Corte Madera Municipal Code Ch. 5.08 Catv Franchise

(a) A nonexclusive franchise to construct, operate and maintain a community antenna television system within all or any portion of the town may be granted by the town council to any person, firm or corporation, whether operating under an existing franchise or not, who or which offers to furnish and provide such system under and pursuant to the terms and provisions of this chapter.

(b) No provision of the chapter shall be deemed or construed so as to require the granting of a franchise when, in the opinion of the council, it is in the public interest to restrict the number of grantees to one or more.

(Ord. 433 § 1, 1976)

For the purposes of this chapter, the following terms, phrases, words, abbreviations and their derivations shall have the meanings given herein:

(1) "CATV" means a community antenna television system as hereinafter defined.

(2) "Community antenna television system" means a system of antenna, coaxial cables, wires, wave guides, or other conductors, equipment or facilities designed, constructed or used for the purpose of providing television or FM radio service by cable or through its facilities as herein contemplated. To the extent that the Federal Communications Commission has preempted the same, CATV does not mean or include the transmission of any special program or event for which a separate and distinct charge is made to the subscriber in the manner commonly known and referred to as "pay television."

(3) "Franchise" means and includes any authorization granted under this chapter in terms of a franchise, privilege, permit, license or otherwise, to construct, operate and maintain a CATV system in the town. Any such authorization in whatever term granted, does not mean or include any license or permit required for the privilege of transacting and carrying on a business within the town in accordance with the business license regulations of the town.

(4) "Grantee" means the person, firm or corporation to whom or which a franchise, as hereinabove defined, is granted by the council under this chapter, and the lawful successor, transferee or assignee of such person, firm or corporation.

(5) "Gross subscriber receipts" is the basis for computing the franchise fee and is meant to include gross revenues from all cable services, including revenues derived from the supplying of regular subscriber service, installation, disconnection, reconnection and relocation charges, as well as revenues derived from per-program or per-channel charges, leased-channel revenues, advertising revenues, and any other income derived from the system.

(6) "Property of the grantee" means all property owned, installed or used by a grantee in the town under the authority of a franchise granted pursuant to this chapter.

(7) "Street" means the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway or drive, now or thereafter existing as such within the town.

(8) "Subscriber" means any person or entity receiving or entitled to receive the CATV service of a grantee.

(9) "Town" means the town of Corte Madera.

(Ord. 662 § 1, 1978; Ord. 433 § 2, 1976)

(a) Any nonexclusive franchise granted pursuant to the provisions of this chapter shall authorize and permit the grantee to engage in the business of operating and providing a CATV system in the town, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street such poles, wires, cable conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the CATV system, except as otherwise may be required by the provisions of this chapter, with specific reference to Section 5.08.090, and in addition, so to use, operate and provide similar facilities or properties rented or leased from other persons, firms or corporations including, but not limited to, any public utility or other grantee franchised or permitted to do business in the town.

(b) The grantee may make a charge to subscribers for installation and connection to its CATV system, and a fixed monthly charge as filed and approved as provided in this chapter, to the end that the grantee shall be allowed a reasonable profit.

(c) No increase in the rates and charges to subscribers, as set forth in the schedule filed and approved with grantee's application, may be made without the prior approval of the council expressed by resolution. At the time of the franchise review provided for in Section 5.08.280, the council shall have the right to require the reduction of the monthly subscription charge to subscribers when, after a rate-analysis study is made of operations within the town, it appears that such reduction is justified. Such rate-analysis study shall be performed by an independent qualified person or firm designated by the town and paid for by the grantee.

(d) No permission or license is given to enter private property without the express consent of the owner or the agent in possession thereof.

(e) The grantee shall carry on its operations in a good, ethical and businesslike manner at all times.

(Ord. 433 § 3, 1976)

No franchise granted by the town council under this chapter shall be for a term longer than fifteen years following the date of acceptance of such franchise by the grantee, or the renewal thereof. Any such franchise granted hereunder may be terminated prior to its date of expiration by the town council in the event that said council, after notice of any proposed termination and public hearing, finds that:

(1) The grantee has failed to comply with any provision of this chapter, or has, by act or omission, violated any material term or condition of any franchise or permit issued hereunder; or

(2) Any provision of this chapter has become invalid or unenforceable, and the council further finds that such provision constituted a consideration material to the granting of such franchise. However, the grantee shall be given at least thirty days' notice of any proposed termination proceedings, by mail to the last known address of the grantee;

(3) The town acquires the CATV system property of the grantee; or

(4) The grantee has failed to provide adequate service under the terms of this chapter or any condition of the franchise.

(Ord. 433 § 4, 1976)

(a) Any grantee granted a franchise under this chapter shall pay to the town, during the life of such franchise and at times hereinafter specified, a sum equal to three percent of the monthly total gross subscriber receipts of the grantee, or such other sum as the town council may establish from time to time. Such payment by the grantee to the town shall be in lieu of any occupation tax, license tax or similar levy, but shall not excuse the grantee from obtaining the business license or other permit required by law. Payment by the grantee to the town shall be made monthly, or as otherwise provided in the grantee's franchise, by delivery of the same to the town clerk.

(b) The grantee shall file with the town, within thirty days after the expiration of each calendar year or portion thereof during which the franchise is in force, a financial statement prepared by a certified public accountant showing in detail the total gross subscriber receipts, as defined herein, of the grantee, its successors or assigns, during the preceding calendar year or portion thereof. It shall be the duty of grantee to pay to the town, within fifteen days after the time for filing such statement, any unpaid balance for the calendar year covered by such statement. In any month, or portion thereof, commencing with the beginning of the first year following the effective date of the franchise, during which payments under this section amount to less than one hundred dollars per month, grantee shall pay the town as a minimum an amount equal to one hundred dollars per month.

(c) The town shall have the right to inspect the grantee's books, records and accounts showing the gross subscriber receipts from which its franchise payments are computed, and the right of audit and recomputation of any and all amounts paid under this chapter. No acceptance of any payment shall be construed as a release or as an accord and satisfaction of any claim the town may have for further or additional sums payable under this chapter, or for the performance of any other obligation hereunder.

(d) In the event of any holding over after expiration or other termination of any franchise granted hereunder, without the consent of the town, the grantee shall pay to the town reasonable damages as may be provided by law, the same to be in addition to any other legal remedies the town may have.

(Ord. 433 § 5, 1976)

(a) Any franchise granted under this chapter shall be nonexclusive.

(b) No privilege or exemption shall be granted or conferred by any franchise granted under this chapter except as specifically prescribed herein.

(c) Any privilege claimed under such franchise by the grantee in any street or other public property, shall be subordinate to any prior lawful occupancy of the streets or other public property, and shall be in conformance with Section 53066 of the California Government Code and other applicable provisions of law.

(d) Any such franchise shall be a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation or otherwise, without the prior consent of the council expressed by resolution, and then only under such conditions as may be therein prescribed. Any such transfer or assignment shall be made only by an instrument in writing, a duly executed copy of which shall be filed in the office of the town clerk within thirty days after any such transfer or assignment. The proposed assignee must show financial responsibility and must agree to comply with the provisions of this chapter and all conditions and requirements of the franchise being transferred. No such consent shall be required for a transfer in trust, mortgage or other hypothecation as a whole, to secure an indebtedness. The council may impose a fee of two thousand dollars to cover all expenses of the town incurred in investigating the financial status and ability of the proposed transferee. It is the intention of the town council to prevent the peddling of any franchise issued pursuant to this chapter after the award thereof. No consent to the transfer of such franchise shall be granted by the council unless it is shown to the satisfaction of the town council that the grantee has in good faith proceeded to install the CATV system, and that only unusual or extraordinary circumstances prevent the grantee from operating the system, or that other satisfactory reason exists for such transfer. Where a grantee of a franchise seeks the consent of the council to a transfer of the franchise prior to the installation of a substantial portion of the system, the council may, at its discretion, refuse to consent to such transfer, and it may award a new franchise in the same manner as the original franchise was issued. The consents provided for herein shall not be unreasonably withheld.

(e) Time shall be of the essence of any franchise granted hereunder. The grantee shall not be relieved of his obligation to comply promptly with any of the provisions of this chapter by any failure of the town to enforce prompt compliance.

(f) Any right or power in, or duty impressed upon, any officer, employee, department or board of the town shall be subject to transfer by the town to any other officer, employee, department or board of the town.

(g) The grantee shall have no recourse whatsoever against the town for any loss, cost, expense or damage arising out of or relating to any provision or requirement of this chapter, or of any franchise issued hereunder or because of its enforcement.

(h) Any such franchise granted shall not relieve the grantee of any obligation involved in obtaining pole space from any department of the town, utility company or from others maintaining poles in streets.

(i) As between the grantee and the town, any and all construction, operation and maintenance by any CATV grantee in the town shall be deemed and construed to be under and pursuant to the franchise and not under or pursuant to any other right, privilege, power, immunity or authority of the town.

(Ord. 433 § 6, 1976)

(a) Nothing in this chapter shall be deemed or construed to impair or affect, in any way, to any extent, the right of the town to acquire the property of the grantee, either by purchase or through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted. Nothing contained in this chapter shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the town's right of eminent domain.

(b) Neither the granting of any franchise under this chapter, nor any provision contained herein, shall be construed to prevent the town from granting any identical or similar franchise to any other person, firm or corporation, within all or any portion of the town.

(c) Neither the granting of any franchise or any provision hereof shall constitute a waiver or bar to the exercise of any governmental right or power of the town heretofore or hereafter enacted or established.

(d) The council may do all things which are necessary and convenient in the exercise of its jurisdiction under this chapter, and may determine any question of fact which may arise during the existence of any franchise granted hereunder. The town manager is authorized and empowered to adjust, settle or compromise any controversy or charge arising from the operations of any grantee under this chapter, either on behalf of the town, the grantee or any subscriber. Either the grantee or any member of the public who may be dissatisfied with the decision of the town manager may appeal the matter to the council for hearing and determination. The council may accept, reject of modify the decision of the town manager, and may adjust, settle or compromise any controversy arising from the operation of any grantee or from any provision of this chapter.

(e) There is reserved to the town the power to amend any part of this chapter so as to require additional or greater standards of construction, operation or maintenance, to conform to then-current standards. The grantee shall thereupon comply with such amendment as the council shall direct.

(f) In connection with the issuance of any franchise hereunder, the town council may impose such reasonable restrictions, conditions and limitations as to the area or areas of the town to be served by the franchise holder, operating conditions and cooperative working arrangements relative to local television broadcasting stations servicing the town with the best possible television reception.

(Ord. 433 § 7, 1976)

(a) Within sixty days after the acceptance of any franchise, the grantee shall have completed all applications to obtain all necessary permits and authorizations which are required in the conduct of its business, including but not limited to any utility joint-use attachment agreements, microwave-carrier licenses, and any other permits, licenses and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of CATV systems, or their associated microwave transmission facilities.

(b) The grantee shall, within three months after the effective date of the franchise agreement, prepare and submit to the town council for approval plans and specifications for the installation of the system.

(c) The grantee shall complete the installation of all trunk and distribution lines within a period of one year following approval by the town council of the plans and specifications.

(d) The grantee shall connect lateral lines to homes desiring service as it proceeds with construction. Such service shall be furnished within thirty days following the availability of such service.

(e) Within ninety days after obtaining all necessary permits, licenses and authorizations, the grantee shall commence construction and installation of the CATV system.

(f) Within ninety days after the commencement of construction and installation of the system, the grantee shall proceed to render service to subscribers, and the completion of the construction and installation shall be pursued with reasonable diligence thereafter, so that service to all areas designated on the map accompanying the application for franchise shall be provided within one year from the date that service was first provided.

(g) Failure on the part of the grantee to commence and diligently pursue each of the foregoing requirements and to complete each of the matters set forth herein shall be grounds for termination of such franchise. However, the council, in its discretion, may extend the time for the commencement and completion of construction and installation for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond his control.

(h) For systems already constructed, the grantee must have accomplished significant construction and have equitably extended energized trunk-cable to substantially serve all of the franchise area.

(Ord. 433 § 8, 1976)

(a) Any poles, wires, cable lines, conduits or other properties of the grantee to be constructed or installed in streets, shall be so constructed or installed only at such locations and in such manner as shall be approved by the town engineer acting in the exercise of his reasonable discretion. The council may, in its discretion, require that all community antenna television lines and amplifiers be placed beneath the surface of the ground, provided that cost thereof is reflected in subscriber rates, to the end that the grantee is not deprived of its right to a reasonable profit.

(b) The grantee shall not, without first obtaining the written approval of the town manager, install or erect any facilities or apparatus in or on other public property, places or rights-of-way, or within any privately owned area within the town which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the town, except those installed or erected upon public utility facilities now existing.

(c) In those areas and portions of the town where the transmission or distribution facilities of the public utilities providing telephone and electric service are underground or hereafter may be placed underground, then the grantee shall immediately construct or reconstruct, operate, relocate and maintain all of its transmission and distribution facilities underground, except that for new structures, the builder or developer will provide and install at his sole cost and expense to the grantee's current specifications, trenches for underground distribution, service laterals, service-drop trenches to the buildings' point of entry, backfill and restoration of trench area, conduits, vaults, pedestals and internal wiring. The grantee's amplifiers and essential connections thereto may be in appropriate housing above the surface of the ground, as approved by the town engineer. The town shall not in any manner be responsible for any costs incurred by the grantee in placing this property underground.

(d) To insure that cable television service is available under these provisions, the builder or developer will provide the town with plans for inclusion of cable television service with his plans for utilities, including telephone, electrical and gas service prior to obtaining a town building permit. The builder or developer will also include proof that a contractual agreement exists between the builder or developer and the grantee, which is consistent with the provisions of this section.

(e) Provided the contractor or developer has fulfilled his contractual commitments to the grantee, the grantee shall make cable television service available to such new structure or structures when ready for occupancy, unless the time for compliance is otherwise extended by the town manager.

(Ord. 433 § 9, 1976)

(a) In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of six months, or in the event such system or property or any part thereof has been installed without complying with the requirements of its franchise, or the franchise has been terminated, canceled or has expired, the grantee, upon being given notice, shall promptly commence and diligently pursue to conclusion within not more than six months the removal of all such property and poles of such system other than any which the town manager permits to be abandoned in such place. In the event of any such removal, the grantee shall promptly restore the area from which such property has been removed to a condition satisfactory to the town engineer.

(b) Any property of the grantee remaining in place after the time provided in subsection (a) above shall be deemed permanently abandoned, at the option of the town manager.

(c) Any property of the grantee to be abandoned in place shall be abandoned in such manner as the town manager prescribes. Upon permanent abandonment of the property of the grantee in place, and upon acceptance thereof by the town, the property shall become that of the town, and the grantee shall submit to the town manager an instrument in writing, to be approved by the town attorney, transferring to the town ownership of such property.

(Ord. 433 § 10, 1976)

The grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place, any property of the grantee when required by the town manager by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, waterpipes, power or signal lines, tracks or any other type of structures or improvements by public agencies when acting in a governmental or proprietary capacity, or any other structures or public improvements. The grantee shall in all such cases have the privileges and be subject to the obligation to abandon any property of the grantee in place, as provided in Section 5.08.100.

(Ord. 433 § 11, 1976)

Upon failure of the grantee to commence, diligently pursue or complete any work required by law, by the provisions of this chapter or by its franchise to be done in any street or other public place, within the time prescribed, and to the satisfaction of the town manager, the town manager may, after written notice, at his option, cause such work to be done, and the grantee shall forthwith pay to the town the cost thereof in the itemized amounts reported by the town manager to the grantee within thirty days after the receipt of such itemized report.

(Ord. 433 § 12, 1976)

The grantee shall at all times during the term of any franchise granted under this chapter, at its own cost and expense, properly and in a good and workmanlike manner, install and maintain adequate shielding, filtering and grounding at affected installations within the CATV system to eliminate television interference encountered from fundamental frequency overload by radio amateur transmissions which are in compliance with Federal Communications Commission regulations.

(Ord. 433 § 13, 1976)

(a) The grantee shall, concurrently with the filing and acceptance of award of any franchise granted under this chapter, file with the town clerk and at all times thereafter maintain in full force and effect for the term of such franchise or any renewal thereof, at grantee's sole expense, a corporate surety bond in an amount to be determined by the town council, with and in a form approved by the town attorney, renewable annually, conditioned upon the faithful performance of grantee, and upon the further condition that in the event the grantee fails to comply with any one or more of the provisions of this chapter, or of any franchise issued to the grantee hereunder, there is recoverable jointly and severally from the principal and surety of such bond any damages or loss suffered by the town as a result thereof, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee as prescribed hereby which may be in default, plus a reasonable allowance for attorney's fees and costs, which condition shall be a continuing obligation for the duration of such franchise and any renewal thereof and thereafter until the grantee has liquidated all of its obligations with the town that may have arisen from the acceptance of the franchise, renewal by the grantee or from its exercise of any privilege therein granted. The bond shall provide that thirty days' prior written notice of intention not to renew, cancellation or material change is given to the town.

(b) Neither the provisions of this section, nor any bond accepted by the town pursuant hereto, nor any damages recovered by the town thereunder, shall be construed to excuse faithful performance by the grantee or limit the liability of the grantee under any franchise issued under this chapter or for damages, either to the full amount of the bond or otherwise.

(Ord. 433 § 14, 1976)

(a) The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the town and file with the town clerk, and at all times during the existence of any franchise granted hereunder, maintain in full force and effect, at its own cost and expense, a general comprehensive liability insurance policy, in protection of the town, its officers, boards, commissions, agents and employees, with a company and in a form satisfactory to the town attorney protecting the town and all persons against liability for loss or damage for personal injury, death, defamation and property damage, occasioned by the operations of the grantee under such franchise, with minimum liability limits of three hundred thousand dollars for personal injury, death or defamation of any one person, five hundred thousand dollars for personal injury, death or defamation of two or more persons in any one occurrence, and fifty thousand dollars for damage to property resulting from any one occurrence.

(c) The policies mentioned in subsection (a) of this section shall name the town, its officers, boards, commissions, agents and employees as additional insureds, and shall contain a provision that a written notice of cancellation, termination, or reduction in coverage of such policy shall be delivered to the town at least thirty days in advance of the effective date thereof. If such insurance is provided by a policy which also covers the grantee or any other entity or person other than those named above, then such policy shall contain the standard cross-liability endorsement.

(d) No franchise granted under this chapter shall be effective unless and until each of the foregoing policies of insurance as required in this section has been delivered to the town, but failure to deliver the same shall not relieve the grantee from any duty or obligation hereunder.

(Ord. 433 § 15, 1976)

(a) At all reasonable times the grantee shall permit any duly authorized representative of the town to examine all property of the grantee, together with any appurtenant property of the grantee situated within or without the town, and to examine and transcribe any and all maps and other records kept or maintained by the grantee, or under its control, which deal with the operations, affairs, transactions or property of the grantee with respect to its franchise. If any such maps or records are not kept in the town, or upon reasonable request not made available in the town, and if the council determines that an examination thereof is necessary or appropriate, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by the grantee.

(b) The grantee shall prepare and furnish to the town manager and the town clerk at the time and in the form prescribed by either of said officers, such reports with respect to its operations, affairs, transactions or property as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the town or any of its officers, in connection with the franchise.

(c) The grantee shall at all times make and keep available to the town full and complete plans and records showing the exact location of all CATV system equipment installed or in use in streets and other public places in the town.

(Ord. 433 § 16, 1976)

(a) The CATV system shall be installed and maintained in accordance with the highest and best-applicable accepted standards of the industry and the Federal Communications Commission, to the effect that subscribers at all times receive the highest possible service.

(b) In the event unresolved complaints or other evidence under such circumstances as the town has reasonable grounds to believe that tests should be performed concerning the standard or quality of the services rendered, the town may engage the services of a qualified consultant at the expense of the grantee. The report of the consultant shall be binding upon the town, the subscriber and the grantee. The grantee shall promptly comply with all recommendations of the consultant.

(Ord. 433 § 17, 1976)

When not otherwise prescribed in this chapter, all matters herein required to be filed with the town shall be filed with the town clerk.

(Ord. 433 § 18(a), 1976)

The grantee shall pay to the town a sum of money sufficient to reimburse it for all publication and reasonable administrative expenses incurred by it in connection with the granting of a franchise pursuant to the provisions of this chapter. Such payment shall be made to the town clerk within thirty days after the town furnishes the grantee with a written statement of such expenses.

(Ord. 433 § 18(b), 1976)

No person, firm or corporation in the existing service area of the grantee shall be refused service. However, the grantee shall not be required to provide service to any subscriber who does not pay the applicable connection fee or monthly service charge.

(Ord. 433 § 18(c), 1976)

The franchise holder shall not engage in the business of selling television or other receivers which make use of signals transmitted by the franchised system, nor engage in the repair of such receivers or sale of parts for the same.

(Ord. 433 § 18(d), 1976)

Any modification of the provisions of Section 76.31 of the Rules and Regulations of the Federal Communications Commission resulting from legally binding amendments by the Federal Communications Commission shall be incorporated into the franchise within one year, or sooner, of adoption or at the time of franchise renewal, whichever occurs first.

(Ord. 433 § 18(g), 1976)

In the event the Public Utilities Commission of the state of California or the Federal Communications Commission asserts sole jurisdiction over the operations and rates of the grantee, the authority of the town to approve rates and charges shall cease.

(Ord. 433 § 18(f), 1976)

If the grantee should fail to operate its system for a period of two years from the date such service begins, the subscribers who have paid installation charges shall be entitled to a refund of the installation charges less one-twenty-fourth of each charge for each month elapsing from the time service was first started to that subscriber and during which time service was available to him.

(Ord. 433 § 18(e), 1976)

When any portion of the CATV system is to be installed on public utility poles and facilities, certified copies of the agreements for such joint use of poles and facilities shall be filed with the town manager.

(Ord. 433 § 19, 1976)

(a) Application for a franchise under this chapter shall be in writing, shall be filed with the town clerk, and shall contain the following information:

(1) The name and address of the applicant; if the applicant is a partnership, the name and address of each partner shall also be set forth; if the applicant is a corporation, the application shall also state the names and addresses of its directors, main officers, major stockholders and associates, and the names and addresses of parent and subsidiary companies;

(2) A statement and description of the CATV system proposed to be constructed, installed, maintained or operated by the applicant, the proposed location of such system and its various components, the manner in which the applicant proposed to construct, install, maintain and operate the same, and, particularly, the extent and manner in which existing or future poles or other facilities of other public utilities will be used for such system, and/or whether such lines and amplifiers shall be placed underground;

(3) A description in detail of the public streets, public places and proposed public streets within which the applicant proposes or seeks authority to construct, install or maintain any CATV equipment or facilities, a detailed description of the equipment or facilities proposed to be constructed, installed or maintained therein, and the proposed specific locations thereof;

(4) A map specifically showing and delineating the proposed service area or areas within which the applicant proposes to provide CATV service and for which a franchise is requested;

(5) A statement or schedule in a form approved by the town manager of proposed rates and charges to subscribers for installation and services. A copy of the proposed service agreement between the grantee and its subscribers shall accompany the application. For unusual circumstances, such as when underground cable is required, or when there is more than one hundred fifty feet of distance from existing subscriber tap to the point of entry of the structure, an additional installation charge over that normally charged for installation as specified in the applicant's proposal may be charged, with easements to be supplied by subscribers. For remote, relatively inaccessible subscribers within the town, service may be made available on the basis of cost of materials, labor and easements, if required by the grantee;

(6) A copy of any contract, if existing, between the applicant and any public utility, providing for the use of facilities of such public utility, such as poles, lines or conduits;

(7) A statement setting forth all agreements and understandings, whether written, oral or implied, existing between the applicant and any person, firm or corporation, with respect to the proposed franchise or the proposed CATV operation. If a franchise is granted to a person, firm or corporation posing as a front or as the representative of another person, firm or corporation, and such information is not disclosed in the original application, such franchise shall be deemed void and of no force and effect whatsoever;

(8) A current financial statement or statements prepared by a certified public accountant, or person otherwise satisfactory to the council, showing applicant's financial status and his financial ability to complete the construction and installation of the proposed CATV system;

(9) The council may at any time demand, and the applicant shall provide, such supplementary, additional or other information as the council deems reasonably necessary to determine whether the requested franchise should be granted.

(b) Upon consideration of any such application, the town council may grant a franchise for CATV to such applicant as may appear from the application to be in its opinion best qualified to render proper and efficient CATV service to television viewers and subscribers in the town. The council's decision in the selection will be final. It is the intention of this chapter that the franchise is not granted upon a cash auction bid, but that the council consider those factors set forth in California Government Code Section 53066 in granting the franchise, including but not limited to the following:

(1) Quality of service offered;

(2) Rates to the subscriber;

(3) Experience of the applicant in the CATV field;

(4) Financial responsibility and capability of the applicant;

(5) The applicant's proposals for providing service to local schools, colleges and city installations;

(6) Whether the applicant has a contract with a public utility, providing for use of facilities of such public utility in the town, such as poles, lines and conduits;

(7) Whether the system will be undergrounded;

(8) Such other factors as the council considers necessary in protecting the public interest.

(c) Upon consideration of any such application, the council may refuse to grant the requested franchise, or may by resolution grant a franchise for a CATV system to any applicant as may appear from the application to be in its opinion best qualified to render proper and efficient CATV service to the television viewers and subscribers in the town. The council's decision in the matter shall be final. If favorably considered, the application submitted shall constitute and form part of the franchise as granted. The council may make such conditions as may be found to be in the best interest of the town.

(d) Any franchise granted pursuant to this chapter shall be subject to the condition that the CATV system thus franchised shall be used and operated solely and exclusively for the purposes expressly authorized by the Corte Madera Municipal Code and no other purpose whatsoever except as may be allowed by law.

(Ord. 433 § 20, 1976)

(a) Any franchise granted under this chapter is renewable at the application of the grantee, in the same manner and upon the same terms and conditions as required herein for obtaining the original franchise, except those which are by their terms expressly inapplicable. However, the council may at its option waive compliance with any or all of the requirements of Section 5.08.260.

(b) A franchise may be renewed under the following procedure:

(1) Twelve months before expiration of the franchise, a citizens' evaluation and advisory committee, whose membership shall consist of members from the community and from the town administrative staff, shall be appointed by the town council to review the performance of the grantee and the content of the town municipal code relating to CATV.

(2) The committee shall conduct one or more public meetings after appropriate notice, to determine whether the grantee has satisfactorily performed his obligations under the franchise.

(3) A four-month period shall be provided to determine the grantee's eligibility for renewal.

(4) The committee shall then prepare within two months any proposed amendments to the municipal code dealing with CATV that it believes necessary.

(5) The committee shall submit to the town council recommendations with regard to the renewal of the franchise, changes in the franchise and amendments to the municipal code.

(6) If the town council finds the grantee's performance satisfactory, a new or renewed franchise may be granted, at the option of the council, with such changes as the council may find appropriate.

(Ord. 433 § 21, 1976)

(a) The town and the grantee shall hold scheduled review sessions within thirty days of the fifth anniversary date of the grantee's obtaining certification for the system from the F.C.C. All such review sessions shall be open to the public and announced in a newspaper of general circulation at least five days before each session.

(b) Special review sessions may be held at any time set by the council during the term of the franchise. All such meetings shall be open to the public and announced in a newspaper of general circulation at least five days before each session.

(c) The following topics shall be discussed at every scheduled review session: service/rate structure, free or discounted services, application of new technologies, system performances, services provided, programming offered, customer complaints, privacy in human rights, amendments to this chapter, undergrounding progress, and judicial and F.C.C. rulings. Changes in rate should consider:

(1) The cost to provide service to subscribers within the town;

(2) Comparable rates;

(3) The type of service provided.

(d) Topics, in addition to those listed, may be added if deemed appropriate by the council.

(Ord. 433 § 22, 1976)

(a) The town manager may make a written demand that the grantee comply with any requirement, limitation, term, condition, rule or regulation contained herein or in the franchise agreement. If the failure, refusal or neglect of the grantee continues for a period of thirty days following such written demand, without written proof that the corrective action has been taken or is being actively and expeditiously pursued, the town manager may place his request for termination of the franchise upon the next regular town council meeting agenda. The town manager shall cause to be served upon such grantee, at least ten days prior to the date of such town council meeting, a written notice of his intent to request such termination and the time and place of the meeting, notice of which shall be published by the town council at least ten days before such meeting in a newspaper of general circulation.

(b) The town council shall consider the request of the town manager, shall hear any person interested therein, shall determine the matter, and in its discretion may, by resolution, declare that the franchise of such grantee shall be terminated and forfeited unless there is compliance by the grantee within such reasonable period as the town council may fix.

(c) Termination and forfeiture of any franchise shall in no way affect the rights of the town under the franchise or any provision of law.

(d) In the period between expiration or termination of the franchise and the transfer of the cable system to any successor, and provided the town council so concurs, the grantee may continue to provide service to the public as if its franchise were still in effect, but in the capacity of a trustee for its successor in interest and subject to an accounting for net earnings or losses during this interim period.

(e) The grantee shall be required to provide continuous service to all subscribers in return for payment of the established fee. If the grantee overbuilds, rebuilds, modifies or sells the system, or the town revokes or fails to renew this franchise, the grantee is required to continue to operate the system until an orderly change of operation is effectuated, unless relieved from doing so by the town council.

(Ord. 433 § 23, 1976)

(a) No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting same has become effective and in addition, unless and until all things required in this section and Sections 5.08.140 and 5.08.150 are done and completed, all of such things being conditions precedent to the effectiveness of any franchise granted hereunder. In the event any of such things are not done and completed in the time and manner required, the council may declare the franchise null and void.

(b) Within thirty days after the effective date of the ordinance awarding a franchise, or within such extended period of time as the council in its discretion may authorize, the grantee shall file with the town manager his written acceptance of the franchise, together with the bond and insurance policies required by Sections 5.08.140 and 5.08.150, respectively, and his agreement to be bound by, to comply with and do all things required of him by the provisions of this chapter and the franchise. Such acceptance and agreement shall be acknowledged by the grantee before a notary public, and shall in form and content be satisfactory to and approved by the town attorney.

(Ord. 433 § 24, 1976)

If the council finds that any of the terms and provisions of this chapter cannot be complied with, the council reserves the right to modify or grant an exception from the terms of such provision. The decision of the council with respect to a modification or exception shall be final and conclusive.

(Ord. 433 § 25, 1976)

(a) The town manager shall be the official designated to review complaints, consistent with subsection (e) of Section 5.08.070.

(b) The grantee shall provide toll-free telephone service for the town, have a publicly listed telephone, and be so operated that complaints and requests for adjustment may be received on a twenty-four-hour basis.

(c) The grantee shall maintain a repair and troubleshooting force capable of responding to subscriber complaints or requests for service within twenty-four hours after receipt of the complaint or request. No direct charge shall be made to the subscriber for this service.

(d) The grantee shall ensure that all subscribers, programmers and members of the general public have recourse to a satisfactory hearing of any complaint.

(Ord. 433 § 27, 1976)

The grantee shall not deny service or access, or otherwise discriminate against subscribers, channel users or general citizens on the basis of race, color, religion, national origin or sex. The grantee shall strictly adhere to the equal employment opportunity requirements of the F.C.C., as expressed in Section 76.13(A) (8) and 76.311 of Chapter 1 of Title 47 of the Code of Federal Regulations. The grantee shall comply at all times with all other applicable federal, state, town and county laws, and all executive and administrative orders relating to nondis-crimination. The grantee shall make a positive effort to hire racial minorities, women and other protected groups as subcontractors, if available and qualified.

(Ord. 433 § 28, 1976)

Upon the foreclosure or other judicial sale of all or a substantial part of the cable system, the grantee shall notify the town council of such fact, and if a change in ownership has taken place as defined in Section 5.08.060 of this title, the provisions of that section shall apply.

(Ord. 433 § 29, 1976)

It is the intent of the town council to encourage the development of communication uses of cable television. To achieve this objective, the town may work with the grantee to define the communication needs and analyze the benefits which may be achieved in relationship to subscriber rates commensurate with the cost of providing these services. The town council should assume responsibility relating to the communication uses of cable television in those areas where it may exert regulatory influence. In those areas not specifically regulated by the Federal Communications Commission, it shall be the intent of the town to assume these powers. Further, the town should work with the grantee on an ongoing basis to insure that federal regulations are applied within the town to the best advantage of its citizens.

(Ord. 433 § 30, 1976)

(a) No person shall establish, operate or carry on the distribution to any persons in this town any television or radio signals by means of a CATV system unless a franchise therefor has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.

(b) No person shall construct, install or maintain within any public street in the town, within any other public property of the town, or within any privately owned area within the town which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the town, any equipment or facilities for distributing any television or radio signals through a CATV system, unless a franchise authorizing such use of the street, property or area has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.

(c) No person shall make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this town for the purpose of enabling himself or others to take or receive television signals, radio signals, pictures, programs or sound without payment to the owner of such system.

(d) No person shall, without the consent of the owner, tamper with, remove or injure any cables, wires or equipment used for the distribution of television signals, radio signals, pictures, programs or sound.

(e) After notice and hearing, the town council may reduce any or all of the subscriber rates of affected subscribers if the grantee fails to provide adequate service as required by the franchise, ordinance, municipal code or Federal Communications Commission regulations. The grantee is not responsible for failure to provide adequate service which is caused by acts of God, strikes, governmental or military action or similar conditions beyond its control.

(f) In the event that its service to any subscriber is interrupted for twenty-four consecutive hours, except for acts of God, strikes, governmental or military action, or similar conditions beyond its control, and except in circumstances for which the prior approval of the interruption is obtained from the town council, the grantee shall provide a ten percent rebate of that month's fees to affected subscribers.

(g) In the event that its services to any subscriber are interrupted for forty-eight or more consecutive hours, except for acts of God, etc., and except in circumstances for which prior approval of the interruption is obtained from the town council, the grantee shall provide a twenty percent rebate of the month's fees to affected subscribers.

(h) In the event the system fails to meet any performance standards for the full three-month period, the grantee shall reduce all fees for affected subscribers by twenty-five percent until all performance standards are met. The council shall notify the grantee during the first month of the three-month period that the system has failed to meet performance standards and of the service addresses affected.

(i) For failure to commence operations in accordance with Section 5.08.080, unless the town council approves the delay because of reasons beyond the control of the grantee, the franchise term shall be reduced one year for each three months of delay. The town council shall notify the grantee during the first month of the three-month period that the system has failed to meet standards.

(j) For failure to complete construction and installation of the system as provided for in Section 5.08.080, unless the town council approves the delay because of reasons beyond the control of the grantee, the franchise term shall be reduced by one year for each three months of delay. The town council shall notify the grantee during the first month of the three-month period that the system has failed to meet standards.

(Ord. 433 § 26, 1976)