San Rafael Municipal Code Ch. 10.76 Community Antenna Television Systems Franchises

For the purposes of this chapter, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given in this section. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number.

(1) "City" means the city of San Rafael, a municipal corporation of the state of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

(2) "Council" means the present governing body of the city or any future board constituting the legislative body of the city.

(3) "Franchise" means and includes any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a CATV system in the city. Any such authorization, in whatever term granted, does not mean and include any license or permit required for the privilege of transacting and carrying on a business within the city in accordance with Chapter 10.04.

(4) "Grantee" means the person, firm or corporation to whom or which a franchise, as defined in subsection (3), is granted by the council under this chapter, and the lawful successor, transferee or assignee of the person, firm or corporation.

(5) "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 hereafter existing as such within the city.

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

(7) "CATV" means a community antenna television system as defined in subsection (8).

(8) "Community antenna television system" (CATV) means a communications system which distributes broadcast programs and original programs and services by means of coaxial cable and all ancillary equipment and provides the necessary support services required to construct, operate and maintain the system.

(9) "Subscriber" means any person or entity receiving for any purpose the CATV service of a grantee.

(10) "Gross annual receipts" means any and all compensation and other consideration in any form whatever and any contributing grant or subsidy received directly or indirectly by a grantee from subscribers or users in payment for television or FM radio signals or service received within the city. Expressly excluded from this computation are any fees received for local origination programming from nonprofit corporations, educational or governmental agencies.

Gross annual receipts do not include any taxes on services furnished by the grantee imposed directly on any subscriber or user by any city, state or other governmental unit and collected by the grantee for the governmental unit.

(11) "City engineer" means the city engineer of the city and/or the supervisor of public works or the representative of either.

(Ord. 1192 § 1, 1975; Ord. 890 § 1, 1967).

When and in the event that the grantee of any franchise granted in this chapter constructs, operates and maintains a CATV system exclusively through telephone company facilities constructed, operated, and maintained pursuant to a state-granted telephone franchise and offers satisfactory proof that in no event during the life of the franchise shall the grantee make any use of the streets independently of the telephone company facilities, the grantee shall be required to comply with all of the provisions hereof as a licensee and in this event, whenever the term "grantee" is used in this chapter, it means and includes "licensee."

(Ord. 890 § 2, 1967).

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

No provision of this chapter may be deemed or construed 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. 890 § 3, 1967).

Any 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 city, 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, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system; 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 city.

The grantee may make a charge to subscribers for installation or connection to its CATV system and a fixed monthly charge as filed and approved as provided in this chapter. 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.

(Ord. 1192 § 2, 1975; Ord. 890 § 4, 1967).

No franchise granted by the city council under this chapter shall be for a term longer than fifteen years following the date of acceptance of the franchise by the grantee or the renewal thereof.

(Ord. 1192 § 3, 1975: Ord. 890 § 5, 1967).

The city council may cancel the franchise conferred by this or other ordinances at any time prior to a date of expiration upon a finding, made after thirty days notice of cancellation and public hearing, that the grantee has failed to correct to the satisfaction of the city, one or more of the following defects during a sixty-day period following written notice by the city manager to the grantee of such a defect:

(1) Material breach, whether by act or omission, of any terms or conditions of this or other franchise ordinances; or

(2) Material misrepresentation of fact, in the application for or negotiation of the franchise or renewal or in any of the information required by any ordinance or resolution by the city council; or

(3) Insolvency of the grantee, or inability or unwillingness of the grantee to pay its just debts when they accrue, or application of the grantee for adjudication as a bankrupt; or

(4) Failure to provide subscribers or users with adequate service as defined by applicable city ordinances, standards established by the Federal Communications Commission, and the franchise agreements.

(Ord. 1192 § 4, 1976).

The franchise shall be required to provide continuous service to all subscribers in return for payment of the established fee. The franchisee is required as part of this franchise to continue to operate the cable system until an orderly change of operation is effectuated, if, and when, such a change is forthcoming. In the event the franchisee fails through sole negligence to operate the system for three consecutive days without prior notice to and approval by the city council, the city or its agent shall complete access to all buildings, headends, transmission equipment and any other equipment necessary to operate the system until such time that a new operation is selected. If the city is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the city for any costs or damages that are the result of the franchisee's failure to perform. This provision is limited to the cancellation of the franchise by the city or the forfeiture of the franchise awarded to the grantee.

(Ord. 1192 § 5, 1976).

(a) No transfer of control of the cable system shall take place, whether by forced or voluntary sale, lease, assignment, mortgage, encumbrance or any other form of disposition, without prior notice to and approval by the council. The notice shall include full identifying particulars of the proposed transaction, and the council shall act by resolution. Unless the time period is extended by mutual agreement, the council shall act within seventy-five days from the receipt of such notice by the grantee to approve or disapprove a transfer of control. If there is no extension of time for review, or the city council does not grant approval or disapproval within such seventy-five days, approval shall be deemed to have been given.

(b) The consent or approval of the council to any assignment, lease, transfer, or sublease of the grantee shall not constitute a waiver or release of the rights of the city in and to the streets.

(c) For the purposes of this section, the word "control" includes any of the following:

(1) Any transfer of more than ten percent of the outstanding stock of the grantee;

(2) Any transfer of all or a major part of the assets of the grantee devoted to providing cable television service in the city;

(3) The lease, assignment or other transfer of direct management of the franchise or its operations from the grantee to another company, corporation, or individual.

(d) "Mortgage" does not include borrowing transactions by the grantee or parent corporation or entity in the normal course of its business operations in which all assets of either corporation are routinely pledged as security for such borrowing. The grantee shall promptly give notice to the council upon learning of any impending foreclosure or similar transaction related to loans of the grantee or parent corporation which might affect control of grantee.

(e) The consent of the city council to such a transfer of control may not be arbitrarily refused; provided, however, the proposed assignee must show financial responsibility and must agree to comply with all provisions of all city ordinances.

(f) Any violation of this section shall stand as a basis for revocation of the franchise awarded to the grantee.

(Ord. 1192 § 6, 1976).

Any grantee granted a franchise under this chapter shall pay to the city, during the life of the franchise, an annual sum equal to the amount set by city council at the time of granting the franchise, or subsequent thereto, or as amended from time to time by city council. The payment by the grantee to the city shall be made annually, or as otherwise provided in the grantee's franchise or as directed by city council by delivery of the same to city's tax collector.

The grantee shall file with the city, within thirty days after the expiration of any calendar year or portion thereof during which the franchise is in force, a financial statement prepared by a certified public accountant, or person otherwise satisfactory to the council showing in detail the gross annual receipts, as defined herein, of grantee during the preceding calendar year or portion thereof. It shall be the duty of the grantee to pay to the city, within fifteen days after the time for filing the statements, the sum hereinabove prescribed or any unpaid balance thereof for the calendar year or portion thereof covered by the statements.

The city shall have the right to inspect the grantee's records showing the gross receipts from which its franchise payments are computed and the right to 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 city may have for further or additional sums payable under this chapter or for the performance of any other obligation hereunder.

In the event of any holding over after expiration or other termination of any franchise granted hereunder without the consent of the city, the grantee shall pay to the city reasonable compensation and damages of not less than one hundred percent of its total gross profits during this period.

(Ord. 890 § 6, 1967).

(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 those specifically prescribed herein.

(c) Any privilege claimed under the franchise by the grantee in any street or other public property shall be subordinate to any prior law of occupancy of the streets or other public property.

(d) The 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 therein be prescribed. The 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 city clerk within thirty days after the transfer or assignment. The consent of the council may not be arbitrarily refused; provided, however, the proposed assignee must show financial responsibility and must agree to comply with all provisions of this chapter; and provided, further, that no such consent shall be required for a transfer in trust, mortgage or other hypothecation as a whole to secure an indebtedness.

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

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

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

(h) The grantee shall be subject to all requirements of city ordinances, rules, regulations and specifications heretofore or hereafter enacted or established.

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

(j) Any franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by grantee, or any successor to any interest of grantee, of or pertaining to the construction, operation or maintenance of any CATV system in the city; and the acceptance of any franchise hereunder shall operate, as between grantee and the city, as an abandonment of any and all of the rights, privileges, powers, immunities and authorities within the city, to the effect that, as between grantee and the city, any and all construction, operation and maintenance by any grantee of any CATV system in the city shall be, and shall be deemed and construed in all instances and respects to be, under and pursuant to the franchise, and not under or pursuant to any other right, privilege, power, immunity or authority whatsoever.

(Ord. 890 § 7, 1967).

(a) Nothing herein shall be deemed or construed to impair or affect, in any way, to any extent, the right of the city 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, and nothing herein contained shall be construed to contract away or to modify or abridge, either for a term or in perpetuity, the city's right of eminent domain.

(b) There is hereby reserved to the city every right and power which is required to be herein reserved or provided by any ordinance of the city, and the grantee, by its acceptance of any franchise, agrees to be bound thereby and to comply with any action or requirements of the city in its exercise of the rights or power, heretofore or hereafter enacted or established.

(c) Neither the granting of any franchise hereunder nor any of the provisions contained herein shall be construed to prevent the city from granting any identical, or similar, franchise to any other person, firm or corporation, within all or any portion of the city.

(d) There is reserved to the city the power to amend any section or part of this chapter so as to require additional or greater standards of construction, operation, maintenance or otherwise, on the part of the grantee.

(e) Neither the granting of any franchise nor any provision hereof constitutes a waiver or bar to the exercise of any governmental right or power of the city.

(f) 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 city 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 city, the grantee, or any subscriber, in the best interest of the public. Either the grantee or any member of the public who may be dissatisfied with the decision of the city manager may appeal the matter to the council for hearing and determination. The council may accept, reject or modify the decision of the city manager and the council may adjust, settle or compromise any controversy or cancel any charge arising from the operations of any grantee or from any provision of this chapter.

(Ord. 890 § 8, 1967).

(a) When a subscriber files a written complaint with the city for a service problem which is preventable and reasonably within grantee's control and grantee fails to remedy said problem within a reasonable period of time following receipt of written notice by city, city may levy a maximum penalty of five hundred dollars.

(b) If grantee objects to a penalty in writing, the matter shall be submitted to arbitration in accordance with the rules of the American Arbitration Association. The decision of the arbitrator shall be final.

(c) Grantee shall provide written notice to each subscriber at intervals of not more than one year regarding the complaint and sanctions process set forth herein, including the procedure for reporting and resolving subscriber complaints. The notice shall specifically inform the subscribers of their rights to complain in writing to city of the grantee's failure to resolve a service complaint which is preventable and reasonably within grantee's control. The proper address of city to which complaints may be directed shall be included in such notice.

(Ord. 1395 § 1, 1981).

(a) Within sixty days after acceptance of any franchise, the grantee shall proceed with due diligence 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) Within ninety days after obtaining all necessary permits, licenses and authorizations, grantee shall commence construction and installation of the CATV system.

(c) Within ninety days after the commencement of construction and installation of the system, 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, as provided in Section 10.76.200 hereof, shall be provided within one year from the date that service was first provided.

(d) 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 the franchise, under and pursuant to the terms of Section 10.76.050 hereof; provided, however, that 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.

(Ord. 890 § 9; October 16, 1967).

(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 city engineer acting in the exercise of his reasonable discretion. It shall be within the city engineer's discretion to require the installation of wires, cables, or conduits to be placed underground.

(b) The grantee shall not 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 city 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 city, except those installed or erected upon public utility facilities now existing, without obtaining the prior written approval of the city engineer.

(c) In those areas and portions of the city where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, then the grantee shall likewise construct, operate and maintain all of its transmission and distribution facilities underground. For the purposes of this subsection, "underground" includes a partial underground system, e.g. streamlining. Amplifiers in grantee's transmission and distribution lines may be in appropriate housings upon the surface of the ground as approved by the city engineer.

(Ord. 890 § 10; October 16, 1967).

(a) In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of twelve months, or in the event such system or property has been installed in any street or public place without complying with the requirements of grantee's franchise or this chapter, or the franchise has been terminated, canceled or has expired, the grantee shall promptly, upon being given ten days' notice, remove from the streets or public places all the property and poles of the system other than any which the city engineer may permit to be abandoned in place. In the event of the removal, the grantee shall promptly restore the street or other area from which the property has been removed to a condition satisfactory to the city engineer.

(b) Any property of the grantee remaining in place thirty days after the termination or expiration of the franchise shall be considered permanently abandoned. The city engineer may extend the time not to exceed an additional thirty days.

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

(Ord. 890 § 11; October 16, 1967).

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 city engineer by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by public agencies; provided, however, that the grantee shall in all such cases have the privileges and be subject to the obligations to abandon any property of the grantee in place, as provided in Section 10.76.110.

(Ord. 890 § 12; October 16, 1967).

Upon failure of the grantee to commence, pursue, or complete any work required by law or 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 city engineer, the city engineer may, at his option, cause such work to be done and the grantee shall pay to the city the cost thereof in the itemized amounts reported by the city engineer to the grantee within thirty days after receipt of the itemized report.

(Ord. 890 § 13, 1967).

(a) The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, file with the city clerk, and at all times thereafter maintain in full force and effect for the term of the franchise or any renewal thereof, at grantee's sole expense, a corporate surety bond in a company and in a form approved by the city attorney, in the amount of twenty-five thousand dollars, renewable annually, and conditioned upon the faithful performance of grantee, and upon the further condition that in the event 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 shall be recoverable jointly and severally from the principal and surety of the bond any damages or loss suffered by the city 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, up to the full amount of the bond; the condition to be a continuing obligation for the duration of the franchise and any renewal thereof and thereafter until the grantee has liquidated all of its obligations with the city that may have arisen from the acceptance of the franchise or 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, be given to the city.

(Ord. 1192 § 7, 1975: Ord. 890 § 14, 1967).

(a) The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the city and file with the city 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 liability insurance policy in the amount of one million dollars in a company approved by the city manager and in a form satisfactory to the city attorney, indemnifying and saving harmless the city, its officers and employees from and against any and all claims, demands, actions, suits, and proceedings by others, against all liability to others, including but not limited to any liability for damages by reason of or arising out of any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's CATV system, and against any loss, cost, expense and damages resulting therefrom, including reasonable attorney's fees, arising out of the exercise or enjoyment of its franchise, irrespective of the amount of the comprehensive liability insurance policy required hereunder. This insurance provision may be satisfied by proper endorsement to the comprehensive liability insurance policy required by subsection (b). In the event the grantee is unable to secure the insurance, the city may, in lieu thereof, accept an appropriate agreement of indemnification.

(b) The grantee shall, concurrently with the filing of an acceptance of award of any franchise granted under this chapter, furnish to the city and file with the city 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 city, its officers, boards, commissions, agents and employees, in a company approved by the city manager and a form satisfactory to the city attorney protecting the city and all persons against liability for loss or damage for personal injury, death and property damage occasioned by the operations of grantee under such franchise, with minimum liability limits of two hundred fifty thousand dollars for personal injury or death of any one person and one million dollars for personal injury or death of two or more persons in any one occurrence, and two hundred thousand dollars for damage to property resulting from any one occurrence.

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

(Ord. 890 § 15, 1967).

(a) At all reasonable times, the grantee shall permit any duly authorized representative of the city to examine all property of the grantee, together with any appurtenant property of the grantee situated within or without the city, 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 the maps or records are not kept in the city, or upon reasonable request made available in the city, and if the council determines that an examination thereof is necessary or appropriate, then all travel and maintenance expense necessarily incurred in making the examination shall be paid by the grantee.

(b) The grantee shall prepare and furnish to the city engineer and the city clerk at the times and in the form prescribed by either of these 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 city or any of its officers in connection with the franchise.

(c) The grantee shall at all times make and keep in the city 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 city.

(d) The grantee shall file with the city engineer on or before the last day in June of each year, a current map or set of maps drawn to scale, showing all CATV system equipment installed and in place in streets and other public places of the city.

(e) The grantee shall, upon request by the city and within a reasonable time, make available all financial statements, records, transactions, or any other materials requested by the city which are directly related to the operation of the franchise.

The city also reserves the right to request and receive all pertinent information relative to allocation of corporate overhead charges, the purchase of goods, materials and services, and any other financial information necessary to evaluate requests by the grantee for rate modifications, rate of return on investment, calculation of gross revenues, and other such items, as necessary.

All financial information relative to transactions between the grantee and its subsidiary(s) or parent company are to be available for inspection by the city or its representatives, as relates to the operation of the franchise.

(f) Within thirty days of filing materials relating directly to the franchise, the grantee shall submit to the office of the city clerk copies of all documents, surveys, results of testing of the cable system, reports, submittals or any other types of information which the grantee, any subsidiary of the grantee, or any company, corporation, or individual who holds controlling interest in the grantee, i.e. parent corporation, which are required to be filed with the Securities Exchange Commission, the Federal Communications Commission or any other governmental agency to which such information is submitted.

(g) Any substantive design alteration of the cable system submitted to the Federal Communications Commission for review, concurrence or approval must first be submitted to the city for review, approval or disapproval by the city council.

(h) An annual report shall be submitted, in a narrative form approved by the city manager, to the city summarizing activities of the past year and major activities for the forthcoming year. This report shall be submitted by February fifteenth of each year. The annual report shall contain the names and addresses of its directors, main officers, regional officers, major stockholders and associates, and the names and addresses of parent and subsidiary companies.

(Ord. 1192 § 8, 1975; Ord. 890 § 16, 1967).

The CATV system shall be installed and maintained in accordance with the highest and best standards of the industry to the effect that subscribers shall receive the highest level of service possible. In this respect, all facets of cable television system are to be durable and reliable. In determining the satisfactory extent of these standards the following, among others, shall be considered:

(1) System Safety. Methods of construction, installation and maintenance of the cable television system (CTS) shall comply with the building and electrical codes adopted by the city.

(2) Technology. All of the technology and all of the CTS hardware and software shall be in accord with the highest applicable level of standards adopted by the Federal Communications Commission (F.C.C.). All requirements of the F.C.C. in respect to the construction and maintenance of antennas, performance, testing grounding, system reliability, signal standards, long-term system signal standards, specific system signal delivery standards, microwave signals, and signal reception standards shall be complied with by the grantee.

(3) Performance Testing. In addition to the annual procedures required by the F.C.C., the city reserves the right to require the following tests:

(A) Testing Resulting from Complaints. The city's right under this provision shall be limited to requiring tests, analyses, and reports covering specific subjects and characteristics based on the complaints or other evidence when and under such circumstances as the city has reasonable grounds to believe that the complaints or other evidence require that tests be performed to protect the public against substandard cable service. These tests and analyses shall be supervised by a registered professional engineer. If the complaints continue, a registered professional engineer, not on the permanent staff of the company and selected jointly by the city and the company may be asked to perform the same tests. The aforesaid engineer shall sign all records of special tests and forward to the city such records with a report interpreting the results of the test and recommending actions to be taken by the city.

(B) Periodic Testing. Proof of performance tests may be required on notice by the city manager so as to ensure compliance with performance standards and system reliability and capability. The testing may include, but not be limited to, signal level video carrier of each active channel, system signal to noise level measured at a low and high UHF channel, and system signal to have modulation measured at any one frequency. The proof of performance tests shall be made at all trunk amplifier and line extender amplifier test point locations required by the city engineer. Measurements shall be taken and recorded at the designated locations. All measurements shall be made with certified test equipment. These proof of performance tests shall be made in a manner that does not cause any disruption of cable service to subscribers. Unless waived by the city, the grantee's testing team shall be accompanied by a city representative while tests are conducted.

The proof of performance test shall include a visual observation test using a color television monitor, and a subjective analysis shall be made of cross modulation, color quality (luminance vs. chrominance), intermodulation of discrete beats and of thirty channel triple beat type, and echoes, whether delayed or the leading type caused by direct pickup.

This visual observation test shall be related to the following chart:

The results obtained by this visual observation test shall meet at least a standard of grade 2 or its equivalent objective measurement as indicated on the chart contained in this paragraph for each of the measurements to be made, except that signal to echo may meet a grade 3 standard. This proof of performance test shall be made at all trunk amplifier and line extender test points locations specified by the city engineer.

(C) The franchisee has the right to appeal the request for testing in subdivisions (A) or (B) of this section to the city council.

(Ord. 1192 § 9, 1975: Ord. 890 § 17, 1967).

(a) When not otherwise prescribed in this chapter, all matters required to be filed with the city shall be filed with the city clerk.

(b) The grantee shall pay to the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise pursuant to the provisions of this chapter. The payment shall be made within thirty days after the city furnishes the grantee with a written statement of these expenses by delivery of same to the city clerk.

(c) The company shall maintain a local business office within the county of Marin and a toll-free telephone line for the investigation and resolution for all complaints regarding the quality of service, equipment malfunction, and similar matters. Any complaints made to the city shall be forwarded to the company, which shall investigate and attempt to resolve all complaints within twenty-four hours. The company shall keep a record of all complaints and actions taken to resolve such, which records shall be available for examination by the city. The city manager is designated as the official to review complaints.

(d) The rate schedule for any service agreement or increase thereto to the subscribers shall be by resolution of the city council. No increase in rates charged to subscribers shall be made except as authorized by the franchise authority after appropriate proceedings affording due process.

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

(f) The franchisee's legal, financial, and technical character and other qualifications and adequacy and feasibility of its construction arrangements have been approved by the franchising authority as part of a full public proceeding affording due process.

(g) The franchisee shall accomplish significant construction within one year after receiving commission certification and shall thereafter equitably and reasonably extend energized cable to twenty percent of its franchise area each year. For systems already constructed, the franchisee must have accomplished significant construction and have equitably extended energized trunk cable to substantially all of the franchise area.

(Ord. 1192 § 10, 1975; Ord. 890 § 18, 1967).

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 city clerk.

(Ord. 890 § 19, 1967).

(a) Application for a franchise under the provisions of this chapter shall be in writing, shall be filed with the city 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 offices, 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 applicant proposes 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 the system;

(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 location thereof;

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

(5) For unusual circumstances, such as underground cable required, where no underground substructure exists as provided for in Section 10.76.090, or for cable installations of more than one hundred fifty feet from existing subscriber tap to structure point of entry, installation may be charged at time and materials required to provide service, with easements to be supplied by the subscriber;

(6) A copy of any contract, if existing, between the applicant and any public utility providing for the use of facilities of the 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 void and of no force and effect whatsoever;

(8) A financial statement 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 applicant shall provide, such supplementary, additional or other information as the council may deem reasonably necessary to determine whether the requested franchise should be granted.

(b) Upon consideration of the application, the council may refuse to grant the requested franchise or the council may by ordinance grant a franchise for CATV system to the 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 city. 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.

(c) Any franchise granted pursuant to this chapter shall include the following condition:

"The CATV system herein franchised shall be used and operated solely and exclusively for the purpose expressly authorized by Ordinance of the city of San Rafael and no other purpose whatsoever."

Inclusion of the foregoing statement in the franchise shall not be deemed to limit the authority of the city to include any other reasonable condition, limitation or restriction which it may deem necessary to impose in connection with such franchise pursuant to the authority conferred by this chapter.

(Ord. 1192 § 11, 1975; Ord. 890 § 20, 1967).

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 in this chapter for obtaining the original franchise, except those which are by their terms expressly inapplicable; provided, however, that the council may at its option waive compliance with any or all of the requirements of Section 10.76.200.

(Ord. 890 § 21, 1967).

(a) No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the ordinance granting it has become effective and, in addition, unless and until all things required in this section and Sections 10.76.140 and 10.76.150(a) and (b) are done and completed, all of these things are conditions precedent to the effectiveness of any franchise granted under the provisions of this chapter. In the event any of these 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 codified in this chapter awarding a franchise, or within such extended period of time as the council in its discretion may authorize, the grantee shall file with the city clerk his written acceptance, in form satisfactory to the city attorney, of the franchise, together with the bond and insurance policies required by Sections 10.76.140 and 10.76.150(a) and (b), respectively, and his agreement to be bound by and to comply with and to do all things required of him by the provisions of this chapter and the franchise. The 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 city attorney.

(Ord. 890 § 22, 1967).

(a) From and after the effective date of the ordinance codified in this chapter, it is unlawful for any person to establish, operate or to carry on the business of distributing to any persons in this city any television signals 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 the franchise is in full force and effect.

(b) From and after the effective date of the ordinance codified in this chapter, it is unlawful for any person to construct, install or maintain within any public street in the city, or within any other public property of the city, or within any privately owned area within the city which has not yet become a public street but is designated or delineated as a proposed public street on any tentative subdivision map approved by the city, any equipment or facilities for distributing any television signals or radio signals through a CATV system, unless a franchise authorizing such use of the street or property or area has first been obtained pursuant to the provisions of this chapter, and unless the franchise is in full force and effect.

(c) It is unlawful for any person, firm or corporation to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this city for the purpose of taking or receiving television signals, radio signals, pictures, programs, or sound.

(d) It is unlawful for any person, firm or corporation to make or use any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a franchised CATV system within this city for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without payment to the owner of the system.

(e) It is unlawful for any person, without the consent of the owner, to wilfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound.

(f) Any person violating any provision of this chapter or any order issued pursuant thereto or failing to comply with any of the mandatory requirements of this chapter shall be guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not more than five hundred dollars, or by imprisonment for a term not exceeding six months in the county jail of the county of Marin, or by both such fine and imprisonment.

(Ord. 1192 § 12, 1975; Ord. 890 § 23, 1967).

In those areas and portions of the city where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground or hereafter may be placed underground, the grantee, immediately upon written request by the director of public works, acting in concert with such utility or utilities, shall 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 licensee's current specifications trenches for underground distribution, service laterals, service drop trenches to the buildings' point of entry, and backfill and restoration of trench area, conduit, vaults and pedestals, and internal wiring. Grantee's amplifiers and essential connections thereto may be in appropriate housing above the surface of the ground as approved by the director of public works. The city shall not in any manner be responsible for any costs incurred by the licensee in placing this property underground.

To insure that cable television service is available under these provisions, the builder or developer will provide the director of public works plans for inclusion of cable television service with his plans for utilities including telephone, electrical service and gas service when applying for a building permit. The builder or developer will also include proof that a contractual agreement exists between the builder or developer and the licensee which is consistent with the provision of this section.

Provided the contractor or developer has fulfilled his contractual commitments to grantee, the grantee shall make cable television service available to such new structure or structures within six months from the date of occupancy.

(Ord. 1192 § 13, 1975).

If any section, sentence, clause or phrase of the ordinance codified in this chapter is held unconstitutional, such unconstitutionality shall not affect the validity of the ordinance codified in this chapter, and any portions in conflict are repealed; provided, however, that in the event that the Federal Communications Commission declares any section invalid, such section or sections will be renegotiated by the city and the grantee.

(Ord. 1192 § 14, 1975).