East Palo Alto Municipal Code Ch. 13.06 Video Service Providers

It is the purpose of this chapter to implement the provisions of Assembly Bill 2987, the Digital Infrastructure and Video Competition Act of 2006 ("DIVCA") and the rules of the California Public Utilities Commission ("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 are to be construed in a manner that is consistent with DIVCA and the applicable rules of the commission promulgated thereunder.

(Ord. No. 303, § 1, 6-19-2007)

For the purposes of this chapter, the following words, terms, phrases, and abbreviations and their similar formulations shall have the meanings given them in this chapter or, as may be amended from time to time, unless the context indicates otherwise. Words not defined in this chapter 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 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. "City" means the government of the City of East Palo Alto, a municipal corporation duly organized and validly existing under the general laws of the State of California, and all departments, divisions, and offices thereof.

E. "Council" means the City Council of the City of East Palo Alto exercising all powers necessary and appropriate pursuant to the laws of the State of California.

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.

L. "Person" includes any natural person, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.

M. "PEG" means public, educational and governmental access.

N. "Public rights-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 right-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 rights-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 video service provider that has been granted a state franchise by the commission 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.

(Ord. No. 303, § 2, 6-19-2007)

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 rights other than as specified in this chapter or in DIVCA or other applicable law; no rights 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 rights-of-way or public property, including, but not limited to, encroachment permits, pole attachment permits and street cut permits; and

3. Any permit, agreement or authorization for occupying any other property of the city or private persons 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 laws of the city, and every state franchisee shall comply with the same. The city reserves its rights to the lawful exercise of police and other powers the city now has or may later obtain.

E. The city reserves the right to construct, operate, maintain or repair its own cable system or video service provider network.

(Ord. No. 303, § 3, 6-19-2007)

A. The city may from time to time adopt rules and regulations to implement the provisions of this chapter consistent with DIVCA.

B. The cable coordinator is hereby authorized to administer this chapter 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, 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 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 owned, controlled or used by the city or the designated entity or entities.

(Ord. No. 303, § 4, 6-19-2007)

A video service provider within the city shall, in its use of public rights-of-way and public and private property, be considered to be a "utility" within the meaning of state law.

(Ord. No. 303, § 5, 6-19-2007)

A. Every state franchisee operating within the boundaries of the city shall pay a franchise fee to the city in the amount of five percent 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, "gross revenue" shall have the meaning set forth in Cal. Pub. Util. Code § 5860.

C. A state franchisee shall remit the franchise fee to the city quarterly, within forty-five (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.

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.

(Ord. No. 303, § 6, 6-19-2007)

A. PEG channel capacity.

1. A state franchisee shall designate and activate seven PEG channels on its network. The state franchisee shall designate and activate the seven PEG channels within three 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 Cal. Pub. Util. Code § 5870(a).

2. A state franchisee shall provide an additional PEG channel when the standards set forth in Cal. Pub. Util. Code § 5870(d) 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. Except as provided in Subsections B.1.b. and B.1.c. below, every state franchisee operating within the boundaries of the city shall pay a PEG support fee to the city in the amount of eighty-eight 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 Subsection B.1.a., above; or (ii) one percent of a state franchisee's gross revenue.

c. The PEG fee established by the city pursuant to Subsection B.1.b. above, 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.

3. A state franchisee shall remit the PEG support fee to the city quarterly, within forty-five (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.

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 shall 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.

E. PEG support fee re-authorizations.

1. On expiration and renewal of AT&T's state franchise on March 30, 2017, the city hereby re-authorizes the PEG support fee.

2. On expiration and renewal of Comcast state franchise on January 2, 2018, the city hereby re-authorizes the PEG support fee.

(Ord. No. 303, § 7, 6-19-2007; Ord. No. 409, § 2, 6-6-2017; Ord. No. 412, § 1, 1-16-2018)

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 obligations of Section 13.06.060, and the PEG fee payment obligations of Subsection 13.06.070.B.1.a.

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 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 years after the close of each calendar quarter on which the PEG 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 section.

(Ord. No. 303, § 8, 6-19-2007)

The city may bring complaints to the commission that a state franchisee is not offering video service as required by Cal. Pub. Util. Code § 5890.

(Ord. No. 303, § 9, 6-19-2007)

A. A state franchisee shall comply with Cal. Govt. Code §§ 53055, 53055.1, 53055.2 and 53088.2; the FCC customer service and notice standards set forth in 47 C.F.R. §§ 76.309, 76.1602, 76.1603 and 76.1619; Cal. Penal Code § 637.5; the privacy standards of 47 U.S.C. § 551; 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 subsection 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 Subsection A. of this section. 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 thirty (30) days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty-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 five hundred dollars ($500.00) shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars ($1,500.00) for each violation.

2. For a second violation of the same nature within twelve (12) months, a fine of one thousand dollars ($1,000.00) shall be imposed for each day the violation remains in effect, not to exceed three thousand dollars ($3,000.00) for each violation.

3. For a third or further violation of the same nature within twelve (12) months, a fine of two thousand five hundred dollars ($2,500.00) shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars ($7,500.00) for each violation.

C. A state franchisee may appeal a penalty assessed by the cable coordinator to the city council within sixty (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 city council's decision on the imposition of a penalty shall be final.

(Ord. No. 303, § 10, 6-19-2007)

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. Subsections B. and C. of this section shall expire and no longer be effective after July 25, 2010.

(Ord. No. 303, § 11, 6-19-2007)

A state franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing, or continuing to provide, cable or video service to that subscriber or building owner's premises. However, nothing herein prevents a state franchisee from entering into an otherwise lawful, mutually desired exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial subscriber.

(Ord. No. 303, § 12, 6-19-2007)

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."

(Ord. No. 303, § 13, 6-19-2007)

A. The captions to sections throughout this chapter 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, 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 fixed period of time.

C. If any term, condition, or provision of this chapter 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.

(Ord. No. 303, § 14, 6-19-2007)

For purposes of this chapter, unless the context clearly requires a different meaning, the words, terms and phrases hereafter set forth shall have the meanings given them in the chapter.

(Ord. No. 303, § 15, 6-19-2007)

The term "public works" shall mean structures, facilities, parks and grounds, 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 works, including, but not limited to, streets, sidewalks, surface and subsurface storm drainage facilities, sanitary sewage facilities, gas, water, electric, street lights, traffic signals, and communications services equipment or facilities, easements, street signs and drainage grades of private properties abutting or having any effect upon such public works.

(Ord. No. 303, § 16, 6-19-2007)

The term "utility" or "utilities" or "public utility" or "public utilities" shall mean and include any water, gas, sewer, refuse, storm drain, electric or communications service and all persons supplying the same.

(Ord. No. 303, § 17, 6-19-2007)

The term "communications service" or "communication services" shall mean and include telephone, 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 Subsection 13.06.020.I., that are used to provide "communications service" or "communication services.

(Ord. No. 303, § 18, 6-19-2007)

The 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 or cabinets containing communications service equipment or facilities, appliances, attachments and appurtenances located at or above ground level upon, along, across or over the streets, alleys and public rights-of-way and other public property of the city and used or useful in supplying electric service, communications service or similar or associated service.

(Ord. No. 303, § 19, 6-19-2007)

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 public rights-of-way or any street or sidewalk or within any city-owned property in the city, 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 curb;

3. Excavating in, digging up, displacing, breaking or otherwise 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.

(Ord. No. 303, § 20, 6-19-2007)

A. The permit issued by the director of public works-city engineer under the provisions of this chapter 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, but not limited to the "City of East Palo Alto Department of Public Works Standard Drawings and Specifications."

2. All prepared sub-grades and surfaces shall be inspected and approved by the city before any concrete is poured. All completed work shall be subject to approval by the city. At least twenty-four (24) hours' advance notice shall be given to the city by the permittee so that the city may schedule inspections.

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 curb unless a driveway approach between curb 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 city.

6. Permittee shall maintain the premises in a safe manner and shall provide adequate barricades, traffic controls, devices, people, and lights at its own expense to protect the safety of the public using the public rights-of-way, any adjacent streets or sidewalks and other public property and shall indemnify and hold harmless the city free from any damages incurred by its operations.

7. All debris and surplus materials shall be removed promptly upon completion of the work.

8. All work shall be completed within thirty (30) calendar 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 City of East Palo Alto Department of Public Works Standard 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 twenty (20) feet.

b. No more than fifty percent (50%) 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 thirty-five (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 thirty-six (36) inches shall be maintained between a driveway and any such installation.

d. Shall be in compliance with all state and federal laws including ADA.

(Ord. No. 303, § 21, 6-19-2007)

A. The construction, operation, maintenance and repair of equipment or facilities in the public rights-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 rights-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 this chapter 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 rights-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 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 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 fifteen (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 seven 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 rights-of-way that it intends to abandon within ninety (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 rights-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 quit-claim 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 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.

(Ord. No. 303, § 22, 6-19-2007)

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 within thirty (30) days after the work is completed.

(Ord. No. 303, § 23, 6-19-2007)

Any utility or public utility owning, operating or installing in the public rights-of-way or any city street, alley, sidewalk, or any other public place equipment or facilities providing water, sewer, gas or electric service, communications service, or other utility service, shall prepare and submit to the director of public works-city engineer a utility master plan, in a format specified by the city engineer, that shows the location of the utility's or public utility's equipment or facilities in the public rights-of-way or any city street, alley, sidewalk and other public place that are anticipated to exist for the five years after the plan is submitted and approved. Utilities and public utilities shall submit an initial utility master plan no later than one hundred eighty (180) days after the effective date of the ordinance adopting this Section 13.06.240. 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 section, 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 fifteen (15) days, provided that the utility or public utility shall not be required to show future excavations planned to occur more than five 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 Section 13.06.240 shall be deemed confidential to the fullest extent provided by law and used solely for purposes of coordination.

(Ord. No. 303, § 24, 6-19-2007)

A. Before a person, utility or public utility applies for an "application and permit for construction in the public street" to construct in the public rights-of-way or any street, alley, sidewalk or other public place, the applicant shall notify the director of public works-city engineer, and the city engineer, or designee, shall review on behalf of the applicant the utility master plans and the city's five-year repaving plan on file with the department 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:

1. Whenever two or more parties have concurrently proposed a major excavation in the same block during a five-year period, they shall meet and confer with the director of public works, 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.

2. Any person, utility or public utility aggrieved by the director's decision to require a joint operation may, within thirty (30) days of receipt of the director's written notice, file an appeal with the city manager in written form in a manner prescribed by the director. Within thirty (30) days of the filing of a timely appeal from the director's determination, the city manager shall review the appeal and issue a recommendation to the council to uphold or overturn the action or determination of the director. The recommendation of the city manager shall be placed on the consent calendar of the council within thirty (30) days of the filing of the appeal. In determining such appeal, the council 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 shall require three votes, and take action to uphold or 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, any person, utility or public utility providing utility or communications service shall be requested, when practicable, to install sufficient conduit to accommodate the reasonably foreseeable future business growth needs of that person, utility or public utility.

(Ord. No. 303, § 25, 6-19-2007)

A. "State franchisee" shall have the same meaning as set forth in Subsection 13.06.020.O. of this chapter.

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 applicable city law.

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 planning department.

(Ord. No. 303, § 26, 6-19-2007)

A. It is the purpose of this chapter to comply with Section 5885(c) of the California Public Utilities Code. The provisions of this chapter 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.

B. Except as provided in this Section 13.06.270, all of the provisions of this chapter shall apply fully to a state franchisee as if it were a "utility" or "public utility" within the meaning of Section 13.06.170.

(Ord. No. 303, § 25, 6-19-2007)

A. A state franchisee who applies for an encroachment permit shall submit an application which consists of a combined planning permit application and a street work permit application. The director of planning shall be responsible for taking action on the planning permit 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 planning permit application and the street work permit application shall be issued within sixty (60) days of receipt of a combined complete application, which shall consist of the following:

1. A completed planning permit 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; and

3. All design plans, drawings, specifications and documents pertaining to the state franchisee's communications service equipment or facilities required for architectural or site plan review, 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 planning permit application and a street work permit application, is complete whenever the state franchisee applicant has complied with all applicable requirements of the Permit Streamling Act.

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 before reaching such agreement.

C. If the planning permit application is denied by the director of planning, 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.

(Ord. No. 303, § 26, 6-19-2007)

A state franchisee applicant whose encroachment permit is denied under Section 13.06.280 may file an appeal with the council within fourteen (14) days of the decision of the director of public works-city engineer. Within thirty (30) days of the filing of a timely appeal of the city engineer's decision, the council shall hold a public hearing on the matter. At the public hearing, the council 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 this chapter, 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.

(Ord. No. 303, § 27, 6-19-2007)

The 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 East Palo Alto 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 East Palo Alto. The director of public works, or designee, may authorize poles, overhead lines and associated overhead structures for new construction when the director determines that an installation in an underground location in any particular instance would not be feasible or practicable. The decision of the director is final.

(Ord. No. 303, § 28, 6-19-2007)

A. The provisions of Section 13.06.300 shall not apply to the following types of facilities:

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 designee;

2. Poles used exclusively for street lighting;

3. An electric distribution or transmission system in excess of fifteen (15) kilovolts, unless the director of public works, or designee, determines that underground installation of such distribution or transmission system is feasible and practicable. The decision of the director in such matters is final;

4. When authorized by the director, or designee, poles, overhead lines and associated overhead structures crossing or entering any portion 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; or

8. Service terminals, in pedestals, in above ground locations, used to distribute communications service in underground systems.

(Ord. No. 303, § 29, 6-19-2007)