HomeMy WebLinkAboutStaff Report 171-07City of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL 8
FROM:CITY MANAGER DEPARTMENT: ADMINISTRATIVE
SERVICES
DATE:
SUBJECT:
APRIL 9, 2007 CMR: 171:07
ADOPTION OF AN ORDINANCE AMENDING AND ADDING SEVERAL
CHAPTERS TO TITLE 2 AND TITLE 12 OF THE PALO ALTO
MUNICIPAL CODE TO REGULATE VIDEO SERVICE PROVIDERS
THAT HOLD VIDEO SERVICE FRANCHISES ISSUED BY THE
CALIFORNIA PUBLIC UTILITIES COMMISSION
RECOMMENDATION
Staff recommends that the Council adopt an ordinance:
1)Amending Chapter 2.10 and adding a new Chapter 2.11 to Title 2 of the Palo Alto
Municipal Code to regulate video service providers that hold video service franchises
issued by the California Public Utilities Commission (Commission).
2)Adding Chapters 12.09 and 12.13 and amending Chapters 12.04, 12.08, 12.10, and 12.16
of Title 12 of the Palo Alto Municipal Code to conform the City’s permitting and public
fights-of-way provisions to the California Digital infrastructure and Video Competition
Act of 2006.
BACKGROUND
On May 22, 2000, the Council adopted Ordinance 4636, amending Chapter 2.10 of the Palo Alto
Municipal Code to franchise and regulate the occupancy and use of the public rights-of-way by
cable television and open video system operators. Among other things, this ordinance provides
for: 1) the establishment of franchise and license requirements; 2) minimum construction,
operation, and maintenance and repair requirements; and 3) customer service standards. Its
purpose is to establish the same requirements and standards for all cable service and open video
system providers that seek franchises issued by the City.
On September 29, 2006, Governor Schwarzenegger signed into law Assembly Bill 2987, the
Digital Infrastructure and Video Competition Act of 2006 (DIVCA). The primary purpose of
DIVCA is to create a ministerial process for the granting of franchises to providers of cable and
open video system services in an effort to foster the rollout of technology; encourage video,
voice and broadband service competition; and expand customer choice.
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This new law permanently changes the franchising and regulatory structure for the provision of
cable television and other video services in the State of California. Under DIVCA, video service
franchises are now granted exclusively by the Commission rather than by local franchising
entities. DIVCA leaves largely unchanged the City’s authority to enforce its current cable
franchise with Comcast in accordance with Title 2 for the remaining term of Comcast’s
franchise, which expires on July 25, 2010. On July 24, 2000, the Council adopted Resolution
7991, consenting to the transfer of the Cable Co-op franchise to AT&T Broadband, which
merged with Comcast.
Although the City will no longer be the franchising authority, it will acquire certain rights and
responsibilities under DIVCA with respect to any holder of a state franchise (Holder). DIVCA
provides that these rights and responsibilities must be established by local ordinance before they
become effective and enforceable.Towards that end, staff has developed the proposed
ordinance.
DISCUSSION
The key provisions of the proposed ordinance are as follows: 1) a franchise fee requirement of
5% of gross revenues; 2) rights-of-way permitting requirements that include the approval or
denial of encroachment permits within 60-days and the right of appeal to the Council; 3) the
number of public, educational and governmental access (PEG) channels that must be provided;
4) a PEG fee requirement of $0.88 cents per residential subscriber per month; 5) audit authority;
6) penalties for violations of customer service standards; and 7) emergency alert system
requirements.
DIVCA will bring about dramatic changes in how cable television franchises are granted and
enforced, and how, by whom and to what extent video service providers are regulated. The
proposed ordinance addresses these changes. Although DIVCA preserves (subject to certain
limitations) the City’s authority to impose franchise fees and manage the public rights-of-way, it
will have many potential impacts on the City, the most important of which are addressed below,
as follows:
Franchise Fees: DIVCA allows local government (local entities) to assess a 5% franchise fee
on Holders. While DIVCA establishes a new definition of gross revenues that differs somewhat
from the City’s current definition in Chapter 2.10, the differences between the two, it is now
believed, are not material. Only experience, however, will reveal the true fiscal impact of this
change. DIVCA also provides for a three-year statute of limitations on the City in seeking to
collect unpaid or underpaid franchise fees, meaning that the City will most likely have to conduct
fee audits more often (at least once every 2 or 3 years for each provider), at additional expense.
Also, unlike Chapter 2.10, DIVCA provides that the City is responsible for paying the cable
operator’s audit costs if the audit reveals no underpayment.
Permitting and Public Rights-of-Way: Under DIVCA, with respect to rights-of-way permitting
and other public rights-of-way management activities, Holders must generally be treated in the
same manner as telephone corporations that are certificated by the Commission. This means that
Holders should be considered as "utilities" under Title 12 of the Palo Alto Municipal Code,
rather than being subject to different, or additional, public rights-of-way obligations under
Chapter 2.10 or new Chapter 2.11. In addition, under DIVCA, Holders are subject to local
encroachment permit requirements and the California Environmental Quality Act (CEQA) when
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installing, constructing, and maintaining facilities in the public rights-of-way. DIVCA requires
the City to act on completed encroachment permit applications within 60 days of filing and
provide applicants with an appeal process to the Council for any adverse initial decisions on their
permit applications.
PEG Channel Capacity: Under DIVCA, the Holder must provide the same number of PEG
channels as the number activated by the incumbent cable operator as of January 1, 2007. In
addition, all video service providers must place the PEG channels on the basic tier, and, to the
extent feasible, locate them on the same channel numbers as the incumbent cable operator and
group them together with other basic tier channels. This preserves Palo Alto’s seven current
PEG channels for both Comcast (the City’s current incumbent franchisee) and any new Holders.
Under DIVCA, however, it will be more difficult (as compared to the Comcast franchise) for the
City to obtain and keep additional PEG channels as demand for PEG capacity may grow.
PEG Support: DIVCA allows the City to continue to collect a PEG support fee of $0.88 cents
per residential subscriber per month from Comcast and from any new Holder for the remaining
term of Comcast’s franchise. Upon expiration of the Comcast franchise, the City can choose (by
ordinance) between its current PEG support fee ($0.88 cents per subscriber per month) or a PEG
support fee of 1% of the Holder’s gross revenues in the City. At the present time, a PEG fee of
$0.88 cents per subscriber exceeds what a 1% PEG fee would yield. DIVCA also will require
the City to re-authorize by ordinance its PEG fee at the expiration and renewal of each Holder’s
state franchise. Under DIVCA, the term of a state franchise will be 10 years. Although the City
will continue to collect PEG fees under DIVCA, support for all in-kind PEG services (e.g., free
cable service to schools and other public and governmental buildings and free inclusion of PEG
program information on a "TV Guide" channel, etc.) will be discontinued at the expiration of
Comcast’s current franchise.
Customer Service: The City’s authority over a Holder will be limited to enforcing federal and
state customer service standards. These standards are weaker in. some respects than the City’s
existing cable customer service standards. As an example, the City’s existing standards require a
local customer service office, an automatic credit for outages of 24 hours or more, and credits for
missed appointments. The City’s current standards also provide for monetary sanctions for
violations that are higher than the maximum monetary sanctions permitted by DIVCA. Further,
DIVCA requires that the City submit to the State one-half of any penalties collected for customer
service standard violations.
I-Net: The City is in the process of establishing an institutional network (I-Net) that will
connect 70 schools, libraries, and government facilities in the Joint Power Authority’s (JPA)
service area for delivery of data, video, and voice services. Under DIVCA, existing local
franchise obligations regarding I-Net facilities will continue only until the expiration date of the
current Comcast franchise (July 25, 2010). Holders are not obligated to fund or provide I-Net
facilities, and Comcast will no longer be required to do so after July 25, 2010.
Service.Availability: Holders are permitted to determine the area of a city where they will
provide service. DIVCA sets forth statewide build-out requirements based on the Holder’s
customer base, setting three- and five-year time limits for the provision of video service to a
pre-determined percentage of low income households in the Holder’s statewide territory.
DIVCA also provides, however, for numerous extensions and waivers of these build-out
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requirements. Parenthetically, this could result in, and there certainly would be little protection
against, a widening of the digital divide that separates low income residents in the JPA’s service
area.
Temporary Dual Franchising Regimes: Under DIVCA, a dual system exists under which
Comcast will continue to operate under the City’s franchising authority until at least January 2,
2008, and as late as July 25, 2010, while all new entrants will be able to receive state franchises
from the Commission after April 1, 2007. Both City and Commission franchisees will be
monitored by the City, but in different ways. For example, the City will continue to enforce the
City’s more stringent customer service standards against Comcast for a time, but it can only
enforce the less-demanding DIVCA standards against the Holders. Similarly, the City will
perform audits of both City and Commission franchisees but under a different framework for
each.
NEXT STEPS
The cities of Palo Alto, Menlo Park, East Palo Alto, the Town of Atherton, and portions of San
Mateo and Santa Clara Counties entered into a Joint Exercise of Powers Agreement for purposes
of obtaining cable television service for residents, businesses, and institutions within these
jurisdictions. The JPA gives the City of Palo Alto the sole authority to grant and administer the
cable franchise process on behalf of its members. Under DIVCA, Palo Alto no longer has the
authority to grant franchises to providers of cable or video services in the JPA’s service area.
DIVCA does, however, allow the JPA to continue to serve as the "local entity" for DIVCA
purposes, thereby permitting the JPA members (if they wish) to continue to rely on Palo Alto for
such activities as franchise fee and PEG fee collection, PEG oversight, customer service and the
like with respect to all Holders in the JPA’s service area. In the coming months, the JPA will
consider amending its Agreement to reflect changes in the law due to DIVCA.
On May 9, 2007, staff plans to bring proposed amendments to Chapter 18.76 and 18.77 of Title
18 of the Palo Alto Municipal Code to the Planning and Transportation Commission for review.
These amendments are needed to conform the architectural review process to the requirements of
DIVCA.
RESOURCE IMPACT
The City’s incumbent franchisee and new Holders will continue to provide compensation (e.g.,
franchise fees, funding for PEG access services, etc.) for the use of public streets and
rights-of-way. In 2006, the City received franchise fees in the amount of $581,000. Franchise
fee revenue serves (among other things) to defray the City’s franchise administration costs. Staff
does not currently anticipate any material impacts to franchise fee revenues as a result of
DIVCA. In order to properly respond to the changes brought about by DIVCA, however,
additional staff and consulting resources may need to be allocated to this effort.
The potential loss of the I-Net after July 25, 2010, could have a significant, but undetermined,
adverse fiscal impact on government facilities and schools in the JPA’s service area that are
relying, or will rely, on the I-Net. It may require JPA members to expend money to procure
comparable communications capacity from the private sector to replace the I-Net.
The Commission plans to recover the cost it incurs administering state video service providers
through application fees and a recurring fee to Holders. There is a risk that Holders will offset
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these fees against the City’s 5% franchise fee, thereby reducing franchise fee revenues by the
amount of Commission fees.
Also, under DIVCA, the City is responsible for paying the cable operator’s audit costs if the
audit reveals no underpayment.
POLICY IMPLICATIONS
This proposed ordinance change will bring existing City policies into compliance with current
State law for video service franchises.
TIME LINE
The Commission commenced accepting applications for state franchises in March. The
Commission has 30 days to determine whether a franchise application is complete, and is
required to issue a state franchise within 14 days of determining an application is complete. On
March 7, 2007, AT&T applied for a state franchise for a service area that includes Palo Alto.
The Commission granted AT&T its statewide franchise on March 30, 2007.
Prior to offering video service, the Holder is required to notify the local entity. The notice shall
be given at least 10 days, but no more than 60 days, before the video service provider begins to
offer service. The City anticipates receiving such notice from AT&T in the near future.
Palo Alto will continue to operate under its current franchise with Comcast until at least
January 2, 2008, and possibly as late as July 25, 2010, when Comcast’s current franchise term
expires. Although Comcast may seek a state franchise from the Commission after January 1,
2008, if a Holder enters the Palo Alto market, some of the obligations contained in the City’s
current franchise with Comcast will remain in place until that franchise’s original expiration date
of July 25, 2010.
ENVIRONMENTAL REVIEW
This is not a project under the CEQA.
PREPARED BY:
MELISSA CAVALLO
Cable Coordinator
DEPARTMENT HEAD APPROVAL:
CITY MANAGER APPROVAL:
ATTACHMENTS:
Attachment A: Ordinance
CARL
~Services
City Manager
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ATTACHMENT A
NOT YET APPROVED
ORDINANCE NO.
ORDINANCE OF THE COUNCIL OF THE CITY OF PALO
ALTO ADDING SECTION 2.10.600 OF CHAPTER 2.10 OF
TITLE 2, CHAPTER 2.11 OF TITLE 2, CHAPTERS 12.09 AND
12.13 OF TITLE 12, AND AMENDING MISCELLANEOUS
SECTIONS OF CHAPTERS 12.04, 12.08, 12.10 AND 12.16 OF
TITLE 12 OF THE PALO ALTO MUNICIPAL CODE TO
CONFORM THE PALO ALTO MUNICIPAL CODE TO THE
CALIFORNIA DIGITAL INFRASTRUCTURE AND VIDEO
COMPETITION ACT OF 2006
NOW, THEREFORE, the Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Section 2.10.600 is hereby added to Chapter 2.10 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.10.600 Applicability and Sunset.
(a) This Chapter 2.10 shall apply to any person that was a franchisee in the City on
January 1, 2007, through the later of (1) January 2, 2008, or (2) the date of the granting to that
franchisee of a state franchise by the California Public Utilities Commission after one of the
conditions in Section 5840(o) of the California Public Utilities Code has been satisfied.
(b) This Chapter 2.10 shall apply to any person that was not a franchisee in the City
on January 1, 2007, and that wishes to apply, on or before December 31, 2007, for a local
franchise from the City. After December 31, 2007, this Chapter shall not apply to any person
that was not a franchisee in the City on January 1, 2007.
(c) This Chapter 2.10 shall sunset in its entirety and no longer be effective on the date
that all cable operators and video service providers operating in the City have state franchises
granted by the California Public Utilities Commission."
SECTION 2. When the earlier of the date set forth in Section 2.10.600(c) of Chapter
2.10 of Title 2 of the Palo Alto Municipal Code or July 25, 2010 occurs, Chapter 2.10 of Title 2
of the Palo Alto Municipal Code shall be repealed in its entirety.
SECTION 3. The index to Chapter 2.11 of Title 2 of the Palo Alto Municipal Code is
hereby added to read, as follows:
//
//
//
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"Chapter 2.11
VIDEO SERVICE PROVIDERS -
APPLICABLE REQUIREMENTS
Sections:
2.11.010
2.11.020
2.11.030
2.11.040
2.11.050
2.11.060
2.11.070
2.11.080
2.11.090
2.11.100
2.11.110
2.11.120
2.11.130
Purpose and interpretation.
Definitions.
State Franchise Required.
Administration and Regulations.
Construction, Operation, Maintenance and Repair.
Franchise Fee.
Public, Educational and Governmental Access Channel
Capacity and Support.
Audits and Records.
State Franchise Service Obligations.
Customer Service and Protection.
Emergency Alert System.
Notices.
Miscellaneous Provisions."
SECTION 4. Section 2.11.010 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.010 Purpose and interpretation.
It is the purpose of this Chapter 2.11 to implement within the jurisdictional boundaries of
the City the provisions of DIVCA and the rules of the Commission promulgated thereunder that
are applicable to a "local franchising entity" or a "local entity" as defined in DIVCA. Consistent
with that purpose, the provisions of this Chapter 2.11 are to be construed in a manner that is
consistent with DIVCA and the applicable rules of the Commission promulgated thereunder."
SECTION 5. Section 2.11.020 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.020 Definitions.
For the purposes of this Chapter 2.11, the following words, terms, phrases, and
abbreviations and their similar formulations shall have the meanings given them in this Chapter
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2.11 or, as appropriate, in Chapters 1.04, 2.08, 2.30 and 12.04 of the Palo Alto Municipal Code
and in the Charter of the City of Palo Alto, as may be amended from time to time, unless the
context indicates otherwise. Words not defined in this Chapter 2.11 or the other Chapters of the
Palo Alto Municipal Code shall have the same meaning as established in (1) DIVCA, and, if not
defined therein, (2) Commission rules implementing DIVCA, and, if not defined therein, (3)
Title VI of Title 47 of the United States Code, and, if not defined therein, (4) their common and
ordinary meaning. References to governmental entities (whether persons or entities) shall refer to
those entities or their successors in authority. If a specific provision of law referred to in this
Chapter 2.11 should be renumbered, then the reference shall be read to refer to the renumbered
provision. References to any law shall be interpreted broadly to cover government actions,
however nominated, including any law now in force or subsequently enacted or amended.
(a) "Access," "PEG access," or "PEG use" means the availability of cable system or
video service provider network capacity for public, educational or governmental use by various
agencies, institutions, organizations, groups, and individuals, including the City and its
designated access providers, to acquire, create and distribute programming not under a cable
operator’s or video service provider’s editorial control, including, but not limited to:
(1) "Public access" or "Public use" means access where organizations, groups
or individual members of the general public, on a nondiscriminatory basis, are the
primary or designated programmers or users having editorial control over their
programming;
(2) "Educational access" or "Educational use" means access where accredited
educational institutions are the primary or designated programmers or users having
editorial control over their programming; and
(3) "Governmental access" or "Governmental use" means access where
governmental institutions or their designees are the primary or designated programmers
or users having editorial control over their programming.
(b) "Cable Coordinator" means the City Manager or the individual or individuals
designated by the City Manager to administer oversight of state franchisees in the City.
(c) "Channel" means a portion of the electromagnetic frequency spectrum which is
used in a cable system or the network of a video service provider and which is capable of
delivering a television signal whether in an analog or digital format. The definition does not
restrict the use of any channel to the transmission of analog television signals.
(d)
municipal
California,
"City" means the government of the City of Palo Alto, a chartered city and a
corporation duly organized and validly existing under the laws of the State of
and all departments, divisions, and offices thereof.
(e) "Council" means the city council as defined in Section 1.04.050(2).
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(f)"Commission" means the California Public Utilities Commission.
(g) "Comcast Franchise" means the Cable Television Franchise Agreement by and
between the City of Palo Alto, California, on behalf of the Joint Powers, and TCI Cablevision of
California, Inc., effective as of July 25, 2000.
(h) "DIVCA" means the Digital Infrastructure and Video. Competition Act of 2006,
Assembly Bill 2987 (Ch. 700, Stats. 2006), and as that Act may hereafter be amended.
(i) "Communications service equipment" and "communications service facilities"
means the equipment and facilities used by a video service provider to provide cable or video
service.
(j)"EAS" means Emergency Alert System.
(k)"FCC" means the Federal Communications Commission.
(1) "Person" includes any natural person, association, company, corporation, limited
liability company, limited liability partnership, limited partnership, joint stock company,
partnership, trust, or any other legal entity, but not the City.
(m)"PEG" means public, educational and governmental access.
(n) "Public fights-of-way" means the surface of and the space above and below any
street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or fight-
of-way or easement primarily dedicated to travel, now or hereafter existing within the City which
may be properly used for the purpose of installing, constructing, operating, maintaining, and
repairing a cable system or a video service provider’s network; and any other property that a
state franchisee is entitled by California or federal law to use by virtue of the grant of a state
franchise.
(o) "Public property" means any property that is owned or under the control of the
City that is not located in the public fights-of-way, including, for purposes of this Chapter, but
not limited to, buildings, parks, and pole structures, such as utility poles and light poles, or
similar facilities or property owned by or leased to the City.
(p) "State franchisee" means any cable operator or video service provider that,
pursuant to DIVCA, has been granted by the Commission a state franchise to provide cable or
video service by means of communications service equipment or facilities and whose video
service area includes all or any part of the incorporated limits of the City.
(q) "Video service provider" has the meaning set forth in DIVCA and, in addition,
refers collectively to any cable operator, video service provider or OVS operator as defined in
DIVCA."
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SECTION 6. Section 2.11.030 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.030 State Franchise Required.
(a) No person may construct, operate, maintain or repair a cable system or video
service provider’s network in the City without first obtaining a state franchise therefor.
(b) A state franchise shall not convey fights other than as specified in this Chapter
2.11 or in DIVCA or other applicable law; no fights shall pass by implication.
(c) Except as otherwise provided by DIVCA, a state franchise shall not include, or be
a substitute for:
(1) Compliance with generally applicable requirements for the privilege of
transacting and carrying on a business within the City, including, but not limited to,
compliance with the conditions that the City may establish before facilities may be
constructed for, or providing, non-video services;
(2) Any permit or authorization, other than a state franchise, required in
connection with operations on or in public fights-of-way or public property, including,
but not limited to, encroachment permits, street work permits, pole attachment permits
and street cut permits; and
(3) Any permit, agreement or authorization for occupying any other property
of the City or any private person to which access is not specifically granted by the state
franchise.
(d) Except as otherwise provided in DIVCA, a state franchise shall not relieve a
franchisee of its duty to comply with all laws, including the ordinances, resolutions, rules,
regulations, and other laws of the City, and every state franchisee shall comply with the same.
The City reserves its fights to the lawful exercise of police and other powers the City now has or
may later obtain.
(e) The City reserves the fight to construct, operate, maintain or repair its own cable
system or video service provider network."
SECTION 7. Section 2.11.040 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.040 Administration and Regulations.
(a) The City may from time to time adopt rules and regulations to implement the
provisions of this Chapter 2.11 consistent with DIVCA.
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(b) The Cable Coordinator is hereby authorized to administer this Chapter 2.11 and to
provide or cause to be provided any notices (including noncompliance notices) and to take any
action on behalf of the City that may be required under this Chapter 2.11, DIVCA, or under
applicable law.
(c) The failure of the City, upon one or more occasions, to exercise a right or to
require compliance or performance under this Chapter 2.11 or any other applicable law shall not
be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless
such right has been specifically waived in writing or its exercise by the City is not permitted by
DIVCA.
(d) The City may designate one or more entities, including itself, to control and
manage the use of PEG access channels, and any PEG facilities and equipment (in addition to
any other communications service equipment or facilities) owned, controlled or used by the City
or the designated entity or entities."
SECTION 8. Section 2.11.050 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.050 Construction, Operation, Maintenance and Repair.
A video service provider operating within the jurisdictional boundaries of the City shall,
in its use of public rights-of-way and public and private property, be considered a "utility" within
the meaning of Section 12.04.040 of the Palo Alto Municipal Code, and shall abide by the
provisions of Title 12 of the Palo Alto Municipal Code applicable to any utility or utilities."
SECTION 9. Section 2.11.060 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.060 Franchise Fee.
(a) Every state franchisee operating within the jurisdictional boundaries of the City
shall pay a franchise fee to the City in the amount of five percent (5%) of that state franchisee’s
gross revenues derived from the operation of its network to provide cable or video services
within the City.
(b) For purposes of this Chapter 2.11, "gross revenue" shall have the meaning set
forth in Section 5860 of the California Public Utilities Code.
(c) A state franchisee shall remit the franchise fee to the City quarterly, within 45
days after the end of each calendar quarter. Each payment shall be accompanied by a summary
explaining the basis for the calculation of the franchise fee.
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(d) If a state franchisee fails to pay the franchise fee when due, or underpays the
proper amount due, the state franchisee shall pay a late payment charge at an annual interest rate
equal to the highest prime lending rate during the period of delinquency, plus one percent (1%)."
SECTION 10. Section 2.11.070 is he~’eby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.070 Public, Educational and Governmental Access Channel Capacity and
Support.
(a)PEG Channel Capacity.
(1) A state franchisee shall designate and activate seven (7) PEG channels on
its network. The state franchisee shall designate and activate the seven (7) PEG channels
within three (3) months from the date that the state franchisee receives a state franchise to
provide video service in an area including the City, provided, however, that this
three-month period shall be tolled for such a period, and only for such a period, during
which the state franchisee’s ability to designate or provide such PEG capacity is
technically infeasible, as provided in Section 5870(a) of the California Public Utilities
Code.
(2) A state franchisee shall provide an additional PEG channel when the
standards set forth in Section 5870(d) of the California Public Utilities Code are satisfied
by the City or any entity designated by the City to be responsible for PEG.
(b)PEG Support.
(1)Amount of PEG support fee.
(A)
franchisee
to the City
Except as provided in subparagraphs (B) and (C), every state
operating within the boundaries of the City shall pay a PEG support fee
in the amount of 88 cents ($0.88) per month per subscriber in the City.
(B) Upon the expiration of the Comcast Franchise, the City shall, by
ordinance, establish a new PEG fee equal to either (i) the amount set forth in
paragraph (b)(1)(A), or (ii) one percent (1%) of a state franchisee’s gross revenue.
(C) The PEG fee established by the City pursuant to paragraph
(b)(1)(B) shall expire with respect to a particular state franchisee upon the
expiration of that state franchisee’s state franchise, and the City shall, by
ordinance, reauthorize the PEG fee for that state franchisee upon such expiration.
(2) The PEG support fee shall be used by the City for PEG purposes
consistent with state and federal law.
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(3) A state franchisee shall remit the PEG support fee to the City quarterly,
within 45 days after the end of each calendar quarter. Each payment shall be
accompanied by a summary explaining the basis for the calculation of the PEG support
fee.
(4) If a state franchisee fails to pay the PEG fee when due, or underpays the
proper amount due, the state franchisee shall pay a late payment charge at an annual
interest rate equal to the highest prime lending rate during the period of delinquency, plus
one percent (1%).
(c)PEG Carriage and Interconnection.
(1) State franchisees shall ensure that all PEG channels are receivable by all
¯ subscribers, whether they receive digital or analog service; or a combination thereof,
without the need for any equipment other than that needed to receive the lowest cost tier
of service. PEG access capacity provided by a state franchisee shall be of similar quality
and functionality to that offered by commercial channels on the state franchisee’s lowest
cost tier of service unless the PEG signal is provided to the state franchisee at a lower
quality or with less functionality.
(2) If a state franchisee and an incumbent cable operator cannot reach a
mutually acceptable interconnection agreement for PEG carriage, the City shall require
the incumbent cable operator to allow the state franchisee to interconnect its network
with the incumbent cable operator’s network at a technically feasible point on the state
franchisee’s network as identified by the state franchisee. If no technically feasible point
of interconnection is available, the state franchisee ghall make interconnection available
to the PEG channel originator and shall provide the facilities necessary for the
interconnection. The cost of any interconnection shall be borne by the state franchisee
requesting the interconnection unless otherwise agreed to by the parties.
(d) Institutional Network and Other In-Kind PEG Facilities and Cable Service
Support Obligations.
The incumbent cable operator’s obligation to provide and support PEG channel facilities
and institutional networks and to provide free cable service to schools and other public buildings
as provided in the Comcast Franchise shall continue until July 25, 2010."
SECTION 11. Section 2.11.080 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.080 Audits and Records.
(a) Not more than once annually, the City or its designee may examine and audit the
business records of a state franchisee to ensure compliance with the franchise fee payment
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obligations of Section 2.11.060 and the PEG support fee payment obligations of Section
2.11.070(b).
(b) A state franchisee shall keep all business records reflecting any gross revenues,
even if there is a change in ownership of the state franchisee, for a least four (4) years after such
gross revenues are recognized by the state franchisee on its books and records. In the case of
subscriber numbers used for calculating the PEG fee, a state franchisee shall keep data on the
number of its subscribers in the City, even if there is a change in ownership of the state
franchisee, for at least four (4) years after the close of each calendar quarter on which the PEG
support fee is to be paid.
(c) To the extent consistent with DIVCA and other applicable law, the City may
request, and a state franchisee shall provide, information and books and records to the extent
necessary to monitor a state franchisee’s compliance with this Chapter 2.11."
SECTION 12. Section 2.11.090 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.090 State Franchise Service Obligations.
The City may bring complaints to the Commission that a state franchisee is not offering
video service as required by Section 5890 of the California Public Utilities Code."
SECTION 13. Section 2.11.100 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.100 Customer Service and Protection.
(a) A state franchisee shall comply with Sections 53055, 53055.1, 53055.2 and
53088.2 of the California Government Code; the FCC customer service and notice standards set
forth in Sections 76.309, 76.1602, 76.1603 and 76.1619 of Title 47 of the Code of Federal
Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of
Title 47 of the United States Code; and all other applicable state and federal customer service
and consumer protection standards pertaining to the provision of video service, including any
such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All
customer service and consumer protection standards under this paragraph shall be interpreted and
applied to accommodate newer or different technologies while meeting or exceeding the goals of
the standards.
(b) The Cable Coordinator shall monitor the compliance Of state franchisees with
respect to the state and federal customer service and consumer protection standards set forth in
paragraph (a). The Cable Coordinator will provide a state franchisee with written notice of any
material breaches of applicable customer service or consumer protection standards, and will
allow the state franchisee 30 days from the receipt of the notice to remedy the specified material
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breach. Material breaches not remedied within the 30-day time period will be subject to the
following penalties to be imposed by the City:
(1) For the first occurrence of a violation, a fine of $500.00 shall be imposed
for each day the violation remains in effect, not to exceed $1,500.00 for each violation.
(2) For a second violation of the same nature within twelve (12) months, a
fine of $1,000.00 shall be imposed for each day the violation remains in effect, not to
exceed $3,000.00 for each violation.
(3) For a third or further violation of the same nature within twelve (12)
months, a fine of $2,500.00 shall be imposed for each day the violation remains in effect,
not to exceed $7,500.00 for each violation.
(c) A state franchisee may appeal a penalty assessed by the Cable Coordinator to the
Council within 60 days of the initial assessment. The City Council shall hear all evidence and
relevant testimony and may uphold, modify or vacate the penalty. The Council’s decision on the
imposition of a penalty shall be final."
SECTION 14. Section 2.11.110 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.110 Emergency Alert System.
(a) A state franchisee shall comply with the EAS requirements of the FCC in order
that emergency messages may be distributed over the state franchisee’s network.
(b) A state franchisee’s EAS shall be remotely activated by telephone and shall allow
an authorized representative of the City to override the audio and video on all channels on the
state franchise’s network that may be lawfully overridden, without the assistance of the state
franchisee, for emergency broadcasts from a location designated by the City in the event of a
civil emergency or for reasonable tests. Testing of a state franchisee’s EAS shall occur at times
that will cause minimal subscriber inconvenience.
(c) The City shall permit only appropriately trained and authorized persons to operate
the EAS equipment. Except to the extent expressly prohibited by applicable law, the City shall
hold the state franchisee, its employees and officers harmless from any claims arising out of the
emergency use of its facilities by the City.
(d) Paragraphs (b) and (c) of this Section 2.11.110 shall expire and no longer be
effective after July 25, 2010."
SECTION 15. Section 2.11.120 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
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"2.11.120 Notices.
All notices and copies of documents that DIVCA requires to be provided to the City, as a
local entity or a local franchising entity, shall be addressed to the City Manager, Attention:
Cable Coordinator."
SECTION 16. Section 2.11.130 is hereby added to Chapter 2.11 of Title 2 of the Palo
Alto Municipal Code to read, as follows:
"2.11.130 Miscellaneous Provisions.
(a) The captions to sections throughout this Chapter 2.11 are intended solely to
facilitate reading and reference to the sections and provisions of this Chapter. Such captions
shall not affect the meaning or interpretation of this Chapter.
(b) Unless otherwise indicated, when the performance or doing of any act, duty,
matter, or payment is required under this Chapter 2.11, and a period of time or duration for the
fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to
exclude the first and include the last day of the prescribed or fiked period of time.
(c) If any term, condition, or provision of this Chapter 2.11 shall, to any extent, be
held to be invalid or unenforceable by a valid order of any court or regulatory agency of
competent jurisdiction, the remainder hereof shall be valid in all other respects and continue to
be effective. In the event of a subsequent change in applicable law that renders valid the
provision that had been held invalid, that provision shall thereupon return to full force and effect
without further action by the City and shall thereafter be binding on the state franchisee and the
City."
SECTION 17. Section 12.04.010 of Chapter 12.04 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
"12.04.010 Definitions generally.
For the purposes of this Title 12, unless the context clearly requires a different meaning,
the words, terms and phrases hereafter set forth shall have the meanings given them in this
Chapter 12.04 or, as appropri ate, Chapter 2.11 and Chapter 12.13."
SECTION 18. Section 12.04.030 of Chapter 12.04 of Title 12 of the Palo Alto
Municipal Code is hereby amended to read, as follows:
"12.04.030 Public works.
The term "public works" shall mean structures, utilities and appurtenances on, above or
below the ground level which shall have been or are to be installed, constructed or reconstructed
for the use or convenience of the general public or the residents of the area served by such
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works, including, but not limited to, streets, sidewalks, surface and subsurface storm drainage
facilities, sanitary sewage facilities, gas, water, electric, and ~ommunications services
equipment or facilities, easements, street signs and drainage grades of private properties abutting
or having any effect upon such public works."
SECTION 19. Section 12.04.040 of Chapter 12.04 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
"12.04.040 Utility or utilities or public utilities.
The term "utility" or "utilities" o1" "public utility" or "public utilities" shall mean and
include any water, gas, sewer, refuse, storm drain, electrical or communications service and all
persons supplying the same."
SECTION 20. Section 12.04.041 of Chapter 12.04 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
"12.04.041 ...................... 8 ........a ...........Commumcatlons service.
i.id~o communications service" o1 "communication services"
shall also-mean and include ,r,,~ ,-,m ..... ,-~ .... a ,~ ~, .... a ~..~ ....... ¯ ........... ,
cable and video services as defined in the California Public Utilities Code. The term
"communications service equipment or facilities" means any equipment or facilities as defined in
Section 2.11.020(i) that are used to provide "communications service" or "communication
services."
SECTION 21. Section 12.04.060 of Chapter 12.04 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
"12.04.060 Poles and overhead lines and associated overhead structures.
As used in Title 12, T-hethe phrase "poles and overhead lines and associated structures"
shall mean and include: but not be limited to: poles, towers, supports, wires, conductors, guys,
stubs, platforms, cross-arms, braces, transformers, insulators, cutouts, switches, communication
circuits, vaults o1" cabinets containing communications service equiplnent or facilities,
appliances, attachments and appurtenances located at o1" above ground level upon, along, across
or over the streets, alleys and ~,,ayspublic rights-of-way and other public property of the c-gt-yC__g_y_
and used or useful in supplying electric service, communications service or similar or associated
service."
SECTION 22. Section 12.08.010 of Chapter 12.08 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
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"12.08.010 Permit required.
(a) It is unlawful for any person, utility, or public utility, without first obtaining a
permit so to do from the director of public works-city engineer, to perform any work within the
efrights-of-way or any street or sidewalk or within any city-owned property
in the c-it-yCitv, including~ but not limited to~ the following:
(1)Construction or repair of any sidewalk, driveway approach, curb or gutter;
(2)Cutting, breaking, or removing any curbing;
(3) Excavating in, digging up, displacing, breaking or otherwise injurying er
~damaging any public street or sidewalk,; or
(4) Performing any work on poles or overhead lines and associated overhead
structures located in the public rights-of-way at or above any public street or sidewalk.
(b) In cases of an emergency nature, including~ but not limited~ to leaking or ruptured
gas or water lines, it shall be a sufficient compliance with this section if the necessary permit is
obtained on the next succeeding business day after an emergency opening has been made,
provided the person, utility, or public utility making the opening has provided barriers and
lighting adequate to protect the public in accordance with the city’s public works standard
drawings and construction specifications."
SECTION 23. Section 12.08.060 of Chapter 12.08 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
"12.08.060 Permit subject to regulation.
(a) The permit issued by the director of public works-city engineer under the
provisions of this Chapter 12.08 authorizes the permittee to perform the work specified therein
subject to the following regulations:
(1) All sidewalk, driveway approach, curb or gutter work shall be done by a
licensed contractor to the satisfaction of the city engineer and must be constructed in
accordance with the "City of Palo Alte, ~-’~’;~._.....~.,,.., Department of gngineeringPublic
Works Standard Drawings and Specifications."
(2) All prepared ~sub-,grades and surfaces shall be inspected and
approved by the c-i+yCi_C~ before any concrete is poured. All completed work shall be
subject to approval by the c-ityCitv. At least twenty-four hours’ advance notice shall be
given to the c-i+yCi__~ by the applicantpermittee so that the c-it-yC_~y_ may schedule
inspections.
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(3) No sidewalk, driveway approach, curb or curb and gutter shall be
constructed other than of concrete unless special permission therefor has first been
obtained from the city engineer.
(4) No permit shall be issued to remove any curbing unless a driveway
approach between curbing and sidewalk is to be installed.
(5) The necessary adjustments to utility facilities, light standards, fire
hydrants, catch basins, street or railway signs, signals or other public improvements or
installations shall be accomplished without cost to the c-it-yCi__ky_.
(6)~-’~Avv .......Pe~ m~ttee shall maintain the premises in a safe manner and shall
provide adequate barricades and lights at taisit_fis own expense to protect the safety of the
public using the public ri.~bts-of-way, an’¢ adjacent streets or sidewalks and other public
property and shall indemnify and hold harmless the c-it-yCitv free from any damages
incurred by gisit___f! operations.
(7) All debris and surplus materials shall be removed promptly upon
completion of the work.
(8) All work shall be completed within tgirt-y30 days from the date of issuance
of the permit, provided that such time may be extended by the city engineer for good
cause.
(9) In addition to the requirements of the"-"~V’~’ao~n’~’""~"~ ,,,~ "~"~"’~’~’~""~=’4"~’C~it"’~,---~-~- of
Palo Alto Department of Public Works standard ~,v ............. Standmd Drawings and
Specifications. all driveways shall be constructed in accordance with the following
specifications:
(A) The distance between driveways, as measured from the radius
return, shall not be less than t~-~ty2__Q0 feet.
(B) No more than fifty percent ~of the frontage upon any street
of the lot or lots or parcel of land to be served thereby shall be devoted to
driveways, nor shall any driveway exceed ~35 feet in width.
(C) No driveway shall be located as to interfere with intersecting
sidewalks, crosswalks, traffic signals, lampposts, fire hydrants, or other public
improvements or facilities. A clear distance of tlair-ty30 inches shall be
maintained between a driveway and any such installation."
SECTION 24. The index to Chapter 12.09 of Title 2 of the Palo Alto Municipal Code is
hereby added to read, as follows:
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"Chapter 12.09
EQUIPMENT OR FACILITIES IN RIGHTS-OF-WAY
Sections:
12.09.010
12.09.020
Regulations applicable to users of the public fights-of-way.
Maps and improvement plans.
SECTION 25. Section 12.09.010 is hereby added to Chapter 12.09 of Title 12 of the
Palo Alto Municipal Code to read, as follows:
"12.09.010 Regulations applicable to users of the public rights-of-way.
(a) The construction, operation, maintenance and repair of equipment or facilities in
the public fights-of-way shall be performed in compliance with all laws, practices, rules and
regulations affecting such equipment or facilities. This shall include, but not be limited to,
applicable zoning and safety codes, construction standards, drawings and specifications, and
rules and regulations for the provision of notice to persons that may be affected by the
construction of such equipment or facilities, and such directives governing the time, place and
manner in which such equipment or facilities may be installed or constructed in the public rights-
of-way. Any person, utility or public utility engaged in the construction, operation, maintenance
or repair of equipment or facilities in the public fights-of-way or on public or private property
shall exercise reasonable care in the performance of all of its activities and shall use commonly
accepted methods and devices for the prevention of failures and accidents that are likely to cause
damage, injury, or nuisance to the public or to property.
(b) Any public rights-of-way or public or private property that is disturbed or
damaged during the construction, operation, maintenance or repair of facilities permitted under
Title 12 by or on behalf of a permittee shall be promptly repaired by that permittee at its cost and
expense. Any public or private property and any public fights-of-way shall be restored to the
satisfaction of the owner thereof or to its original condition existing before the occurrence of any
disturbance or damage or to a condition that does not constitute a threat to the general health,
safety or welfare of the public or safe condition of property.
(c) A person, utility or public utility with equipment or facilities located in the public
rights-of-way shall, by a time specified by the director of public works-city engineer, protect,
support, temporarily disconnect, relocate or remove any of its equipment or facilities, when such
action required by the City in the exercise of its governmental or proprietary powers, by reason
of traffic conditions, public safety, rights-of-way construction or repair, including, but not
limited to, re-grading, re-surfacing, or widening thereof, street vacation, construction,
installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other
similar system or utility, public works, public facility, or improvement, or for any other purpose
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where the work would be aided by the removal or relocation of the equipment or facilities of that
person, utility or public utility.
(1) The city engineer shall provide notice, describing the location of the
facilities to be constructed, at least one (1) week prior to the date and time by which a
person, utility or public utility must protect, support, temporarily disconnect, relocate or
remove its facilities.
(2) During an emergency, or in the event the equipment or facilities of a
person, utility or public utility in the public rights-of-way create or contribute to an
imminent threat or danger to person or property, the City may protect, support,
temporarily disconnect, remove or relocate any such equipment or facilities without prior
notice, and charge the owner thereof for costs incurred.
(d) To accommodate the construction, operation, maintenance or repair of facilities of
another person, utility or public utility authorized to use the public rights-of-way or public
property, a permittee shall, by a time specified by such person, utility or public utility, protect,
support, temporarily disconnect, relocate or remove its equipment or facilities. The permittee
must be given notice describing the proposed location of the construction, operation,
maintenance or repair work no less than 15 days prior to the date by which such work must be
completed. The city engineer at the request of those affected may resolve disputes concerning
the responsibility for costs associated with the removal or relocation of equipment or facilities
among the entities authorized to construct in the public rights-of-way or on public property if the
entities are unable to reach a resolution.
(e) A permittee shall, at the request of any person, utility or public utility holding a
valid permit issued by a government authority, temporarily raise or lower its wires by a time
specified to permit the moving of buildings or other objects. A permittee shall be given no less
than 7 days’ advance notice to arrange for such temporary wire changes. The expense of such
temporary removal or the raising or lowering of wires shall be paid by the person, utility or
public utility requesting the same.
(f) A permittee shall remove its facilities in the public fights-of-way that it intends to
abandon within 90 days after it gives notice to the city of its intention to abandon. If within such
ninety-day period the City determines that the safety, appearance, function or use of the public
fights-of-way or the facilities will be adversely affected, the permittee may abandon its facilities
after receipt of notice of the City. A permittee that abandons its facilities must, upon request,
transfer ownership of the facilities to the City at no cost, and execute necessary quitclaim deeds
and indemnify and hold harmless the City against future costs associated with the mitigation or
elimination of any environmental hazard associated with such abandoned facilities.
(g) A permittee that places facilities in an underground location shall be a member of
the regional notification center for subsurface installations (Underground Services Alert) as may
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be required by Section 4216 et seq. of the California Government Code. The permittee shall
field-mark the locations of its underground facilities upon request without cost to the City."
SECTION 26. Section 12.09.020 is hereby added to Chapter 12.09 of Title 12 of the
Palo Alto Municipal Code to read, as follows:
"12.09.020 Maps and improvement plans.
A person, utility or public utility owning or possessing equipment or facilities in the
public rights-of-way shall maintain and provide to the director of public works-city engineer
accurate maps and improvement plans, in detail and scale as may be established by the city
engineer, which identify the location and size and contain a general description of all of its
equipment or facilities and any power supply sources, including, but not limited to, voltages and
connections. Maps and improvement plans shall be based on post-construction inspections that
are intended to verify the locations of such equipment or facilities. The maps and improvement
plans, which shall be provided in three mil Mylar® as well ’as in compact disk format or other
commercially available electronic format specified by the city engineer, shall be updated by the
person, utility or public utility annually and provided to the city engineer."
SECTION 27. Section 12.10.050 of Chapter 12.10 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
"12.10.050 Utility master plans.
Any utility or public utility owning, operating or installing in the public rights-of-way o1"
an___y_city streets, alleys, sidewalks, or any other public places equipment or facilities providing
water, sewer, gas; or electric service, communications service, a,4deo-or other utility services,
shall prepare and submit to the director of public works-city engineer a utility master plan, in a
format specified by the director-city engineer, that shows the location of the utility’s or public
utility’s ~quipment or facilities in the public rights-of-way or any city streets, alleys,
sidewalks and other public places that are anticipated to exist for the he-x-t-five years after the
plan is submitted and approved. Utilities and public utilities shall submit an initial utility master
plan no later than ~............... e,,-., -~-- days after the effective date of the ordinance adopting
this sec4ionSection 12.10.050. Thereafter, each utility and public utility shall submit annually a
revised and update utility master plan containing any reference to a planned major utility works.
As used in this sabseetionsection, the term "planned major utility works" refers to any and all
future excavations planned by the utility or public utility when the utility master plan or update is
submitted that will affect the public rights-of-way or any city street, alley, sidewalk, or other
public place for more than a total of #4f-teenl5 days, provided that the utility or public utility shall
not be required to show future excavations planned to occur more than five 5_(~)_years after the
date that the utility master plan or update is submitted and approved. Any and all utility master
plans submitted pursuant to this sestionSection 12.10.050 shall be deemed confidential to the
fullest extent provided by law and used solely for purposes of coordination."
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SECTION 28. Section 12.10.060 of Chapter 12.10 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
"12.10.060 Coordination with city.
(a) Before a person, utility or public utility applyinga_a_a_a_a_a_a_a_a_a~plies for an "Application and
Permit for Construction in the Public Street" to construct in the c4Omapublic rights-of-way or any
streets, alleys, sidewalks or other public places, the applicant shall notify the director of public
works-city engineer, and the c4t-ycity engineer, or designee, shall review on behalf of the
applicant the utility master plans and the OOesCitv’s five-year repaving plan on file with the
direc-~departlnent of public works. The applicant shall coordinate, to the fullest extent
practicable, with the utility and street work shown on such plans to minimize damage to, and
avoid undue disruption and interference with the public use of such public rights-of-way, streets,
alleys, sidewalks or other public places. Such coordination shall include:
enever two or more a es ~~ .......r--- ......., ......
eity}-have concurrently proposed a major excavation in the same block during a five-year
period, they shall meet and confer with the c-i~director of utilities, or designee, regarding
whether it is feasible to conduct a joint operation. If the director, or designee, determines
that it is feasible to conduct a joint operation, a single contractor shall be selected and a
single application fee charged.
042) Any person, utility or public utility aggrieved by the director’s decision to
require a joint operation may, within tbi~30 days of receipt of the director’s written
notice, file an appeal pursuant to ~..~,~.....,.~.w,~* .,......’Q na .,."~’ ,r.;o~,.o ~,.,~,~°"a’~ with the city manager in
written form in a manner prescribed by the director. Within 30 days of the filing of a
timely appeal fi’om the director’s determination, the city manager shall review the appeal
and issue a recommendation to the Council to uphold or overturn the action o1"
determination of the director. The recommendation of the city manager shall be placed
Oll the consent calendar of the Council within 30 days of the filing of the appeal. In
determining such appeal, the,,.~..,,.~,~’~-";~- ~-.~;oe or councilCouncil shall consider the impact
of the proposed excavation on the neighborhood, the applicant’s need to provide services
to a property or area, facilitating the deployment of new technology as directed pursuant
to official city policy, and the public health, safety, welfare and convenience. The
Council may adopt the recommendation of the city manager, or remove the appeal from
the consent calendar, which sha!l require five (5) votes, and take action to uphold o1"
overturn the recommendation of the city manager. The decision of the Council is final.
(b) To avoid future excavations and to reduce the number of street excavations,
telecommunication compani~any person, utility or public utility providing utility o1"
communications service shall be requested, when practica!practicable, to install spar-esufficient
conduit to accommodate the reasonably foreseeable future business growth needs of that person,
utility or public utility."
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SECTION 29. The index to Chapter 12.13 of Title 12 of the Palo Alto Municipal Code is
hereby added to read, as follows:
"Chapter 12.13
STATE VIDEO SERVICE FRANCHISEES
Sections:
12.13.010
12.13.020
12.13.030
12.13.040
Definitions.
Purposes and interpretations.
Permit application procedures.
Appeals.
SECTION 30. Section 12.13.010 is hereby added to Chapter 12.13 of Title 12 of the
Palo Alto Municipal Code to read, as follows:
"12.13.010 Definitions.
(a) "State franchisee" shall have the same meaning as set forth in Section 2.11.020(o)
of the Palo Alto Municipal Code.
(b) "Encroachment permit" means an encroachment permit, a street work permit, a
development review application, or other application or permit for which a state franchisee is
required to apply under Chapter 2.11, Chapter 12.08, Chapter 12.10, Chapter 12.13, Chapter
18.76 or Chapter 18.77 of the Palo Alto Municipal Code.
(c) "Street work permit application" means the application and permit for
construction in the public street to be filed by a state franchisee with the Department of Public
Works.
(d) "Development review application" means the form to request architectural review
to be filed by a state franchisee with the Department of Planning & Community Environment.
SECTION 31. Section 12.13.020 is hereby added to Chapter 12.13 of Title 12 of the Palo
Alto Municipal Code to read, as follows:
"12.13.020 Purpose and interpretation.
(a) It is the purpose of this Chapter 12.13 to comply with Section 5885(c) of the
California Public Utilities Code. The provisions of this Chapter 12.13 that impose requirements
or obligations on the City shall be construed to apply, and shall be only applied, to the extent
necessary to comply with Section 5885(c) of the California Public Utilities Code.
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(b) Except as provided in this Chapter 12.13, all of the provisions of this Title 12
shall apply fully to a state franchisee as if it were a "utility" or "public utility" within the
meaning of this Title 12.13."
SECTION 32. Section 12.13.030 is hereby added to Chapter 12.13 of Title 12 of the Palo
Alto Municipal Code to read, as follows:
"12.13.030 Permit application procedures.
(a) A state franchisee who applies for an encroachment permit shall submit an
application which consists of a combined development review application and a street work
permit application. The director of planning and community environment shall be responsible
for taking action on the development review application, and the director of public works-city
engineer shall be responsible for taking action on the granting of an application for a street work
permit. The approval or denial of the development review application and the street work permit
application shall be issued within 60 days of receipt of a combined complete application, which
shall consist of the following:
(1) A completed development review application for architectural review and
a street work permit application;
(2) All construction plans, drawings and specifications pertaining to the state
franchisee’s communications service equipment or facilities to be placed in the public
rights-of-way, prepared in accordance with the requirements of the department of public
works and other City departments that affect the street work permit application,
including, but not limited to, the City arborist and the City department of utilities; and
(3) All design plans, drawings, specifications and documents pertaining to the
state franchisee’s communications service equipment or facilities required for
architectural review pursuant to Section 18.76.020, including, but not limited to, a copy
of any proposed notice to property owners directly affected by the placement of the
communications service equipment or facilities in the public rights-of-way.
An encroachment permit application, consisting of a development review application and a street
work permit application, is complete whenever the state franchisee applicant has complied with
all applicable requirements of Title 2, Title 12 and Title 18 of the Palo Alto Municipal Code and
applicable state laws, including the California Environmental Quality Act and DIVCA, as
defined in Section 2.11.020(h).
(b) The sixty-day time period set forth in subsection (a) may be extended by mutual
agreement by the state franchisee applicant and the city engineer, who may consult with the
director of planning and community environment before reaching such agreement.
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(c) If the development review application is denied by the director of planning and
community environment, the city engineer shall deny the street work permit application. The
city engineer’s denial shall constitute the denial of the encroachment permit application. The
city engineer shall provide the state franchisee applicant with a notice of denial and a detailed
explanation of the reasons for such denial."
SECTION 33. Section 12.13.040 is hereby added to Chapter 12.13 of Title 12 of the Palo
Alto Municipal Code to read, as follows:
"12.13.040 Appeals.
A state franchisee applicant whose encroachment permit is denied under Section
12.13.030 may file an appeal with the Council within 14 days of the decision of the director of
public works-city engineer. Within 30 days of the filing of a timely appeal of the city engineer’s
decision, the Council shall hold a public heating on the matter. At the public heating, shall
accept into evidence and consider any materials and documents as may be submitted by the state
franchisee applicant and the city engineer. In determining such appeal, the Council shall consider
whether the city engineer’s denial is consistent with Title 2, Title 12 or Title 18, as applicable,
and other applicable state and federal laws. If the Council denies the state franchisee applicant’s
appeal, its decision shall be given, in writing, setting forth a detailed explanation of the reasons
for such denial. The decision of the Council is final."
SECTION 34. Section 12.16.010 of Chapter 12.16 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
"12.16.010 Underground installation required for new construction.
The city ,~ ....... Council finds and determines that the public interest requires that all
poles, overhead lines and associated overhead structures used in supplying electric service,
communications service or similar associated service to be constructed in the city of Palo Alto
after July 1, 1965, shall be placed in underground locations in order to promote and preserve the
health, safety and general welfare of the public and to assure the orderly development of the city
of Palo Alto. The director of utilities, or hi-s-designee, may authorize poles, overhead lines and
associated overhead structures for new construction when ;~........ v ........he director determines
.............. location in any particular instance would not bethat an installation in an underground ~.,o.~11n.~. , ¯
feasible or practicable, t4i-sThe decision of the director in such matters shall ~eis final."
SECTION 35. Section 12.16.050 of Chapter 12.16 of Title 12 of the Palo Alto Municipal
Code is hereby amended to read, as follows:
"12.16.050 Exceptions.
(a)
facilities:
The provisions of this Chapter 12.16 shall not apply to the following types of
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(1) Poles used exclusively for police and fire alarm boxes, traffic control
facilities, or any similar municipal-owned equipment installed under the supervision and
to the satisfaction of the director of utilities, or tais-designee;
(2)Poles used exclusively for street lighting;
(3) An electric distribution or transmission system in excess of fifteen
kilovolts, unless the director of utilities, or his-designee, determines that underground
installation of such distribution or transmission system is feasible and practicable.
tgisThe decision of the director in such matters shatt--beis final;
(4) When authorized by the director~, or gis-designee, poles,
overhead lines and associated overhead structures crossing or entering any potion of a
district from which poles, overhead lines and associated overhead structures have been
prohibited and originating in an area in which poles, overhead lines and associated
overhead structures are not prohibited;
(5) Overhead lines attached to the exterior surface of a building by means of a
bracket or other fixture and extending from one location on the building to another
location on the same building or to an adjacent building without crossing any public
street;
(6) Radio antenna and associated equipment and supporting structures used
for furnishing communications services;
(7) Changes in or additions of aerial drop lines and anchors or the addition or
replacement of lines and cables on poles in place on July 1, 1965; or
(8) Service terminals, in pedestals, in above ground locations, used to
distribute communication_s service in underground systems."
SECTION 36. If any section of this ordinance, or part hereof, is held by a court of
competent jurisdiction in a final judicial action to be void, voidable or enforceable, such section,
or part hereof, shall be deemed severable from the remaining sections of this ordinance and shall
in no way affect the validity of the remaining sections hereof.
SECTION 37. The Council hereby finds that this ordinance is exempt from the
provisions of the California Environmental Quality Act pursuant to Section 15061(b)(3) of the
California Environmental Quality Act Guidelines, because it can be seen with certainty that there
is no possibility of significant environmental effects occurring as a result of the adoption of this
ordinance.
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SECTION 38.
thirty-first day after the date of its adoption.
INTRODUCED:
PASSED:
AYES:
NOES:
ABSTENTIONS:
NOT PARTICIPATING:
ABSENT:
ATTEST:
This ordinance shall become effective upon the commencement of the
APPROVED:
City Clerk Mayor
APPROVED AS TO FORM:
City Manager
Senior Asst. City Attorney
Director of Administrative
Services
Director of Planning and Community
Environment
Director of Public Works
Director of Utilities
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