and indemnificarion requirements. (e) The repair and resurfacing of construction- damaged streets. ( fl Compliance with all public safety requirements that are applicable to telecommunicarions service providers using public property or Public Rights-of-Way. (I O) Acts or omissions constihzring breaches or defaults of the agreement, and the applicable penalries, liquidated damages, and other remedies, including fines or the suspension, revocation, or terminarion of the agreement. (11) Requirements relating to the. sale, assigmment, or transfer of the Open Video System. (12) Requirements relating to the Open Video System operator's compliance with and implementation of state and federal laws, rules, and regulations pertaining to the operation of the Open Video System. (I3) Such additional requirements, condirions, terms, policies, and procedures as may be mutually agreed upon by the City and the Open -103- Video System operator and that will, in the judgment of the City Council, best serve the public interest and protect the public health, welfare; and safety. SECTION 57. OTHER MULTICHANNEL VIDEO PROGRAMMING DISTRIBUTORS. (A) The term "Cable System" does not include a facility that serves Subsoribers without using any Public Rights-of-Way. Consequently, the categories of Multichannel Video Progrannning Distributors identified below are not deemed to be "Cable Systems" and are therefore exempt from the City's Franchise requirements and from certain other local regulatory provisions authorized by federal law, provided that their distriburion or transmission facilities do not involve the use of the City's Public Rights-of-Way. (B) Multichannel multipoint distribution service ("MMDS"), also lmown as "wireless cabie", which typically involves the transmission by an FCC- licensed operator of numerous broadcast stations from a central location using line- of-sight technology. (C) Local multipoint distribution service ("LMDS"), another form of over-the-air, wireless video service for which licenses are auctioned by the FCC, and that offers video programming, telephone, and data networking services. -104- (D) Direct broadcast satellite ("DBS"), also referred to as "direct-to- home satellite services", which involves the distribution or broadcasring of programming or services by satellite directly to the Subscriber's premises without the use of ground receiving or distribution equipment, except at the Subscriber's premises or in the uplink process to the satellite. Local regulation of direct-to- home satellite services is further proscribed by the following federal statutory provisions: (1) 47 U.S.C. section 303(v) confers upon the FCC exclusive jurisdiction to regulate the provision of direct-to-home satellite services. (2) Section 602 of the Communications Act states that a provider of direct-to-home satellite service is exempt from the coIlection or remittance, or both, of any t~ or fee imposed by any local t~ing jurisdiction on direct-to-home satellite service. The terms "taY" and "fee" are defined by federal statute to mean any local sales tax, local use tax, local intangible tax, local income tax, business license tax, utility tax, privilege taac, gross receipts tax, excise ta~c, franchise fees, local telecommunications t~, or any other ta1c, license, or fee that is imposed for the privilege of doing business, regulating, or raising revenue for a local taxing jurisdiction. -105- SECTION 58. VIDEO PROVIDERS - REGISTRATION; CUSTOMER SERVICE STANDARDS. (A) Unless the customer protecrion and customer service obligations of a Video Provider are specified in a Franchise, with the City, a Video Provider must comply with all applicable provisions of the following state statutes: (1) The Cable Television and Video Customer Service and Information.Act (Government Code §§ 53054, et seg.). (2) The Video Customer Service Act (Govemment Code §§ 53088, et s~.). (B) All Video Providers that are operating in the City on the effective date of this title, or that intend to operate in the City after the effecrive , date of tliis title, and are not required under applicable law io operate under a Franchise, license, lease, or similar written agreement with the City, must register with the Ciry. The registration form must include or be accompanied by the following: (1) The Video Provider's name, address, and local telephone numbers. -106- ~(2) The names of the officers of the Video Provider. (3) A copy of the Video Provider's written policies and procedures relating to customer service standards and the handling of customer complaints, as required by California Government Code §§ 53054, et seg. These customer service standards must include, without limitarion, standards regarding the following: (a) Installation, disconnection, service and repair obligations, employee idenrification, and service call response rime and scheduling. (b) Customer telephone and office hours. (c) Procedures for billing, charges, refunds, and credits. (d) Procedures for ternunation of service. (e) Notice of the deletion of a programming service, the changing of channel assignments, or an increase in rates. (fl Complaint procedures and procedures for bill dispute resolution. -107- .. (g) The Video Provider's written aclrnowledgement of its obligarion under California Government Code section 53055.1 to provide to new customers a notice describing the customer service standards specified above in subparagraphs (a) through (fl at the time of installarion or when service is initiated. The notice must also include, in addition to all of the information described above in subparagraphs (a) through ( fl, all of the following: (i) A lisring of the services offered by the Video Provider that clearly describes all levels of service and the rates for each level of service. (ii) The telephone number or numbers through which customers may subscribe to, change, or terniinate service, request customer service, or seek general or billing information. (iii) A description of the rights and remedies that the Video Provider may make available to its customers if the Video Provider does not materially meet its customer service standards. (h) The Video Provider's written commitment to distribute annually to its employees and.customers, and to the City, a notice describing the customer service standards specified above in subparagraphs (a) through ( fl. T'his annual norice must include the report of the Video Provider on its -108- , performance in meeting its customer service standards, as required by California Government Code section 53055.2. (4) Unless a Video Provider is exempt under federal law from its payment, a registration fee in an amount established by resolurion of the City Council to cover the reasonable costs incurred by the City in reviewing and processing the registrarion form. (5) In addirion to the registrarion fee specified above in subsection (4), the written commihnent of the Video Provider to pay to the City, when due, all costs and expenses reasonably incurred by the City in resolving any disputes between the Video Provider and its Subscribers, which dispute resolurion is mandated by California Government Code section 53088.2(0). (C) The customer service obligations imposed upon Video Providers by the Video Customer Service Act California Government Code §§53088 et se~c .) consist of the following: (1) Every Video Provider must render reasonably efficient service, make repairs promptly, and interrupt service only as necessary. -109- (2) All Video Provider personnel contacting Subscribers or potenrial Subscribers outside the office of the provider must be clearly identified as associated with the Video Provider. (3) At the time of installarion, and annually thereafter, all Video Providers must provide to all customers a written notice of the programming offered, the prices for that prograimning, the provider's installarion and customer service policies, and the name, address, and telephone number of the City's office that is designated for receiving complaints. (4) All Video Providers must have lrnowledgeable, qualified company representatives available to respond to customer telephone inquiries Monday through Friday, excluding holidays, during normal business hours. (5) All Video Providers must provide to customers a toll-free or local telephone number for installation, service, and complaint calls. These calls must be answered promptly by the Video Providers. (6) All Video Providers must render bills that are accurate and understandable. (7) All Video Providers must respond promptly to a complete outage in a customer's service. The response must occur within 24 hours -110- 4 ' ~ 1 of the reporting of such outage to the provider, except in those situations beyond the reasonable control of the Video Provider. A Video Provider will be deemed to respond to a complete outage when a company representarive arrives at the outage location within 24 hours and begins to resolve the problem. (8) All Video Providers must provide a minimum of 30 days' written notice before increasing rates or deleting channels. All Video Providers must make every reasonable effort to submit the notice to the City in advance of the distribution to customers. The 30-day norice is waived if the increases in rates . or deletion of channels are outside the control of the Wideo Provider. In those cases, the Video Provider must make reasonable efforts to provide customers with as much notice as possible. (9) Every Video Provider must allow every residenrial customer who pays his or her bill directly to the Video Provider at least 15 days from the date the bill for services is mailed to the customer, to pay the listed charges unless otherwise agreed to pursuant to a residential rental agreement establishing tenancy. Customer payments must be posted promptly. No Video Provider may terminate residential service for nonpayment of a delinquent account unless the Video Provider furnishes notice of the delinquency and impending ternunation at least 15 days prior to the proposed ternunation. The notice must be -111- 3 ,_ _ . mailed, postage prepaid, to the, customer to whom the service is billed. Notice must not be mailed until the 16th day after the date the bili for services was mailed to the customer. The norice ,of delinquency and ~ impending termination may be part of a billing statement. No Video Provider may assess a late fee any earlier than the 22nd day after the bill for service has been mailed. (10) Every notice of ternunation of service pursuant to the preceding subsection 9 must include all of the following information: (a) 'The name and addresa of the customer whose account is delinquent. (b) The amount of the delinquency. (c) The date by which payment is required in order to avoid termination of service. (d) The telephone number of a representative of the Video Provider who can provide additional information and handle complaints or initiate an investigarion concerning the service and~ charges in question. (11) Service may only be temvnated on days in which the customer can reach a representative of the Video Provider either in Person or by telephone. -112- A`' ~ A (12) Any service terminated without good cause must be restored without charge for the service restoration. Good cause includes; but is not limited to, failure to pay, payment by check for which there are insufficient funds, theft of service, abuse of equipment or system personnel, or other similar Subscriber actions. (13) All Video Providers must issue requested refund checks promptly, but no later than 45 days following the resolution of any dispute, and following the return of the equipment supplied by the Video Provider, if service is terminated. (14) All Video Providers must issue security or customer deposit refund checks promptly, but no later than 45 days following the temunation of service, less any deductions pernutted by law. (15) Video providers must not disclose the name and address of a Subscriber for commercial gain to be used in mailing lists or for other commercial purposes not reasonably related to the conduct of the businesses of the Video Providers or their Affiliates, unless the Video Providers have provided to the Subscriber a notice, separate or included in any other customer norice, that clearly and conspicuously describes the Subscriber's ability to prohibit the disclosure. Video providers must provide an address and telephone number for a local -113- Subscriber to use without toll charge to prevent disclosure of the Subscriber's name and address.. (D) Penalties for Noncompliance (1) Purpose The ,purpose of this paragraph (D) is to authorize the imposition of monetary penalties for the violarion of the customer service standards established by this Section 59. The imposition of penalties authorized by this paragraph (D) will not prevent the City or any other affected party from exercising any other remedy to the extent pernutted by law, including but not limitad to any judicial remedy as provided below in subsection (2)(iv). (2) Administrarion and Appeals. (i) The City Manager or the City Manager's designee is authorized to administer this paragraph (D). Decisions by the City Manager to assess monetary penalties against the Crrantee must be in writing and must contain findings supporting the decisions. Decisions by the City Manager are final, unless appealed by the Grantee or aggrieved party. (ii) If the Grantee or any interested person is aggrieved by a decision of the City Manager, the aggrieved party may, within 10 days of the -114- t ~ ~ t written decision, appeal that decision in wriring to the City Clerk. The appeal shall be conducted in accordance with the provisions of Section 49(B)(2). (iii) Schedule of Penalries. The following schedule of monetary penalries may be assessed against the Grantee for the material violarion of the provisions of the customer service standards set forth in this section, provided that the violarion is within the reasonable control of the Grantee: (a) The maximum penalty for a first material violarion is two hundred dollars ($200) for each day of the material violarion. (b) For a second material violarion of the same nature within a 12- month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is five hundred fifty dollars ($500) for each day of the material vioiation. (c) For a third or fiu-ther material violation of the same nature within a 12-month period for which the City has provided notice and a penalty has been assessed, the maximum penalty is seven hundred fifty dollars ($750) for each day of the material violation. -115- ~ . 1 (iv) Judicial Remedy. This paragraph does not preclude any affected party from pursuing any judicial remedy, available to that party without regard to this paragraph (k). (v) Notice of Violation. The City must give the Grantee written notice of any alleged violation of the consumer service standards and allow the Grantee at least 30 days from receipt of the norice to remedy the 'specified violation. (vi) Assessment of Monetary Penalties. (a) If a violation has not been corrected or cured by Crrantee within the time specified by the City, the monetary penalties specified above in subparagraph (iii) may be assessed from tlie date of delivery to Grantee of the City's written notice of violation. (b) In assessing monetary penalties under this paragraph (k), the City Manager ar the City Council, as applicable, may take into account the nature, circumstances, extent and gravity of the violation and, with respect to the Grantee, the degree of culpability, any history of prior violations, and such other matters as may be relevant. If warranted under the circumstances, the monetary penalty to be assessed may be less than the maximum penal'ty amount specified above in subparagraph (iii). -116- <, , . ' (E) Additional Consumer Protecrion and Service Standards (1) In additian to the consumer protection and service standards that are specified above in paragraphs (a) through (h) of subparagraph (B)(3) of this section, the franchise agreement with a Grantee may require compliance with the following: (a) Federal statutes, and the rules, regulations, and orders of the Federal Communications Comxnission, including the following: (i) The provisions of Section 76309(c) of Title 47 of the Code of Federal Regulations, as it now exists or may later be amended. (ii) The provisions of Section 76.630 of Title 47 of the Code of Federal Regulations, as it now exists or may later be amended. (iii) The provisions of Secrion 551 of Title 47, United States Code, as it now exists or may later be amended. (iv) . The provisions of California Govemment Code Sections 53054, et seq., entitled the "Cable Television and Video Provider Customer Service and Information Act." (v) The provisions of California Government Code Section 53088, et seq., entitled the "Video Customer Service Act." -117- ,., (vi) The provisions of California Civil Code Section 1722(b)(1)-(6) relating to service or repair transactions between cable television companies and their subscribers. (vii) T'he provisions of Califomia Penal Cod@ Section 637.5, relating to subscribers' rights to privacy protection. (2) The City may, in its discretion, incorporate in a franchise agreement those customer service and protection standards referenced above in this paragraph (1) that are the most stringent, and that afford the greatest protection to consumers. These standards will apply, to the extent authorized by law, to a11 video, voice, and data services that are provided by the Crrantee to its subscribers within the franchise service area. SECTION 60. TELECOMMUNICATIONS SERVICE PROVIDED BY TELEPHONE CORPORATIONS. ~ Any video prograinming that is provided by a Telephone Corporation that uses public rights-of-way in the delivery, of the Video Prograinnung, regardless of the technology used, will be considered "a Cable Service under this Ordinance, unless such programnung is otherwise preempted by state or federal law. -118- <~ , (A) In recognirion of and in compliance with the statutory authorizations and requirements set forth above in the Recitals of this Ordinance, the following regulatory provisions are applicable to a telephone corporation that desires to provide telecommunicarions service by means of facilities that are proposed to be constructed within the City's Public Rights- of-Way: '(1). The telephone corporarion must apply for and obtain, as may be applicable, an excavation permit, an encroachment pernut, or a building pernut ("Ministerial Pernut.") (2) In addirion to the information required by this Code in connecrion with an application for a Ministerial Permit, a telephone corporation must submit to the City the following supplemental information: (a) A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunications service for which the facilities are proposed to be constructed in the City's Pub2ic Rights-of-Way. -119- f a ~ : (b) If the applicant has obtained from the CPUC a certificate of public convenience to operate as a"competitive local carrier," the following additional requirements are applicable: (i) As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has filed with the City in a timely mamier a quarterly report that describes the type of construcrion and the locarion of each construction project proposed to be undertaken in the City during the calendar quarter in. which ~,the applicarion is filed, which information is sufficient to enable the City to coordinate multiple projects, as may be necessary. (ii) If the applicant's proposed construction project will extend beyond the utility rights-of-way into.undisturbed areas or other rights-of-way, the applicant must establish that it has filed a petition with the CPUC to amend its certificate of public convenience and necessity and that the proposed consiruction project has been subjected to a full-scale environmental analysis by the CPUC, as required by Decision No. 95-12- 057 of the CPUC. (iii) The applicant must inform the City whether its proposed construction project will be subject to any of the mitigation -120- 1 ~ J Y measures specified in the Negative Declararion ["Competitive Local Carriers (CLCs) Projects for Local Exchange Communicarion Service throughout California"] or to the Mifigation Monitoring Plan adopted in connecrion with Decision No. 95-12-057 of the CPUC. The City's issuance of a Ministerial Pemut will be conditioned upon the applicant's compliance with all applicable mitigation measures and monitoring requirements imposed by the CPUC upon telephone corporarions that are designated as"competitive local carriers." (B) In recognition of the fact that numerous excavations in the Public Rights-of-Way diminish the useful life of the surface pavement, and for the purpose of mitigating the adverse impacts of numerous excavations on the quality and longevity of public street maintenance within the City, the following policies and procedures are adopted: (1} The City Manager is directed to ensure that all public utilities, including telephone corporations, comply with all local design, construction, maintenance and safety standards that are contained within, or are related to, a Ministerial Permit that authorizes the construction of facilities within the Public Rights-of-Way. -121- i . ~ . (2) The City Manager is directed to coordinate the construction and installation of faciliries by public utilities, including telephone corporations, in order to minimize the number of excavarions in the Public Rights-of-Way. In this regard, based upon projected plans for street consmzction or renovation projects, the City Manager is authorized to establish on a quarterly basis one or more construction time periods or "windows" for the installation of facilities within the Public Rights-of-Way. Telephone corporations and other public utilities that submit applicarions for Ministerial Pernvts to construct facilities after a predeternuned date may be required to delay such construction until the next quarterly "window" that is established by the City. SECT'ION 61. The City Council hereby declares that the provisions of this Ordinance are severable and if for any reason a court of competent jurisdiction shall hold any sentence, paragraph or section of this Ordinance to be invalid, such decision shall not affect the.validity of the remaining parts of this Ordinance. SECTION 62. The City Clerk shall certify to the adoption of this Ordinance and shall cause a copy. of same to be published in the official newspaper of said City within fifteen (15) days after its adoption. This Ordinance shall take effect on the thirty- first (31S`) day after its adoption. -122- K1 ` : T Passed, approved and adopted this l9th day of 'suiy , 2005. ~~ ,~ ~; ~~d ~~ a~~ Mayor of the City of Arcadia ATTEST: ~A ES H. ARRO~~ City Clerk of the City of Arcadia APPROVED AS TO FORM: ~~~ti~ ~. ~~~~~ City Attorney -123- j . :r STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JAMES H. BARROWS, City Clerk of the'City of Arcadia, hereby certifies that the foregoing Ordinance No. 2208 [uncodified] 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 19th day of July, 2005 and that said Ordinance was adopted by the following vote, to wit: AYES: Councilmember Chandler, Kovacic, Marshall, Sega1 and Wuo NOES: None ABSENT: None , / JAM S H. ~~ 0 S City Clerk of the City of Arcadia 124 3 -b . ~ A ~ : Q, .. ~ Date: July 19, 2005 STAFF REPORT Development Services Department To: Mayor and City Council From: Don Penman, Assistant City Manager/Develo ent Services Director~ Martha Eros, Transportation Services Officer~~~ /~ Subject: Gold Line Phase il Station Desiqn and Art Review Committee Artist Recommendation Recommendation: Select final artist SUMMARY • On November 2, 2004, the Arcadia City Council reviewed staffs recommendation to create a Station Design and Art Review Committee (Art Committee) that will help formulate the City's vision of public art at the future Gold Line light rail transit station. On November 16, 2004, the Arcadia'City Council appointed six (6) community members to the Art Committee to determine the aesthetic aspects of the future rail station. Following a series of planning meetings and scrupulous discussion, the Art Committee has ranked the top three (3) artists for City Council consideration. BACKGROUND During the past four (4) years, the Arcadia City Council has supported efforts to extend the Gold Line Foothill Extension light rail line easiward to the City of Montclair. The Council has taken action by supporting the proposed Alternative Analysis transportation report for the San Gabriel region, joined the Gold Line Joint Powers Authority, and adopted the Draft Project Definition Report that identifies a station location site at the southeast corner of First Avenue and Santa Clara Avenue. On October 15, 2004, the Blue Line Construction Authority (Authority) issued a Request for Qualification (RFQ) recruiting artists to submit letters of interest for the Gold Line Phase II Foothill Extension station design art program, A total of thirty-six (36) applications were received by the Authority and reviewed by the Art Committee and city staff. The Art Committee shortlisted the applications to three (3) final artists based on . resume information and a slideshow of each artisYs previous public art projects. 1 /4 The three final artists were invited to a planning meeting with City and Authoriry staff, • and given the opportunity to ask specific questions pertaining to Arcadia's vision for the station and the final selection process. A site-visit of the proposed station area followed the meeting, with staff and artists walking the rail right-of-way east and west of the First Avenue and Santa Clara Avenue intersection. , _ The three artists as ranked by the Art Committee include (1) Mr. Michael Davis, (2) Ms. Cheri Gaulke and (3) Ms. Lynn Goodpasture. The Art Committee engaged in thorough and lengthy discussions about vision, theme, style, materials and art. . DISCUSSION Art Committee members .selected the three (3) artists. based on- previous public art projects and their potential. to portray a iraditional theme incorporating the City's history with the Santa Anita Race Track and Arboretum. City staff has served as ex-officio advisors to the Art Committee to assist with technical and financiai project management needs. An oral presentation was made by each artist to the group, with themes incorporating the Santa Anita Race Track, a montage of the city's history, and elements of the Arboretum and Queen Anne's cottage. The proposals serve as a foundation for the final art product, and will be modified and enhanced with further suggestions from the Art Committee. • The Art Committee invested approximately 16 hours in the overall selection process. Each member provided valuable insight and reasons for their selection of artist, theme and schematics of the project. Five of the six Art Committee members partic'ipated in the final artist presentation meeting and selection process. The selection process generated lively discussions that resulted in a 3-2 split vote for the final artist recommendation, Michael Davis. Michael Davis has 25 years experience in studio and, public art, and has worked on transit stations and streetscape/plaza projects in Los Angeles, San Diego, Seattle WA, and Texas.. Local pu6lic art projects include pieces at the Hollywood/Highland subway station, the SunsetNermont bus shelter design, and 7`hlMetro bench project. The Art Committee's decision to rank Mr. Davis as first choice (a-3-2 vote) is based on the strength of previous art work/history, the variety of materials used in art.pieces, works are focused on local community history or research ', (incorporating elements of the Santa Anita Race Track and the Queen Anne's cottage), and specificaliy, his concept of linking the pedestrian walkway between the station platform and parking area. Cheri Gauike has 30 years experience in studio and public art, and has worked at public venues that include a. rail station, library, and community plazas. Local public art projects include the Avenue 26~' Gold Line station, Lake View Terrace library, City of Los Angeles bridge improvement project, and City of Lakewood community plaza. The • 2/4 • Art Committee supported the use of color and imagery in the proposed pillar montage (similar art structure as the City of Lakewood), but expressed concern with the maintenance of the structure materials and the potential (additional) costs to address the pedestrian/station entries. Lynn Goodpasture has 16 years experience in studio and pubiic art. Ms. Goodpasture has been commissioned to create public art pieces for community plazas, lobbies, hospitals, and one transit center in Glendaie, CA. Her horseracing concept that was presented to the Art Committee was too whimsical and lacked a prominent vision for the station site. Additionally, the group expressed concern over the mechanical requirements of the art piece and additional financial costs that could possibly result during construction. The Art Committee had a challenging and difficult task in rating each artist, and a thorough discussion resulted in a 3-2 decision to rank Michael Davis as first choice, followed by Cheri Gaulke. In addition to ranking the artists, the Art Committee selected the color scheme and sta4ion components for the platform. In summary, a traditional scheme with two symmetrical bluish-green canopies (same green as the Arcadia street signs) with gray columns placed on each platform is recommended by five of the six members. The Art Committee will consider all options and architectural suggestions presented by the artist that may enhance the visual impact of the station as the project moves forward. • However, the Arcadia City Council will have final decision over the station design. ENVIRONMENTALIMPACT Currently, Authority and City staff are completing analysis of the Environmental Impact Report/Study to identify and mitigate environmentai issues from the extension of the Gold Line and construction of a station. FfSCAL IMPACT The Blue Line Construction Authority will construct the rail infrastructure and a fully functional station according to federal, state and Public Utility Commission (PUC) standards. Each Phase II city is being required to provide a$5 million local match to the project, which does not include the potential cost of a grade separation. The average cost of a rail station is $3-5 million; the Authority will budget approximately $120,000 for art/aesthetic features at each station. Depending the City's objectives, the full amount may be applied towards conventional art designs/pieces, or a percentage of the budget may be appropriated specifically for enhancements or upgrades to the standard station architecture. Costs exceeding the $120,000 budget will be the City's responsibility. • 3/4 RECOMMENDATION • THAT THE ARCADIA CITY COUNCIL SELECT THE FINAL GOLD LINE.STATION ARTIST AS RECOMMENDED BY THE STATION DESIGN AND ART REVIEW COMMITTEE, AND APPROVE THE ARCHITECHURAL ELEMENTS AND STATION COMPONENTS fOR THE STATION. Approved by: """' "L '~'"' J William' R. Kelly, City Manager ~ • 4/4 3 ~ f"°°R~$~T=~-~9°' STAFF REPORT Development Services Department July 19, 2005 TO: Mayor and City Council FROM: Don Penman, Assistant City ManagedDevelopment Services Director~ SUBJECT: Reauest from Dave and Buster's for interpretation of Resolution No. 6199 to allow for outdoor entertainment Recommendation: Deny Request SUMMARY Dave and Buster's opened at Westfield Santa Anita in October 2004 as part of the • expansion of the Mall. They are an entertainment venue that offers food and beve~age service along with various types of games. One of the spaces where they operate is on the outdoor rooftop area where they offer bar service and a limited food menu. Dave and Buster's would like to host karaoke and/or live music on the outdoor roof top area. Staff has determined that this type of use is not permitted per Resolution 6199, which in part governs allowable uses at the Mall. Dave and Buster's disagree with this staff interpretation and have requested en interpretation from the City Council. BACKGROUND In October 2000 the City Council approved expansion of the Westfield MaIL The City Council adopted Resolution 6199 (Attachment 1), which established regulations for the development of the Mall supplementing existing Zoning Ordinance regulations. Resolution 6i99, among a number of things, established a list of permitted uses (Section 2 Paragraph 16), as well as uses subject to a Conditional Use Permit (CUP}. The resolution also states in Section 2, Paragraph 5, that "a Conditional Use Permit shall not be required for uses within Building Area C(mall area) as shown on the Zoning/Design overlay site plan." The resolution further states under Section 2, Paragraph 16 (permitted uses), "other uses that the City Council determines are appropriate and compatible with a regional shopping center.' ~ • Mayor and City Council July 19, 2005 Page 2 • Staff has determined that live outdoor entertainment is not a permitted use under Resolution 6199 and has denied Dave and Buster's request to conduct that activity on the rooftop of the restaurant. The City Attomey has'reviewed staffs determination and concurs. Dave and Buster's disagree with the staff interpretation and have requested a determination by the City Council (Attachment 2). DISCUSSION , Dave and Buster's is basing their belief that outdoor entertainment is a permitted use under Section 2, Paragraph 16. Specifically the language in question states: °Restaurants and other eating establishment's offering food 'and beverage service,,including outdoor dining, the sale of on-site liquor and entertainment. Entertainment is defined as such activi4ies as'high tech interactive simulation games, live music, dancing, billiards, bowling, ping pong, shuffletioard, banquet facilities and other family oriented group activities and shall be incidental to the restauranUeating establishment use." , Staff does not believe that outdoor entertainment (live music) is a permitted use because the above language allowing outdoor dining is exclusive of entertainment. If the City intended to allow outdoo~ entertainment then the language would read, 'butdoor • dining and entertainment." Resolution 6199 states that a CUP is not required for uses that would normally require a CUP provided the uses are within Building Area C' (mall area) as shown on the Zoning/Design overlay site plan (Attachment 3). An examination of the attached Site Plan reveals that the boundaries of Building Area C are not co-terminus with the footprint of the buildings. Building Area C is also referred to as the building envelop, which is the area within which structures at the Mall must be constructed (other than building areas A and B). Under Dave and Buster's interpretation, outdoor entertainment and live music is allowed anywhere within Building Area C, which would mean live music could be conducted anywhere within the building envelop including many of the parking areas at the Mall. Therefore, it is staff's interpretation that the intent of the language in Section 2, Paragraph 16, is to permit live' music only within the buildings themselves, not in any outdoor areas in Building Area C. Dave and Buster's did not include in their plans an outiioor dining and bar area as part of their initial submittals. During the plan check process, they revised their plans to include this outdoor area. Staff reviewed this change and determined that iY was allowed because outdoor dining was a permitted use in the Resolution. In response to staff questions aYthat time, Dave and Buster's specifical~y indicated that the area would onlybe used for dining and beverage service, not live entertainment. • Mayor and Cify Council July 19, 2005 Page 3 • Under Section 2, Paragraph 16 (bottom of page 6 of Resolution 6199) is a section that provides for a CUP process for certai~ uses, including live entertainment, outside Building Area C. it is staff's interpretation that this would apply to Dave and Buster's request for live outdoor entertainment, and they should apply for a CUP if they wish to pursue that use. As an aside, based apparently on their belief that they could conduct live outdoor entertainment, Dave and Buster's did briefly provide live music on their rooftop. The Police Department received complaints and staff instructed Dave and Buster's to cease as it was not a permitted use, subsequently leading to this process. RECOMMENDATION That the City Council concur with the staff interpretation of Section 2, Paragraph 16, of Resolution 6199 that outdoor live music is not a permitted use and that should Dave and Buster's wish to pursue such a use they would need to apply for a Conditional Use Permit per the Resolution, Approved: _ ""~" "~ • William R. Kelly, City Manager • r i i RESOLUTION NO, 6199_ A RESOCUfiION` OF TEf~°~~h'PY C~OIJNC~It OF THE C~TY ~F • ARCADIA~. CqI~iFOR~#~a ~GI~JDING RESOtU~`IQN 4185 AND ESTABUSfiING NEW R~~f~LA'TIONS FOR C~RI`AIN PROPERTY ~ LO~ATE[~ A'f ~'HE NC?Rl'F~EASI' ~ORNEFt ~F tiUNTINGTON DRIYE AND ~3ALDWIN AVENUE EFFEG~IVE UPON IT$; , RECLASSIFICATION TO TH~ G2 & D AND G2 D& H8 ZONES alUFi~REAS, irt o.rdar to protect and promofe the public health, safety and general weifare of the City of Arcadia ("City"), it is necessary that specific conditions be esEablished to insure #hat- #tie eontinued development and expansion of the regionai pp g R p~{y.. r~er of . Hunfington Drive a~d = sho in csnter on the co e at the northeast co Baldwin Avenue (the "Property") gensrally depieted on the map attached hereto~ as Exhibit''A", will be harrr~onious with the high quality bf tlie existing shopping center and ; compatibie with development in the uicinity; and WHEREAS, in accorda.nce with and. subject ~, to. the provisions of the D ArchiEectural Design Zone regulatior~s. of the Arcadia Municipal Code, fhe regulations seYforth herein shali control.:tlie development ahd use of the Properly; a.nd rt has be WHEREAS, a Final Environmental Impack Repo, en adopted certifying • thaf the decision making body revi~wed and considered the information, contained in the , final,EtR prforto adoption.of this Resqlution. ~ NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCAQIA HEREBY FINDS, DETERMINES AND RESOLVE$ AS FOLLOWS; Section 1. The, Gity Council. hereby, rescinds City Council Resolution 4185; ,.~: provided; however; that in tC~e event.there i~ any gµ~essfuj Ghalleng.~ to all, or.p~~, of this Resolution then the provisions of Resolution 4185 shail automaticaily be deemed tb ~ be in fulLforce .and eff~ct ~ Section 2. Ttie Gity Council adopts tbe following design guidelines for the Property. . , . 1. The Property shall, contiraue to be developed a~d used only for a high. quality regional shopping center with department s#ores, toge~ber with supplementary ~ specialty shops and facilities ineluding restaurants, mul4i-piex theater(s), a food, market or markets and not more than two (2) automobile convenience centers. AN • -1- 6199 ATTACHMEN'f 1 development ori the Propecty s~all, be~ su~h~sct to the specific conditiors~s set forth in this • Resalution artd alt p~a'~s far an~r and al~ devglopment on the Property shall be submitted by the owner of the Prop9Pty to tfie Ctt~i foe ne~iew a~rd approuah in accocdance wi~h all procedural and substantive requirerr~ents set forth in the Arca~ia Municipal Code and resolutions, rules and regulations adopted [iy the Criy`C'ouncil of the Chj+: 2. Alf bc~ildings on the Property shali b~ constructed within the areas shown on the Design Ove~lay Site Pla'n th~t is attached her~to as Exhibit "A~' and made a part hereof. ~ 3. Any and all preliminary sife pi~ns, floor plans, exterior elevations, exterior lighting plans, conceptual fandscape plans and sig~ing progtams for deveiopment. on the Property shali 6e s~b'mitted to tfie Developmerit SerVices Depattment of the Gity. Said plens shall be subject to design review alid recomm~ndation by' the Planriing Commission #oAowing a public hearing, and following its receipt of the Planning Commission recommenda'fion, then design review arid approval, disapproval or modifica#ion by the City Council following a public' h~aring. The final plans shall substantially comply with tlie Ciry approved preliminary pr~ris and sFiatf be submitted'by • the owner of the Property to the Asststant' Ci4y Nlsnag'~rlDeVelopment Services Director, or hislher designee, fo~ approval, disapproval or` modification. 7tre' Rssistant Gity ManagedDevelopmenf Services Direcforshatl review the t~ri~l plans for compliance with the approved pre(iminary plans. 4. No build'ing permit for any construc~ion on the Froperiy shalt be. is~ued unless all of the condittons hereof hav9 been complietl with or assurances satisfactory to fhe Assistaht City`ManageHDevetopment Services Directot have been made to insure that all such conditions will be fuiflled. 5. Any use of ttie Property which is otherwise su6ject to fhe Conditional Use Permit provisions of the City's Zoning Ordinance sfiaU require a conditional use permit; provided, however, a conditional use permit shall not be required for uses within Building Area C[rriall areay as shown on the Zoning/Design overlay site plan. 6. Parkiiig sitialf be proVided on the Property in accordance with the requirements of the City's Zoning Ordin~nce and on-site parking spaces shall be provided at all times for alt employees of the shopping center. If necessary to meet ~ _Z_ . 6199 parking requirements, multi-level parking strwctures may be constn:icfed on the Property adjacent to and east of the mall, in accordance with plans approved by #he City. ~ 7, ..Parfcing structures shall be designsd to oreat~ an open environment , maximizing vertical spaoe; lightir~g and. ingress/egr~ss to the.~truGtureS. The. parking struatures shall 6e architeetu•rally co,mpatibla with the mail arahitecture and shall be subject ta the review and ap{~rova! of the City. 8: Any f~oor a[ea within the maW: common aF~a(s) deuoted to portable carts (n~o! kiosks).shall:.not be ~ubje~t to tMe. Cifiy'~, ~oning Ordinance for pro~iding off;streeS.. parking spaces. _ 9. ,-' All signs<shall be subject to the Gity's Zoning Ordi~ancs, except that the following shall t~e applicable: a. Two ..(2) freestanding mall identification signs shall be allowed on the perimefer of the Property; one [1].:on Baldwin ,Ave~ue and one [1] on Huntingt~n Drive. The total area of said signs shall nof~exceed 350 sq. ft. per sign (including both,fiaces): b. Wall signs on the exterior of the shopping mall structure shall be restricted~= to .anc#~or stores containing 25,OQQ square. fieet or more, major • restaura`nts/ea#ing establishrrjents contalning 5;000 sq: ft. or more, theatersicinemas and -a food market. Said -signs sha4t. gomply .with the City's Zoning Ordinance in regard to allowable square footage: Tenant sig~s fac. ing on an open-air mall area . and not exposed to the public, right-of-way shall be excluded, from 4#iis provision: _ o: Single=sided monument signs shall,b.e allqwed for a food market, the~ter/cinernas and restaurants/eating establishments.containing .5,000 Sq. ft. or more and tha# have pwblic,entrances from the exferlor pf the;shppping rr~~ll.. Said signs sFiall be allowed on the perirraeter of the shopping mall sfructure or open-air mall ~rea and liicated within planter areas: The totaf square footage of each sign shall not exceed 36 square feet: , d. No more than fwo (2) multi-tenant monument signs shall be a,llowed on the perimeter of the Property with identification on each of not mare than four (4) major tenants. The total sign area for said signs shali not exceed of 500 sq. • -3- 6199 ft. Fi~cfi;rdfng a!I faces). T'he design(s9 s1iaN be compatible with the mall .: identificati~n signs. 10. Ali signs sMail be e~ipwitible with the signing program approved by the . City Council as p~r4 of tl~e desi~n. re~tciaw prbce~s and' shall be subject to final review and approvai of the Assistant` City Manag~r/Development Services Direator or his/her desig nee. 11: Finaf land~cape pi~ns in substarrtisl eomplianee with "the landscape plans approved tiy tFre City Council shall be prepared by a r~giste~`ed lamds.cape architect and shall be sub~mitted to and approved by the Assistant City Manager/Dev~lopment ServiEe~ Director or fii5lher designee, before a~iy building permit is issued for ac~y part of the project. Said Plans shali include or be in conformance with the following, without (imftation: a. A 20 foot wide fandscaped buffer strip with a minimum six (6) foot . high earth tierm shail be mamtained adjacenf to Baldwin Avenue and a minimum ten (10) foot wide landscaped buffer shaU be mai~itained adjacent to Huntington DriVe. , b. In addition to the landscaping required in S~ction 11a, above, three (3) percent of the parking areas shall be lands~aped and the plarrtir~g beds shall be dist~ibut~d evenly fhroughout the entire parking area. Landscaping shali not be concentrated on'~onty one (1) porfion of the parking area, but dispersed ' throughout th~ parking lot: Any unused space resalting from the design of the parking spaces shall be used for planting purposes, No planting area or island shall have ~ti a"verage width of less tMan thFee (3y feet: Tlie planfing areas or islands shoinrn on the landscaping' p(ans must be drawn to scale and the plants ~ shall be cle~rly designated and labeled. A contirauous six (6). inch raised concrete curb sh'all sutround all planting areas or islands. The required fantlscaped buffer areas adjacent to Huntington Dr(ve and Baldwin Avenue shali not be considered as part of the three (3) percent "landscaping" of the parking areas. =VVhere a parking area abuts the buifdings on the Proper[y, the border plantings adjacen# to those buildings shall not 6e considered as part of the landscapirig of parking areas. ~ • ~,_ 6199 c. The sofid exterior walls: ,of the mall shatl. be developed with decorative landscaping and treatment such as a raised landscaped berm. d. To facilifate fhe'proc~ssirr~ of landscaping' pians, a plant (ist shall • be prepared giving the ,bo~aniaal and common names pf fhe, plants to be used, the sizes to be planted (e.g. 1, 5 or 15 galion confainers)°a'nd~quantity of each. The plant~ should be listed, alph~betically and as~i,gl~ed,,ksy nutt~bers to be used in lo~8ting the p(atSts on the ~lan. ' "- '~ e. Additional parkway trees sh~ll - be, inStalled, ~ if - necessary, at ,. locations desigria'ted` tly th~ Public V11o~ks` Servic~~ Di~ec#or: THese trees shall conform tm the .Gity Mastet Plan and be in,stalled~ jn accordance with the Public „ . Work~ 3ervices [~~(sartmertt standatds; 12. Light standards on the Properiy shall be a maximum of 20 feet in height. The height of the light standards shall be msasured from the elev.atio~ of the adjacent pavement of the parking lot. Lighting shall be hooded and aerangsd tp reflect Iight away from adjojning propsrties and public rights-of-way and shall be subjeat to approval of the Assistant City ~Ianager/Development Sarvices Directoc or,his~er designee. „13. Tfie orivner of the Frop~rty sh~ll provld"e adequaf§ seeu~ity personnel for • the protection and oontrol of peraons ~nd;properiy on the, Properfy. A security plan shail be submitted to and'approv'ed 6y tKe ~ity of Arcadi~ Pnlice Chief p~ior to the issuance of a Certificate of Occupancy for anX= new buildings on the, Property (including the parking structures): 14. StructUres located within Building Areas A and B, es shown on Exhibit "A", shall maintain.a minimum,set6ack of 20'-0" from the Baidwin P~venue property fina and sliail bellirnited to_one (1) story with a maximum heigMt of 25'-D'!; provided, however, that any building maintaining a minimum sef6ack of 3g'-0" from Baldwin Avenue shall be a~ rrjaximurn of dne (4j story with a maximum height of 30'-0°. In regards to Buitding Areas A and B, no more.fhan one (4) tiGiiding containing a mazimum square footage of 1'0;000 square feet shafl be alfowed~ in each Buiidiqg Area, . 15. There shall be a minimum unobstructed distance between kiosks, between carts and between kiosk~ an,d carts of 95'-0". Kiosks and carts shall.be harmonious in-design. . ~ _5_ 6199 1Fi. 'The Followi~ig uses sliall he p~dtted: • Apparel and accessori~s storas Beauty and barber shops. a~d` i~guce, saton~ Bookstoces Camera arrd pfio4~gr~phic supplie§ ahd' ~eivices Departr~ent stores - . Dru~stores ~iectrtrn~E equipfzt~li~ stores, incla~~ih~ vttleo, D~Q; compufer equipment, communication equipment, cell phone~; pagers and other types of electron,ic appEiances ~abhcs-an~'~ewirtig stores Finainciai.~nstitutio,ns including free-standing ATM machines Fitness centers, health clubs ~'botl stores ni~ greafer t#~an 3'8,000 sq. fit. ir~~g~oss fiborarea Home fumishings, fumiture, appliance and ipterior design stores Hou&ewares Im~brts, cards and gitts Luggaga Music, records, radio, video, DVD and felevlsion sales stores . Op4ometris4/Opticia n s Pet shops :_:.' ~ and beverage Restaurants and other eating establ'ishments offering food s~iv'ice, incfuding outdab'r dining, th~ sale : of on-site liquor and entertainment; Eratertainment is defned as such activities as high tech • interactroe simulation games, live music, dancing, billiards, bowling, pinj, pong, shuffl~boa'rd, bahque~ faCili~ies and other family oriented group ac#ivities. and shafl be incidenfal to . a restaurant/eating establishment use. Specialty food, liquor and tobacco s3ares . 5porting goods, hobbies and/or craft stores i'heaters/cinemas l'oys, Variety stores Kiosks and/or carts within the enclosed and open-air mall common a~ea shall be'permitt2d proVided the use thereof shall be in accordance witfi the abQve list of perrnit#ed uses. ' , Other retaii specialry shops, except those expressiy excluded Ofher uses that the City GoUitGll dete~min~s are appropriate and comqatible with a regional shop~ping center. The foilowing uses shall b~ p~rmitted only with an approved Conditionel Use Permit; ~ En4erfainment uses including such activities as high tech interactive simulation games, live music, dancing, billiards, bowling, ping pong, ~ -6- 6199 shuffleboard, banquet facilities and other family-oriented group activities. Food service may be an incidental use in an entertainment facility. • The following uses shall noYbe permitted: Body art studios including but not limited to tattoos, body piercing (other 4han ears) and body painting . Check cashing, instant cash, cash advar5c~ bLsiriesses (exciU~ive of ATiul machines) Employment agencies . Feed stores Gasoline seroice stations Messenger service Newspaper publishing Plumbing shops Printing or lithographing shops ° Self-service laundries and cleaners Taxidermist Telephone exchange service Vending machines (on the exterior of the enclosed and open-air mall areas as wel{ as the exterior of all other buildings on the site) 17. The City Council may add to, amend or modify the provisions of this Resolufion in a manner not inconsistent with the concept and substance of this • Resolution, provided that the building envelopes shown on the Design Overlay Site Plan shaN not be altered. Section 3. The City Clerk shall certify to the adoption of this Resolution. This Resolution shail become operative upon the effec4ive date of Ordinance 2136 ~ -7- 6199 recfassifying all or a portion of the Property to the C-2 D and C-2 D and H8 zones. P~s~eder gppr~wed a~d adop~d ~iis 3.~ daytxE october,s 2000. • /s/ ~.~ A. KOVACIC~ 4,,.. .. , . _ _ _._ . I~~yar• a~ City of Arcadia ATTEST: ~ ~: '~:~~, ' _ City.Glerk of the Ci~t oF Arcadfa APPROVED AS TO FORM: ~ ~. ~c~Qti .Q-vG` , Steph n P, Deitsch, City Attorney ~ ~ _g_ ' 6199 s~a~ oF c.~,~oxrRa ) COUNTY OF LOS ANGELES ) S5: CITY OF ARCADIA ) I, JUNE D. ALFORD, City Clerk ofthe City ofArc~ciia, her~b~+~ertifies fhat~fihe foregoing Resolution No, 6199 was passed and adopted b~ the ~3+Council of.the City of Arcadia, signed by the Mayor and attested to by the City Glerk at a regular meeting of s~.id Couneil held on the 3rd day of October, 2000 and that said Resolu~ion was adopted by the following vote, to wit: AYES, Counci,imember ~iandlei, Ch~ig, lv~arslisil; .Segal and Kovacic 1 t . 3J, . . - .. . .. . . C~ N0~~1 ; i~o~e ABS~I~f'T: Nbne ,, + ~,^'~. ' ' ~. ~ 6~ .[°L~ m e e~r~e,; , ;, ' City C] ~a, , w, . , ` < ~~SM1.:. . • ' , •..sf3 -9- &' ~ ~ ~ ~~~V fi.~J~ ~&~` f, ._.~~ . DAVE & BUSTER'S, INC. GITY~~F ARC~ADIA ~u~3 Z ~ 2005 June 24, 2005 VIA FEDERAL EXPRESS Mr. Bill Kelly, City Manager City of Arcadia 240 West Huntington Drive Arcadia, Califomia 91007-3401 Re: Dave & Buster's - Repuest for Interaretation of Resolution No. 6199 ~~ 1. ~ '~~' ~ ~ °Y~' ti• ~~b~' Deaz Mr. Kelly: Dave and Buster's is considering the possibility of hosting kazaoke and/or live music within its rooftop dining azea. Our assessment of Resolution No. 6199 focuses on tfie following language: • - Page 2, Section 2, Paragraph 5: "... a conditional use permit shall not be required for uses within Building Area C[mall azea] as shown on the Zoning/Design overlay site plan." - Page 6, Section 2, Paragraph 16: "The following uses sha11 be permitted: Restaurants and other eating establishments offering food and beverage service, including outdoor dining, the sale of on-site liquor and entertainment Entertainment is defined as such activities as high tech interactive simulation games, live music, dancing, billiards, bowling, ping pong, shuffleboazd, banquet facilities and other family oriented group activities and shall be incidental to a restaurantleating establishment nse." • Dave and Buster's concludes that the proposed entertainment is a permitted use. Ftirthermore, because it is located within the defined Building Area C, Dave and Buster's appeazs to be exempt from having to apply for a Conditional Use Pernut. Discussions with various City officials reveal differing interpretations of the Resolution. Consequently, Daue and Buster's is requesting a formal review and interpretation of Resolution No. 6149 by the City Counail. ATTACHMENT 2 ~~7Y M~NAGER 2481 b4anana Drive-• Dallas, Texas 75220 •(214) 357-9588 • Fax <214) 350-0941 Mr. Bill Kelly Page 2 I look forward to receiving your written response to this letter. Should you haue any questions or desire to discuss any aspect of this matter, please do not hesitate to call me at 214.684-5069. Thank you in advance for your time. Re~~ tfully submitted, ~ ~n^ ~ "°/ ` B S in ~ ry . pa Senior Vice President Procurement & Development • ~ • ~ ~ ~ O ~ W ~ d ~ z Q ~ W ~ ~ = Q ~ VJ O O ~f' II r "°""' L,,, w `M o., _..,,w ~~ ~~~~ ~~ ~~I ~~ v] U ~, p~ 0 N c0'O W ~ ~ ~ I I ~n~n ~~~~ ~ ~a ~ ~o a ~ U O N Q~oo Zv~i°'o Q c~ U I O ~ } N ~nz„ O] ~ w O ~ ~ > a ~(r~~~ ~~~ ~ ~~ ` Iv~1IS~1~~ ~` Zt~ . ~f,yti F : ~ 'r'~ pp . ° , ' ~`,1 .,. ~ . ~ ""~1 ~~~~ ~ ~1111U~ ~ , , a` V~ ~~~~ ~~~`~~ EXHIBIT A . , ATTACHMENT 3 _~ ^ 3 -~~ ~ ~ rNC~RP~RAT~9~~~09 STAFF REPORT Development Services Department Date: July 19, 2005 To: Mayor and City Council From: Don Penman, Assistant City ManagerlDevelopment Se ices Directo~ By: Martha Eros, Transportation Services O~ce~F~ ~ j/ Subject: Arcadia Transit Performance and Operations Audit Recommendations from Los Angeles County Metropolitan Transportation Authority (LACMTA) Recommendation: Implement SUMMARY As a recipient of federal and state funds, the City of Arcadia participates in performance audits that provide suggested recommendations in order to remain an eligible fund • recipient. Triennial audits are conducted by the State of California and the Federal Transit Administration for each source of revenue allocated to the City of Arcadia. Based on the fatest audits, staff is recommending changes in the level of service with the elimination of all morning school trips and elimination of the General Public monthly pass. BACKGROUND The City currently receives Federal Section 5307 and Congestion Mitigation & Air Quality (CMAQ) funds for capital equipment, and Transportation Development Act (TDA) operating assistance funds from the State of California. TDA funds are administered via the Local Transportation Fund (TDA-Article 4) and the State Transit Assistance (STA) programs. The Metropolitan Transportation Authority (MTA).is the regional pfanning agency for Los Angefes County that administers TDA funds to each participating municipal transit operator and serves as principal contact for all TDA triennial audit activity. Triennial performance audits are required under the Califomia Public Utilities Code Section 99246 for State TDA funds. Booze Allen Hamilton Inc, completed the state- mandated performance audit of Arcadia Transit for FY01-03 in November 2004, and recommended three (3) performance areas that require improvement: • ua 1. Evaluate strategies to limit the growth in school trips to increase cost efficiency and reduce the strain on service delivery; • 2. Evaluate the current fare structure, specifically the monthly pass program, and compare against peer average to p~ovide a more cost effective service; _ 3. Modify Performance Data summary tables to anafyze weekday miles/hours against the total annual service ratio. The recommendation resulted from the previous 5-year operating contract that established a three-tier service hour and rate structure. The new service contract (in effect from July 2004 - June 2009) eliminates the three-tier structure with a straight cost per revenue service hour, thus the issue has been resolved and the City is in compliance with this audit recommendation. Per Arcadia Resolution 6338, city staff has complied with the Public Comment Period as established by Federal Transit Administration guidelines • for any service and fare changes for the transit system.. A Notice of Public Comment Period was published in the local periodicals, and announcements were posted at Arcadia City Hall, Arcadia Library, Arcadia Community Center, and in each Arcadia Transit vehicle, DISCUSSION The MTA contracted with Booz Allen Hamilton Inc. to audit the Los Angeles County municipal transit operators. The Arcadia Transit dial-a-ride system was audited for • fiscal years 01-02, 02-03, 03-04. The final audit report that was issued in November 2004, while favorable, resulted in three (3) audit recommendations. ,Of the three recommendations, two have implications specific to the operation of• Arcadia Transit: the high volume of school trips combined with the use of the general public monthly pass program create stress on immediate demand response service and results in a lower cost-effective system. The audit recommends that the City take steps to address these issues by (1) reducing the use of Arcadia Transit for school trips and (2) eliminating the General Public monthly pass. The Arcadia Transit system provides almost exclusive subscription service to schooi children during the morning peak hours, thus creating a stress on the system by creating a longer demand response period to the general public. Per Federal Transit Administration, TDA/STA, and Proposition A/C Local Return guidelines, paratransit operators are not permitted to operate exclusive school nor special interest bus service. However, during the past four years, Arcadia Transit has experienced significant growth in the.number of school age children utilizing the service, which has resulted in a severe demand for service during peak morning service. Some of the growth may be attributed to ,the implementation of the low-cost monthly pass program in FY2000. C~ zia This service is arguably and essentially a school bus service-in particular the morning • service-that is prohibited by law governing the funding sources. Beyond the legal implications, the morning school service also poses significant operating problems because the "window" or timeframe children must be picked up and dropped off at schools is very limited (children cannot be dropped off too early, bu4 must also arrive in time for the start of classes), and additional revenue hours are required to operate the full fleet of vehicles to meet peak demand. Even with efforts to accommodate this tight timeframe, complaints from parents and/or school officials about late school arrivals are common. Staff has frequently relayed to Arcadia School District (ASD) officials the potential conflict of providing exclusive transportation services to the local schools and the demand from parents for this or similar service. City staff has informed ASD staff of the proposed changes/elimination of subscription services during the morning hours. Staff is not recommending the elimination of afternoon school pickup service, though performance will be monitored to ensure it is not exclusive school bus service. Afternoon service is not provided by subscription and transit vehicles access all public venues within the city limits, including shopping/commercial centers, library, community centers, parks, etc. Because of time restrictions and fleet size, Arcadia Transit is only capable of transporting 149 morning students per day on a subscription/reservation basis. • Although a great demand-and waiting list-exists for the service, the system cannot accommodate additional students. Therefore, staff is recommending that the City eliminate all morning school trip service. The second recommendation is to eliminate the $22 General Public monthly pass program. While it is iypical for a fixed route system to sell monthly passes, it is unusual for a dial-a-ride operator to have such a program, except for elderly and disabled persons. The countywide fund allocation formula for municipaF #ransit operato~s is based on revenue generated based on one-to-one full fare recovery (i.e., one full fare equals one trip), thus the lower farebox revenue has resulted in lower formula funds. Fixed route systems typically offer lower fare options because operating costs are fixed regardless of the number of passengers, although overall cost effectiveness is improved with higher ridership. With a curb-to-curb dial-a-ride system, the operating costs are directly impacted by each trip provided. The use of a monthly pass allows general public passengers to ride as often as they desire for low fare. Eliminating the general public monthly pass will improve cost efficiency and increase the farebox return, and should have the effect of dampening peak demand by persons under 18 years of age. Based on a comprehensive survey of all demand response systems in Los Angeles County, staff concluded that Arcadia Transit is the only system that transports subscription-based student service and the only agency that offers a discounted • monthly pass for dial-a-ride service. Based on feedback, most operators shared the sia same assumption that the combined services-particularly the monthly pass-result in a lower cost-effective program. (Attachment ' 1, Arcadia Transit - Operations • Comparison Survey, 06-16-05.) Although staff is proposing elimination of the General Public monthly pass, face-value ticket books may be implemented as a convenient alternative to cash ($1 ticket per one-way trip). Staff is not recommending the elimination of the reduced one-way fare nor rimonthly pass for the elderly and disabled persons. Staff believes it is important to implement these two recommendations during the summer quarter to reconcile outstanding MTA audit issues, and comply with Federal Transit Administration regulation 40 USC Chapter 53, Section 5307 (d)(1)(i) requiring the solicitation of public comment for operating changes affeoting service levei and fare restPucturing. Because both issues may generate some controversy in the community, staff believes the recommendations should be implemented before the new school year begins so staff can develop a pubiic outreach program for individuals using the.service and provide families with sufficient time to arrange alternative modes of transportation. ENVIRONMENTALIMPACT This is not a project as defined in the California Environmental Quality Act (CEQA) §15378, as this action is considered ministeriaL FISCAL IMPACT ~ • With the majority of students using a monthly pass, Arcadia Transit has generated lower farebox recovery ratios than its peer dial-a-ride operators and an overall higher subsidy cost for the City. The countywide formula fund allocation is based on a one-to-one full fare recovery (i.e:; one full fare equals one trip), not number of passengers/trips provided, thus the lower farebox revenue has resulted in lower formula funds. The full- fare recovery will provide higher revenue to supplement the increasing operating costs of Arcadia Transit. Approicimately 2,820 annual service hours are for morning school-based trips, resulting in an estimated $97,000 reduction in operations cost (2,820 hours x$34.40/hr). RECOMMENDATION THAT THE ARCADIA CITY COUNCIL APPROVE THE RECOMMENDATION TO EUMINATE MORNING SCHOOL SERVICE TO ALL ARCADIA AREA SCHOOLS BEGINNING FALL 2005 AND ELIMINATE THE $22 GENERAL PUBLIC MONTHLY PASS PROGRAM. Approved by: ~~ William R. Kelly, City Manager • 4/4 u a w ~y C 02a W ~ C a ~ " F~o N w ~ ~ F- OI y O ~ z a T N ~ ~ a os y 9 rc N W a a ~ u I • N y ~ v q > N ~1 t ~ ~ m ~n U' y ~ C V < N ~ J w ~ y ~o J T J ~ LL W 2 O • C > L y o ~ ~ x ~ a y a ~ y ~ U C N V ~ d ~ L N I y C y Y ~ y p U 9 C j m w ~ ~ ~ d C 0 ~ . y O N d 9 O ~ ~ p ~ 9 ~ N ? U N ~ N C a 0 ~ N y N N ~ N C C J ~ O N Y A Y A p ~ X ~ ~ SJ C y N V Y O O y y ~ N L~ In a O ~O w L > ~V a ~' ~ Y Y N ~ ~ '~ , ~° io ' LL a ~ a i ~ a m m ~ v v ~ v ~ v v v ~c a ~ ~ a v m d a~ d a~ a~ d d d m i a~ d d ~ Y U ~.i ~ U ~ U U ~ U U U U U U U ~2 ` U ~ ~ ~ ~ ~ ~ C.1 .ti. U U ~` ~` a~ ~ ~J ~ U ~ «~` C C `1 C C C C C C N C N N C C C C d C N C C Q 4 ~ ~ Z ~..~ ~ V Z ~..~ U ~..) 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