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HomeMy WebLinkAbout03-18-1997 CC Adopted MinutesREGULAR MEETING - March 18, 1997 A regular meeting of the Dublin City Council was held on Tuesday, March 18, 1997, in the Council Chambers of the Dublin Civic Center. The meeting was called to order at 7:06 p.m., by Mayor Houston. ROLL CALL PRESENT: Councilmembers Barnes, Burton, Howard, Lockhart and Mayor Houston. ABSENT: None PLEDGE OF ALLEGIANCE Mayor Houston led the Council, Staff and those present in the pledge of allegiance to the flag. Mayor Houston announced that the closed session would be held at the end of the meeting. INTRODUCTION OF NEW EMPLOYEE 7:06 p.m. 3.1 (700-10) Dublin Police Services Chief Thuman introduced Deena I-Iambleton, the Department's new Secretary. Ms. Hambleton has been a long time Alameda County employee who was assigned to healthcare for 20+ years. This is a family tradition as her husband works for the City of Berkeley as a Police Lieutenant. Ms. Hambleton said she was happy to be here and looks forward to learning how the City works with the Sheriff's Department. 1996 ORGANIZATION OF THE YEAR 7:08 p.m. 3.3 (610-50) Mayor Houston said this is a fun time of the year. Part of our whole celebration is honoring the finest and the best. Three members of the Pleasanton Chamber of Commerce were the judges. Nominations were: Dublin Lions Club and Friends of the Dublin Library. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 130 Mayor Houston congratulated Friends of the Dublin Library for being selected as Dublin's 1996 Organization of the Year. This group is made up of dedicated volunteers who give so generously of their time and effort for the betterment of our community. They are champions of the library and raising funds for additional resources for the library. Janie Swerin, President of the Friends of the Dublin Library accepted the Proclamation, on behalf of all their members. She thanked Connie Spence, Vice President of the organization. 199{3 CITIZEN OF THE YEAR 7:14 p.m. 3.2 (610-50) Nominations were: Jerry Bush, Michael Johnston, Bonnie McCamon, Paul Moffatt, Adib Nassar, and Karol Ruppenthal. Mayor Houston congratulated Adib Nassar for being selected as Dublin's 1996 Citizen of the Year. He has been instrumental in the construction of Soccer Fields at Camp Parks. A Proclamation was presented to Mr. Nassar. Mr. Nassar thanked everyone for this award. Gifts from Irish Visitors (150-70) Cm. Howard presented some gifts which were given by the Irish Greystone Town Commissioners. Greystone is right below Bray, and was established in 1984. From Wicklow County we were presented with a beautiful book, "Dublin A Grand Tour". Mayor Houston questioned the 1984 date and commented we are used to hearing much older dates with regard to events such as this in Ireland. City Song Cassettes Delivered (120-50) Steve Stewart stated he was proud to report that the "Dublin Town" project had been completed under budget, and as promised, 1,000 cassettes were delivered. He thanked each and every one involved in this project. The lyrics are included in the cover, as are the names of the people who came to the Council Chambers and sang in the community chorus. '~ CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 131 Mayor Houston stated one of the lines that people really like is "You don't have to be Irish to love Dublin". Mr. Stewart said he was sorry the Library people had to leave. Their group will be one of many that will be able to sell the tapes and benefit from the funds. The song was played. Cm. Barnes stated she was informed that CTV filmed the day the taping was done last November. She felt this would be good for the video newsletter. Mr. Stewart stated of all the City songs he had written, this is by far his favorite piece. The cover was done by Shelley Kahn. CONSENT CALENDAR 7:36 p.m. On motion of Cm. Burton, seconded by Cm. Lockhart, and by unanimous vote, the Council took the following actions: Adopted (4.2 670-60) RESOLUTION NO. 22 -97 APPROVING RELEASE OF DECLARATION OF RESTRICTIONS, TRACT 4978 AND PARCEL MAP 2817 (NOW KNOWN AS TRACT 6644 AND PARCEL MAP 6571) Received (4.4 330-50) the Financial Report for the Month of February, 1997; Adopted (4.5 600-30) RESOLUTION NO. 23 - 97 AWARDING CONTRACT 97-02, 1997 ANNUAL SIDEWALK SAFETY REPAIR PROGRAM AND HANDICAP RAMP CONSTRUCTION TO SPOSETO ENGINEERING, INC. ($41,968.10) CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 132 Adopted (4.{3 600~$0) RESOLUTION NO. 24 - 97 AWARDING CONTRACT 97-01 SERRA COURT DRAINAGE IMPROVEMENTS TO VANGUARD CONSTRUCTION (12,322.75) Authorized (4.7 600~30) Staff to solicit bids to spray the Civic Center with a waterproof coating; Adopted (4.8 170-80) RESOLUTION NO. 25 - 97 APPROVING THE USE OF A MASTER OFFICIAL SURETY BOND TO PROVIDE REQUIRED COVERAGE FOR CITY CLERK & CITY TREASURER Adopted (4.9 600-60) RESOLUTION NO. 26 - 97 APPROVING PARCEL MAP 7042 Adopted (4.10 350-40) RESOLUTION NO. 27 - 97 DECLARING SURPLUS PROPERTY (POLICE (~ARS 7 UNCLAIMED PROPERTY) Approved (4.11 300-40) the Warrant Register in the amount of $454,790.30. Cm. Barnes pulled the March 4, 1997 minutes from the Consent Calendar in order to make a correction. On page 138 related to the discussion on the DSRSD water rates task force, she clarified that she asked that the Citz Council send a letter to DSRSD to form a similar task force to look at sewer rates. On motion of Cm. Barnes, seconded by Cm. Lockhart, and by unanimous vote, the Council approved (4.1) Minutes of Adjourned Regular Meeting (G&O) of February 25, Special Workshop (City Council Disaster Preparedness Training) of March 4, and Regular Meeting of March 4, 1997 (with correction); CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 133 Cm. Burton pulled Item 4. 3 from the Consent Calendar for discussion and stated we have never named a street after someone who's alive. Erlene DeMarcus~ 4543 Mohr A venue~ Pleasanton~ stated she feels very honored for being recognized for all the work she put in on BART but she would be remiss without recognizing Mr. Thompson~ Mehran and Ci& Manager Ambrose. She stated she appreciates this very much. On motion of Cm. Barnes, seconded by Cm. Burton, and by unanimous vote, 'the Council adopted (4.3 820-60) RESOLUTION NO. 28 - 97 APPROVING NEW STREET NAMES 'IRON HORSE PARKWAY~ AND DEMARCUS BOULEVARD' FOR THE ACCESS ROADS TO THE BART PARKING LOT PUBLIC HEARING - PA 96-050 BJ DUBLIN COMMERCIAL PLANNED DEVELOPMENT (PD) DISTRICT REZONE 7:40 p.m. 6.1 (450~30) Mayor Houston opened the public hearing. Community Development Director Peabody stated this was the second reading of a new PD District Rezone Ordinance for the BJ Dublin Commercial site (7.5 + acres), including two City of Dublin remnant parcels. The project is located near the northeast corner of Dublin BOulevard and Dougherty Road. Cmo Burton brought up the acceleration lane going east. Was this incorporated? Will it go through another process. Mr. Peabody stated Staff took note and will evaluate this when they look at the plans for Dublin Boulevard. Mr. Ambrose stated improvements are not part of this project so it would come back to the City Council. No testimony was entered by any member of the public relative to this issue. Mayor Houston closed the public hearing. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 134 On motion of Cm. Burton, seconded by Cm. L°Ckhart, and by unanimous vote, the Council waived the reading and adopted ORDINANCE NO. 7 - 97 AMENDING THE ZONING ORDINANCE TO PERMIT THE RF?ONING OF PROPERTY LOCATED AT THE NORTHEAST CORNER OF DUBLIN BOULEVARD AND DOUGHERTY ROAD (APNs: 941-550-$2 through 60, 941-$§0-10-18 and 12-9) PUBLIC HEARING - PA 96-020 OPUS DEVELOPMENT AGREEMENT 7:d. 2 p.mo ~3.2 (600-60) Mayor Houston opened the public hearing. Community Development Director Peabody presented the Staff Report and stated the proposed Ordinance which was introduced at the March 4, 1997 City Council meeting approves a Development Agreement between the City of Dublin and Alameda County Surplus Property Authority. The DA is required by the Eastern Dublin Specific Plan. Items included in the DA include, but are not limited to, the financing and timing of infrastructure, payment of traffic and public facilities impact fees, oversizing of roads and general provisions. Amendments were made to allow the City Manager to approve° No testimony was entered by any member of the public relative to this issue. Mayor Houston closed the public hearing. On motion of Cm. Lockhart, seconded by Cm. Howard, and by unanimous vote, the Council waived the reading and adopted ORDINANCE NO. 8 - 97 APPROVING THE DEVELOPMENT AGREEMENT FOR PA 96-020, OPUS BUSINESS PARK PROJECT CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 135 PUBLIC HEARING ORDINANCE ESTABLISHING PENALTIES FOR CABLE TV VIOLATIONS 7:44 p.m. 6.3 (1050~20) Mayor Houston opened the public hearing. City Attorney Silver presented the Staff Report and advised that at the City Council meeting of January £ 1, 1997, Staff informed the Council that Government Code Section 53088.2(q) allowed the City to impose penalties for failure to provide CATV services in addition to the $100 per day set forth in the City's franchise agreement with TCI. The Council requested that Staff prepare an ordinance providing for such penalties° Ms. Silver stated a draft ordinance had been prepared which includes the maximum penalties allowed by the state statute. Any penalties paid under the franchise agreement would be credited against penalties under the ordinance. Cm. Burton asked about a material breach, and who will say it is a material breach. Ms. Silver replied that ultimately it will be the Council's decision. Valerie Castelanno with TCI, commented on a letter received by the City Attorney from their inside counsel. Certainly the City is entitled to impose any provisions of an Ordinance. However, there was a lot of time and energy put into the negotiations in the Franchise Agreement. There are usually some tradeoffs that occur in the process. They feel they have a contract with the City. It is most important to them how penalties are applied and what.is a breach. There is generally a notice of a breach and' it would usually be willful. This Ordinance would be applied against TCI at some point in the future. As a contractual matter, they feel the Franchise Agreement would cover them rather than this Ordinance. Bob Fasulkey, 7776 Topaz Circle encouraged the City Council to adopt this Ordinance. He stated he couldn't believe they have a problem with this amount of fine in light of the arrogance they have displayed. Mayor Houston stated he agreed with Mr. Fasulkey. The letter received today exhibited some of the arrogance he thought we had gotten through. He felt there was more of a meeting of the minds. Mr. Baker has worked hard to mend things. He read the letter for the record. Signed by Jonathan K. Cook. "March 18~ 1997Mr. Paul S Ranlcl'n Assistant City Manager/Administrative Services Director City of Dublin 100 Civic Plaza P. O. Box 2340 Dublin~ California 94568 Re: Items No. 6.3 and 6.5 to Agenda Statement for Dublin City Council A4eeting~ dated March CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 136 109 7. Dear Mr. Kanban: I am Counsel to Tele-Vue Systems, Inc., d/b/a TCI-Tri-Valley (~TCI'9. Mr. Tom Baker~ TCFs General Manager~ has provided me with copies of your Agenda Items No. 0.3 and 6. 5~ which I understand are to be considered at the Dublin City Council Meeting this evenin~ March 18~ 1097. I would like to take this opportunity to respond to some of the issues which these Agenda Items raise. First, Item 6.3 provides for the passage of Ordinance providing for the addition ora new Section 3.20. 795 to the Dublin Municipal Code which would effectively alter an4 in some cases raise, the penalties which City of Dublin may assess in the event cfa ~material breach" by TCI of its franchise agreement. Please be advised that TCI strongly believes that the City of Dublin does not have the authority to unilaterally alter the terms of its franchise agreement with TCI. Section 10.3 of TCFs franchise agreement with the Citypro~qdes for the assessment of ~damages not to exceed One Hundred Dollar ($100) per day orper violation, for Grantee ~s individual willful and/or repeated violation of any material provision of the franchise or failure to take corrective action with respect to a violation of any material provision of the franchise." Both the standard for assessing such liquidated damages as well as the potential amount of such damages was a negotiated terra of the parties' contract. Accordingly, it is TCI's view that the negotiated standard for the imposition of such penalties set fo~h in the franchise agreement (willful and/or repeated violation of any material provision rather than mere material breach) as well as the amount of such penalties shall continue in force. With respect to Item 6. ~ the City has put forward an analysis of TCI'S actions with respect to its end of the yearprogramming and changes which concludes that TCI is in non- compliance with FCC Regulation 76.964 and Dublin Municipal Code 3.20.335. Based on this analysis~ the recommendation is made that the City Council impose monetarypenalties. TCI recognizes and has previously apologized for its failure to provide notice to the City. However~ TCI respectfully disagrees with the City's analysis both with respect to its notice to subscribers and the City's right under the franchise agreement to assess monetary penalties. First, FCC Regulation 76.964(b) provides that, "to the extent the operator is required to provide notice of service and rate changes to subscribers, the operator may provide such notice using any reasonable means as its sole discretion." In this case, although TCI would have preferred that its other methods of notice had been more effectivelygiven (i.e. that its newspaper notice had been more informative and that its direct mail piece had been received on time)~ TCI's cross-channel notification on the public access channel~ Channel 30~ was a reasonable means of providing such notice. In addition, please note that the provision of FCC Regulation 76.964(a) which refers to the obligation in notices to subscribers to ~fnform them of their right to file complaints about changes in cable programming service tier rates and services" has been uniformly construed to apply only when either rates or rates and services are being changed This is because there exists in the FCC Regulations a defined complaint procedure for complaints regarding rates. No such procedure for complaints regarding programming changes exists, as such programming changes are acknowledged to be exclusively within the editorial discretion of the operators. Therefore, TCI does not CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING ar ;h 8, PAGE 137 believe that any violation of FCC regulations occurred with respect to its notice to subscribers. Second~ even if such a violation of FCC Regulations did occuG and TCI stron$Iy believes that it did not~ the City is not justified in assessing monetarypenalties against TCI. The assessment of monetary damases is addressed in Section 10.3 of the franchise agreement. Section lO.3(a) clearlyprovides the City with the right to assess such damages only in the event that the followin$ conditions have been met: (1) the City must provide notice by certified mail to the seneral manager of TCI of any violation of a material provision of the franchise; (2) TCI must have failed to commence corrective action within thirty ($0) days of receiving such notice; and ($) TCI's violation must have been willful and/or repeated In this case, none of these conditions have been met. Please note that (1) TCI in any event commenced corrective action (direct mail piece) within $0 days of any notice which might be construed to have been siren regarding allesed non~compliance; and ($) any arguable violation by TCI can in no way be considered to be either willful or repeated Therefore~ the City may not~ under the terms of the franchise agreement assess monetarypenalties in any amount. Thank you very much for your consideration of this matter and for allowin$ me the opportunity to respond to the City's position. Please do not hesitate to contact me directly at (303) 367-4818 with any further concerns or comments which you may have. Very truly yours~ TELE~ VUE SYSTEMS~ INC, d/b/a TCI~ TRI- VALLEY ByJonathan K. Cook Its Counsel" Mayor Houston stated the City received this letter this afternoon. They are not accepting that there is a problem, If they follow the rules and provide good customer service none of this will apply. If they don't, people will come to the City Council meeting. He would support increasing the violation to $1,000 a day. Unless this is taken seriously, we won't get any action. We still do not have a date when the work is to begin on the new system. He is not happy with the letter. Karen Dyer, 6829 Sage Court stated there is no one she had spoken with in this City who is pleased with TCI. We are captive customers and because of this she strongly recommended the passage of this Ordinance. No other business would survive if they provided this type of service. Connie Spence 7385 Hansen Drive stated for years she has been a resident and for years she has been upset that she can't get the Learning Channel and the History Channel. In less than 30 hours she got a lot of signatures when they took A&E off the air. We want better channels and we want better rates. The idea that our rates will go up with such poor channel selection is purely unreasonable. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 135 Ms. Castelanno stated they do not want to appear arrogant by appearing here tonight. There was a lot of time and effort put into the current agreement and in the context of negotiating next year, they could renegotiate this particular provision of the agreement. Mayor Houston stated he felt the past is the past. Mr. Baker has done an outstanding job in working with us and this is preventative measures for the future. We just want to solve the problems. We need to get something on the books as soon as possible and hopefully~ none of this will have to be applied. The City needs a comfort level and we need to make sure that by the end of this year' the service is there. This will solve all the problems. Our experience earlier in the year was so bizarr% no one could have even thought up such a dark comedy. Mayor Houston closed the public hearing. Ms. Silver pointed out a typographical error in the first paragraph of the Ordinance. "The following penalties are hereby established for material breach of video provider services specified in subdivision (a) to (m) of Section... This should read, subdivision (a) to (p) ... Cm. Burton Stated he was in agreement with the Mayor. Only in Paragraph C do we mention the $1,000. Ms. Silver recommended that the City Council leave the dollar amounts written in the Ordinance as they are provided by the Municipal Code. Cm. Burton felt $200 and $100 is not much money for an outfit that serves millions of people. Mayor Houston expressed his extreme frustration and stated he did not know what he would do if they don't comply by January 1 st. Cm. Barnes felt this is where we may need to start. Residents should rest assured that there will not be a reoccurrence. We want to be sure that the citizens of our community are protected. Cm. Burton stated they are going right into people's homes and they have an expectation.. The Council wants to get their attention. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 139 Cm. Lockhart stated her main concern is the big picture in working with TCI. Residents feel trapped that they have no alternatives. She has a real lack of faith in the overall picture and where TCI is coming from. She does not see that we should do anything except the maximum we can accomplish in making TCI hold the line and do what they are supposed to do and do what's right for our community. Cm. Howard expressed her agreement. On motion of Cm. Burton, seconded by Cm. Lockhart, and by unanimous vote, the Council waived the reading and INTRODUCED an Ordinance establishing penalties for breach of video provider services with correction to Paragraph 1 reference to subdivision (a) to (p). PUBLIC HEARING - 1996 ANNUAL REVIEW OF PERFORMANCE BY TCI (CABLE TELEVISION PROVIDER 8:12 p.m. 6.4 (1050-30) Mayor Houston opened the Public hearing. Assistant City Manager Rankin presented the Staff Report and stated in accordance with Council direction in January, Staff prepared a review of services provided by TCI. TCI has a non-exclusive franchise with the City to provide services and at the present time, there is not any other competing cable operator in this market area. Information related to various aspects of cable television services were analyzed including: Statistical Analysis of Subscribership Trends; Information regarding current and proposed rates with comparisons; Customer Service Information; areas of inadequacy related to items not in compliance; information on the status of TCI Plans for a System Upgrade. A separate public hearing will be conducted regarding violations of FCC Regulations, for which the City has already provided TCI with a Notice~ Mr. Rankin discussed the inadequacies found by the performance review. With regard to the rate to be charged to Dublin customers, Mr. Baker indicated in discussions with Staff that the rate had not been determined. He is seeking approval from TCI Management to implement a lower rate. The City has the authority to review and approve equipment rental rates. Although the per channel costs are lower in the systems which offer more programming, the total cost is more than Dublin subscribers currently pay. The combined cost of Limited & Satellite Value in Dublin is proposed to be $24.98, while Livermore and Pleasanton which receive more channels will pay CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 140 $28.66° It is expected that once the system upgrade is completed in Dublin, the total rate for Dublin subscribers will also increase as new programming is added, however, the per channel cost would be expected to .drop significantly. Mr. Rankin stated Mr. Baker met with Staff and provided some explanations regarding. additional factors which contribute to the calculation of the rates. The number of channels provided is only one component of the total rate. Some of the costs associated with cable television operations are allowed to be spread over the rate base on a per subscriber basis. Therefore, if a jurisdiction has a smaller subscriber base, the costs are higher. Mr. Rankin discussed customer service information and the subscriber satisfaction opinion report which was not provided. In summary, Mr. Rankin stated the Council should provide an opportunity for members of the public and TCI to comment on the provision of services. The City Council may wish to include additional items or modify the proposed timing for the correction of the items as stated in the exhibit to the draft Resolution. Further, Staff suggested that the Council concur with the proposal to seek a review of the proposed Equipment Installation and Service/Maintenance Rates. Mro Rankin stated Item 1 "Requirement for submittal of Audited Statement of Franchise Fees Paid" could be deleted as an inadequacy, as the Statement had been provided. The timeframe is up to the City Council to allow a reasonable period of time for the company to respond. They've known since February 5th of the requirement. Mr. Rankin stated in the event the upgrade is not completed by December 3 I, the penalty would be $250 per day for failure to comply. Discussion was held regarding the required $50,000 letter of credit. Thus far, they have provided $5,000. The Council may wish to amend the time to provide the letter of credit from 10 days to 30 days° With regard to rates, Mr. Rankin stated information that appears in the press doesn't always contain all the components. Cm. Burton asked when TCI bought Viacom if we had any oversight with what was going on. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 141 Mr. Rankin explained that we executed the consent and change in control agreement. We felt that with the $50,000 security fund called for in the original agreement and the fact that TCI was required to provide an additional $50,000 letter of credit we felt this protected our interest. They agreed that they would undertake the upgrade. We don't have a schedule on the upgrade and the clock is ticking. They should produce monthly reports that are meaningful with the next report due April 10th. Cm. Burton asked if we felt the upgrade is underway now with what they call construction to require the $50,000. Mr. Rankin stated they indicated they have taken an active roll and in the Spring of 1996 they entered into negotiations for a building. Staff feels they have commenced the upgrade process. Cm. Burton asked about complaints from the public and what justifies going to FCC. Was the petition enough to consider this sufficient to go to FCC? Mr. Rankin stated TCI has proposed a rate change effective June 1, 1997 and he wasn't sure the petition related to rates. We can't do anything until we receive complaints. It would be complaints about the proposed rates. It only applies to rates, not service. Mro Rankin advised that they provided an audit of their franchise fees. On Exhibit 2, 5 issues were listed, Item 1, the Audited Statement of Franchise Fees Paid, they provided the 1996 report on March I4. Item 5, related to the provision of a $50,000 Security Fund should be modified from 10 days to 30 days. Cm. Burton stated he could not state strongly enough that we could have a potentially incompatible system, one that Channel 30 can't use and it could end up down the road that the interconnection wouldn't work in future years. Mayor Houston stated they haven't come forward yet with what they are proposing. It could be a great benefit or a detriment. Tom Baker, TCI General Manager addressed several things that Mr. Rankin spoke about. A letter was sent this afternoon regarding the subscriber satisfaction survey. They will complete this within 90 days. The monthly progress on upgrade construction they fully intend to comply with that provision of the franchise. The security fund they do take exception to whether or not they have started construction. He is as anxious as anyone to begin construction. The rates published in the paper are the maximum allowed. About 60% of Dublin customers will actually get a decrease. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 142 Mayor Houston stated we want timely meaningful reports. When will we find out what type of system they're dealing with? Realistically when can they get some information to the City on when they can commence? Mr. Baker stated a letter had been sent and received from their President. They are still testing in Fremont. They are well aware of their franchise obligations and he is as anxious as the City is to get a course of action. He would be glad to sit down with Staff and review their maps and timelines during the construction process. Mayor Houston stated at some point, it's fish or cut bait. The City will expect timely reports. Bob Fasulkey stated in some cases it appears when you have a company like TCI that owns both the programming and the infrastructure it appears there is a conflict of interest. Maybe we should get another provider to put in the infrastructure. Maybe this would give the citizens more options. He is aware of other cities that own their systems.. This represents a new approach to technology° TCI could lock us out of a competitive environment once their system goes in. Mayor Houston closed the public hearing. Cm. Burton stated he was not aware of how the franchise system is set up. He asked if there is such a thing as a non-exclusive whereby the City could encourage or develop a parallel system. Mr. Ambrose stated yes, if another provider wanted to invest the millions of dollars necessary for infrastructure, they could apply for a franchise with the city. At this point in time, others are not looking specifically in our community. Mr. Rankin stated Pacific Bell has an entity going in as a video cable service provider in San Jose. They have a franchise with the City of San Jose. He did not know the exact design. Cm. Barnes stated she is very upset. The letter received today stating "we had hoped to provide a final answer regarding their plans" upset her. Valuable time was spent by Staff answering phones and dealing with TCI's problems° She did not feel they took this seriously. They want to wait until the next quarter. She does not feel TCI has acted in good faith. She stated she does not intend to cut them one bit of slack. By doing so, we are not serving our citizens well. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 143 Mr. Rankin stated on the issue of monthly reports, obtaining City approval of the proposed design of the Dublin upgrade suggested if they intend to deviate they should bear the cost of review. We would need an outside consultant as Staff does not have the expertise to look at this. Mayor Houston stated he does not want us to be the holdup in getting this done. This black out is bad for them. There's someone who knows when this will occur. If we have to wait until the last minute and then we have to get a consultant to review it, this is bad for everybody. Somebody knows when the review in Fremont will enable them to make a decision. If we have lead time, we can all work together. Cm. Lockhart stated this is a good concern, but we also don't want to get into a situation where we aren't compatible in the long run. Cm. Barnes expressed frustrations over calling TCI and getting a recording. They say you can call and complain, but you don't talk to a human being. She had to leave a message, and then they never call you back. Cm. Lockhart asked if we could continue this until we get an answer. She asked what happens if we delay taking action tonight? Mr. Rankin advised they would be delaying putting them on 30 day notice that they are supposed to do these things. Item 1 should be removed from the exhibit to the Resolution, and Item 5 time be within 30 days and' direct Staff to proceed with a rate review of equipment rates. On motion of Cm. Barnes, seconded by Cm. Lockhart, and by unanimous vote, the Council adopted RESOLUIION NO. 29 - 97' CONTAINING A REPORT OF SYSTEM PERFORI~ANCE, QUALITY OF SERVICE AND NOTED INADEQUACIES/VIOLATIONS (TCI CABLE TELEVISION PROVIDER) and directed Staff to proceed with a rate review of the Equipment Rates (FCC Form 1205) proposed to be implemented in June of 1997. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING I~arch 18, 1997 PAGE 144 PUBLIC HEARING - CONSIDERATION OF FRANCHISE VIOLATION BY TCI (CABLE TELEVISION PROVIDER) - (NON-COMPLIANCE WITH REQUIREMENT TO NOTIFY SUBSCRIBERS AND CITY OF CHANGES IN SERVICES) 8:55 p.m. 6.5 (1050-30) Mayor Houston opened the public hearing. Staff advised that in preparing the review of the performance of TCI, it was noted that FCC Regulations were violated by TCI. The company made changes to programming without granting proper notice to the City and Subscribers. In order to address violations such as this, a public hearing must be conducted to consider all of the evidence. Mr. Rankin stated after the public hearing, the Council should determine whether the violation was excusable. If the Council cannot make this determination, the violation is deemed inexcusable, and the Council must determine the amount of any penalty to be assessed and review the draft Resolution and make any desired changes to reflect information gathered at the public hearing. Given that TCI has been the franchise operator for less than one year and this is the first violation which could not be corrected, Staff did not recommend undertaking the process required to effect a ~ revocation of the franchise. However, it is important that the public record reflect that TCI has been found in non-compliance of FCC Regulation 76.964 and the Dublin Municipal Code 3.20.335 requiring compliance with FCC Regulations. Mr. Rankin advised that in the event penalties are assessed, they would be General Fund revenues and may offset a portion of the Staff and City Attorney costs incurred with the review of this matter. Cm. Burton referenced page 3 of the Staff Report regarding the importance of leverage in future requests for renewal. We are establishing evidence and a precedent of their failure to meet their responsibilities. The idea is that it is on the record and it starts the process. Cm. Barnes asked how many times you have to print public notices and also how much a notice like this costs° Mr. Rankin stated they could find no reference to a requirement to publish more than one notice. The cost was $45.12 to publish it in one newspaper in our region. Tom Baker stated if they had to do this over again they would do it in a much different way. They recognize what they did was inadequate. The letter from Mr. Cook outlines some very specific legal language. They have a franchise document which says what CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 145 fines can be imposed for; Was the action willful? No Was it repeated? No If they did this again there is no question that they should be fined. Have any correction actions within 30 days been taken? They did take corrective action by putting A&E back on. They listened to what people were telling them. The $200 is not the issue; it's the principle of the proposed action. George Zika, 8046 Peppertree Road stated he wasn't sure of the legal ramifications. When we write the new franchise agreement we should tighten it up and specify how much and how often. We may have lost this round, but we can make sure it doesn't happen again. He stated his reception is often like having rabbit ears in the old days. He would also like to see something put into the franchise agreement as to when we will get this new capacity and channels. Karen Dyer stated she felt no one in the City could say this violation could be found excusable. A1 Hunter, 7994 Jade Circle stated many years ago he was with customer service support for a monopoly. Some of the things they used to use were, "you didn't send us the right letter; it wasn't certified; etc." If the City Council accepts this, this is a travesty. When you used to call up Viacom, we didn't have these problems. To accept an excuse that it wasn't an acceptable certified letter; this is ridiculous. If he was with customer service with TCI, he would write the $200 check out of his own checkbook. Mayor Houston closed the public hearing. Cm. Barnes stated back in January, Mr. Baker stated no notice had appeared because he thought he could get it changed. It took us a long time to get our cards. She felt $200 is a mere drop in the bucket. We should adopt the Resolution stating they were in non-compliance° Cm. Lockhart felt there is no way to convince them that not getting a certified letter balances out what has happened in our community. She is concerned with the principle behind the finding. No only did the ad not do the job, but the notice was very deceptive. They did not strengthen their programming by adding popular programming. It's not for the dollar amount, but in the future so there could be a record. She could personally accept their apology, but what the Staff, community and City Council went through is a problem. Cm. Burton stated he was in total agreement. It has been a soft shoe act and there is an ignorance of how serious this is to the citizens in Dublin. Hopefully this will get the attention of corporate. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING Ilarch 18, 19§7 PAGE 146 Mayor Houston stated he would make a motion to find the violation inexcusable and the penalty is $200 and it should go to the Kaleidoscope Activity Center. If it can't go directly to them and it goes to the City it will then go to Kaleidoscope just to show it's not the money. On motion of Mayor Houston, seconded by Cm. Lockhart, and by unanimous vote, the Council adopted RESOLUIION NO. 30 - 97 FINDING ICI IN NON-COMPLIANCE WITH FCC REGULATION 76.964 (REQUIREMENT TO NOTIFY SUBSCRIBERS AND CITY OF CHANGES IN SERVICES); AND DUBLIN MUNICIPAL CODE 3.20.335 (REQUIRING COMPLIANCE WITH FCC REGULATIONS); AND FRANCHISE AGREEMENT SECTION 10.1 (REQUIRING COMPLIANCE WITH LAws) INITIATION OF A GENERAL PLAN AMENDMENT STUDY FOR A VACANT 2.4 + ACRE SITE LOCATED ON STARWARD DRIVE 9:17 p.m. 8.1 (420~30) Community Development Director Peabody presented the Staff Report and advised that a request has been received from the DeSilva Group for initiation of a General Plan Amendment Study for a vacant parcel located on Starward Drive behind the Shamrock Village Shopping Center to change the General Plan designation from Retail Office to Medium High Density Residential (14.1 ~ 25.0 units per acre). Cm. Barnes asked if this is the spot that has the Christmas tree lot each year. Staff responded yes. Cm. Burton asked if the office building across the street is included in this. Mro Ambrose stated no the building owned by Mr. Verdusco is not included. Joe Casinza and Jim Summers stated they have worked with Staff and feel comfortable that they can provide information once the study goes forward. Cm. Burton stated every commercial real estate firm in Dublin and San Ramon has tried to put this together for commercial.. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 147 On motion of Cm. Burton, seconded by Cm. Lockhart, and by unanimous vote, the Council adopted RESOLUTION NO. 31 - 97 INITIATING A GENERAL PLAN AMENDMENT STUDY FOR THE DESlLVA GROUP CIVIC CENTER MODIFICATION DESIGN SERVICES 9:23 p.m. 8.2 (200~30) Economic Development Manager Reuel presented the Staff Report and advised that the Dublin Civic Center was completed in 1989 with a total space of 52,000 square feet. City departments and public meeting space occupy 47,422 square feet at the Civic Center, leaving approximately 4,500 square feet vacant. Although the building was sized for growth of City Staff capable of serving a population of 40,000 in the Year 2005, as a cost saving measure, expansion areas were constructed without interior improvements. A new programming study needs to be completed to evaluate 1997 space needs and to provide space planning of existing and vacant areas of the Civic Center that will accommodate these needs. Mr. Reuel advised that funds were appropriated in the 1996 CIP in the amount of $25,000 for the hiring of an architect to conduct a space planning assessment and to develop preliminary designs and costs to modify the Civic Center. Upon completion of this study, Staff will be prepared to present a cost estimate for the tenant improvement construction modification needs. A separate design contract would be requested at a later date to prepare working drawings and bid specifications. Cm. Burton asked how long Staff estimated the 4,500 feet will last? Mr. Ambrose stated this is the purpose of the review. Some issues have occurred operationally with Police and locker areas to accommodate additional police officers that come on board. We had not planned to assimilate DR.FA inspectors and a Fire Marshal position into the Civic Center. On the lower floor we are pretty much maxed out. Fire services will bring in a requirement for 3 additional work spaces. Cm. Burton commented on the exercise room possibly being relocated. Mro Ambrose stated this had been discussed and it might be a cost effective alternative° CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 148 On motion of Cm. Lockhart, seconded by Cm. Burton, and by unanimous vote, the Council authorized Staff to issue a Request for Qualification for design services. OTHER BUSINESS 9:26 porn. Upcoming Meetings (610-10) Mr. Ambrose discussed the joint Planning Commission/City Council study session on April 1 to review the Zoning Ordinance. He asked if this meeting goes forward, if 5:30 p.m., would be an acceptable starting time. Cmo Howard indicated she may not be at that meeting due to eye surgery. Cmo Barnes stated she would not be able to be here until 7 p.m. Mr. Ambrose stated the next available date will be May 6. The City Council selected this date for the study session. The meeting will start at 5:30 p.m. St. Patrick's Day Festivities (950-40) Cm. Lockhart thanked the Lions Club for all their hard work on the parade. One big complaint has to do with those darn vendors going up and down the parade route. If we do a review for next year we might find out if they really belong out there. It was dangerous. A1 Hunter stated it was annoying watching the parade coverage on Channel 30, because every time you turned around, you would see them. Cm. Burton felt at a minimum they should or could work the route before the parade starts. Cm. Lockhart stated she felt they could rent a booth like everyone else if they want to sell. Cm. Barnes gave a big thanks to the Lions Club and the City Recreation people for a wonderful day on Saturday and stated she also felt the green lights on the Civic Center are great. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 149 Earthquake Insurance (520-30) Cm. Lockhart commented on a letter received from Liz Figueroa related to a California Earthquake insurance seminar on March 27, at Cai State Hayward. The meeting begins at 6 p.m., and she stated she will attend. ABAG General Assembly Meeting (I 10-30) Cm. Lockhart questioned if anyone Planned to attend the ABAG General Assembly meeting. She asked who typically goes to this and who votes. Cm. Barnes, the City's delegate to ABAG indicated she would be unable to attend. Cm. Lockhart stated she would be the alternate and would attend. DSRSD Task Force Report on Water Services (1000-20) Cm. Lockhart reported that as the City Councilmember on the water task force, they have completed their project and there are a variety of opinions on the report. She feels comfortable with the 13 recommendations made to DSRSD. They are being heard by the Board tonight. She stated she was concerned over the newspaper article saying the task force was slamming DSRSD by their recommendations. This was inappropriate. She has the utmost respect for-DSRSD's ability to open their books and answer questions, etc. They did not try to dodge any questions. The results are we will all see a difference in their operating procedures and rates. She commended those involved. They did a good job. Mape Memorial Park Reopening Ceremony (950-40) Cm. Barnes thanked viewers when she asked for help to locate any members of the Mape family° It got very complicated, but her husband was playing on the computer and he found a Mape family member last Sunday in Reno and she spoke with her on the telephone° Two children live in Sonora and 1 lives in San Leandro and they are just waiting to hear from us. One person indicated they have a lot of old photos that she will send. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 1§0 Stolen Bicycle (580-10) Cm. Barnes reported that an 11 year old took his bike to Wells last Friday night and the bike was stolen. This is their only means of transportation. He has no parents but is being raised by his 21 year old sister. She hopes everybody is aware of what is going on in the community. This is so upsetting. Chief Thuman stated they had heard about this and what they propose is to approach the Alameda County Deputy Sheriff's AsSociation and ask that they make a donation and procure a bike for this young man. Cm. Barnes thanked Chief Thuman and stated they did file a police report. St. Patrick's Day Festivities (950-40) Mayor Houston stated he understood there is some type of review process after the parade each year. Mr. Ambro~se confirmed that Police, Public Works, the Lions Club and Recreation Department talk about what we did right and what can be improved. Cm. Barnes stated one of the nicest things was to start the day with the firefighters having their pancake breakfast. She stated she hopes they will start the parade next year at 10:00 a.m., instead of 9:30 a.m. Mayor Houston stated he would like to see Parks & Community Services have a liaison committee work on getting more music, more dancers, and more bag pipers going on in the parade. Many may be feasible and some may not be as practical. He would like to see the Recreation Department work with the Lions~ He was Principal today for Frederiksen School and he asked all the kids if they would rather decorate a vehicle and ride in it in the parade, or walk and they all said they would rather ride. This would be worthwhile for all the parties involved to start working on right now. Al Hunter stated he is on the Board of Directors for the Lions Club. The parade is growing each year which is great. The one Frederiksen float, his wife worked all week on. He agreed that he would like to see more of this. In order to get a school band out there, you have to pay them. They try to keep costs down. Vendors did not go past them so they may have just showed up and took advantage of the situation. They would be happy to work with Parks & Recreation. He would like to see more of the CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 151 kids and schools get involved. Maybe if we work with the School Board there could be 12 or 14 floats next year. Mayor Houston stated a person he met after the parade stated his home office is in Dublin, Ohio. For the parade route, they paint the street green. We would like to have more people come to our City to see what we have to offer. Maybe we should consider doing something like this. Mayor/Principal for the Day (515-10) Mayor Houston stated it was a lot of fun being Principal for the Day. The kids in one of the classes asked him if he always wears such funny clothes, meaning his suit and tie. He told them how he hurt his finger badly and they asked why he had his finger painted° School District Liaison Meeting (610~ 10) Mayor Houston stated a liaison meeting date was needed to meet with the School District. He and Cm. Lockhart are on the liaison committee. He suggested that Staff try to put something together on March 25 or 26, at 4 p.m. Fire Service (540~ 10) Cm. Burton reported that he had a fire on Sunday in a rental house in Pleasanton. The firefighters very carefully protected the furniture. It was remarkable how they were able to stop the fire and protect the furniture. He offered his congratulations to the Fire Department and the cooperation. They had a critique right on the site. Good job and good attitude and cooperation. Goals & Objectives Meeting (100-80) Mayor Houston stated when the Council did the G&O rankings, the capital improvements weren't really ranked. He got a follow up telephone call about ranking the different projects. The issue of the skate park came up and in looking at some of the other projects, he felt that at least the idea of the skate park should be looked at. CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 152 He was dismayed to learn that he was the only one to give it a high prioritY° It came back as a low priority. He would like to see it come back on a future agenda. Cm. Barnes stated one of the major topics at an upcoming League meeting will be skate parks. She stated she will bring back information. Mr. Ambrose stated he thought the P&CS Commission already have this on their next agenda. It will be put on a future City Council agenda for clarification. Mape Memorial Park Renovation (1300-30) Mayor Houston stated he would like a status on the Mape Park renovation at the next meeting. CLOSED SESSION 10.1 (t340-30) At 9:52 p.m., the Council recessed to a closed session to conference with Legal Counsel ~ existing litigation pursuant to Government Code Section 549513.9 subdivision (a): City of Dublin vs. Woolverton, et al., Alameda County Superior Court Case No. V~ 009571-4. No action was taken in the Closed Session. ADJOURNMENT There being no further business to come before the Council, the meeting was adjourned at 10:00 p.m. ATTEST: CITY COUNCIL MINUTES VOLUME 16 REGULAR MEETING March 18, 1997 PAGE 153