Novato Municipal Code Ch. VIII Licensing in General

8-1.1 Revenue Measure. This section is enacted primarily to raise revenue for municipal purposes; and is not intended for regulation, except as provided in subsection 8-1.6.

(Ord. No. 654, § 1)

8-1.2 Applicability; License Required. This section shall apply to all persons doing business in Novato, except those exempt under the provisions of subsection 8-1.6; and as to such businesses, a report shall be required stating the name, address, and type of business as well as number of persons employed.

(Ord. No. 546, § 2)

8-1.3 Definitions. As used in this section:

a. "Person" shall mean and include all domestic and foreign corporations, associations, syndicates, joint stock corporation, partnerships of every kind, clubs, businesses, or common law trusts, societies, and individuals transacting and carrying on any business in the City of Novato, other than as an employee.

b. "Business" shall mean and include professions, trades, personal services, occupations, and all and every kind of calling whether or not carried on for profit.

c. "Fixed place of business" shall mean premises occupied for the particular purpose of conducting a business therein and regularly kept open during normal business hours with a competent person in attendance for the purpose of attending to such business.

d. "Employee" shall mean all persons engaged with the city in the operation or conduct of any business, whether as owner, any member of the owner's family, partner, agent, manager, solicitor, and any and all other persons so employed or working in said business. (Provided, however, that "employee" shall not include any "professional" as defined below.)

e. "Commercial peddler" shall mean any person who travels by foot, vehicle or by any other type of conveyance from door to door, house to house, or street to street, carrying, conveying or transporting food, goods, wares, merchandise or other personal property of any nature whatsoever offering or exposing the same for sale, or making sales and delivering articles to purchasers, or who without traveling from place to place sells or offers the same for sale from any vehicle, conveyance, structure, or from any other place other than a permanent store building. The word "peddlers" shall mean and include the words "hawker," "huckster" or "itinerant vendor."

f. "Handbill distributor" shall mean any person engaged in the business for hire or gain, of distributing commercial or non-commercial handbills, other than newspapers: and any person receiving compensation directly or indirectly for the distribution of such handbills, provided that no license fee shall be charged for the distribution of any non-commercial handbill, the principal purpose of which is to disseminate information relating to any political, economic, religious, philosophical, sociological or related subjects and is not connected with any commercial enterprise.

g. "Vehicular street advertising" shall mean the business of advertising commercial enterprises of any character or for any purpose, carried on by means of any vehicle traversing the public streets.

h. "Auctioneer" shall mean any person engaged in selling at auction any real estate, goods, wares, materials, or merchandise, or any similar, kindred or related things, for which a license fee is not specifically required under any other section of this section, providing that no additional fee shall be required of any person otherwise licensed to do business in the city personally carrying on an auction sale in the regular course of his business.

i. "Vending machine" shall mean any machine or device dispensing merchandise or service requiring the deposit of a coin, slug or other device to activate its operation. Such machines may include, but are not limited to, music devices and/or amusement machines as described below:

1. "Music device" shall mean any machine, apparatus or device designed or constructed for the purpose of producing or reproducing or playing any musical tone or tones or combination of tones, or any similar instrument, recording device, music box, juke box, or any other mechanical device emitting music for entertainment and amusement purposes only, and requiring for its operation the insertion of any coin, disc, plate, token, key or the payment of any fee therefor.

2. "Amusement machine" shall mean any pinball machine, marble machine, shooting machine, bowling game, electric arcade game or similar device or apparatus designed for entertainment purposes only and operated by insertion of coin, disc, plate, token or key or the payment of any fee therefore.

j. "Commercial solicitor" shall mean any person who travels either by foot, vehicle or any other type of conveyance from door to door, house to house or street to street, taking or attempting to take subscriptions, contracts of sale, or orders for the sale of goods, goods, wares, merchandise, or other personal property of any nature whatever for future delivery, or for services to be furnished or performed in the future, whether or not such person has, carries or exposes for sale a sample of the subject of such sale, or whether or not he collects advance payments of such sales. The word "solicitor" shall include any person who uses or occupies any vehicle, conveyance, structure, or other place other than a permanent store building within the city for the purpose of exhibiting samples and taking orders for future delivery.

k. "Multiple housing" shall mean a group of three or more attached, detached, or semidetached rental units, occupying a single parcel of land, in one ownership, and having a yard or court in common, (and) wherein cooking facilities are available to each respective unit. Multiple housing will include mobile home parks, trailer courts and overnight recreational vehicle parks, wherein permanent spaces are allocated for the use of three or more separate units.

l. "Business rental premises" shall mean a group of two or more rental offices, spaces, or other units rented to a business establishment other than the owner of the parcel on which the rental units are located. For purposes of this definition, each parcel will be considered as a separate entity.

m. "Professional" shall mean any person engaged in business or activity characterized by or conforming to the technical or ethical standards of a profession, including, but not limited to, those listed below:

Appraiser

Architect

Assayer

Attorney

Chemist/Pharmacist

Chiropractor

Dentist

Dermatologist

Designer

Electrologist

Engineer

Chemical

Civil

Consulting

Electrical

Hydraulic

Mechanical

Mining

Structural

Entomologist

Geologist

Landscape Architect

Optician

Optometrist

Osteopath

Physician

Physiotherapist

Podiatrist

Public Accountant

Real Estate Broker

Roentgenologist

Surgeon

Veterinarian

n. "Contractor" shall mean:

1. "General contractor", "contractor" shall have the same meaning as it has in the State Licensing Law (Chapter 9 of the California Business and Professions Code.)

2. "Subcontractor" shall mean any person whose business is the performance of construction work requiring special skill and whose principal contracting business involves the use of specialized building trades or crafts.

o. "Vehicle" shall mean and include every device in, upon, or by which any person or property is or may be transported or drawn upon a public street or highway, except devices moved by human power or used exclusively upon stationary rails or tracks.

p. "Delivery by vehicle" shall mean delivery of goods, wares or merchandise of any kind by vehicle or providing of any service by the use of vehicles in the city. For purposes of license tax computation, the number of vehicles used shall mean the average number regularly employed on any single day. Persons employing vehicles solely to service coin operated vending machines and music devices shall not be subject to the tax on delivery by vehicle.

q. "Manufacturing" shall mean all places of business the principal function of which is the production or the development of any machine, device, article, thing, commodity, goods, wares, merchandise, product equipment, material or substance for sale or distribution, either at wholesale or retail.

r. "Home occupation" shall mean any use customarily conducted entirely within a dwelling and carried on by the inhabitants thereof and limited to the following uses: dressmaking, sewing, millinery, small handcrafts, art work, artist's and sculptor's studio activities, the renting of rooms and/or the providing or table board not to exceed five persons, the office of a musician, tutor, writer, architect, physician, technical advisor, attorney, insurance agent, and any other uses which may be determined by the zoning administrator to be the same general character as those herein enumerated and not objectionable or detrimental to the district in which located in connection with which there is no display, no stock in trade, no persons employed, and no mechanical equipment used, except as is necessary for the above enumerated occupations, or as is necessary for housekeeping purposes.

s. "Commercial canvasser" shall mean a person who conducts a poll or survey or otherwise canvasses from door to door within the city for commercial purposes.

t. "Gross receipts" shall mean and includes the total amounts actually received or receivable from sales within the city and the total amounts actually received or receivable for the performance of any act or service, of whatever nature it may be, within the city, for which a charge is made or a credit allowed whether or not such act or service is done as part of or in connection with the sale of materials, goods, wares or merchandise, calculated using the accounting method elected by the business for filing its federal income tax return. Included in "gross receipts" shall be all receipts, cash, credits and property or sale of any property of any owner's agent from the operation of a hotel, motel, apartment, rooming house or other living accommodations; gross receipts shall not be subject to any deduction on account of the cost of the property sold, the cost of materials used, labor or service costs, commissions paid or payable, interest paid or payable, or losses or other expenses whatsoever.

(Ord No. 654, § 3; Ord. No. 1090, §§ 1-4; Ord. No. 1281, §§ 1, 2)

8-1.4 Administrative Provisions.

a. Issuance Procedures.

1. Application; Contents of License. Every person required to have a license under the provisions of this section shall make application for same to the City of Novato; and upon the payment of the prescribed license fee, the city shall issue to such person a license which shall contain:

(a) The name of the person to whom the license is issued:

(b) The name of the business licensed;

(c) The place where such business is to be transacted and carried on;

(d) The date of the expiration of such license; and

(e) Such other information as may be necessary for the enforcement of the provisions of this section.

2. Affidavit; First License. Upon a person making application for the first license to be issued hereunder or for a newly established business, such person shall furnish to the city a verified written statement, upon a form provided by the city, setting forth such information as may be required and necessary to determine the amount of the license fee to be paid by the applicant.

3. Affidavit; Renewal License. Applications for renewal of a license shall submit to the city a verified written statement, upon a form to be provided by the city, setting forth such information concerning the applicant's business during the preceding year as may be required to ascertain the amount of license fee to be paid by the applicant for the ensuing year.

4. Statements not Conclusive. No statements shall be conclusive as to the matters set forth therein, nor shall the filing of the same preclude the city from collecting by appropriate action such sum as is actually due and payable hereunder. Each statement shall be subject to audit and verification by the city or its designated employees who are hereby authorized to examine and inspect employment records of any licensee or applicant for license, as may be necessary to verify or ascertain the amount of license fee due.

5. Confidentiality. The information furnished or secured pursuant to subsection 8-1.4a shall be confidential. Any unwarranted disclosures or use of such information by any officer or employee of the city shall constitute a misdemeanor, and such officer or employee shall be subject to the same penalty provisions as subsection 8-1.4d.

b. License Period.

1. License Fee; How and When Payable. Unless otherwise specifically provided, all annual license fees under the provisions of this section shall be due and payable in advance on January 1 of each year; provided that license fees covering new operations commenced after January 1 may be prorated for the balance of the license period.

Except as otherwise herein provided, license fees, other than annual, required hereunder shall be due and payable as follows:

(a) Semi-annual license fees are due and payable January 1st and July 1st of each year;

(b) Quarterly license fees are due and payable on January 1st, April 1st, July 1st and October 1st of each year;

(c) Monthly license fees are due and payable on the first day of each and every month;

(d) Weekly license fees are due and payable on Monday of each week in advance;

(e) Daily license fees are due and payable each day in advance.

c. Refunds and/or Waivers. No refunds will be made on any amount paid as a license fee except in the case of error on the part of the city in the determination of the amount of fee or in the event of double payment for a license fee.

Any refund as herein provided will be made only upon authorization of the city council (Ordinance No. 644, Section 2.11, as codified in Chapter XI, Personnel.)

d. Penalties.

1. Penalties for Failure to Pay Fee When Due. For failure to pay a license fee when due, the city shall add a penalty of ten ($10.00) dollars plus ten percent of the license fee on the last day of the month in which the fee is due and ten percent on the last day of each month thereafter while the fee remains unpaid; provided that the amount of such penalty to be added shall in no event exceed 120 percent of the amount of the license fee due in any calendar year.

2. Penalty for Violations. Any persons, firm, or corporation whether as principal, agent, employee, or otherwise, who violates any of the provisions of this section or knowingly or intentionally misrepresents to any officer or employee of the city any material fact in procuring a license herein provided for shall be deemed guilty of an infraction and upon conviction shall be punished as specified in subsection 1-5.1.

3. Failure to File Statement or Corrected Statement. If any person fails to file any required statement within the time prescribed, or if after demand therefor made by city he fails to file a corrected statement, the city will determine the amount of license fee due from such person by means of any information as may be obtainable from any source. If such a determination is made, the city shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States Post Office at Novato, California, postage prepaid, addressed to the person so assessed at his last known address return receipt requested. Such person may within 15 days after the mailing or serving of such notice make application in writing to the city for a hearing on the amount of license fee. When application for hearing is made, the city shall cause the matter to be set for hearing, within 15 days, before the city council. The city shall give at least ten days notice to such person at the time and place of hearing, in the manner prescribed above for serving notices of assessment. The council shall consider all evidence produced and shall make findings thereon which shall be final. Notice of such findings shall be served upon the applicant in the manner prescribed above or serving notice of assessment.

e. Enforcement.

1. Display of License. All licenses must be kept and posted in following manner:

(a) Any licensee transacting and carrying on business at a fixed place of business in the City of Novato shall keep the license posted in a conspicuous place upon the premises where such business is carried on.

(b) Any licensee transacting and carrying on business but not operating at a fixed place of business in the City of Novato shall keep the license upon his person at all times while transacting and carrying on such business.

2. Duty of Finance Director. It shall be the duty of the finance director, or the authorized representative of the finance director, to enforce each and all provisions of this section. All city departments shall render such assistance in the enforcement hereof as may from time-to-time be required. The finance director, or his duly authorized representative, shall have the authority to enter, at any reasonable time, any place of business required to be licensed herein, and demand an exhibition of its license certificate. Any person having such license certificate in his possession or under his control who willfully fails to exhibit same on demand shall be guilty of an infraction and submit to the penalties provided for in subsection 1-5.1.

The following designated employee positions may enforce the provisions of section 8-1 by the arrest or by the issuance of citations. Persons employed in such positions and authorized to exercise the authority provided in Penal Code Section 836.5 are authorized to issue citations with the approval of the finance director for any violations of section 8-1. The designated employee positions are:

(a) Finance director; or

(b) The designee of the finance director.

It shall be the duty of the chief of police of the city to render any and all necessary assistance to the finance director for the enforcement of section 8-1.

3. Additional Power of Finance Director. In addition to all other power conferred upon him, the finance director shall have the authority, for good cause shown, to extend the time for filing any required statement for a period not exceeding 30 days, and in such case to waive any penalty that would otherwise have accrued; and shall have the further authority with the consent of the council to arbitrate any claim as to the amount of license fee due.

f. Appeal. Any person aggrieved by any decision of the finance director with respect to the issuance or refusal to issue such license may appeal to the city council by filing a notice of appeal with the city clerk. The city council shall thereupon fix a time and place for hearing such appeal. The city clerk shall give notice to such person of the time and place of hearing by serving it personally or by depositing it in the United States Post Office at Novato, California, postage prepaid, addressed to such person at his last known address. The council shall have the authority to determine all questions raised on such appeal. No such determination shall conflict with any substantive provision of this section.

(Ord. No. 654, § 4; Ord. No. 1054, § 1; Ord. No. 1056, §§ IX, X; Ord. No. 1281, § 3)

8-1.5 General Provisions.

a. Non-Transferable-Location Amendment. No license issued pursuant to this section shall be transferable; provided that where a license is issued authorizing a person to transact and carry on a business at a particular place, such licensee may, upon application therefor, have the license amended to authorize the transacting and carrying on such business under the license at some other location to which the business has been or is to be moved.

b. Unexpired Licenses Heretofore Issued. Where a license for revenue purposes has been issued to any business in the City of Novato and the fee paid therefor under the provisions of any ordinance heretofore enacted and the term of such license has not expired, then the license fee prescribed for this business by this section shall not be payable until the expiration of the term of such unexpired license.

c. License Fee a Debt. The amount of any license fee and penalty imposed by the provisions of this section shall be deemed a debt to the city. An action may be commenced in the name of the city in any court of competent jurisdiction for the amount of any delinquent license fee and penalties.

d. Duplicate License. A duplicate license may be issued by the city to replace any license previously issued hereunder which has been lost or destroyed upon the licensee filing statement of such fact and paying to the city a duplicate license fee of two ($2.00) dollars.

e. Branch Establishment. A separate license must be obtained for each branch establishment and each separate type of business at the same location, provided that separate types of business at the same location which are operated under one ownership shall be licensed under the main or primary business at that location, and no more than one licensee fee hereunder shall be payable.

f. Persons Outside City Conducting Business Within City.

1. Delivery by Vehicle. Every person not having a fixed place of business within the City of Novato who delivers goods, wares, or merchandise of any kind by vehicle or who provides any service by the use of vehicles in the City of Novato shall pay an annual business license fee as prescribed in subsection 8-1.6a.3., For purposes of this section, the number of vehicles used shall mean the average number, regularly employed, on any single day. Persons employing vehicles solely to service coin-operated vending machines or music devices shall not be subject to this subsection.

2. Outside Contractors. Every person not having a fixed place of business within the City of Novato who engages in the business of contracting within the city, whether as general, specialty, or subcontractor, shall pay a business license fee as prescribed in subsection 8-1.6a.

3. Other Outside Business. Every person not having a fixed place of business within the City of Novato who engaged in business within the city (and is not subject to subsection 8-1.5f.2) shall pay a business license fee as prescribed in subsection 8-1.6a.

g. Change of City Boundary-Effect on License Requirement. All existing businesses brought under the jurisdiction of city ordinances by annexation procedures shall conform to the provisions of this section within 90 days of the effective date of such annexation.

(Ord. No. 654, § 5)

8-1.6 Specific Provisions.

a. License Fees Required. Every person having a fixed place of business within the city shall pay license fees as follows:

1. In General. Any business not otherwise particularly described in subsections 8-1.6a.2. or 8-1.6a.3. below shall pay an annual basic license fee of fifty ($50.00) dollars beginning January 1, 1993, seventy-five ($75.00) dollars beginning January 1, 1994 and an additional annual license fee of eight ($8.00) dollars beginning January 1, 1993, twelve ($12.00) dollars beginning January 1, 1994 for each employee in excess of one for the first ten employees; beginning January 1, 1993 six ($6.00) dollars and beginning January 1, 1994 nine ($9.00) dollars for each additional employee 11 through 50; and, beginning January 1, 1993 four ($4.00) dollars and beginning January 1, 1994 six ($6.00) dollars for each additional employee over 50. For purposes of this section, the number of employees shall be determined by adding together the number of persons employed on the 15th day of each of the 12 months in the preceding year (as shown by the applicable California Unemployment Insurance forms) and dividing by 12. New businesses will indicate on their applications the estimated number of employees who will be employed over the ensuing period of the license.

2. Multiple Rentals. (Including rentals of business offices, mobile home parks, trailer parks and apartments.) Every person owning, operating, leasing, or otherwise in the business of multiple housing rental, including nursing or convalescent homes or multiple office, business space or location renting or leasing where there are three or more units or locations shall pay beginning January 1, 1993 a minimum annual license fee of fifty ($50.00) dollars, and shall pay, beginning January 1, 1993 an additional license fee of ten ($10.00) dollars per annum, and beginning January 1, 1994 an additional license fee of fifteen ($15.00) dollars per annum, per unit in excess of three units. Where owner occupancy reduces the total number of rentals to less than three, a special exempt license shall be issued.

3. Special Rates Applicable to Specific Business as Set Out Below (in lieu of rates specified elsewhere).

_____

b. Reserved.

c. Exemptions. ("Exemption" as used in this section means only from payment of fees.)

1. Claim for Exemption.

(a) Any person claiming an exemption pursuant to any provisions of this section shall file a verified statement with the finance director stating the facts upon which the exemption is claimed. The finance director shall, upon a proper showing contained in the verified statement, issue an "exempt" license to such person, claiming exemption under this subsection without payment to the city of the license fee required by this section.

(b) The finance director, after giving notice and a reasonable opportunity for hearing to a licensee, may revoke any license granted pursuant to the provisions of this section upon information that the licensee is not enTitled to the exemption as provided herein.

2. Insurance Agents and Insurance Companies. In accordance with Article XIII, Section 28 of the California Constitution, insurance companies or insurance agents will be exempt from paying a fee under this section. Insurance brokers, as independent contractors and not agents of an insurer, are not entitled to this exemption.

3. Banks. In accordance with Article XIII, Section 16, Subdivision 1(a) of the California Constitution, banks shall not be subject to revenue portions of this section.

4. Publication or Sale of Newspapers, Magazines, and Periodicals. The revenue provisions of this section shall not apply to the publication or sale or newspapers, magazines, and other periodicals regularly issued at average intervals not exceeding three months. This exemption does not apply to receipts from job printing. For job printing, the regular business licensee fees as outlined in subsection 8-1.6a.1 shall apply.

5. Charitable and Non-profit Organizations. The revenue provisions of this section shall not be deemed or construed to require the payment of a license fee to conduct, manage, or carry on any business, occupation, or activity from any institution or organization which is conducted, managed, or carried on wholly for the benefit of charitable purposes or from which profit is not derived, either directly or indirectly, by any person; nor shall any license fee be required for the conducting of any entertainment, concert, exhibition, or lecture on scientific, historical, literary, religious, or moral subjects whenever the receipts of such entertainment, concert, exhibition, or lecture are to be appropriated to any church or school or to any religious or benevolent purpose; nor shall any license fee be required for the conducting of any entertainment, dance, concert, exhibition, or lecture by any religious, charitable, fraternal, educational, military, State, county, or municipal organization or association whenever the receipts of any such entertainment, dance, concert, exhibition, or lecture are to be appropriated for the purpose and objects for which such organization or association was formed and from which profit is not derived, either directly or indirectly, by any person; provided, however, that nothing in this section shall be deemed to exempt any such organization or association from complying with any provisions of law requiring a permit from the city council or any commission or officer to conduct, manage, or carry on any profession, trade, calling or occupation.

The city council may, at its discretion, reduce or waive the business license fee otherwise applicable to any activity carried on pursuant to a contract under which a substantial portion of the proceeds from such activity is payable to any organization which would itself be exempted from license fees by the foregoing provisions if it carried on such activity directly. Such reduction or waiver shall be granted only upon verified written application from such organization.

6. Disabled Veterans. No license fee payable hereunder shall be payable by any person who has received an honorable discharge or release from active duty in one of the United States Armed Services, who is physically unable to obtain a livelihood by manual labor, and who is a voter of this State.

7. Commercial Travelers. The provisions of this section shall not apply to any commercial traveler whose business is limited to taking orders for future delivery of goods, wares, and merchandise sold or dealt in at wholesale.

8. Occasional Transactions. The provisions of this section shall not apply to persons having no fixed place of business within the city who come into the city for the purpose of transacting a specific item of business, upon the request of a specific patient, client or customer, providing that such person does not come into the city for the purpose of transacting business or transact business therein more than twice during any calendar year.

9. Public Utilities. The provisions of this section shall not apply to public utilities which are subject to and are paying a franchise tax to the city except that any such firm when engaged in selling goods, wares, or merchandise at retail shall be subject to license fee applicable to such retail business.

10. Other Exemptions.

(a) Nothing in this section shall be deemed or construed to apply to any person transacting and carrying on any business exempt by virtue of the constitution or applicable statutes of the United States or of the State of California from the payment of such fees as are herein prescribed.

(b) None of the license fees provided for by this section shall be so applied as to occasion an undue burden upon interstate commerce. In any case, where a license fee is believed by a licensee or applicant for license to place an undue burden upon such commerce, he may apply to the city for an adjustment of the fee so that it shall not be discriminatory or unreasonable as to such commerce. Such application may be made before at, or within six months after payment of the prescribed license fee. The applicant shall, by affidavit and supporting testimony, show his method of business and such other information as the city may deem necessary in order to determine the extent, if any, of such undue burden on commerce. The finance director shall then conduct an investigation and, after having first obtained the written approval of the city attorney, shall fix as the license fee for the applicant an amount that is reasonable and nondiscriminatory, or if the license fee has already been paid, shall order a refund of the amount over and above the license fee so fixed. In fixing the license fee to be charged, the city shall have the power to base the license fee upon pertinent rates set forth herein, or any other measure which will assure that the license fee assessed shall be uniform with that assessed on businesses of like nature, so long as the amount assessed does not exceed the license fee as prescribed by this section.

(c) None of the license fees provided for by this section shall be applied to any business that grosses an amount that is equal to less than the minimum amount required by the Internal Revenue Service for the city to file a vendor 1099. In order to qualify for this exemption, the exemption applicant must demonstrate compliance with the gross income criteria established above in the most recent calendar year for which income statements are available and sign a certificate attesting that these gross income levels have not been exceeded; or, be a contractor with the City of Novato receiving gross income from the city which does not exceed the minimums established above and sign a certificate attesting that he/she does not contract with any other person, business or agent.

d. Rate Adjustment. For the business licensing periods following January 1, 1994 all rates with the exception of those rates based upon gross receipts in subsection 8-1.6(b) will be adjusted upward or downward, automatically, for each one tenth percent change in the San Francisco/Oakland, All Urban Wage Earner Consumer Price Index for the year ending in November.

e. Claims for the refund of taxes or fees imposed pursuant to this chapter shall be governed by the provisions and procedures contained in section 2-17.3 of this code.

(Ord. No. 654, § 6; Ord. No. 1090, § 6; Ord. No. 1281, §§ 4-9, 11; Ord. No. 1284, § 1; Ord. No. 1305, § 1; Ord. No. 1308, § 1; Ord. No. 1466 § 3)

8-1.7 Compliance with Other Laws and Regulations.

a. It should be clearly and specifically noted that compliance with the requirements of this section does not void or abrogate such other requirements which affect the establishment and/or conduct of business activities within the city.

b. Any business, regardless of whether or not a business license is issued, is subject to laws or ordinances covering such matters as zoning, building, health, and fire protection. Failure to comply with any of these laws or ordinances shall be grounds for denial of a business license.

c. The business license is, in effect, a receipt for the payment of fees set forth in this section and does not automatically sanction the establishment of such businesses within the community.

d. Persons who propose to establish a new business, modify the characteristics of an existing business, or relocate an existing business are urged to ensure that such intentions are consistent with all applicable laws and regulations by contacting the Novato planning department, the Novato building department, the Novato fire district, and the Marin County Department of Public Health.

(Ord. No. 654, § 7; Ord. No. 1281, § 10)

8-2.1 Definitions and Purposes.

a. Purpose. It is the intent of the city council to authorize the licensing of bingo games in the city pursuant to Section 19, Article IV of the State Constitution and Section 326.5 of the California Penal Code.

b. Bingo Defined. As used in this section, "bingo" shall mean a game of chance in which, for any valuable consideration, prizes are awarded on the basis of designated numbers or symbols on a card which conform to the numbers or symbols selected at random.

(Ord. No. 717, § 1)

8-2.2 Organizations Licensed to Conduct Bingo Games. Organizations which are exempted from the payment of bank and corporation taxes by Sections 23701(a), 23701(b), 23701(d), 23701(e), 23701(f), 23701(g), and 23701(l) of the California Revenue and Taxation Code, mobile home park associations, and senior citizens' organizations are eligible to apply for a license to conduct bingo games in the City of Novato provided that the receipts of such games are used only for charitable purposes.

(Ord. No. 717, § 2; Ord. No. 1002, § 1)

8-2.3 Application for License. Interested organizations shall file a written application for such license in the office of the finance director on a form to be provided. The license shall be for the fiscal year ending June 30, renewable upon payment of the annual fee.

(Ord. No. 717, § 3)

8-2.4 Contents of Application. The application shall contain the following:

a. Name of the applicant organization and a statement that applicant is eligible under subsection 8-2.2.

b. Name, signature and addresses of at least two officers, including the presiding officer of the organization and the name, signature and address of the member of the organization who will be primarily responsible for conducting bingo games.

c. Identification of the particular property (including the street number) on which bingo games will be conducted, together with its occupancy capacity. Such property must be owned or leased by the applicant and used by the applicant for an office or for performance of the purposes for which the applicant is organized.

d. Proposed days of week and hours of day for conduct of bingo games.

e. Applicant's agreement to conduct bingo games in strict accordance with the provisions of Section 326.5 of the California Penal Code and this section, as they may be amended, and that the license may be revoked upon violation of any of such provisions.

f. A list containing the nature, date and place of all criminal convictions, excluding minor traffic violations, of the persons whose names are required to be contained in the license application.

(Ord. No. 717,4; Ord. No. 1002, 2; Ord. No. 1175, 1)

8-2.5 Investigation of Applicant. Upon receipt of the completed application and fee, the finance director shall refer the application to interested departments of the city including the city manager, city attorney, police department, building inspection division and to the Novato Fire District, to investigate the statements in the application, applicant's qualifications and whether the proposed location is appropriate for bingo games from the standpoint of fire, occupancy and other applicable regulations.

(Ord. No. 717, § 5)

8-2.6 Contents of License. Upon being satisfied that the application meets all requirements therefor, the city manager shall issue a license, which shall contain the following information:

a. The name, address and nature of the organization to whom the license is issued.

b. The address where bingo games are authorized to be conducted.

c. The occupancy capacity of the room in which bingo games are to be conducted.

d. The date of expiration of such license.

e. Such other information as may be necessary or desirable to accomplish the purposes of this section.

(Ord. No. 717, § 6)

8-2.6.1 Denial of License. The city manager will not issue a license to the applicant organization if it is found:

a. That the organization is not eligible under the provisions of Section 326.5 of the California Penal Code of this chapter.

b. That any statement made in the application is false.

c. That any person whose name is required to be contained in the license application has been convicted of any crime involving fraud, deceit, false pretenses, trick, moral turpitude, of any violation of the provisions of chapters 9 and 10 of Title 9, Part 1 of the California Penal Code, or of any violation involving the terms of this chapter.

d. That the bingo games shall be a fraud on the public or that the bingo games will be conducted for private profit.

e. That the proposed method or methods of conducting bingo games will be contrary to the provisions of this chapter.

f. That the conduct of bingo games on the premises will not be compatible with existing zoning and land uses in the neighborhood.

g. That the licensed premises do not meet the applicable requirements of Title 19, California Administrative Code (relating to State Fire Marshal Panic and Life Safety Regulations).

(Ord. No. 1175, § 2)

8-2.7 Proceedings for Revocation of License. Whenever it appears that the licensee is conducting a bingo game in violation of any of the provisions of this section, the city manager may hold a hearing to determine whether such license shall be revoked. Notice of the time and place of hearing shall be given at least ten days before the hearing by deposit in the United States Mail addressed to the licensee at its address given in the application, or by personal delivery. The notice shall include a summary of the grounds for revocation. If satisfied from evidence presented at the hearing for revocation that the licensee has violated this section, the city manager may revoke the license.

(Ord. No. 717, § 7)

8-2.8 Appeal of Revocation to City Council.

a. Any licensee whose license is so revoked shall have the right, within ten days after receiving notice in writing of the revocation, to file a written appeal to the city council. Such appeal shall set forth the specific ground or grounds on which it is based. The city council shall hold a hearing on the appeal within 30 days after its receipt, or at a time thereafter agreed upon, and shall cause the appellant to be given at least ten days written notice of such hearing by mail or personal delivery, as above. At the hearing, the appellant or its authorized representative shall have the right to present evidence and a written or oral argument, or both, in support of its appeal. The determination of the city council on the appeal shall be final.

b. Any organization whose license is revoked may not again apply for a license to conduct bingo games in the city for a period of one year from the date of such revocation provided, however, if the sole ground for revocation is cancellation of the organizations exemption granted under Sections 23701(a), 23701(b), 23701(d), 23701(e), 23701(f), 23701(g), and 23701(1) of the California Revenue and Taxation Code, such organization may again apply for a license upon proof of reinstatement of the tax exemption.

(Ord. No. 717, § 8; Ord. No. 1002, § 3)

8-2.9 Maximum Amount of Prize. The total value of prizes awarded during the conduct of any bingo games shall not exceed two hundred and fifty ($250.00) dollars in cash or kind, or both, for each separate game which is held.

(Ord. No. 717, § 9)

8-2.10 Profits to be Kept in Separate Funds or Account. All profits derived from a bingo game conducted by an organization which is exempt by Section 23701(d) of the Revenue and Taxation Code shall be kept in a separate fund or account and shall not be commingled with any other fund or account. Such profits shall be used only for charitable purposes. With respect to other organizations authorized to conduct bingo games, all proceeds derived from a bingo game shall be kept in a separate fund or account and shall not be commingled with any other fund or account. Proceeds are the receipts of bingo games conducted by organizations not exempt by Section 23701(d) of the Revenue and Taxation Code. Such proceeds shall be used only for charitable purposes except as follows:

a. Such proceeds may be used for prizes.

b. A portion of the proceeds, not to exceed 20 percent of the proceeds before deduction of prizes or one thousand ($1,000.00) dollars per month, whichever is less, may be used for rental of property, overhead, including the purchase of bingo equipment, administrative expenses, security equipment and security personnel.

c. Such proceeds may be used to pay license fees.

(Ord. No. 717, § 10; Ord. No. 1002, § 4)

8-2.11 Financial Interest in Licensee Only. No individual, corporation, partnership, or other legal entity except the licensee shall hold a financial interest in the conduct of such bingo game.

(Ord. No. 717, § 11)

8-2.12 Exclusive Operation by Licensee. A bingo game shall be operated and staffed only by members of the licensee organization. Such members shall not receive a profit, wage or salary from any bingo game. Only the licensee shall operate such a game or participate in the promotion, supervision or any other phase of the game. This does not preclude the employment of security personnel who are not members of the authorized organization at such a bingo game by the organization conducting the game.

(Ord. No. 717, § 12; Ord. No. 1002, § 5)

8-2.13 Bingo Games Open to Public. All games shall be open to the public, not only to members of the licensee organization.

(Ord. No. 717, § 13)

8-2.14 Attendance Limited to Occupancy Capacity. Notwithstanding that bingo games are open to the public, attendance at any bingo game shall be limited to the occupancy capacity of the room in which such game is conducted, as determined by the Novato fire district and City of Novato building division in accordance with applicable laws and regulations. The licensee shall not reserve seats or space for any person.

(Ord. No. 717, § 14)

8-2.15 Bingo Games Conducted Only on Licensees Property. A licensee shall conduct a bingo game on property owned or leased by it, or property whose use is donated to the organization. and which property is used by such organization for an office or for the performance of the purposes for which the organization is organized. This subsection does not require that the property owned or leased by or whose use is donated to the organization be used or leased exclusively by or donated exclusively to such organization.

(Ord. No. 717, § 15; Ord. No. 1002, § 6)

8-2.16 Minors Not to Participate. No person under the age of 18 years shall be allowed to participate in any bingo game.

(Ord. No. 717, § 16)

8-2.17 Intoxicated Persons Not to Participate. No person who is obviously intoxicated shall be allowed to participate in a bingo game.

(Ord. No. 717, § 17)

8-2.18 Hours of Operation. No licensee shall conduct any bingo game more than six hours of any 24 hour period. No bingo game shall be conducted before 10:00 a.m. nor after 2:00 am. of any day.

(Ord. No. 717, § 18)

8-2.19 Participant Must be Present. No person shall be allowed to participate in a bingo game unless the person is physically present at the time and place in which the bingo game is being conducted.

(Ord. No. 717, § 19)

8-2.20 Receipt of Profit by a Person - A Misdemeanor Under State Law. It is a misdemeanor under Section 326.5(b) of the Penal Code of the State of California for any person to receive a profit, wage or salary from any bingo game authorized under this section, a violation of which is punishable by a fine not to exceed ten thousand ($10,000.00) dollars which fine shall be deposited in the general fund of the City of Novato.

(Ord. No. 717, § 20)

8-2.21 City May Enjoin Violations. The City of Novato may bring an action in a court of competent jurisdiction to enjoin a violation of Section 326.5 of the Penal Code of the State of California or this section

(Ord. No. 717, § 21)

* Editor's Note: Prior ordinance history includes portions of Ordinance No. 286 and 1100.

8-3.1 General Provisions. This section shall be known and may be cited as the "Novato Cable Television Ordinance."

(Ord. No. 1343, § 1)

8-3.2 Definitions and Word Usage.

a. Definitions and Usage - General. For the purposes of this section, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. 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; and the masculine gender includes the feminine gender. References to specific sections of Federal, State or local law shall be read to include succeeding sections if the applicable provisions are renumbered, recodified, or amended. References to any other government entity include any action taken by the entity, or any successor, or any entity that is authorized to act on behalf of the named entity. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined herein shall be given the meaning set forth in Title 47 of the United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. §§ 521 et seq., as amended, and, if not defined therein, their common and ordinary meaning.

b. Access channel shall mean any channel on a cable system set aside by a licensee exclusively for public, educational, or governmental use.

c. Affiliate shall mean any person who both (i) owns or controls, is owned or controlled by, or is under common ownership or control with a licensee; and who (ii) receives gross revenues from a cable system that operates in the city, is involved in the management of the system, or provides financing to a licensee.

d. Basic service shall mean any service tier that includes the retransmission of local television broadcast signals.

e. Cable Act shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq., as amended from time to time.

f. Cable service shall mean (1) the one-way transmission to subscribers of video programming or other programming services; and (2) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

g. Cable system or system shall mean a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable television service which includes video programming and other lawful communication services which may be provided with available technology and which is provided to multiple customers within the city, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves only customers in one or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities use any public right-of-way, including streets or easements; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Cable Act, except that such facility shall be considered a cable system if such facility is used in the transmission of video programming, whether on a common carrier or non-common carrier basis, directly to customers; or (4) any facilities of any electric utility used solely for operating its electric utility systems. A reference to a cable system refers to any part thereof, including, without limitation, converters owned or leased by the licensee.

h. City shall mean the City of Novato, California, and any agency, department, or agent thereof.

i. City council shall mean the city council of the City of Novato, California.

j. City manager shall mean the city manager of the City of Novato, California.

k. FCC shall mean the Federal Communications Commission, its designee, or any successor governmental entity thereto.

l. Gross revenues shall mean any and all cash, credits which are revenues, property or other revenues (as that term is defined by GAAP) of a licensee, its affiliates, or any person in which a licensee has a financial interest, or by any other entity that is a cable operator of a system, arising from, attributable to, or in any way derived from the operation of a licensees cable system in the city, including the studios and other facilities associated therewith. Gross revenues include, by way of illustration and not limitation, monthly fees charged subscribers in the city for any basic, optional, premium, per-channel, or per-program service; installation, disconnection, reconnection, and change-in-service fees; leased channel fees; late fees and administrative fees; fees, payments, or other consideration received from programmers for carriage of programming on the system; revenues from rentals or sales of converters or other equipment; studio rental, production equipment, and personnel fees; advertising revenues; barter; revenues from program guides; revenues from the sale or carriage of non-cable services to the extent permitted by law, including information services, bypass services, and the sale or lease of capacity on the cable system for carriage of non-cable services; and revenues from home shopping and bank-at-home channels. Gross revenues shall not include fees and payments from subscribers who do not live in the city. When the revenue of licensee includes revenue from sources outside of the City of Novato, the licensee shall prorate the revenue among its sources by multiplying such revenue by a fraction the numerator of which is the number of licensee's subscribers in the City of Novato and the denominator of which is the total number of all licensee's subscribers. Gross revenues shall be the basis for computing the license fee under any license. Gross revenues shall not include any (i) taxes on services furnished by a licensee which are imposed directly on any subscriber or user by the State, city, or other governmental unit and which are collected by a licensee on behalf of said governmental unit; or (ii) to the extent consistent with generally-accepted accounting principles, actual bad debt write-offs, provided, however that all or any part of any such actual bad debt that is written off but subsequently collected shall be included in gross revenues in the period collected. Licensee may deduct amounts collected from subscribers as a license fee from gross revenues in computing the amount of license fees owed the city unless applicable law requires license fees to be included in gross revenues. Gross revenues shall not include income arising from, attributable to, or in any way derived from the sale of equipment or other assets of a licensee's cable system to persons not purchasing services from the system.

m. License shall mean a nonexclusive authorization granted in accordance with this section to construct, operate, and maintain a cable system along the public rights-of-way within all or a specified area of the city and on private property as identified in subsection 8-3.3d,1. herein. The term "operate" as it is used in this section with reference to a cable system includes, without limitation, the repair, upgrade and reconstruction of the cable system. Any such authorization, in whatever form granted, shall not mean or include any permit required for the privilege of transacting and carrying on a business within the city as required by the ordinances and laws of the city, or for attaching devices to poles or other structures, whether owned by the city or a private entity, or for excavating or performing other work in or along public rights-of-way. Licensee shall be subject to all permits and approvals of general applicability regarding work in the public rights-of-way, so long as such permits are required of any and all persons except public utilities conducting such activities within the city and do not otherwise unreasonably discriminate against the licensee.

n. License agreement shall mean a contract entered into in accordance with the provisions of this section between the city and a licensee that sets forth, subject to this section, the terms and conditions under which a license will be exercised.

o. License area shall mean the area of the city that a licensee is authorized to serve by its license agreement.

p. Licensee shall mean a natural person, partnership, domestic or foreign corporation, association, joint venture, or organization of any kind that has been granted a cable television license by the city council.

q. Person shall mean an individual, partnership, association, joint stock company, organization, corporation, or any lawful successor thereto or transferee thereof, but such term does not include the city.

r. Public rights-of-way shall mean the surface, the air space above the surface, and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement, or similar property in which the city now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining a cable system. No reference herein, or in any license agreement, to a "public right-of-way" shall be deemed to be a representation or guarantee by the city that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a licensee shall be deemed to gain only those rights to use as are properly in the city and as the city may have the undisputed right and power to give.

s. Sale shall mean any sale, exchange, or barter transaction.

t. Service tier shall mean a package of two or more cable services for which a separate charge is made by the licensee, other than a package of premium and pay-per-view services that is not subject to rate regulation under the Cable Act and applicable FCC regulations because those services are also sold on a true a la carte basis.

u. Subscriber shall mean any person who legally receives any service delivered over a cable system.

v. Transfer.

1. "Transfer" shall mean any transaction in which: (A) any person or group of persons, previously holding an ownership or other right, title, or interest of less than 50 percent in a licensee or its cable system would acquire an ownership or other right, title, or interest of 50 percent or more; (B) there is any change, acquisition, or transfer of control of the licensee; (C) the rights and/or obligations held by the licensee under the franchise are transferred, directly or indirectly, to another party; (D) any change or substitution occurs in the managing general partners of the licensee; or (E) all or substantially all of the assets or property of a licensee used or held in connection with a cable system are subjected to any lien, mortgage, lease or security interest, where "substantially" shall mean 50 percent or more. Provided, the granting of a security interest in real property in connection with the acquisition of the real property for the system shall not be deemed a "transfer."

2. Control for purposes of this section shall mean the legal or practical ability to exert actual working control over the affairs of a licensee, grantee or applicant, whether by contractual agreement, majority ownership interest, any lesser ownership interest, or in any other manner.

3. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or accumulation of 50 percent or more of the ownership of a licensee by any person or group of persons acting in concert, none of whom already own or control 50 percent or more of such right or control, singularly or collectively.

w. Transmission of video programming directly to subscribers shall mean the delivery of programming to subscribers' premises equipment, whether or not that programming is selected, controlled, or marketed to subscribers by the entity that delivers it.

x. User shall mean a person or organization utilizing a channel or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

(Ord. No. 1343, § 2)

8-3.3 Grant of License.

a. Grant of License. The city council may grant one or more cable television licenses, and each such license shall be awarded in accordance with and subject to the provisions of this section.

b. License Required. No person may construct or operate a cable system without a license granted by the city council. No person may be granted a license without having entered into a license agreement with the city pursuant to this section.

c. Length of License. No license shall initially be granted for a period of more than 12 years, except that a licensee may apply for renewal or extension pursuant to subsection 8-3.4 of this section.

d. License Characteristics.

1. A license authorizes use of public rights-of-way for installing cables, wires, lines, optical fiber, underground conduit, and other devices necessary and appurtenant to the operation of a cable system within a license area, but does not expressly or implicitly authorize a licensee to provide service to, or install a cable system on, private property without owner consent (except for use of compatible easements pursuant to Section 621 of the Cable Act, 47 U.S.C. § 541(a)(2)), or to use publicly or privately owned conduits without a separate agreement with the owners.

2. A license is nonexclusive and will not explicitly or implicitly: preclude the issuance of other licenses to operate cable systems within the city; affect the city council's right to authorize use of public rights-of-way by other persons to operate cable systems or for other purposes as it determines appropriate; or affect the city's right to itself construct, operate, or maintain a cable system, with or without a license; provided, however, that the city shall not grant any exclusive rights that interfere with or prevent the exercise by a licensee of its rights or privileges under a license.

3. Once a license agreement has been accepted and executed by the city and a licensee, such license agreement shall constitute a contract between the licensee and the city, and the terms, conditions, and provisions of such license agreement, subject to this section and all other duly enacted and applicable laws, shall define the rights and obligations of the licensee and the city relating to the license.

4. All privileges prescribed by a license shall be subordinate to any prior lawful occupancy of the public rights-of-way, and the city reserves the right to reasonably designate where a licensee's facilities are to be placed within the public rights-of-way. The placement of wires or other facilities in a particular location within the right-of-way does not create a property interest in that location.

5. A license shall be a privilege that is in the public trust and personal to the original licensee. No transfer of a license shall occur without the written prior consent of the city and unless application is made by the licensee and city approval obtained, pursuant to this section and the license agreement.

6. A licensee may not as a condition of providing or continuing service enter into or enforce any contract with a subscriber (including, but not limited to, a building owner) that prevents the subscribers from receiving video programming services from any other person. Notwithstanding the foregoing, licensee and a subscriber may voluntarily enter into such a contract.

e. Licensee Subject to Other Laws, Police Power.

1. A licensee shall at all times be subject to and shall comply with all applicable Federal, State, and local laws. A licensee shall at all times be subject to all lawful exercise of the police power of the city, including all rights the city may have under 47 U.S.C. § 552.

2. No course of dealing between a licensee and the city, or any delay on the part of the city in exercising any rights hereunder, shall operate as a waiver of any such rights of the city or acquiescence in the actions of a licensee in contravention of rights except to the extent expressly waived in writing by the city or expressly provided for in a license agreement.

f. Interpretation of License Terms.

1. In the event of a conflict between this section and a license agreement, the provisions of this section shall control, except where it is otherwise expressly provided to the contrary in a license agreement.

2. All license agreements are subject to the provisions of this section in effect on the effective date of the license agreement. In the event of a conflict between a subsequent amendment to this section and the provisions of a license agreement, the provisions of the license agreement shall control unless the conflicting provision of the section constitutes a lawful exercise by the city council of its police powers and is limited to matters necessary to the health, safety and welfare of city residents.

3. The provisions of this section and a license agreement will be liberally construed to promote the public interest.

4. Except as to matters that are governed solely by Federal law or regulation, a license agreement will be governed by and construed in accordance with the laws of the State of California.

g. Operation of a Cable System Without a License. Any person who occupies public rights-of-way for the purpose of operating or constructing a cable system or for transmission of video programming or other transmissions which are subject to this section directly to subscribers and who does not hold a valid license from the city shall be subject to all provisions of this section, including but not limited to its provisions regarding construction and technical standards and license fees except insofar as Federal or State law may specifically exempt such entity from the requirements herein. Except as prohibited by Federal or State law, in its discretion, the city at any time may require such person to enter into a license agreement within 30 days of receipt of a written notice by the city that a license agreement is required; require such person to remove its property and restore the area to a condition satisfactory to the city within such time period; remove the property itself and restore the area to a satisfactory condition and charge the person the costs therefor; and/or take any other action it is entitled to take under applicable law, including filing for and seeking damages under trespass. In no event shall a license be created unless it is issued by action of the city council and subject to a written license agreement.

h. Acts at Licensee's Expense. Any act that a licensee is or may be required to perform under this section, a license agreement, or applicable law shall be performed at the licensee's expense, unless expressly provided to the contrary in this section, the license agreement, or applicable law.

i. Eminent Domain. Nothing in any license agreement shall be deemed or construed to impair or affect, in any way or to any extent, the right of the city to acquire the property of the licensee through the exercise of the right of eminent domain, and nothing 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 with respect to any public utility.

j. Exclusive Contracts and Anticompetitive Acts Prohibited.

1. No licensee shall enter into an exclusive contract for the provision of cable service with any person, or demand the exclusive right to serve a person or location as a condition of extending service.

2. No licensee shall engage in acts that have the purpose or effect of limiting competition for the provision of cable service or other video programming services, such as VDT or DBS/DSS in the city, except for such actions as are expressly permitted by Federal or State law.

(Ord. No. 1343, § 3)

8-3.4 Applications for Grant, Renewal, or Modification of Licenses.

a. Written Application.

1. A written application shall be filed with the city manager for (1) grant of an initial license; (2) renewal of a license under 47 U.S.C. § 546(a)-(g); or (3) modification of a license agreement pursuant to this section or a license agreement. An applicant shall demonstrate in its application compliance with all requirements of this section and all applicable laws, or, in the case of an application for a modification, why the modification is necessary.

2. To be acceptable for filing, a signed original of the application shall be submitted together with 12 copies. The application must be accompanied by the required application filing fee required by city law, conform to any applicable request for proposals, and contain all required information. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.

3. All applications accepted for filing shall be made available by the city manager for public inspection.

b. Application for Grant of a License, Other Than a Cable Act Renewal License.

1. A person may apply for a license by submitting a request for issuance of a Request for Proposals (RFP) and requesting an evaluation of its application pursuant to subsection 8-3.4b.3. Upon receipt of a request for an RFP, the city shall, if necessary, commence a proceeding to identify the future cable-related needs and interests of the community and, upon completion of that proceeding, shall promptly issue an RFP and proposed license agreement, which shall be mailed to the person requesting its issuance and made available to any other interested party. The applicant shall respond within the time directed by the city, providing the information and material set forth in subsection 8-3.4d. The procedures, instructions, and requirements set forth in the RFP shall be followed by each applicant as if set forth and required herein. The city or its designee may seek additional necessary information from any applicant and establish deadlines for the submission of such information.

2. Notwithstanding the provisions of subsection 8-3.4b.1, a person may apply for an initial license by submitting an unsolicited application containing the information required in subsection 8-3.4d and requesting an evaluation of that application pursuant to subsection 8-3.4b.3. Prior to evaluating that application, the city may conduct such investigations as are necessary to determine whether the application satisfies the standards set forth in subsection 8-3.4b.3 and may seek additional applications.

3. In evaluating an application for a license, the city shall consider, among other things, the following factors:

(a) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing cable license for the city.

(b) Whether the quality of the applicant's service under any existing license in the city, including signal quality, response to customer complaints, billing practices, and the like, has been reasonable in light of the needs and interests of the communities served.

(c) Whether the applicant has the financial, technical, and legal qualifications to build and operate a cable system and to provide cable service.

(d) Whether the application satisfies any minimum requirements established by the city and is otherwise reasonable to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests.

(e) Whether, to the extent not considered as part of subsection 8-3.4b.3(d), the applicant will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support, taking into account the costs and the feasibility of meeting the needs and interests of the community.

(f) Whether issuance of a license is warranted in the public interest considering the immediate and future effect on the public rights-of-way and private property that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way; the effect of granting a license on the ability of cable to meet the cable-related needs and interests of the community; and the comparative superiority or inferiority of competing applications.

(g) Whether the applicant or an affiliate of the applicant owns or controls any other cable system in the city, or whether grant of the application may eliminate or reduce competition in the delivery of cable service in the city or any portion thereof.

4. If the city council finds that it is in the public interest to issue a license considering the factors set forth above, and subject to the applicants entry into an appropriate license agreement, it shall issue a license. If the city council denies a license, it will issue a written decision explaining why the license was denied. Prior to deciding whether or not to issue a license, the city council may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received. The city council also may grant or deny a request for a license based on its review of an application without further proceedings, provided that it does not do so unreasonably, and may reject any application that is incomplete or fails to respond to an RFP. This section is not intended and shall not be interpreted to grant a separate basis for any applicant or existing licensee standing to challenge the issuance of a license to another person.

c. Application for Grant of a Cable Act Renewal License. Applications for renewal under 47 U.S.C. § 546(a) shall be received and reviewed in a manner consistent with 47 U.S.C. § 546(a)-(g). If neither a licensee nor the city activates in a timely manner or can activate the renewal process set forth in 47 U.S.C. § 546(a)-(g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. § 546(h), the provisions of subsection 8-3.4 shall apply and a renewal request shall be evaluated using the same criteria as any other request for a license. The following requirements shall apply to renewal requests properly submitted pursuant to 47 U.S.C. § 546(a):

1. If the provisions of 47 U.S.C. § 546(a)-(g) are properly invoked, the city shall issue an RFP after conducting a proceeding to review the applicant's past performance and to identify future cable-related community needs and interests. The city manager or his designee shall establish deadlines and procedures for responding to the RFP, may seek additional necessary information from the applicant, and shall establish deadlines for the submission of that additional necessary information. Following receipt of the application responding to that RFP (and such additional information as may be provided in response to requests), the city council will determine that the license should be renewed, or make a preliminary assessment that the license should not be renewed. This determination shall be in accordance with the time limits established by the Cable Act. The preliminary determination shall be made by Resolution. If the city council determines that the license should not be renewed, and the applicant that submitted the renewal application notifies the city council in writing, either in its RFP response or within ten working days of the preliminary assessment, that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then the city council shall commence an administrative proceeding after providing prompt public notice thereof, in accordance with the Cable Act. If the city council decides preliminarily to grant renewal, it shall prepare a final license agreement that incorporates, as appropriate, the commitments made by the applicant in the renewal application. If the applicant accepts the license agreement, and the final agreement is ratified by the city council, the license shall be renewed. If the license agreement is not so accepted and ratified within the time limits established by 47 U.S.C. § 546(c)(1), renewal shall be deemed preliminarily denied, and an administrative proceeding commenced if the applicant that submitted the renewal application requests it within ten days of the expiration of the time limit established by 47 U.S.C. § 546(c)(1).

2. If an administrative hearing is commenced pursuant to 47 U.S.C. § 546(c), the applicant's renewal application shall be evaluated considering such matters as may be considered consistent with Federal law. The following procedures shall apply:

(a) The city council shall, by resolution, appoint an administrative hearing officer or officers (referred to hereafter as hearing officer). The city council may appoint itself as hearing officer.

(b) The hearing officer shall establish a schedule for proceeding which allows for documentary discovery and interrogatory responses, production of evidence, and cross-examination of witnesses. Depositions shall not be permitted unless the party requesting the deposition shows that documentary discovery and interrogatory responses will not provide it an adequate opportunity to require the production of evidence necessary to present its case. The hearing officer shall have the authority to require the production of evidence as the interests of justice may require and that is not prohibited by law. The hearing officer may issue protective orders, but shall not prohibit discovery on the ground that evidence sought is proprietary or involves business secrets. Any order may be enforced by a court of competent jurisdiction or by imposing appropriate sanctions in the administrative hearing.

(c) The hearing officer may conduct a prehearing conference and establish appropriate prehearing orders. Intervention by non-parties is not authorized except to the extent required by the Cable Act.

(d) The hearing officer shall require the city and the applicant to submit prepared testimony prior to the hearing. Unless the parties agree otherwise, the applicant shall present evidence first, and the city shall present evidence second.

(e) Any reports or the transcript or summary of any proceedings conducted pursuant to 47 U.S.C. § 546(a) shall for purposes of the administrative hearing be regarded no differently than any other evidence. The city and the applicant must be afforded full procedural protection regarding evidence related to these proceedings, including the right to refute any evidence introduced in these proceedings or sought to be introduced by the other party. Both shall have the opportunity to submit additional evidence related to issues raised in the proceeding conducted pursuant to 47 U.S.C. § 546(a).

(f) Following completion of any hearing, the hearing officer shall require the parties to submit proposed findings of fact with respect to the matters that the city is entitled to consider in determining whether renewal ought to be granted. Based on the record of the hearing, the hearing officer shall then prepare written findings with respect to those matters, and submit those findings to the city council and to the parties (unless the hearing officer is the city council, in which case the written findings shall constitute the final decision of the city).

(g) If the hearing officer is not the city council, the parties shall have 30 days from the date the findings are submitted to the city council to file exceptions to those findings. The city council shall thereafter issue a written decision granting or denying the application for renewal, consistent with the requirements of the Cable Act and based on the record of such proceeding. A copy of the final decision of the city council shall be provided to the applicant.

(h) The proceeding shall be conducted with due speed.

(i) In the event a decision is made to deny renewal, the licensee shall have the rights granted by State and Federal law to seek judicial review of the decision.

(j) In conducting the proceedings, and except as inconsistent with the foregoing, the hearing officer will follow the California Administrative Procedures Act or equivalent, or the successor statutes thereto. The hearing officer may request that the city council adopt additional procedures and requirements as necessary in the interest of justice.

(k) This section does not prohibit any licensee from submitting an informal renewal application pursuant to 47 U.S.C. § 546(h), which application may be granted or denied in accordance with the provisions of 47 U.S.C. §546(h). If such an informal renewal application is granted, then the steps specified in paragraphs c.1 and c.2(a)-(j) of this subsection need not be taken, notwithstanding the provisions of those subsections.

(l) The provisions of this section shall be read and applied so that they are consistent with Section 626 of the Cable Act, 47 U.S.C. § 546.

d. Contents of Application. An RFP for the grant of a license, including for a renewal license under 47 U.S.C. §546(c), shall require, and any application submitted (other than an application submitted pursuant to 47 U.S.C. § 546(h)) shall contain, at a minimum, the following information:

1. Name and address of the applicant and identification of the ownership and control of the applicant, including: the names, addresses and percentage of equitable interest held by the ten largest holders of an equitable interest in the applicant and affiliates of the applicant, and all persons with a three (3) percent or more equitable interest in the applicant and its affiliates; the persons who control the applicant and its affiliates; all officers and directors of the applicant and its affiliates; and any other business affiliation that would have a bearing on the application and cable system ownership interest of each named person. The term "equitable interest" shall include, without limitation, all assignments for value as well as all contingent assignments of any right or privilege under the prospective license, and shall also include any benefit, payment or emolument whatsoever resulting from the grant of a license under this section.

2. A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system, including identification of key personnel.

3. A demonstration of the applicant's legal qualifications to construct and/or operate the proposed cable system, including but not limited to a demonstration that the applicant is willing to abide by this ordinance and the terms of a franchise agreement proffered by the city, and meets the following criteria:

(a) The applicant must not have submitted an application for an initial or renewal license to the city, which was denied on the ground that the applicant failed to propose a system meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved adversely to the applicant, within three years preceding the submission of the application.

(b) The applicant must not have had any cable television license validly revoked by any franchising authority within three years preceding the submission of the application.

(c) The applicant must have the necessary authority under California law to operate a cable system.

(d) The applicant shall not be issued a license if it may not hold the license as a matter of Federal law. An applicant must have, or show that it is qualified to obtain within a reasonable period of time, any necessary Federal franchises or waivers required to operate the system proposed.

(e) The applicant shall not be issued a license if, at any time during the ten years preceding the submission of the application, the applicant or any of its officers, directors, or holders of more than a three percent equitable interest was convicted of any crime of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers of the cable system, or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct.

(f) The applicant shall not be issued a license if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.

(g) The applicant shall not be issued a license if an elected official of the city holds a controlling interest in the applicant or an affiliate of the applicant.

Notwithstanding the foregoing, the city council shall provide an opportunity to an applicant to show that it would be inappropriate to deny it a license under subsection 8-3.4d.3(b) or (e), by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of cable television systems.

4. A statement prepared by a certified public accountant regarding the applicant's financial ability to complete the construction and operation of the cable system proposed, including financial statements for the applicant's two latest fiscal years. Audited financial statements of the applicant are to be provided, if such have been prepared.

5. A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of communities and references therein in which the applicant or any of its principals have, or have had, a cable license or franchise or any interest therein, provided that an applicant that holds a license for the city and is seeking renewal of that license need only provide this information for other communities where its license was scheduled to expire in the two calendar years prior to and two calendar years after its application was submitted.

6. Identification of the area of the city to be served by the proposed cable system, including a description of the proposed license area's boundaries.

7. A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities.

8. Where applicable, a description of the construction of the proposed system, including an estimate of plant mileage and its location; the proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities.

9. The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services.

10. A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of how the applicant will meet the needs described in any recent community needs assessment conducted by or for the city, how the applicant will provide adequate public, educational, and governmental access channel capacity, equipment, facilities, and support to meet the community's needs and interests, and a description of the applicant's proposed operations, including but not limited to business hours, operating staff, and maintenance procedures.

11. Pro forma financial projections for the proposed license term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in notes or supporting schedules.

12. If the applicant proposes to provide cable service to an area already served by an existing cable licensee, the identification of the area where the overbuild would occur, the potential subscriber density in the area that would encompass the overbuild, and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional system.

13. A list of all material agreements, whether written or oral, existing between the applicant and any other person, firm, group or corporation with respect to the operation of any license awarded hereunder and the conduct of the operation thereof, existing at the time of the application.

14. Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this section.

15. Information about the applicant that the city may request of the applicant that is necessary to the city's consideration of the application. Furthermore, nothing in this section shall require the applicant to disclose confidential or proprietary information without adequate safeguards to protect its confidential or proprietary nature.

16. An affidavit or declaration of the applicant or authorized officer certifying to the applicant's or such officer's best knowledge and belief the truth and accuracy of the information in the application, acknowledging the enforceability of application commitments, and certifying that the application meets all Federal and State law requirements.

e. Application for Modification of a License. An application for modification of a license agreement shall include, at minimum, the following information:

1. The specific modification requested;

2. The justification for the requested modification, including the potential impact of the requested modification on present and future subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of financial pro formas;

3. A statement whether the modification is sought pursuant to Section 625 of the Cable Act, 47 U.S.C. § 545, and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. § 545;

4. Any other information that the applicant believes is necessary for the city to make an informed determination on the application for modification; and

5. An affidavit or declaration of the applicant or authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with all Federal and State law requirements.

f. Filing Fees. To be acceptable for filing, an application submitted after the effective date of this section shall be accompanied by a filing fee in accordance with city law, ordinances and resolutions concerning fee and cost recovery. In addition, the city may require the licensee, or, where applicable, a transferor or transferee, to fully reimburse the city for its reasonable out-of-pocket expenses in considering the application, including consultants' fees, fees of consulting attorneys, in accordance with city law, ordinances or resolutions concerning fee and cost recovery. If the city's costs of reviewing a particular application or request prove to be less than the amount of the initial filing fee, the difference, if any, will be refunded to the licensee in accordance with the city's general cost recovery fee program.

g. Public Hearings. An applicant shall be notified of any public hearings held in connection with the evaluation of its application and shall be given an opportunity to be heard. In addition, prior to the issuance of a license, the city shall provide for the holding of a public hearing within the proposed license area, following reasonable notice to the public, at which every applicant and its applications shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard. Reasonable notice to the public shall include causing notice of the time and place of such hearing to be published in a newspaper of general circulation in the proposed license area once a week for two consecutive weeks. The first publication shall be not less than 14 days before the day of the hearing.

(Ord. No. 1343, § 4)

8-3.5 Construction Provisions.

a. System Construction Schedule.

1. Every license agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the cable system.

2. Failure on the part of a licensee to commence and diligently pursue each of the requirements and complete each of the matters set forth in its license agreement or to comply with the system design and construction plan submitted to the city, including by providing the equipment specified (or its equivalent) and by following the distribution system design plan, construction plan and installation practices manual (except insofar as those plans or practices, if carried out, would result in construction of a system which could not meet requirements of Federal, State or local law; and except for such minor modifications as are typical in the industry), shall be grounds for termination of its license under and pursuant to the terms of subsection 8-3.12e. or the imposition of penalties pursuant to subsection 8-3.12d; provided, however, that the time for the completion of construction and installation shall be extended for reasonable additional periods in the event a licensee, acting in good faith, experiences delays by reason of circumstances beyond its control.

b. Construction Procedures.

1. A licensee shall construct, operate and maintain the cable system subject to all of the authorities of the city who have jurisdiction in such matters, and in strict compliance with all laws, ordinances, departmental rules and regulations affecting the system.

2. The system, and all parts thereof, shall be subject to the right of periodic inspection by the city.

3. No construction, reconstruction or relocation of the system or any part thereof within the public rights-of-way shall be commenced until written permits have been obtained from the proper city officials. In any permit so issued, such officials may impose such conditions and regulations as a condition of the granting of the permit as are necessary for the purpose of protecting any structures in the public rights-of-way and for the proper restoration of such public rights-of-way and structures, and for the protection of the public and the continuity of pedestrian and vehicular traffic. Nothing in this section waives city's ordinances or requirements of general application affecting use of the public rights-of-way.

4. The city council may, from time to time, issue such reasonable rules and regulations concerning the construction, operation and maintenance of the system as are consistent with the provisions of this section, the license agreement, and the license issued pursuant to this section.

c. Construction Standards.

1. The construction, operation, maintenance, and repair of a cable system shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970, as amended, the National Electrical Safety Code, the National Electric Code, National Cable Television Association Standards of Good Engineering Practices; Obstruction Marking and Lighting, AC 70/7460 i.e., Federal Aviation Administration; Construction, Marking and Lighting of Antenna Structures, Federal Communications Commission Rules Part 17; City of Novato Utility Construction Requirements; Applicant's Construction Procedures Manual; other applicable Federal, State, or local laws and regulations that may apply to the operation, construction, maintenance, or repair of a cable system, including, without limitation, local zoning and construction codes, and laws and accepted industry practices, all as hereafter may be amended or adopted. Provided, however, that no amendments or later adopted rules that conflict with or modify the license agreement shall apply to licensee unless such amendments or later adopted rules do not unreasonably discriminate against licensee and are of general application to all businesses covered by this section operating in the city which the city can lawfully regulate or unless such amendments or rules are necessary to the health, safety and welfare of city residents. In the event of a conflict among codes and standards, the code or standard shall apply which provides a reasonable degree of protection for citizens (except insofar as those standards, if followed, would result in a system that could not meet requirements of Federal, State or local law). The city may adopt additional standards as required to ensure that work continues to be performed in an orderly and worker-like manner, or to reflect generally accepted changes in standards which may occur over the license term.

2. All wires, cable lines, and other transmission lines, equipment, and structures shall be installed and located to cause minimum interference with the rights and convenience of property owners. Licensee shall confer with property owners or their agents prior to performing any installation work regarding the nature of the work and how it will be performed.

3. All installation of electronic equipment shall be of a permanent nature, using durable components.

4. Without limiting the foregoing, antennas and their supporting structures (towers) shall be designed in accordance with the Uniform Building Code as amended, and shall be painted, lighted, erected, and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable State or local laws, codes, and regulations, all as hereafter may be amended or adopted.

5. Without limiting the foregoing, all of a licensees plant and equipment, including, but not limited to, the antennas site, headend and distribution system, towers, house connections, structures, poles, wires, cable, coaxial cable, fiber optic cable, fixtures, and apparatuses shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained, and operated in accordance with good engineering practices, performed by experienced and properly trained maintenance and construction personnel so as not to endanger or interfere with improvements the city shall deem appropriate to make or to interfere in any manner with the public rights-of-way or legal rights of any property owner or to unnecessarily hinder or obstruct pedestrian or vehicular traffic.

6. All safety practices required by law shall be used during construction, maintenance, and repair of a cable system. A licensee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public.

7. A licensee shall not place facilities, equipment, or fixtures where they unreasonably interfere with any existing gas, electric, telephone, water, sewer, or other utility facilities, or where at the time of the placement they obstruct or hinder the various utilities serving the residents of the city or their use of any public rights-of-way.

8. Any and all public rights-of-way, public property, or private property that is disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance, or construction of a system by licensee or its agents shall be promptly repaired by the licensee in accordance with city standards and specifications, public utility standards and specifications, and law.

9. A licensee shall, by a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city by reason of traffic conditions; public safety; public right-of-way construction; public right-of way maintenance or repair (including resurfacing or widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned communications system, public work or improvement or any government-owned utility; public-right-of-way vacation; or for any other purpose where the convenience of the city would be served thereby. If the licensee fails to do so, the city or the State of California may cause the necessary work to be completed and the licensee shall pay the cost thereof within ten days of receipt of an itemized account of such cost.

10. If any removal, relaying, or relocation is required to accommodate the construction, operation, or repair of the facilities of another person that is authorized to use the public rights-of-way, a licensee shall, after 30 days' advance written notice, take action to effect the necessary changes requested by the responsible entity. The licensee shall be entitled to reimbursement of its costs to the extent provided by any applicable contract, ordinance or law.

11. In the event of an emergency, or where a cable system creates or is contributing to an immediate danger to health, safety, or property, the city may remove, relay, or relocate any or all parts of that cable system without prior notice.

12. A licensee shall, on the request of any person holding a building moving permit issued by the city, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same, and the licensee shall have the authority to require such payment in advance, except in the case where the requesting person is the city, in which case no such payment shall be required. The licensee shall be given not less than 48 hours' advance notice to arrange for such temporary wire changes.

13. A licensee shall have the authority to trim trees that overhang a public right-of-way of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of the licensee. Trimming shall be done in accordance with city policy and practices, and in no circumstance shall the extent of such trimming exceed two years' growth. At the option of the city, such trimming may be done by it or under the city's supervision and direction, and at the expense of the licensee.

14. A licensee shall use, with the owner's permission, existing underground conduits or overhead utility facilities whenever feasible and may not erect poles in public rights-of-way without the express permission of the city manager. Copies of agreements for use of conduits or other facilities shall be filed with the city as required by a license agreement or upon city request.

15. Trunk, feeder and drop cable may be constructed overhead where poles now exist and electric or telephone lines or both are now overhead, but where no overhead poles exist all trunk, feeder and drop cable shall be constructed underground. Whenever and wherever electric lines and telephone lines are moved from overhead to underground placement, all cable system cables shall be similarly moved underground. To the extent that affected residents must pay for undergrounding of electrical and telephone utilities, they shall pay the cost of undergrounding the cable system.

16. The city shall have the right to install and maintain free of charge upon any poles owned by a licensee any wire and pole fixtures that do not unreasonably interfere with the cable system operations of the licensee.

17. Prior to erection of any towers, poles, or conduits or the construction, upgrade, or rebuild of a cable system authorized under this section, a licensee shall first submit to the city and other designated parties for review in the number of copies required by the city a concise description of the cable system proposed to be erected or installed, including engineering drawings, if required by the city, together with a map and plans indicating the proposed location of all such facilities. The city shall provide licensee with a list of any objections to the proposal within 15 working days of its receipt of proposal. The licensee shall consider the city's objections and reply to the same prior to commencement of construction. If the city requests more than 15 working days to respond to the proposal, all deadlines for construction or upgrade in this section or any license agreement shall be extended one day for every additional day the city takes to respond to the proposal. In any event, the licensee may commence construction if the city has not provided its list of objections within 30 calendar days following its receipt of the proposal. Provided, nothing in this section waives any other city regulation concerning such construction.

18. Any contractor or subcontractor used for work or construction, installation, operation, maintenance, or repair of system equipment must be properly licensed under laws of the State and all applicable local ordinances, and each contractor or subcontractor shall have the same obligations with respect to its work as licensee would have under this license agreement and applicable laws if the work were performed by licensee. The licensee must ensure that contractors, subcontractors and all employees who will perform work for it are trained and experienced. The licensee shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with the license and applicable law and that contractors and subcontractors have appropriate insurance coverage, shall be fully responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor, and shall implement a quality control program to ensure that the work is properly performed.

d. Area Served. A licensee shall build its system so that it is able to provide service to all residential and commercial dwellings located within its license area as they existed on the effective date of its license. A licensee must build the system so that it can extend service to residential, government and commercial buildings developed after the effective date of its license, in accordance with subsection 8-3.5e.

e. Line Extension Requirements.

1. New Service Areas. A licensee shall extend its trunk and distribution system to serve all subscribers within the license area who request service after the effective date of its license, at no charge beyond its standard installation charge, where:

(a) The new subscriber requesting service is located within 375 feet of the termination of the cable system, or

(b) The number of then-existing potential subscribers to be passed by such extension is equal to or greater than six potential subscribers per quarter mile measured from any point on the system.

2. Petition for Relief. A licensee may petition the council for relief from the requirement of paragraph e.1. hereof by demonstrating that extraordinary circumstances justify a higher charge.

3. Cost Sharing.

(a) A licensee must extend its cable system if requirements set forth in subsection 8-3.5e.1. are not met, or if it is granted relief under subsection 8-3.5e.2, and each person requesting service agrees to reimburse the licensee based upon the following cost-sharing formula. The potential subscribers shall reimburse the licensee for the difference between the construction costs (as defined below) and the licensee's share of the construction costs. Licensee shall contribute an amount equal to the construction costs per quarter mile, multiplied by the length of the extension in quarter miles, multiplied by a fraction, whose numerator equals the number of actual potential subscribers per quarter mile at the time of the request and whose denominator equals six. Persons requesting service shall bear the remainder of the total construction costs on a pro rata basis. For example, if three potential subscribers request an extension a quarter mile long, the licensee's share shall be three-sixths (one-half) of the construction costs, and the potential subscribers shall reimburse the licensee for their pro rata share of the remainder. If six or more potential subscribers request extension, the licensee will bear all the construction costs.

(b) The "construction costs" are defined as the actual turnkey cost to construct the entire extension including electronics, pole make-ready charges, and labor, but not the cost of the house drop. The licensee shall give each potential subscriber who will be required to make contribution in aid of extension notice of the required contribution which shall contain an explanation of the basis for the charges and a copy of the subsection of this section dealing with line extension requirements.

4. Service Drops/Installation. Except as Federal rate regulations may otherwise require, the licensee shall not assess any additional cost for service drops of 150 feet or less unless extraordinary circumstances justify a higher charge. Where a drop exceeds 150 feet in length, a licensee may charge subscribers for the difference between licensee's actual costs associated with installing a 150-foot drop, and the licensee's actual cost of installing the longer drop provided that drop length shall be the shorter of (1) the actual length of installed drop or (2) shortest distance to the point where the licensee would be required to extend its distribution system.

5. Location of Drops. Except as Federal rate regulations may otherwise require, in any area where a licensee would be entitled to install a drop above-ground, the licensee will provide the homeowner the option to have the drop installed underground, but may charge the homeowner the difference between the actual cost of the above-ground installation and the actual cost of the underground installation.

6. Time for Extension. A licensee must extend service to any person who requests it (1) within ten days of the request, where service can be provided by activating or installing a drop; (2) within 30 days of the request where an extension of one-half mile or less is required; or (3) within six months where an extension of one-half mile or more is required.

f. System Tests and Inspections.

1. Tests. A licensee shall perform all tests necessary to demonstrate compliance with the requirements of the license and other performance standards established by law or regulation. All tests shall be conducted in accordance with Federal rules and in accordance with the most recent edition of NCTA's "Recommended Practices for Measurements on Cable Television Systems," or if no recent edition exists, such other appropriate manual as the parties may designate. Provided, in the event of a conflict between the NCTA or other manual and the Federal rules, a licensee shall follow the Federal rules. A licensee shall perform at least the following tests set forth in this subsection 8-3.5f.

2. Preconstruction Quality Control on Cable and Equipment. A licensee shall perform or have performed preconstruction quality tests on system components. In case of passive components, this will include testing a significant sample of devices to verify compliance with manufacturer's specifications.

3. Acceptance Tests. A licensee shall perform acceptance tests on each construction area segment prior to subscriber connection. The tests shall demonstrate that the system components are operating within standards. The city has the option of witnessing the tests. The test results shall be made available to the city for review. The licensee shall have the obligation, without further notice from the city, to take corrective action if any segment is not operating within standards.

4. Continuing Tests.

(a) The licensee and the city will jointly select locations at the extremities of the system service area to install equipment to establish permanent test points. The test points shall be installed in locked enclosures so as to be accessible from ground level. The licensee shall perform proof of performance tests at these locations at least once every six months through the life of the license except as Federal law otherwise limits its obligation, and at other points where subscriber complaints indicate tests are warranted. The tests shall demonstrate system compliance with technical specifications or standards established pursuant to the license agreement, or other applicable law. The city shall have the option of witnessing the tests. The number of required test points shall be in accordance with Federal law and with good engineering practice, and shall be appropriate to ensure all subscribers are receiving adequate service.

(b) A written report of test results shall be made available to the city upon completion of the tests. If the location fails to meet performance specifications or standards, the licensee, without requirement of additional notice or request from city, shall take corrective action, retest the locations and advise the city of the action taken and results achieved.

g. Inspections During Construction. The city may conduct inspections of construction areas and subscriber installations, including to assess compliance with the construction and installation practices manual and design plans. The licensee shall be notified of any violations found during the course of inspections. The licensee must bring violations into compliance within 30 days of the date notice of violation is given, and must submit a report to the city describing the steps taken to bring itself into compliance. Inspection does not relieve the licensee of its obligation to build in compliance with all provisions of the license.

h. Use of Public Property.

1. Should the grades or lines of the public rights-of-way which the licensee is hereby authorized to use and occupy be changed at any time during the term of the license granted, the licensee shall, if necessary, at its own cost and expense, relocate or change its system so as to conform with the new grades or lines.

2. Any alteration to the water mains, sewerage or drainage system or to any city, State or other public structures in the public rights-of-way required on account of the presence of the system in the public rights-of-way shall be made at the sole cost and expense of the licensee. During any work of constructing, operating or maintaining of the system, the licensee shall also, at its own cost and expense, protect any and all existing structures belonging to the city and any other person. All work performed by the licensee pursuant to this section shall be done in the manner prescribed by the city or other officials having jurisdiction therein.

i. Interference with Public Projects. Nothing in this section shall be in preference or hindrance to the right of the city and any board, authority, commission or public service corporation to perform or carry on any public works or public improvements of any description, and should the system unreasonably interfere with the construction, maintenance or repair of such public works or public improvements, a licensee shall, at its own cost and expense, protect or relocate its system, or part thereof, as reasonably directed by any city official, board, authority, commission or public service corporation.

j. Publicizing Proposed Construction Work. Unless construction work is required by an emergency, and except in the case of plant extensions to new developments before houses are occupied, a licensee shall publicize proposed construction work at least one week prior to commencement of that work by causing written notice of such construction work to be delivered to the city and by notifying those persons likely to be adversely affected by the work in at least two of the following ways: by telephone, in person, by mail, by distribution of flyers to residences, by publication in local newspapers, or in any other manner reasonably calculated to provide adequate notice. In addition, unless an emergency exists, before entering onto any person's property, a licensee shall contact the property owner or (in the case of residential property) the resident at least one day in advance. If a licensee must enter premises, it must schedule an appointment at the convenience of the owner or resident.

k. System Maintenance.

1. Interruptions to Be Minimized. A licensee shall schedule maintenance so that activities likely to result in an interruption of service are performed during periods of minimum subscriber use of the system.

2. Maintenance Practices. The licensee's maintenance practices shall ensure that at all times during the license term the system remains capable of providing service equal to or better than standards established in this section. In addition to its other obligations, a licensee shall (A) use replacement components of good and durable quality, with characteristics better or equal to replaced equipment; and (B) follow standards that ensure at all times during the license term that the system remain capable of providing service equal to or greater than that required by this section.

l. Continuity of Service.

1. It is the right of all subscribers in a licensee's license area to receive all available services from the licensee as long as their financial and other obligations to the licensee are satisfied.

2. A licensee shall ensure that all subscribers receive continuous uninterrupted service during the term of its license as long as a subscriber's financial and other obligations to the licensee are satisfied. In addition, following the sale or transfer of its license, a licensee shall take all steps as necessary to maintain service to subscribers until the purchaser or transferee takes over operation of the system, and shall cooperate with the city to assure an orderly transition from it to another licensee. During the transition period, the licensee will continue to be obligated to comply with the terms and conditions of its license agreement and applicable laws and regulations.

3. The city shall be entitled to injunctive relief under this paragraph 1. if:

(a) The licensee fails to provide cable service in accordance with its license over a substantial portion of the license area for 96 consecutive hours, unless the city authorizes a longer interruption of service; or unless circumstances beyond the control of the licensee prevent it from providing cable services; or

(b) The licensee, for any period, willfully and without cause refuses to provide cable service in accordance with its license over a substantial portion of the license area.

(Ord. No. 1343, § 5)

8-3.6 System Facilities, Equipment, and Services.

a. Compliance with License Agreement. In addition to satisfying such requirements as may be established through the application process and incorporated in its license agreement, every licensee shall comply with the conditions set forth in this subsection 8-3.6, except as prohibited by Federal law.

b. Provision of Cable Service. Unless otherwise specified in a license agreement, after cable service has been established by activating distribution cable for an area specified in a license agreement, a licensee shall make cable service available to any household or business requesting cable service within that area, including each multiple dwelling unit in that area, except for multiple dwelling units to which it cannot legality obtain access.

c. Cable Service to Public Buildings Occupied by Public Agencies. A licensee shall install, at no charge, at least one service outlet per public agency at all public buildings occupied by public agencies within the license area, and shall charge only its time and material costs for any additional service outlets to such facilities. The licensee shall provide basic cable service, to all outlets in such buildings free of charge. Public agency shall mean an agency of the city, county, State or Federal governments, including school districts and any political subdivision of the State of California.

d. Leased Access Requirement. A licensee shall provide leased access channels as required by Federal law.

e. Technical Standards.

1. Any cable system within the city shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards, including any such standards as hereafter may be amended or adopted by the city which are consistent with this section, the license agreement, and Federal law.

2. A licensee shall use equipment generally used in high-quality, reliable, modern systems of similar design, including, but not limited to, back-up power supplies at the fiber nodes and headend capable of providing power to the system for a minimum of three hours in the event of an electrical outage, and modulators, antennas, amplifiers, and other electronics that permit and are capable of passing through the signal received at the headend with minimal alteration or deterioration. This obligation shall include the obligation to install equipment to retransmit in stereo satellite and local broadcast signals provided in stereo. The obligation to provide backup power supplies requires the licensee to install equipment that will (A) cut in automatically on failure of commercial utility AC power, (B) revert automatically to commercial power when it is restored, and (C) prevent the standby power source from powering a "dead" utility line.

3. A licensee shall not design, install, or operate its facilities in a manner that will unreasonably interfere with the signals of any broadcast station, the facilities of any public utility, the cable system of another licensee, or individual or master antennae used for receiving television or other broadcast signals.

f. Proof of Performance Tests. At the times specified in a license agreement or as required by FCC rules, a licensee shall perform proof of performance tests, and such other tests as may be specified in a license agreement, designed to demonstrate compliance with this subsection, the license agreement, and FCC requirements. The licensee shall provide the proof of performance test results promptly to the city. The licensee shall provide the city ten days' advance written notice when a proof of performance or other required test is scheduled so that the city may have an observer present. The city shall have the right to inspect and test, in cooperation with the licensee, the cable system during and after its construction to ensure compliance with this subsection, a license agreement, and applicable provisions of local, State and Federal law. Licensee's cooperation shall not be unreasonably withheld in the conduct of such inspections and tests.

g. Interconnection.

1. A licensee shall design its system so that it may be interconnected with any or all other cable television systems or similar communications systems in the area. Interconnection of systems may be made by direct cable connection, microwave link, satellite or other appropriate methods.

2. A licensee may interconnect its system with other cable systems upon its own initiative, or upon request of the city council to interconnect, a licensee shall begin good faith negotiations concerning interconnection with the other affected system or systems.

3. The licensee shall not be in violation of this section if in the exercise of its business judgment and after due consideration of the city's request, the needs and interests of the community, advancements in technology, the availability of programming, and the cost to subscribers, and after it engages in good faith negotiations with other affected systems, it does not interconnect its system.

4. All signals to be interconnected will comply with FCC technical standards for all classes of signals and will result in no more than a low level of distortion.

5. A licensee shall cooperate with any interconnection corporation, regional interconnection authority, State or Federal regulatory agency which may be hereafter established for the purpose of regulating, facilitating, financing or otherwise providing for the interconnection of communications systems beyond the boundaries of the city.

h. Integration of Advancements in Technology.

1. In addition to such upgrades as may be required under a license agreement, it is the responsibility of a licensee to periodically review upgrading its cable system to integrate advancements in technology as may be required to meet the needs and interests of the community in light of the costs thereof. It is recognized that subscribers in the city have an especially strong interest in a system design that will eliminate the need for set-top converters not necessary for advances in technology and/or otherwise permit subscribers to fully utilize the capabilities of consumer electronic equipment while receiving cable service.

2. To assist the city to understand the practical applications of developments in cable technology, the licensee shall submit a report to the city every odd-numbered year during the license term. The report shall be submitted at the same time as the reports requested in subsection 8-3.7c.1. Each report shall describe developments in cable technology that have been incorporated into cable systems of comparable size, and whether, how, and by what date the licensee plans to incorporate those technological developments into the system. In addition, the report shall describe the effect of those developments on public, educational, and governmental use of the cable system, and the effect and compatibility of those technological changes on other consumer electronic equipment. Except as provided in a license agreement, the city, on receipt of each plan, may promptly schedule hearings to consider whether the licensee's timetable for implementing the new technologies is adequate to meet the future cable-related needs and interests of the city. Except as provided in a license agreement, if the city considers the plan to be adequate, the city shall adopt it and the licensee shall be bound to implement it as if it were set forth herein.

3. Any increased charges by a licensee to subscribers for providing basic cable services in compressed or digitized forms shall comply with standard industry practices at the time such technology is introduced into the system. The introduction of compressed or digitized programming shall be a business decision of the licensee made in good faith after due consideration of the needs and interests of the community, advancements in technology, the availability of programming, and the cost to subscribers.

i. System Design Review Process. In addition to any requirements included in a license agreement, at least 60 days prior to the date construction of any upgrade is scheduled to commence, the licensee shall provide a detailed system design and construction plan, available for review by the city at the local office of the licensee, which shall include at least the following elements:

1. Design type, trunk and feeder design, if applicable, and number and location of hubs or nodes.

2. Distribution system-cable, fiber, and equipment to be used.

3. Plans for standby power at headend.

4. Longest amplifier cascade in system (number of amplifiers, number of miles, type of cable/fiber).

5. Design maps and tree trunk maps if applicable, for the system.

The system design will be shown on maps of industry standard scale using standard symbology, and shall depict all electronic and physical features of the cable plant. The city may review the plan and, within 30 days of the date the plan is made available for city review, submit comments to the licensee. Within 15 days of receipt of the comments, the licensee shall submit a revised plan to the city, either incorporating the comments or explaining why the comments were not included. The city may take any appropriate action it is entitled to take under a license agreement, the cable ordinance, or other applicable law concerning the system design. The city's review does not excuse any nonperformance under a license agreement, the cable section or other applicable law.

j. Emergency Alert System.

1. A licensee shall install and thereafter maintain for use by the city an Emergency Alert System ("EAS"). This EAS shall be remotely activated by telephone and shall allow a representative of the city to override the audio on all channels and the video on at least one channel on the licensee's system in the event of a civil emergency or for reasonable tests. The city will provide reasonable notice to a licensee prior to any test use of the EAS.

2. A licensee shall comply fully with all FCC regulations concerning EAS.

(Ord. No. 1343, § 6)

8-3.7 Operation and Reporting Provisions.

a. Open Books and Records.

1. The city shall have the right to inspect and copy at any time during normal business hours at the licensee's principal office in the city or at such location as the city may designate, all books, receipts, maps, plans, financial statements, contracts, service complaint logs, performance test results, records of requests for service, computer records, and other like material which is necessary in order to monitor compliance with the terms of this section, a license agreement, or applicable law. This includes not only the books and records of a licensee, but any and all necessary books and records of operations, gross revenues or financing of the system held by an affiliate, a cable operator of the cable system, or any contractor, subcontractor or any person holding any form of management contract for the cable system. The books and records shall be made available at the licensee's office in Novato upon 72 hours' notice for materials maintained at the licensee's Novato office and ten days' notice for all other materials.

2. A licensee shall maintain financial records governing its operations in the license area.

3. Access to a licensee's records of gross revenues shall not be denied by the licensee on the basis that said records contain "proprietary" information. Any records of gross revenues that contain proprietary information shall be redacted by licensee to remove the proprietary information, provided that such redaction shall not deprive the city of information necessary to determine gross revenues. Refusal to provide information required herein to the city shall be grounds for revocation. Any licensee may request that the city treat records containing trade secrets or proprietary information as confidential under the California Open Records Law. The Open Records Law shall govern the city's treatment of any such request and other applicable State and Federal law.

4. The licensee shall maintain a file of records open to public inspection in accordance with applicable FCC rules and regulations.

b. Communication with Regulatory Agencies. A licensee shall make available to the city the following materials regarding the operation of its cable system: all reports required by the FCC, including, but not limited to, any proof of performance tests and results, Equal Employment Opportunity reports, and all petitions, applications, and communications of all types regarding operation of the cable system, submitted to or by or received by the licensee, an affiliate, or any other person on the behalf of the licensee, either to or from the FCC, or the Security and Exchange Commission. This material shall be made available to the city at the licensee's local office at the city's request with ten days written notice. Public access to such reports provided to the city shall not be denied unless the report or portion thereof are exempt from disclosure under the public records law. A licensee shall also make available to the city all filings made by or on behalf of the licensee or an affiliate in connection with any FCC proceeding that relates to the cable system as opposed to the cable industry or its regulation in general. The city shall make available to a licensee all filings made by or on behalf of the city in connection with any such proceeding.

c. Reports.

1. Licensee shall submit all reports reasonably necessary for city to enforce or monitor a licensee's compliance with this section and any license agreements authorized under this section. All reports shall be submitted in a form that allows city to copy and distribute at low or no expense. At a minimum the following reports shall be submitted by licensee no later than 90 days after the end of its fiscal year.

(a) A status summary or information on the following items: the status of any unresolved breach declared by the city; unfilled line extension requests, if any; system rebuild including PEG and Institutional Services; optional rebuild, if any; major capital expansion or improvements not associated with system rebuild or optional rebuild; system proof of performance tests; current channel capacity and channel use; meeting customer service standards; progress on interconnection, if any; system outages or signal degradation, if any; a summary of the cable system under authority of licensee in relation to the current state of the art of such systems; and any other information licensee may deem of interest to the city relating to this subsection.

(b) Licensee's understanding as a member of the cable industry of recent significant changes in Federal law that will impact the license agreement or this section.

(c) A description of current system ownership listing all owners of more than ten percent interest in licensee and its affiliates.

(d) The most recent annual financial statement of licensee reflecting business to the end of the fiscal year.

(e) A summary of complaints, identifying both the number and nature of the complaints received and their dispositions.

(f) A detail of the services offered (basic, tiered, premium, etc.); the number of subscribers for each service; the amount of gross revenues received from each service during the year; and, the number of homes passed.

The annual report shall be presented at a regular public meeting of the city council to be held no earlier than 21 days following submission of the report.

2. Should city determine that the information submitted in the annual report is insufficient to meet its needs, licensee shall cooperate in providing the additional information reasonably necessary to meet the city's needs.

3. Special Reports. Licensees shall deliver the following special reports:

(a) The licensee shall submit monthly construction reports to the city during the construction of a new system or during major system rebuilds until such construction is complete. Each licensee must submit updated as-built system design maps to city within 30 days of the completion of system construction in any geographic area. The maps shall be developed on the basis of post-construction inspection by the licensee and construction personnel to assess compliance with system design. Any departures from design must be indicated on the as-built maps, to assist the city in assessing operator compliance with its obligations under franchise.

(b) Any notice of deficiency, forfeiture, or other document issued by any State or Federal agency instituting any civil or criminal proceeding regarding the cable system, the licensee, or any affiliate of the licensee, to the extent the same may affect or bear on operations in the city. By way of illustration and not limitation, if an affiliate that has a management contract for the cable system is or becomes involved in a civil proceeding alleging that it is not in compliance with FCC EEO requirements, it would be deemed to affect or bear on operations in the city. This material shall be submitted to the city at the time it is filed or within five days of the date it is received.

(c) Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by a licensee or by any partnership or corporation that owns or controls a licensee directly or indirectly. This material shall be submitted to the city at the time it is filed or within five days of the date it is received.

(d) Technical tests conducted by a licensee required by the city as specified in this section and the license agreement shall be made available to the city upon request following completion of such tests.

(e) A report submitted within 30 days of the end of each calendar quarter showing the number of service calls received by type during the prior quarter, and the number of subscribers of the system as of the end of the quarter.

(f) A report submitted within 30 days of the end of each calendar quarter showing the number of outages and service degradations for the prior quarter, and identifying separately each planned outage, the time it occurred, its duration, and the estimated area and number of subscribers affected; each unplanned outage or service degradation, the time it occurred, its estimated duration and the estimated area and the number of subscribers affected; and the total hours of outages and service degradations as a percentage of total hours of cable system operation. An "outage" means a loss of signal to four or more subscribers served by a common active device which is unique to their portion of the system. "Service degradation" means a loss of picture or sound on one or more channels.

d. Records Required.

1. A licensee shall maintain:

(a) Records of all written complaints received and a summary of telephone complaints received from subscribers. The term "complaints" as used herein and throughout this section refers to complaints about any aspect of the cable system or licensee's operations, including, without limitation, complaints about employee courtesy. Complaints recorded may not be limited to complaints requiring an employee service call.

(b) A full and complete set of plans, records, and "as built" maps showing the exact location of all system equipment installed or in use in the city, exclusive of subscriber service drops.

(c) Records sufficient to satisfy all State and Federal equal employment requirements to which licensee is subject.

(d) Records of outages, indicating date, duration, area, and the estimated number of subscribers affected, type of outage, and cause.

(e) Records of service calls for repair and maintenance indicating the date and time service was required, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved.

(f) Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended.

(g) A public file showing its plan and timetable for construction of the cable system.

2. The city may require additional information that is reasonably necessary to monitor compliance with this section or a license agreement.

e. Performance Evaluation.

1. The city may, at its discretion, hold performance evaluation sessions. All such evaluation sessions shall be open to the public, and announced in a newspaper of general circulation.

2. Topics that may be discussed at any evaluation session may include, but are not limited to, system performance and construction, licensee compliance with this section and a license agreement, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, license fees, penalties, free or discounted services, applications of new technologies, FCC filings, and line extensions.

3. During the review and evaluation by the city, a licensee shall attend and participate in the evaluation sessions.

f. Voluminous Materials. Notwithstanding any other provision of this section, if any books, records, maps or plans, or other requested documents necessary to monitor compliance with this section and the license agreement are too voluminous, or for security reasons cannot be copied and moved, then a licensee may identify such records in writing and request that the inspection take place at some location other than its office in the city, provided that (1) the licensee must make necessary arrangements for copying documents selected by the city after review; and (2) the licensee must pay all travel and additional copying expenses incurred by the city in inspecting those documents or having those documents inspected by its designee. Any payments made by the licensee hereunder are not a license fee and fall within one or more of the exceptions in 47 U.S.C. § 542(g)(2).

g. Retention of Records; Relation to Privacy Rights; and Confidential and Proprietary Information. Each licensee shall provide the city all information which must be provided or may be required under this section or a license agreement. However, nothing in this section shall be read to require a licensee to violate State or Federal law respecting subscriber privacy. Furthermore, nothing in this section shall require the licensee to disclose confidential or proprietary information without adequate safeguards to protect its confidential or proprietary nature. Each licensee shall be responsible for redacting any data that Federal law prevents it from providing to the city. Records shall be kept for at least three years.

h. Summaries. The city manager shall review all reports and other documents filed with the city by a licensee, and shall summarize them and report to the city council regarding his/her comments, analysis and recommendations. The licensee shall be provided with copies of all such summaries and reports which are public records when they are provided to the city council, but not less than three business days before any city council meeting at which they are to be presented.

(Ord. No. 1343, § 7)

8-3.8 Customer Service Standards.

a. Telephone, Office and Service Availability.

1. Office: Hours of Operation: Telephone. Each licensee shall maintain an office in the city that shall be open during the hours specified in a license agreement to allow subscribers to request service and conduct other business. Each licensee shall ensure that its office shall meet all applicable access requirements of the Americans with Disabilities Act, and all other applicable Federal and State laws and regulations. Each licensee shall perform customer services including, but not limited to, installations, disconnects, reconnects, downgrades, repairs, maintenance, receive inquiries and complaints, and receive reports of service problems at the times specified in a license agreement. A licensee shall respond to outages 24 hours a day, seven days a week. A "system outage" is a loss of signal to four or more customers served by a common active device which is unique to their portion of the system. Each licensee shall establish a publicly listed local toll-free telephone number, and shall either ensure that its telephone service has TTY and TDD capabilities, or contract with a third party to provide licensee with such services. The phone must be answered by a knowledgeable customer service representative during regular office hours for the purpose of receiving requests for service, inquiries, and complaints from subscribers; after those hours a licensee shall arrange for the phone to be answered so that customers can register complaints and report service problems on a 24 hour per day, seven day per week basis, and so that the licensee can respond to service outages as required herein.

2. Telephone Answering Time. Telephone answering time shall not exceed 30 seconds or four rings, and the time to transfer the call to a customer service representative (including hold time) shall not exceed an additional 30 seconds. This standard shall be met 90 percent of the time, measured quarterly. When the business office is closed, an answering machine or service capable of receiving and recording service complaints and inquiries shall be employed. The after-hours answering service shall comply with the same telephone answer time standard set forth in this subsection 8-3.8a. A licensee shall maintain statistical data to verify it has met the standards set forth herein.

3. Staff. Licensee must hire sufficient staff and ensure that they are properly trained so that it can adequately respond to customer inquiries, complaints, and requests for service in its office, over the phone, and at the subscriber's residence.

b. Scheduling Work.

1. Appointments. All appointments for service, installation, or disconnection shall be specified by date. Each licensee shall offer a choice of appointment opportunities during specified blocks of time, which blocks of time shall not exceed four hours each. If at any time an installer or technician believes it impossible to make a scheduled appointment time, an attempt to contact the customer will be made prior to the time of appointment and the appointment rescheduled.

2. Missed Appointments. Subscribers who have experienced a missed appointment due to the fault of a licensee shall receive installation free of charge (if the appointment was for installation). The subscriber shall receive a credit against the subscriber's basic service charges in the minimum amount of twenty ($20.00) dollars or such greater amount as is the industry standard if the missed appointment is for a service call.

3. Mobility-Limited Customers. With regard to subscribers whose mobility is limited due to physical handicap or impairment, licensee shall, upon subscriber request, arrange for pickup and/or replacement of converters or other licensee equipment at the subscriber's address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer).

4. Acknowledgment of and Response to Customer Requests. Requests for service, repair, and maintenance must be acknowledged by a licensee within 24 hours, or prior to the end of the next business day, whichever is earlier. A licensee shall respond to all other inquiries (including billing inquiries) within five business days of its receipt of the inquiry or complaint. In the event of an exceptional number of inquiries or staff absences, licensee shall respond as soon as practicable, but not later than ten days after its receipt of the complaint or inquiry.

5. Completion of Work. Repairs and maintenance for service interruptions and other repairs not requiring in-unit work must be initiated within 24 hours and completed within a reasonable period of time under the circumstances. All other requests for service must be completed within three days from the date of the initial request, except installation requests, provided that a licensee shall complete the work in the shortest time possible where, for reasons beyond the licensee's control, the work could not be completed in those time periods even with the exercise of all due diligence. The failure of a licensee to hire sufficient staff or to properly train its staff shall not justify a licensee's failure to comply with this provision. Except as Federal law requires, no charge shall be made to the subscriber for this service, except for the cost of repairs to the licensee's equipment or facilities where it can be documented that the repair to the equipment or facility was necessitated by the conduct or equipment of the subscriber. All work shall be performed in a professional manner; exposed work shall not be unsightly.

6. Work Standards. The standards of subsections 8-3.8b.4 and 8-3.8b.5 shall be met 95 percent of the time, measured on a quarterly basis.

c. Notice to Subscribers.

1. Provision of Information to Subscribers. A licensee shall provide each subscriber at the time cable service is installed, and at least every year thereafter, written instructions for placing a service call, filing a complaint, or requesting an adjustment. A standard form shall be made available by the licensee to subscribers for the purpose of filing complaints. Each licensee shall also provide a notice informing subscribers of how to communicate their views and complaints to the licensee and the proper municipal official. In addition, a licensee shall provide each subscriber to its services a schedule of rates and charges, a copy of the service contract, delinquent subscriber disconnect and reconnect procedures, and a description of any other of the licensee's policies in connection with its subscribers and any changes thereto. Licensee shall have the capability to provide information about its services and receive complaints in both English and Spanish. Copies of these materials shall be provided to the city.

2. Disclosure of Price Terms. All licensee promotional materials, announcements, and advertising of residential cable services to subscribers and the general public, where price information is listed in any manner, shall clearly and accurately disclose price terms. In the case of pay-per-view or pay-per-event programming, all promotional materials must clearly and accurately disclose price terms. In the case of telephone orders, a licensee shall take appropriate steps to ensure that the customer service representatives clearly and accurately disclose price terms to potential customers in advance of taking the order.

3. Public File. Each licensee shall maintain a public file containing all notices provided to subscribers during the previous 12 months under these customer service standards.

4. Interruptions of Service. A licensee may intentionally interrupt service on the cable system only for good cause and for the shortest time possible and, except in emergency situations, only after a minimum of 48 hours prior notice to subscribers and the city of the anticipated service interruption; provided, however, that planned maintenance that does not require more than two hours' interruption of service and that occurs between the hours of 12:00 a.m. and 6:00 a.m. shall not require such notice to subscribers, and notice to the city may be given no less than 24 hours prior to the anticipated service interruption.

d. Billing.

1. Proration of First Billing Statement. A licensee's first billing statement after a new installation or service change shall be prorated on a daily basis over a 30 day month and shall reflect any security deposit.

2. Itemization. A licensee's billing statement must itemize each category of service and equipment provided to the subscriber and state clearly the charge therefor.

3. Payment Due Date. A licensee shall make all reasonable efforts to prepare and mail billing statements so that they may reach subscribers before the start of a billing period. Payment for the current month's charges shall not be due earlier than ten days after the start of the billing period. Any balance not received within seven days after the due date may be assessed a late fee to the extent consistent with applicable law. The late fee shall appear on the following month's billing statement. No charge other than a late fee may be assessed for late payments unless permitted by State or Federal law.

4. In Person Payments. A subscriber shall have the opportunity to remit payment in person at the licensee's office in the city. Licensee shall inform the subscribers of the address of that office.

5. No Late Fees for Failures by Licensee. Subscribers shall not be charged a late fee or otherwise penalized for any failure by a licensee, including failure to timely or correctly bill the subscriber, or failure to properly credit the subscriber for a payment timely made.

6. Credit for Lack of Service or Signal Failure. Upon request of the subscriber, the account of any subscriber shall be automatically credited a prorated share of the monthly charge for the service if said subscriber experiences temporary loss of one or more channels due to technical failure for a period exceeding four hours during any 24 hour period, except where it can be documented that a subscriber seeks a refund for an outage or signal failure which the subscriber caused, or in the case of a planned outage occurring between the hours of 12:00 midnight and 6:00 a.m. of which the subscriber had prior notice.

e. Disconnection/Downgrades.

1. Subscriber Termination. A subscriber may terminate service at any time unless the subscriber has agreed in writing to accept service for a specified time.

2. Prompt Disconnection or Downgrade on Request; Charges. A licensee shall promptly disconnect or downgrade any subscriber who so requests from the licensee's cable system. No period of notice prior to voluntary termination or downgrade of service may be required of subscribers by any licensee. No charge may be imposed for any voluntary disconnection, and downgrade charges must comply with the requirements of Federal law. No charge for monthly subscription fees shall be imposed after the requested date of disconnection so long as the subscriber returns equipment necessary to receive a service in good condition and repair within seven days of the disconnection.

Notwithstanding the foregoing provisions, the monthly subscription fees of a subscriber whose mobility is limited due to a physical handicap or impairment shall terminate upon the subscriber's requested date of disconnection and no charge shall be imposed by any licensee for equipment rental or for cable services delivered after the requested date of the disconnection so long as the mobility limited subscriber does not continue to use or allow others to use the licensee's equipment to receive cable services.

For the purposes of this section, a requested date of disconnection must be a date on or after the date on which the subscriber notifies the licensee of its desire to disconnect.

3. Subscriber Return of Equipment. A subscriber may return a licensee's equipment to the licensee's business office.

4. Refund of Security Deposit. Any security deposit and/or other funds due the subscriber shall be refunded on disconnected accounts after the equipment has been recovered by the licensee. The refund shall be issued as soon as practical, but in no event more than 45 days after the return of the equipment.

5. Disconnection for Failure to Pay Fee. If a subscriber fails to pay a monthly subscriber or other fee or charge, a licensee may disconnect the subscriber's service outlet; however, such disconnection shall not be effected until 45 days after the due date of the monthly subscriber fee or other charge, with ten days' advance written notice of intent to disconnect to the subscriber in question. If the subscriber pays all amounts due, including late charges, before the date scheduled for disconnection, the licensee shall not disconnect service. After disconnection, upon payment by the subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the licensee shall promptly reinstate service.

6. Disconnection for Damage to System or Equipment. A licensee may immediately disconnect a subscriber if the subscriber is damaging or destroying the licensee's cable system or equipment. After disconnection, the licensee shall restore service after the subscriber provides adequate assurance that the practices that led to disconnection have ceased, and paid all proper fees and charges, including reconnect fees and amounts owed the licensee for damage to its cable system or equipment.

7. Disconnection for Signal Leakage. A licensee may also disconnect a subscriber in the event of signal leakage in excess of Federal limits. It may do so if the subscriber fails to take steps to correct the problem. It may do so without notice, provided that the licensee shall immediately notify the subscriber of the problem and, once the problem is corrected, reconnect the subscriber without charge unless the subscriber intentionally caused the signal leakage.

8. Removal of Licensee Property. Except as applicable law may otherwise provide or prohibit, a licensee may remove its property from a subscriber's premises within 30 days of the termination of service, voluntarily or involuntarily.

f. Changes in Service. At the time the licensee alters the service it provides to a class of subscribers, it must provide each subscriber 30 days' notice, if the alteration is within the control of the licensee. The notice shall explain the substance and full effect of the alteration and provide the subscriber the right within a 60 day period following notice to opt to receive any comparable or lesser combination of services offered by licensee. Except as Federal law otherwise provides, subscribers may not be required to pay any charge (other than the regular service fee), including an upgrade or downgrade charge during the 60 day period following the date notice is given in order to receive services comparable or lesser to those received before the alteration, if such services continue to be available. Licensee shall abide by all applicable law concerning negative options.

g. Deposits. A licensee may require a reasonable, nondiscriminatory deposit on equipment provided to subscribers. Deposits shall be placed in an interest-bearing account, and the licensee shall return the deposit, plus all interest earned to the date repayment is made to the subscriber.

(Ord. No. 1343, § 8)

8-3.9 Rate Regulation. The city may regulate rates for services provided over the cable system to the extent rate regulation is permitted by law. The city may take any steps appropriate to protect against the imposition or collection of unjust and unreasonable rates, consistent with any limitations of State or Federal law.

(Ord. No. 1343, § 9)

8-3.10 License Fee.

a. Finding. The city finds that public rights-of-way of the city and State to be used by a licensee for the operation of a cable system are valuable public property acquired and maintained by the State and city at great expense to the taxpayers. The city further finds that the grant of a license to use public rights-of-way is a valuable property right without which a licensee would be required to invest substantial capital.

b. Payment to City. As compensation for use of the public rights-of-way, a licensee shall pay the city a license fee in an amount no less than five percent of its gross revenues. Every license agreement shall specify the percentage of gross revenues a licensee is initially required to pay as a license fee, but the city reserves the right to require the licensee, by ordinance, simultaneously with the effective date of any change in any law or, if later, the effective date of any regulation required to implement the law, to increase the license fee to any amount up to the maximum allowed by that law, including the maximum amount specified by any change in the law or implementing regulations. If no maximum amount is specified, the city may specify the amount that it will collect by ordinance and, in that event, the licensee shall begin paying the increased fee from the effective date of the ordinance, provided that the effective date of the ordinance shall not be earlier than the beginning of the calendar quarter in which the ordinance specifying the amount is adopted, except as otherwise provided in a license agreement.

c. Not a Tax or in Lieu of Any Other Tax or Fee.

1. Payment of the license fee shall not be considered in the nature of a tax.

2. The license fee is in addition to all other taxes and payments that a licensee may be required to pay under any Federal, State, or local law and to any other nondiscriminatory tax, fee, or assessment imposed on utilities and cable operators for use of their services, facilities, or equipment, including any applicable amusement taxes, except to the extent that such fees, taxes, or assessments must be treated as a license fee under Section 642 of the Cable Act, 47 U.S.C. § 522.

d. Payments.

1. The license fee shall be paid quarterly to the city and shall commence as of the effective date of a license. Other costs assessed by the city shall be paid when due. The city shall be furnished at the time of each payment with a statement certified by the licensee's chief financial officer or an independent certified public accountant reflecting the total amount of monthly gross revenues for the payment period. The statement shall include an itemization of the amounts of gross revenue derived from each source or category of revenue. Quarterly payments shall be made to the city no later than 45 days following the end of each calendar quarter. An annual statement of gross revenues shall be furnished to the city by an independent, certified public accountant within 90 days from the end of each calendar year.

2. In the event any license fee payment or recomputation amount is not made on or before the date specified herein, the licensee shall pay additional compensation and interest charges computed from such due date, at an annual rate equal to the rate set by California law for interest on judgments obtained in California State courts.

e. No Accord or Satisfaction. No acceptance of any payment by the city shall be construed as a release or an accord and satisfaction of any claim the city may have for further or additional sums payable as a license fee under this section or for the performance of any other obligation of a licensee, unless the city and licensee expressly agree in writing otherwise.

f. Audit.

1. The city shall have the right to inspect and copy records and the rights to audit and to recompute any amounts determined to be payable under this section, whether the records are held by the licensee or an affiliate that collects or receives funds related to the licensee's operation in the city. The licensee shall be responsible for providing the records to the city, without regard to by whom they are held. The records shall be maintained for at least five years. The city's audit expenses shall be borne by the city unless the audit discloses an underpayment in excess of ten thousand ($10,000.00) dollars, in which case the costs of the audit shall be borne by the licensee as a cost incidental to the enforcement of that licensee's license. Any additional amounts due to the city as a result of the audit shall be paid within 30 days following written notice to the licensee by the city of the underpayment, which notice shall include a copy of the audit report. If recomputation results in additional revenue to be paid to the city, such amount shall be subject to interest which shall commence to accrue from the date the amount was originally due at the interest rate set by California law for interest on judgments obtained in California State courts.

2. A licensee shall maintain its fiscal and financial records and have all relevant fiscal and financial records maintained by others on its behalf in such a manner as to enable the city to determine gross revenues.

(Ord. No. 1343, § 10)

8-3.11 Insurance; Surety; Indemnification.

a. Insurance Required. A licensee shall maintain, and by its acceptance of a license specifically agrees that it will maintain, throughout the entire length of the license period, at least the following liability insurance coverage insuring the city and the licensee: worker's compensation and employer liability insurance to meet all requirements of California law and comprehensive general liability insurance with respect to the construction, operation, and maintenance of the cable system, and the conduct of the licensee's business in the city, in the minimum amounts of:

1. $3,000,000 for property damage resulting from any one accident;

2. $1,000,000 for personal bodily injury or death for any one person;

3. $5,000,000 for personal bodily injury or death resulting from any one accident; and

4. $5,000,000 for all other types of liability.

Each license agreement shall include a provision requiring the licensee to comply with these insurance amounts, and with any changes to these insurance amounts that the city may reasonably specify.

b. Qualifications of Sureties. All insurance policies shall be with sureties qualified to do business in the State of California, with an A-1 or better rating of insurance by Best's Key Rating Guide, Property/Casualty Edition, or in the event Best's Guide is no longer published, a comparable guide from a generally accepted rating service, and in a form approved by the city.

c. Policies Available for Review. All insurance policies shall be available for review by the city, and a licensee shall keep on file with the city certificates of insurance.

d. Additional Insureds; Prior Notice of Policy Cancellation. All general liability insurance policies shall name the city, its officers, boards, commissions, commissioners, agents, and employees as additional insureds and shall further provide that any cancellation or reduction in coverage shall not be effective unless 30 days' prior written notice thereof has been given to the city. A licensee shall not cancel any required insurance policy without submission of proof that the licensee has obtained alternative insurance satisfactory to the city which complies with this section.

e. Failure Constitutes Material Violation. Failure to comply with the insurance requirements set forth in this subsection shall constitute a material violation of a license.

f. Indemnification. Every license shall contain an indemnity provision fully and completely protecting the city from costs, damages and other harms that may follow from the grant or enjoyment of the license. Such indemnity shall at least provide that:

1. A licensee shall, at its sole cost and expense, indemnify, hold harmless, and defend the city, its officials, boards, commissions, commissioners, agents, and emp1oyees, against any and all third party claims, suits, causes of action, proceedings, and judgments for damages or equitable relief arising out of the construction, maintenance, or operation of its cable system; copyright infringements or a failure by the licensee to secure consents from the owners, authorized distributors, or licensees of programs to be delivered by the cable system; the conduct of the licensee's business in the city; or in any way arising out of the licensee's enjoyment or exercise of a license granted hereunder, regardless of whether the act or omission complained of is authorized, allowed, or prohibited by this section or a license agreement, but not if the act or omission is caused by the gross negligence or intentional misconduct of the city, its officials, boards, commissions, commissioners, agents, or employees.

2. Specifically, a licensee shall, at its sole cost and expense, fully indemnify, defend, and hold harmless the city, and in its capacity as such, the officers, agents, and employees thereof, from and against any and all claims, suits, actions, liability, and judgments for damages or otherwise subject to Section 638 of the Cable Act, 47 U.S.C. §558, arising out of or alleged to arise out of the installation, construction, operation, or maintenance of its system, including but not limited to any claim against the licensee for invasion of the right of privacy, defamation of any person, firm or corporation, or the violation or infringement of any copyright, trade mark, trade name, service mark, or patent, or of any other right of any person, firm, or corporation. This indemnity does not apply to programming carried on any channel set aside for public, educational, or government use, or channels leased pursuant to 47 U.S.C. § 532, unless the licensee was in any respect engaged in determining the editorial content of the program, or adopts a policy of prescreening programming for the purported purpose of banning or regulating indecent or obscene programming.

3. The indemnity provision includes, but is not limited to, the city's reasonable attorneys' fees incurred in defending against any such claim, suit, or proceeding.

g. No Limit of Liability. Neither the provisions of this subsection, as implemented in any license agreement, nor any damages recovered by the city shall be construed to limit the liability of a licensee for damages under any license issued hereunder.

(Ord. No. 1343, § 11)

8-3.12 Performance Guarantees and Remedies.

a. Security Fund. Each license agreement shall require the licensee to establish a security fund. The license agreement shall specify the precise terms of the security fund which shall be consistent with the following:

1. Prior to a license becoming effective, the licensee shall post with the city a cash security deposit to be used as a security fund to ensure the licensee's faithful performance of and compliance with all provisions of this section, the license agreement, and other applicable law, and compliance with all orders, permits, and directions of the city, and the payment by the licensee of any claims, liens, fees, or taxes due the city which arise by reason of the construction, operation, or maintenance of the system. The amount of the security fund shall be established in the license agreement. The city shall maintain a cash security deposit in an interest bearing account. All interest shall accrue to the benefit of the licensee, but shall be added to and considered a part of the security fund.

2. In lieu of a cash security fund, a licensee may agree to file and maintain with the city an irrevocable letter of credit in a form reasonably acceptable to the city with an acceptable surety in the amount specified in the preceding paragraph to serve the same purposes as set forth therein. Said letter of credit shall remain in effect for the full term of the license plus an additional six months thereafter. The licensee and its surety shall be jointly and severally liable under the terms of the letter of credit for the licensee's failure to ensure its faithful performance of and compliance with all provisions of this section, the license agreement, and other applicable law, and compliance with all orders, permits, and directions of the city, and the payment by the licensee of any claims, liens, fees, or taxes due the city which arise by reason of the construction, operation, or maintenance of the system or any indemnification due city or its officers or employees. The letter of credit shall provide for at least 30 days' prior written notice to the city of any intention on the part of the licensee to cancel, fail to renew, or otherwise materially alter its terms, which the city as the beneficiary of the letter of credit may refuse to accept. Neither the filing of a letter of credit with the city, nor the receipt of any damages recovered by the city thereunder, shall be construed to excuse faithful performance by the licensee or limit the liability of the licensee under the terms of its license for damages, either to the full amount of the letter of credit or otherwise.

3. The rights reserved to the city with respect to the security fund shall be in addition to all other rights of the city, whether reserved by this section or authorized by other law or a license agreement, and no action, proceeding, or exercise of a right with respect to such security fund or letter of credit will affect any other right the city may have.

4. The following procedures shall apply to drawing on the security fund and letter of credit:

(a) If the licensee fails to make timely payment to the city of any amount due as a result of a license, fails to make timely payment to the city of any amounts due under a license agreement or applicable law, fails to make timely payment to the city of any taxes due, fails to fully indemnify city, its officers, employees or other representatives entitled to indemnification or fails to compensate the city within ten days of written notification that such compensation is due, for any damages, costs, or expenses the city suffers or incurs by reason of any act or omission of this section or the licensee in connection with this section, its license agreement or the enforcement of its license agreement that the city determines can be remedied by an expenditure of the security, the city shall mail the licensee, by certified mail, return receipt requested, notice of the city's intent to withdraw the amount thereof, with interest and any penalties, from the security fund or from funds available under the letter of credit. The licensee shall have ten business days after its receipt of such notice to cure the default, or to contest the proposed withdrawal by requesting a hearing pursuant to subsection 8-3. 12f.

(b) If a licensee fails to request a hearing, or if a hearing is held and the hearing officer determines that a licensee is liable for any monetary sum, the city may withdraw the sum in question from the security fund or under the letter of credit. Within three days of a withdrawal from the security fund or under the letter of credit, the city shall mail, by certified mail, return receipt requested, written notification of the amount, date, and purpose of such withdrawal to the licensee.

(c) If at the time of a withdrawal from the security fund or the letter of credit by the city, the amounts available are insufficient to provide the total payment towards which the withdrawal is directed, the balance of such payment shall continue as the obligation of the licensee to the city until it is paid.

(d) No later than 30 days after mailing of notification to the licensee by certified mail, return receipt requested, of a withdrawal under the security fund or letter of credit, the licensee shall deliver to the city for deposit in the security fund an amount equal to the amount so withdrawn or shall restore the amount withdrawn to the letter of credit. Failure to make timely delivery of such amount to the city or to restore the letter of credit shall constitute a material violation of the license.

(e) Upon termination of the license under conditions other than those stipulating forfeiture of the security fund, the balance then remaining in the security fund shall be withdrawn by the city and paid to the licensee within 90 days of such termination, provided that there is then no outstanding default on the part of the licensee.

b. Performance Bond.

1. Prior to commencement of any upgrade or rebuild of the cable system, a licensee shall establish in the city's favor a performance bond to ensure the licensee's faithful performance of the upgrade or rebuild work. Unless otherwise specified in the license agreement, the amount of such performance bond shall be equal to ten percent of the total cost of the work under construction at any time within the public rights-of-way with a cost in excess of ten thousand ($10,000.00) dollars.

2. In the event a licensee subject to such a performance bond fails to complete the cable system rebuild or upgrade in a safe, timely, and competent manner in accord with the provisions of a license agreement, 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, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the licensee, or the cost of completing or repairing the system construction, upgrade, or other work in the public rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. Notwithstanding the foregoing, the amount of the bond does not limit or fix the amount the city is entitled to recover. The city may also recover against the bond any amount recoverable against the security fund where such amount exceeds that available under the security fund.

3. Upon completion of the system construction, upgrade, or other work in the public rights-of-way and payment of all construction obligations of the cable system to the satisfaction of the city, the city shall eliminate the bond. The city may subsequently require a new bond or an increase in the bond amount for any subsequent construction, upgrade, or other work in the public rights-of-way. Unless otherwise specified in a license agreement, the total amount of any new bond required by the city shall equal ten percent of the cost of the work under construction at any time within the public rights-of-way way with a cost in excess of ten thousand ($10,000.00) dollars.

4. Any performance bond required by the terms of this section or a license agreement shall be issued by a surety with an A-1 or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition or in the event Best's Guide is no longer published, a comparable guide from a generally accepted rating service; shall be subject to the approval of the city; and shall contain the following endorsement:

"This bond may not be canceled, or allowed to lapse, until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."

c. Failure Constitutes Material Violation. Failure to maintain the security fund, letter of credit, or performance bond shall constitute a material violation of a license.

d. Remedies. In addition to any other remedies available at law or equity, the city may apply any one or a combination of the following remedies in the event a licensee violates this section, its license agreement, or applicable State or Federal law:

1. Revoke the license pursuant to the procedures specified in this section.

2. Impose penalties available under applicable State and local laws for violation of city ordinances.

3. In addition to or instead of any other remedy, seek legal or equitable relief from any court of competent jurisdiction.

4. Apply any remedy provided for in a license agreement, including liquidated damages and enforcing provisions, if any.

Provided, before the city invokes any remedy, it shall give the licensee written notice of the violation giving rise to the breach or remedy and the licensee shall have ten business days after its receipt of such notice to cure the breach or default or to contest the breach or default by requesting a hearing according to subsection 8-3.12. Notice under subsection 8-3.12a. of the city's intent to draw upon the security fund shall be sufficient notice of the city's intent to invoke remedies under this subsection 8-3.12d.

e. Revocation or Termination of License.

1. The city shall have the right to revoke the license for a licensee's failure to construct, operate, or maintain the cable system as required by this section or a license agreement; for defrauding or attempting to defraud the city or subscribers; if the licensee is declared bankrupt; or for any other material violation of this section or material breach of a license agreement. To invoke the provisions of this subsection, the city shall give the licensee written notice of the default in its performance. If within 30 calendar days following such written notice from the city to the licensee, the licensee has not taken corrective action or corrective action is not being actively and expeditiously pursued, the city may give written notice to the licensee of its intent to revoke the license, stating its reasons; provided that no opportunity to cure shall be provided where the licensee has defrauded or attempted to defraud the city or any of its subscribers, or in the event the licensee is declared bankrupt or any other event described in subsection 8-3.12e.4 occurs. In the case of a fraud or attempted fraud, the license may be revoked after the hearing required under subsection 8-3.12e.2; revocation for bankruptcy or other events described in subsection 8-3.12e.4 shall be governed by subsection 8-3.12e.4.

2. Prior to revoking a license, the city shall hold a public hearing pursuant to the procedures in subsection 8-3.12f.

3. If the city revokes a license pursuant to the hearing process set forth in subsection 8-3.12f, the licensee may seek judicial review of the city's decision.

4. Any license may, at the option of the city council following a public hearing (but without applying the procedures set forth in subsection 8-3.12f), be revoked 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the licensee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding, unless within that 120 day period:

(a) Such assignment, receivership, or trusteeship has been vacated; or

(b) Such assignee, receiver, or trustee has fully complied with the terms and conditions of this section and a license agreement and has executed an agreement, approved by a court of competent jurisdiction, assuming and agreeing to be bound by the terms and conditions of this section and a license agreement acceptable to the city, and such other conditions as may be established or as are required under subsection 8-3.13 of this section.

(c) In the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of a licensee, the city council may revoke the license, following a public hearing before the city council, by serving notice on the licensee and the successful bidder, in which event the license and all rights and privileges of the license will be revoked and will terminate 30 calendar days after serving such notice, unless:

(1) The city council has approved the transfer of the license to the successful bidder; and

(2) The successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the license agreement and this section, and such other conditions as may be established or as are required pursuant to subsection 8-3.13 of this section.

5. If the city council revokes a license, or if for any other reason a licensee abandons, terminates, or fails to operate or maintain service to its subscribers, the following procedures and rights are effective:

(a) The city may require the former licensee to remove its facilities and equipment at the former licensee's expense. If the former licensee fails to do so within a reasonable period of time, the city may have the removal done at the former licensee's and/or surety's expense.

(b) In the event of revocation, the city, by resolution, may acquire ownership of the cable system in the manner provided in law.

(c) If a cable system is intentionally abandoned by a licensee within the meaning of that term under State law, the city may treat those portions of the cable system in public rights-of-way as private property which has been abandoned in a public place.

6. The city may, by resolution, acquire ownership of and operate a cable system, whether or not such ownership is acquired before, during or following revocation or forfeiture of a license.

7. Notwithstanding any other provision of this section, where the city has issued a license requiring the completion of construction, system upgrade, or other specific obligation by a specified date, failure of the licensee to complete such construction or upgrade, or to comply with such other specific obligations as required, may result in the revocation of the license by the city where it is so provided in the license agreement, unless the city, for good cause demonstrated by the licensee, grants an extension of time. The city shall grant an extension of time when any condition described in subsection 8-3.17f. of this section causes or contributes to the delay.

f. Hearings and Appeals.

1. The procedures in this section shall apply in the following circumstances:

(a) If a licensee requests a hearing to contest the city's notice of its intent to draw on the security fund or letter of credit pursuant to subsection 8-3.12a.4(a) or invoke remedies under subsection 8-3. 12d.2;

(b) If the city has given written notice of its intent to revoke a license pursuant to subsection 8-3.12e.1 and the licensee has failed to take corrective action or pursue such action actively and expeditiously; and

(c) If the city has determined that a hearing should be held to resolve a subscriber complaint pursuant to subsection 8-3.16b.

2. The licensee shall be provided at least 15 days notice of the date, hour, and location of the hearing. The notice may be served personally or by mail. If the notice is served by mail, it shall be sent 20 days prior to the date of hearing. The notice shall also include a specific statement of the complaint brought against the licensee. At the hearing, the licensee and other interested parties shall be given fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, and to question witnesses. The city manager or his designee shall act as the hearing officer, provided that in the case of a subscriber complaint the hearing officer shall be an individual other than the person who determined that a hearing should be held. Provided, further, in the case of a hearing involving a revocation proceeding under subsection 8-3.12e.1 of this section, an independent, impartial hearings officer shall be jointly designated by the city and the licensee. In event the city and the licensee are unable to reach agreement on an independent, impartial hearings officer within seven days after the notice of the hearing has been given, then an independent, impartial hearings officers shall be appointed by any court of competent jurisdiction upon petition of the city or the licensee unless the city and the licensee agree to an extension of time within the initial seven days. The hearing officer shall, within 20 days of completion of the hearing, issue a written decision. In the case of a revocation proceeding initiated under subsection 8-3.12e.1, the hearing officer shall either grant the relief sought by the city or deny relief, and state the reasons for the decision. In the case of proceedings initiated under subsection 8-3.12a.4(a) or 8-3.16b, the hearing officer shall also state the reasons for the decision and may impose any lawful penalty or may assess liquidated damages pursuant to a license agreement, or find that no penalty or liquidated damages are warranted. The hearing officer shall serve notice of the decision on the licensee and the city. The notice of decision, if served by mail, shall be deemed served 15 days from the date of mailing.

3. The licensee (and in the case of a subscriber under subsection 8-3.12f.1(c), the subscriber) may, within ten calendar days from the date of service of the notice of decision, file an appeal.

4. Appeals are to be delivered to the city clerk. Appeals must stipulate the item being appealed, the date of the action being appealed, and the basis or facts upon which the appeal is based.

5. The city council shall hear all appeals. In considering an appeal, the city council shall review the written decision of the hearing officer and the licensee's (or subscriber's in a case under subsection 8-3.12f.1(c)) written appeal. The city council shall hear no arguments or new evidence in considering an appeal. The council may uphold, reduce or reverse any penalty imposed by the city hearing officer.

6. The licensee shall have the right to seek de novo judicial review of the city council decision.

g. Remedies Cumulative. All remedies available to or benefiting the city (including its officers and employees) under this section and the license agreement are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a licensee of its obligations to comply with its license. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or in equity.

h. Relation to Insurance and Indemnity Requirements. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit a licensee's duty to fully indemnify the city in any way; nor shall such recovery relieve a licensee of its obligations under a license, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have.

(Ord. No. 1343, § 12)

8-3.13 Transfers.

a. City Approval Required. No transfer shall occur without prior written application to and approval of the city council, and only then upon such terms and conditions as the city council reasonably finds necessary and proper. The licensee s obligations under this franchise involve personal services, performance of which involves personal credit, trust, and confidence in the licensee, and transfer without the prior written approval of the city shall be considered to impair the city's assurance of due performance. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.

b. Application.

1. The licensee shall promptly notify the city of any proposed transfer. If any transfer should take place without prior notice to the city, the licensee will promptly notify the city that such a transfer has occurred.

2. At least 120 calendar days prior to the contemplated effective date of a transfer, the licensee shall submit to the city an application for approval of the transfer. The city shall act as expeditiously as possible on the application. Such an application shall provide all necessary information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the following information must be included in the application:

(a) All information and forms required under Federal law;

(b) All information required in subsections 8-3.4d, 1-5, 10, 11, 13, 15 and 16 of this section;

(c) A detailed statement of the corporate or other business entity organization of the proposed transferee, together with an explanation of how decisions regarding the cable system will be made if the proposed transaction is approved;

(d) Any business relationships involving the operation of the cable system or transactions of any kind, past, present, or anticipated, between the licensee or its affiliates and any potential transferees or affiliates thereof;

(e) Any contracts, financing documents, or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein; provided, this subsection shall not be deemed to require the disclosure of confidential information without adequate safeguards to protect its confidentiality.

(f) Any shareholder reports or filings with the Securities and Exchange Commission ("SEC') or the Federal Trade Commission ("FTC") that discuss the transaction, and any filings required under the Clayton Act in connection with the proposed transaction;

(g) Complete financial statements for the licensee and any potential transferees for the last three years, including balance sheets, income statements, profit and loss statements, and documents detailing capital investments and operating costs;

(h) A detailed description of the financial resources that would be available to the system under the control of the proposed transferee;

(i) Complete and accurate information regarding any potential impact of the transfer on subscriber rates and service;

(j) A representation that the licensee is in compliance with its license, and if not in compliance, a description of noncompliance; and

(k) A brief summary of the proposed transferee's plans for at least the next five years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the cable system.

3. For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city reasonably finds necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned. The licensee and any prospective transferees shall assist the city in any such inquiry, and if they fail to do so, the request for transfer may be denied.

c. Determination by City.

1. In making a determination as to whether to grant, deny, or grant subject to conditions an application for a transfer of a license, the city shall consider the legal, financial, and technical qualifications of the transferee to operate the system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its license agreement and this section and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other cable system in the city, and whether operation by the transferee may eliminate or reduce effective competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the city's interest under this section, the license agreement, other applicable law, or the public interest, or make it less likely that the future cable-related needs and interests of the community would be satisfied at a reasonable cost or in a reasonable time period. The city shall not withhold consent if the prospective transferee demonstrates that it can perform the obligations of the license at least as well as the licensee and without detriment to the rights and interests of the city and subscribers under the license.

2. Any transfer without the city's prior written approval shall be ineffective, and shall make this license subject to revocation, and to any other remedies available under the license agreement, this section, or other applicable law.

3. Any mortgage, pledge or lease shall be subject and subordinate to the rights of the city under this section or other applicable law.

d. Transferee's Agreement. No application for a transfer of a license shall be granted unless the transferee agrees in writing that it will a bide by and accept all terms of this section and the license agreement, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous licensee under this section and the license agreement for all purposes, including renewal, unless the city, in its sole discretion, expressly waives this requirement in whole or in part.

e. Approval Does Not Constitute Waiver. Approval by the city of a transfer of a license does not constitute a waiver or release of any of the rights of the city under this section or a license agreement, whether arising before or after the date of the transfer.

f. Processing Fee. As a condition of considering a transfer, the city may require that the transferor or the transferee pay the city's out-of-pocket expenses and a reasonable fee, as specified in subsection 8-3.4f., in considering the application for transfer of a license.

(Ord. No. 1343, § 13)

8-3.14 Rights of Individuals Protected.

a. Discriminatory Practices Prohibited.

1. A licensee shall not deny service, deny access, or otherwise discriminate against subscribers, programmers, or residents of the city on the basis of race, color, religion, national origin, sex, or age.

2. A licensee shall not discriminate among persons or take any retaliatory action against a person because of that person's exercise of any right it may have under Federal, State, or local law, nor may the licensee require a person to waive such rights as a condition of taking service.

3. A licensee shall not deny access or levy different rates and charges on any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.

4. Except to the extent permitted by applicable law, a licensee is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a licensee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a nondiscriminatory basis to similar classes of subscribers throughout the city; and a licensee may offer discounts for the elderly, the handicapped, or the economically disadvantaged, and such other discounts as it is expressly entitled to provide under Federal law, if such discounts are applied in a uniform and consistent manner. A licensee shall comply at all times with all applicable Federal, State, and city laws, and all applicable executive and administrative orders relating to nondiscrimination.

b. Equal Employment Opportunity. A licensee shall not refuse to employ, discharge from employment, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of race, color, religion, national origin, sex, or age. A licensee shall comply with all Federal, State, and local laws and regulations governing equal employment opportunities, as the same may be from time to time amended.

c. Subscriber Privacy.

1. A licensee shall at all times protect the privacy of all subscribers pursuant to the provisions of applicable law. A licensee shall not condition subscriber service on the subscriber's grant of permission to disclose information which, pursuant to Federal or State law, cannot be disclosed without the subscriber's explicit consent.

2. Neither a licensee nor its agents or employees shall, without the prior and specific written authorization of the subscriber involved, sell the names, addresses, or telephone numbers of any subscriber or subscribers, or sell or make available any information that identifies the individual viewing habits, viewing preferences, beliefs, philosophy, creed, religion, or political opinions of any subscriber or subscribers. A licensee may make available to cable networks or satellite services the name and telephone number of subscribers who subscribe to those networks or services.

(Ord. No. 1343, § 14)

8-3.15 Criminal Violations and Penalties.

a. Violations.

1. It shall be unlawful for any person to establish, operate or to carry on the business of distributing to any persons in the incorporated areas of the city any television, radio or non-broadcast signals by means of a cable system unless a license therefor has first been obtained from the city council and unless such license is in full force and effect.

2. It shall be unlawful for any person to construct, install or maintain within any public street in the incorporated areas of the city equipment or facilities for distributing any television, radio or non-broadcast signals through a cable system, unless a license authorizing such use of such street or property or area has first been obtained from the city council and unless such license is in full force and effect.

3. It shall be unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a licensed cable system within the incorporated areas of the city for the purpose of taking or receiving television signals, radio signals, pictures, programs, sound, or other non-broadcast signals.

4. It shall be unlawful for any person, firm or corporation to make any unauthorized connection whether physically, electrically, acoustically, inductively or otherwise, with any part of a licensed cable system within the incorporated areas of the city for the purpose of enabling himself or others to receive any television signal, radio signal, picture, programs, sound, or other signals without payment to the owner of said system.

5. It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wire or equipment used in any cable system.

b. Connections to System; Use of Antennas. Notwithstanding the provisions of subsection 8-3.16a:

1. Subscribers shall have the right to attach devices to a licensee's system to allow them to transmit signals or services for which they have paid to VCR's, receivers, and other terminal equipment, provided that such transmissions comply with Federal law and FCC regulations. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment, and a licensee shall provide information to consumers which will allow them to adjust such devices so that they may be used with the licensee's system.

2. A licensee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, or prohibit or discourage a subscriber from installing an antenna switch, provided that such equipment and installations are consistent with applicable codes.

c. Penalties.

1. Any person violating or failing to comply with any of the provisions of this subsection 8-3.15 or of subsection 8-3.14c. of this section shall be guilty of a misdemeanor, and shall be punished by a fine of not less than fifty ($50.00) dollars nor more than two hundred fifty ($250.00) dollars or by imprisonment for a term of not to exceed 90 days, or by both such fine and imprisonment, except that a corporation shall be punished by a fine of not less than one hundred ($100.00) dollars nor more than five thousand ($5,000.00) dollars.

2. Each day that a person violates or fails to comply with the terms of this subsection 8-3.15 or subsection 8-3.14c. shall constitute a separate offense under this section.

(Ord. No. 1343, § 15)

8-3.16 Subscriber Complaint Resolution.

a. Resolution by Licensee. Licensee shall resolve or make a good faith attempt to resolve all complaints within 30 days following receipt thereof from a subscriber or referral thereof by the city. Licensee shall maintain a record of each subscriber complaint for a period of three years following the receipt of such complaint. The record shall include the action taken by licensee to correct or resolve or attempt to correct or resolve the failure of service reported by the subscriber. If a complaint is received by the city, it shall be initially referred to the appropriate licensee for response.

b. Referral to City. In the event that a licensee has failed to resolve a complaint within 30 days, a subscriber may request that the city conduct a hearing on the complaint. Within 30 days of receipt of such a request, the city manager or his designee shall determine whether to hold a hearing to resolve the complaint. If the city manager or his designee determines that a hearing should be held, the procedures set forth in subsection 8-3.12f. shall apply.

(Ord. No. 1343, § 16)

8-3.17 Miscellaneous Provisions.

a. Compliance with Laws. Nothing in this section limits a licensees obligation to comply with all Federal and California laws, as well as city ordinances, resolutions, rules and regulations which do not discriminate against the licensee and are of general applicability heretofore and hereafter adopted or established in the valid exercise of the city's police powers during the entire term of any license.

b. Captions. The captions to sections throughout this section are intended solely to facilitate reading and reference to the sections and provisions of this section. Such captions shall not affect the meaning or interpretation of this section.

c. No Recourse Against the City. Without limiting such immunities as the city or other persons may have under applicable law and except as otherwise provided by applicable law, a licensee shall have no recourse whatsoever against the city or its officials, boards, commissions, agents or employees for any loss, costs, expense or damage arising out of any provision or requirement of this section or because of the enforcement of this section or the city's exercise of its authority pursuant to this section, a license agreement, or other applicable law, unless the same shall be caused by criminal acts or by willful misconduct or gross negligence or by the city acting in excess of its police power authority.

d. Rights and Remedies.

1. The rights and remedies reserved to the parties by this section are cumulative and shall be in addition to and not in derogation of any other rights and remedies which the parties may have with respect to the subject matter of this section.

2. The city hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this section.

3. Specific mention of the materiality of any of the provisions herein is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance hereunder is material and substantial.

4. No licensee shall be relieved of its obligation to comply with any of the provisions of this section by reason of any failure of the city to enforce prompt compliance. Nor shall any inaction by the city be deemed to waive a provision voiding any provision of this section.

e. Incorporation by Reference. Unless otherwise provided in a license agreement, any license granted pursuant to this section shall include a provision which shall incorporate by reference this section into such license as fully as if copied therein verbatim.

f. Force Majeure. A licensee shall not be deemed in default with provisions of its license where performance was rendered impossible by war or riots, civil disturbances, earthquake, fire, floods, or other natural catastrophes or other circumstances beyond the licensee's control, including, without limitation, the unavailability of necessary materials and delays caused by labor strikes, work stoppages, or other labor unrest and a license shall not be revoked or a licensee penalized for such noncompliance, provided that the licensee takes immediate and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with its license without unduly endangering the health, safety, and integrity of the licensee's employees or property, or the health, safety, and integrity of the public, public rights-of-way, public property, or private property.

g. Public Emergency. In the event of a major public emergency or disaster as determined by the city manager, or his or her designee, a licensee immediately shall make the entire cable system, employees, and property, as may be necessary, available for use by the city or other civil defense or governmental agency designated by the city to operate the system for the term of such emergency or disaster for the emergency purposes. In the event of such use, a licensee shall waive any claim that such use by the city constitutes a use of eminent domain, provided that the city shall return use of the entire system, employees, and property to the licensee after the emergency or disaster has ended or has been dealt with.

h. Calculation of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this section, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of duration time. If the last day of the period of time or duration falls upon a local, State, or Federal holiday, the period of time or duration shall be extended to include the next succeeding regular business day.

i. Severability. If any section, subsection, sentence, clause, phrase or portion of this section is for any reason held invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of the ordinance.

The city council hereby declares that it would have passed this and each section, subsection, phrase or clause thereof irrespective of the fact that any one or more sections, subsections, phrases, or clauses be declared unconstitutional on their face or as applied.

(Ord. No. 1345, § 17)

8-4.1 Declaration of Purpose and Intent.

a. The purpose of this section is to establish comprehensive regulations for massage establishments and massage technicians to protect public health, safety, and welfare by providing minimum standards for the conduct of massage technicians.

b. This section is adopted under the authority of Government Code sections 51030 through 51034, Government Code section 37101, Business and Professions Code section 16000, and California Constitution Article XI, Section 7, and shall establish permitting standards to comply with California law.

c. This section is not intended to be exclusive and compliance herewith shall not excuse noncompliance with any state or local laws or regulations that uniformly apply to other professional or personal services businesses, including, but not limited to, all zoning applications, business license provisions, building, fire, electrical, plumbing, and health and safety code laws and regulations applicable to professional or personal services businesses.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.2 Definitions.

As used in this section:

a. California Massage Therapy Council or CAMTC means the California Massage Therapy Council established pursuant to Business and Professions Code section 4602(a).

b. Days means calendar days unless otherwise expressly stated.

c. Employee means any person working for the operator of a massage establishment.

d. Massage or massage therapy means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the exterior of the body with the hands or with the aid of any mechanical apparatus or appliance, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, creams, lotion, ointment, or other similar preparations commonly used in this practice.

e. Massage establishment means any establishment having a fixed place of business, where any person engages in, conducts, carries on, or permits to be engaged in, conducted, or carried on, for any form of consideration whatsoever, massage as defined herein. Any establishment engaging in any combination of massage, bath facilities, including, but not limited to, showers, baths, hot tubs, saunas, or other dry or wet heat rooms, and/or personal services as defined in section 19.60.020, shall be deemed a massage establishment.

f. Massage technician means any person who, for any form of compensation, administers to another person a massage as herein defined. The terms massage therapist and massage practitioner are included within this definition for purposes of this section.

g. Operator means a person with an ownership interest in a massage establishment.

h. Out-call massage means a massage given at a location other than at a massage establishment.

i. Patron means a person who pays any form of compensation to obtain a massage as defined herein.

j. Permit means written authorization from the chief of police or his designee to operate a massage establishment or to administer massages as a massage technician.

k. Permittee means a person who has been issued a permit by the chief of police or his or her designee under the provisions of this section.

l. Person means an individual, firm, association, partnership, corporation, joint venture, or combination of individuals.

m. Sexual or genital part means the genitals, pubic area, anus, perineum of any person and the breasts of any female.

n. Sole proprietorship means a massage establishment where the owner owns 100 percent of the business and is the only person who provides massage services for that business pursuant to a valid state massage certificate.

o. State massage certificate means a valid certificate issued by the CAMTC to either a massage therapist or massage practitioner, as those terms are defined in California Business and Professions Code Section 4601.

p. State massage law means Chapter 10.5 of the California Business and Professions Code (Section 4600 et seq.) as the same may be amended from time to time.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.3 Permits and Licenses Required.

a. Massage Establishment Permit. Unless exempt pursuant to subsection 8-4.4, it shall be unlawful for any person to engage in, conduct, or carry on the business or operation of a massage establishment within the city without first obtaining a permit to operate a massage establishment pursuant to subsection 8-4.5 of this code.

b. Use Permit. Massage establishments in the city may operate only in zones where such use is permitted pursuant to chapter 19 of this code, and only with a valid use permit.

c. Business License. Any person who engages in, conducts, or carries on the business or operation of a massage establishment providing massages to the public for any form of consideration shall apply for and obtain a business license pursuant to section 8-1 of this code.

d. CAMTC certification. It shall be unlawful for any person to administer massage for any consideration whatsoever within the city without a valid state massage certificate.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.4 Exceptions.

a. The requirements of this section shall not apply to the following individuals while engaged in performing the duties of their respective professions:

1. Currently licensed physicians, surgeons, chiropractors, osteopaths, physical therapists, or nurses and any persons acting under the direction and control of any of the aforementioned licensed professionals on the premises of the medical establishment.

2. Barbers and cosmetologists who are currently licensed to practice their profession under the laws of the State of California provided that such massage is limited to the head, neck, scalp, feet and legs below the knees.

3. Trainers of any amateur or professional athlete or athletic team when such practice of massage is limited to such athlete or team.

4. School athletic trainers and coaches while acting with the scope of their employment.

b. The requirements of this section shall not apply to the following classes of establishments:

1. A medical establishment including professional offices where massage is administered by any of the licensed professionals listed in paragraph a.1. above, or by an individual acting under the direction and control of any of the aforementioned licensed professionals on the premises of the medical establishment.

2. Hospitals, medical clinics, nursing homes, mental health facilities, sanitariums, and other health care facilities duly licensed by the State of California.

3. Barbershops or beauty salons where massage is limited to the head, neck, scalp, feet and legs below the knees and is administered by barbers or cosmetologists who are currently licensed under the laws of the State of California.

4. Schools providing a course of study approved by the California Department of Education or Superintendent of Public Instruction in which massage is administered or taught to students by authorized school employees in conjunction with sports and athletic programs, training in the healing arts or other school courses.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.5 Massage Establishment Permit Application.

a. Unless exempt pursuant to subsection 8-4.4, any person desiring to obtain a permit to operate a massage establishment shall submit a completed application to the chief of police on a form provided by the chief. The application shall be accompanied by a nonrefundable filing fee established by resolution of the city council to defray the cost of processing the application including the background investigation, inspection of the proposed massage establishment premises and fingerprinting. The application shall contain the following information:

1. The proposed business name and location of the massage establishment;

2. The type of ownership of the business (corporation, partnership, individual, or otherwise):

(A) If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the names and residence addresses of each of its officers, directors, and each stockholder holding more than ten percent of the stock of the corporation. The application shall include the information required by this section for each of said individuals.

(B) If the applicant is a partnership, the application shall set forth the names and residence addresses of each of the partners, including limited partners. The application shall include the information required by this section for each of said persons. If one or more of the partners is a corporation, the provisions of paragraph (A) pertaining to corporate applicants shall apply.

(C) If the applicant is an individual, the name and residence address of the individual.

3. The exact nature of the proposed massage establishment and the type of massage treatments to be administered;

4. The name and address of the owner of real property upon, in, or from which a massage establishment is to be operated. In the event the applicant is not the record owner of said property, as shown on the latest county assessment roll, the application shall be accompanied by a copy of any written lease between the applicant and the property owner authorizing use of the premises as a massage establishment or if there is no written lease, then a written, notarized acknowledgement from the property owner that the property owner has been advised that a massage establishment will be operated by the applicant on the property owner's property;

5. A photograph of the applicant at least two inches by two inches taken within one year preceding the application;

6. The complete history of the applicant as to all practice and employment in the massage establishment field including all permits and licenses obtained and any revocation or suspension thereof;

7. The name of each person that the massage establishment employs or retains, or intends to employ or retain, as a massage technician and a copy of that person's massage technician permit or state massage certificate and CAMTC-issued identification card;

8. If the applicant holds a valid state massage certificate, a copy of his or her state massage certificate and CAMTC-issued identification card.

9. Unless the individual applicant has claimed an exemption pursuant to state massage law, the Novato Police Department shall require the submission of fingerprint images from the applicant and investigate their criminal history. A permit for a massage establishment will not be issued if the applicant has been convicted of any of the following offenses or has been convicted of an offense outside the State of California that would have constituted any of the following offenses if committed within the State of California:

(A) An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code;

(B) An offense involving the use of force and violence upon the person of another that amounts to a felony;

(C) An offense involving sexual misconduct with children;

(D) An offense charged under Chapter 7.5 of Title 9 of the Penal Code;

(E) An offense charged under Section 266i, 647 (a), 647 (b), 315, 316 or 318 of the Penal Code.

b. Issuance of a permit by the chief of police to operate a massage establishment does not authorize the permittee to physically administer massage to patrons.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.6 Issuance or Denial of a Permit to Operate a Massage Establishment.

a. The chief of police shall determine whether to issue or deny an application for a permit to operate a massage establishment within 30 days of receiving a completed application. A permit shall be issued unless the chief of police determines any of the following to be true:

1. The applicant has been convicted of any of the offenses set forth in subparagraph 8-4.5(a)(9) above; or

2. The applicant has not yet attained 18 years of age; or

3. Information provided by the applicant is found to be false in any material detail; or

4. The applicant has had a permit suspended by the chief of police and the period of suspension has not yet ended or has had a permit revoked within five years immediately preceding the application; or

5. The proposed massage establishment would not comply with one or more requirements of this section or of this code.

b. Term. A permit to operate a massage establishment issued pursuant to the terms of this section shall be valid for a term of one year from the date of issuance, unless sooner suspended, revoked, or abandoned as set forth in this section. A permit that has not expired and has not been suspended or revoked may be renewed on an annual basis upon submittal of a written application and payment of a renewal application fee to be established by resolution of the city council.

c. Renewal. Applications for the renewal of a permit to operate a massage establishment shall be filed with the chief of police at least 60 days before the expiration of the permit to be renewed. Temporary permits will not be issued. Any permittee allowing his or her permit to lapse may not renew said permit but shall be required to submit a new application and payment of the original application fee.

d. Non-assignability. A permit to operate a massage establishment may not be sold, transferred or assigned by the permittee, or transferred by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall constitute a voluntary surrender of such permit and such permit shall thereafter be null and void except as hereinafter set forth.

1. If the permit is issued to a corporation and stock is sold, transferred, issued or assigned to a person who is not named on the permit application as a stockholder, the permit shall be deemed null and void; provided, however, the proposed transferee may submit to the chief of police, together with a fee established by the city council, an application to amend the original application providing all information as required for stockholders in the first instance. Upon approval thereof, the transfer may then occur.

2. If the permittee is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such permit. In such case the permit, upon notification to the chief of police, shall be placed in the name of the surviving partners. A new partner shall submit an application to amend the original application by providing all information as required of partners in the first instance.

e. Change in Application Information. If any changes occur which result in changes to the information provided on an application required pursuant to this subsection, the applicant or permittee shall submit an updated application within 15 days from the date such changes occur.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.7 Appeal of Permit Denial. A decision to deny a permit to operate a massage establishment may be appealed to the city manager by filing a written appeal with the city manager within ten days from the date of the notice of denial issued by the chief of police. If no appeal is filed, the action of the chief of police in denying such permit shall be final. Upon the filing of a timely appeal, the city manager shall hold a hearing and may affirm or overrule the decision of the chief of police.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.8 Posting of Permits, Certificates, and Other Information Required.

a. All massage establishments shall post the following documents and information in an open and conspicuous location of the massage establishment:

1. A valid business license;

2. A valid permit to operate the massage establishment;

3. A copy of a valid CAMTC certificate or massage technician permit for each and every massage technician administering massage treatments on the premises, including a photograph of the massage technician measuring two inches by two inches or larger in size affixed to each respective certificate or permit that is on display;

4. A valid use permit; and

5. A schedule of services that indicates each massage treatment offered, the price of each massage treatment offered, and the minimum length of time such massage treatment shall be administered.

b. Massage technicians who perform out-call massage services shall carry a copy of their CAMTC or massage technician permit, along with a copy of their city business license, to the location where such massage services are performed and shall present them to patrons or city representatives upon request.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.9 Inspections. The chief of police, county health department, building official, fire marshal, or any other person or persons charged with enforcing or administering the provisions of this section or any other applicable state law, rule, or regulation shall have the right to enter the massage establishment at any time during business hours for the purpose of enforcing said provisions, laws, rules or regulations. A warrant shall be obtained whenever required by law.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.10 Arrangement for Services. All massage establishments and massage technicians shall comply with the following standards in the negotiation and performance of services:

a. Arrangements for massage treatments to be administered shall be made within the room containing the posted schedule of services. Services shall be described in readily understandable language.

b. No sums shall be charged other than those listed on the posted schedule of services.

c. Employees and massage technicians shall not advise, suggest or otherwise indicate to a patron the availability of any treatment or service that is not listed on the posted schedule of services.

d. Massage technicians shall not perform any treatments or services that a patron did not request.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.11 Facilities and Operating Requirements for Massage Establishments.

a. Massage establishments shall comply with the following facilities and operating standards:

1. The massage establishment's premises and facilities shall meet and be maintained in a condition to comply with all applicable code requirements of the city, county, and state, including, but not limited to, those related to the safety of structures, adequacy of the plumbing, lighting, heating, ventilation, waterproofing of rooms in which showers, water or steam baths are used, and the health and cleanliness of the facility.

2. Massage shall be provided or performed only between the hours of 7:00 a.m. and 10:00 p.m. No massage establishment shall be open and no massage shall be provided between 10:00 p.m. and 7:00 a.m. A massage commenced prior to 10:00 p.m. shall nevertheless terminate at 10:00 p.m. and all patrons shall exit the premises of the massage establishment at that time. It is the obligation of the massage establishment to inform patrons of the requirement that massages must cease at 10:00 p.m.

3. All walls, ceilings, floors, pools, showers, bathtubs, wet and dry heat rooms, steam rooms, tables and all other physical facilities shall be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, showers and toilet rooms shall be thoroughly cleaned at least once each day the massage establishment is in operation. Bathtubs shall be thoroughly cleaned after each use.

4. A recognizable and legible sign shall be posted at the main entrance identifying the establishment as a massage establishment. This requirement shall not apply to any athletic club, health club, country club, gymnasium, beauty salon, or similar establishment, where massage is offered as an incidental, accessory or secondary service to its primary program of sports, exercise, athletic training, or beauty care. Incidental, accessory or secondary service shall mean that no more than 15 percent of its total floor area is used for the provision of facilities/services to patrons for the provision of massage services.

5. Adequate equipment for disinfecting and sterilizing instruments used in administering massage shall be provided. Instruments utilized in performing massage shall not be used on more than one patron unless they have been sterilized by disinfecting agents and/or sterilizing equipment sufficient to assure the cleanliness and sterility of the instruments.

6. Hot and cold running water shall be provided at all times to all wash basins, bathtubs, showers and similar equipment present on the premises.

7. Closed cabinets shall be provided for storage of clean linens. Nonabsorbent containers or laundry bags shall be provided for damp or soiled linen, and linen shall be kept therein until removed for laundering.

8. A minimum of one toilet facility shall be provided on the premises of the massage establishment. When five or more employees and patrons of different sexes are on the premises at the same time, separate toilet facilities shall be provided. A single water closet per sex shall be provided for each 15 or more employees or patrons of that sex on the premises at any one time. Urinals may be substituted for water closets after one water closet has been provided. All toilet rooms shall be equipped with self-closing doors opening in the direction of ingress to the toilet rooms.

9. Lavatories or wash basins shall be installed in each toilet facility. Each wash basin shall be provided with soap or detergent, and sanitary towels placed in permanently installed dispensers.

10. Clean and sanitary towels and sheets shall be provided for each patron receiving a massage. No common use of towels or sheets shall be permitted.

11. The use or possession of adult-oriented merchandise in or on any part of the massage establishment is prohibited.

12. No alcoholic beverages shall be sold, served, furnished, kept or possessed on the premises of a massage establishment.

13. A massage establishment shall not be used for residential or sleeping purposes unless the massage establishment is properly zoned and has all necessary use permits, and the massage establishment is owned by one individual with one or no employees or independent contractors.

14. No massage services shall be performed within any room on the premises of a massage establishment that is fitted with a lock. Except as provided herein, all external doors of a massage establishment shall remain unlocked during business hours. In the event that the massage establishment has more than one external door, secondary access doors may be locked provided that the main entrance remains unlocked. External doors may be locked if the massage establishment is a business entity owned by one individual with one or no employees or independent contractors.

15. For each massage service provided, every massage establishment shall keep a complete and legible written record of the following information: the date and hour that service was provided; the service received; the name or initials of the employee entering the information; and the name of the massage technician administering the service. Such records shall be open to inspection and copying by the chief of police or other city or county officials charged with enforcement of this section. These records may not be used by any massage technician or operator for any purpose other than as records of service provided and may not be provided to other parties by the massage technician or operator unless otherwise required by law. Such records shall be retained on the premises of the massage establishment for a period of two years and be immediately available for inspection during business hours.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.12 Prohibited Conduct.

a. No permittee or employee of a massage establishment shall:

1. Expose the sexual or genital part of him or herself in the course of a massage therapy; or

2. Touch or expose the sexual or genital part of any other person in the course of a massage therapy; or

3. Perform massage therapy on a patron with the intent or purpose of arousing, appealing to, or gratifying the sexual desires of said patron; or

4. Perform any task or service associated with the massage establishment while nude, semi-nude, or dressed in lingerie, see-through or transparent attire; or

5. Use any electrical, mechanical or artificial device for photographic, audio and/or video recording within the rooms of the massage establishment where massage is being performed, where persons dress or undress and in restroom facilities; or

6. Place, publish or distribute or cause to be placed, published or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers that any service is available that is prohibited by this section or other applicable law nor shall any massage establishment employ language in any advertising text or business name that would reasonably suggest to a prospective customer that any service is available that is prohibited under this section or other applicable law; or

7. Allow a person under the age of 18 years to enter and remain in a massage establishment without express written permission from the minor's parent or guardian. This requirement shall not apply to any athletic club, health club, country club, gymnasium, beauty salon, or similar establishment, where massage is offered as an incidental, accessory or secondary service to its primary program of sports, exercise, athletic training, or beauty care. Incidental, accessory or secondary service shall mean that no more than 15 percent of its total floor area is used for the provision of facilities/services to patrons for the provision of massage services; or

8. Allow any person other than the patron and the patron's immediate family or legal guardian in the massage room while the patron is dressing or undressing; or

9. Allow persons other than the patron and massage technician(s), and the patron's immediate family or legal guardian, in a massage room with its doors closed. Notwithstanding this subsection, two or more patrons who wish to receive massage services together may do so in the same room with the doors closed provided each patron is assigned an individual massage technician and there are no other persons other than a patron's immediate family or legal guardian in the room.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.13 Suspensions and Revocations.

a. The chief of police or applicable permitting authority may suspend or revoke a massage establishment or massage technician permit, business license, or any other approval required under this section, after a hearing, where it is found that:

1. The permittee or licensee practiced fraud or deceit in obtaining the approval;

2. Violations of any of the following occurred on the premises of the massage establishment or were committed by a massage technician: California Business and Professions Code sections 4600 et seq.; any local, state, or federal law; or the provisions of this section;

3. The permittee or licensee has been convicted in a court of competent jurisdiction of any offense that would be cause for denial of such permit or license in the first instance; or

4. The approval was issued in error.

b. During the time that a permit is suspended, it shall be unlawful for the permittee to exercise any of the rights granted by this section.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.14 Notice of Suspension or Revocation; Hearing.

a. Upon the determination of the chief of police that there are grounds to suspend or revoke a massage establishment or massage technician permit, the chief shall cause a notice of suspension or revocation to be mailed by first class mail to the address designated by the massage establishment or massage technician permittee on their permit application.

b. At the time and date specified in the notice, the permittee may appear and show cause before the chief of police as to why such permit should not be suspended or revoked. Upon the failure of the permittee to appear at said time or, if after appearance and hearing, the chief of police finds good and sufficient cause for suspension or revocation, the massage establishment or massage technician permit shall be suspended or revoked, as determined by the chief.

c. Upon any suspension or revocation of a massage establishment or massage technician's permit, no refund of any permit fee shall be made and the fee shall be forfeited to the city.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.15 Appeal of Suspension or Revocation.

a. Any decision to suspend or revoke a permit may be appealed to the city manager by filing a written appeal with the city manager within ten days of the date that the notice of decision was issued by the chief of police. If the ten days expires on a date that city hall is not open for business, then the appeal period shall be extended to the next city business day. The appeal shall clearly and concisely set forth the grounds upon which it is based.

b. Failure to file a timely appeal petition with the city manager shall constitute a waiver of the right to appeal.

c. The decision of the city manager is final. The city manager may promulgate written rules and regulations for the conduct of hearings by the chief of police and regarding appeals to the city manager.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.16 Reapplication after Revocation.

a. The holder of a massage establishment permit that has been revoked may not reapply for a new permit for a period of one year from the date of the revocation.

b. If a massage establishment permit is revoked, no application for a new massage establishment permit at the same location will be accepted within one year after the effective date of the revocation.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.17 Violation—Penalty.

a. Every person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction, such person shall be punishable as set forth in section 1-5.

b. Every person who violates any provision of this section may be subject to administrative citations pursuant to section 1-5.

c. Each violation of this section and each day of violation of this section shall be considered a separate and distinct violation thereof and the imposition of a penalty shall be as set forth in paragraph (a) of this subsection for each and every separate violation and each and every day of violation.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.18 Public Nuisance and Abatement. Any massage establishment that is operated, conducted or maintained contrary to the provisions of this section is unlawful and declared to be a public nuisance. The city attorney is authorized, in addition to or in lieu of any other legal or criminal proceedings, to commence an action or proceeding for the abatement, removal or enjoinment thereof in the manner provided by law. The city attorney may seek a court order to grant such relief to abate or to remove such massage establishments and to restrain and enjoin any person from operating, conducting or maintaining such an establishment contrary to the provisions of this section.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.19 Applicability to Existing Massage Technician Permits.

a. All persons lawfully holding a valid massage technician permit under the previous requirements of section 8-4 on the effective date hereof shall have until (effective date plus three years) to comply with the requirements of paragraph d. of subsection 8-4.3. Until such time, the massage technician permit shall remain valid so long as the permittee complies with the conditions of the permit imposed at the time of its issuance; the former provisions of section 8-4 applicable thereto as listed in subsections a.1. and a.2. below; all other applicable requirements of this section; and pays an annual fee to renew the permit in an amount to be established by city council resolution. In the event the massage technician fails to comply with any of these requirements, the permittee shall be in violation of this section and their massage technician permit shall become immediately null and void.

1. A permittee whose four-year health certificate expires within the three-year grandfather period shall be required to be retested for tuberculosis and shall resubmit a health certificate verifying negative results of a tuberculin skin test at the time of their next renewal;

2. The chief of police may suspend, revoke, or deny renewal of the grandfathered permit if it is found that the permittee has:

(a) Been convicted in a court of competent jurisdiction within five years of the date of application of any violation of Sections 266, 266a, 266e, 266h, 266i, 266j, 267, 309, 311.2, 311.3, 311.4, 315 or 318 of the California Penal Code or conspiracy or attempt to commit any such offense, or any offense in a jurisdiction outside the State of California which is the equivalent of any of the aforesaid offenses; or

(b) Been convicted in a court of competent jurisdiction within five years of the date of application of any offense involving the sale of a controlled substance specified in Sections 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code, or any offense in a jurisdiction outside the State of California which is the equivalent of the aforesaid offenses; or

(c) Committed an offense which requires him or her to register under the provisions of Section 290 of the California Penal Code; or

(d) Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Sections 11225 through 11235 of the California Penal Code or any similar provision of law in a jurisdiction outside the State of California within five years of the date of application.

b. On or after November 10, 2020, the requirements of paragraph d. of subsection 8-4.3 shall apply and this subsection 8-4.19 shall be of no further effect except that the city manager may extend the effectiveness of this subsection for a one-year period on an individual basis upon a showing of good cause.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

Editor's note— Ord. No. 1606, § 2, adopted Oct. 11, 2016, repealed § 8-4 in its entirety and enacted a new § 8-4 to read as set out herein. Former § 8-4 pertained to similar subject matter and derived from Ord. No. 740, §§ 1—7, 10—21; Ord. No. 1056, § XI; Ord. No. 1074, §§ 1—20; Ord. No. 1085, §§ 1—4, 35; Ord. No. 1502, §§ 1, 2; Ord. No. 1544, §§ 1—6, adopted Oct. 27, 2009.

8-5.1 License Required. It shall be unlawful for any person to engage in, conduct or carry on, in the city, for fees or salary or other compensation, the business, art, or practice of astrology, palmistry, phrenology, life reading, fortune telling, cartomancy, clairvoyance, clairaudience, crystal gazing, hypnotism, mediumship, prophecy, augury, divination, magic, necromancy, or graphology, without first having obtained the required license, as set forth below.

(Ord. No. 659, § 1)

8-5.2 Exemption. Such licensing requirement shall not include, prohibit, or interfere with the exercise of any religious or spiritual function of any priest, minister, rector, or accredited representative of any bona fide church or religion where the priest, minister, rector, or accredited representative holds a certificate of credit, commission, or ordination under the ecclesiastical laws of a religious corporation incorporated under the laws of any State or territory of the United States of America or prescribed by the supreme conference, convocation, convention, assembly, association or synod of the system or faith with which he is affiliated.

Any church or religious organization which is organized for the purpose of conferring certificates of credit, commission or ordination for a price, and not for the purpose of teaching or practicing a religious doctrine or belief is not a bona fide church or religious organization.

(Ord. No. 659, § 2)

8-5.3 Application for a License. Every person required to be so licensed shall submit a completed application to the chief of police of the city. The application shall include:

a. The true name and address of the applicant and all persons financially interested in the business. With corporations, it shall include all officers and directors and persons owning five percent or more of any class stock issued by the corporation;

b. The exact nature of the business to be conducted and the proposed place of the business and facilities therefor;

c. Applicant's previous addresses for prior five years;

d. The past business history and/or experience of the applicant in previously operating in any other city or State, and whether any previously issued license was suspended or revoked. The applicant shall also list cities and counties where he/she has been previously issued or denied a license to engage in the named practices;

e. A list containing the nature, date and place of all criminal convictions, excluding minor traffic violations within the last five years of the applicant, including violation of any municipal ordinance involving moral turpitude or the elements of fraud, all persons financially interested in the business including, in the case of the corporation, all officers and directors and persons owning five percent or more of any class stock issued by the corporation;

f. The fingerprints and photograph of the applicant and all persons financially interested in the business;

g. Any other information reasonably necessary to complete the required investigation.

(Ord. No. 659, § 3; Ord. No. 1176, § 1)

8-5.4 Application Fee. Every applicant shall pay in advance an application fee as set forth in City of Novato business license Ordinance No. 654 as codified in the Revised General Ordinances of the City of Novato as section 8-1. The fee is nonrefundable and is to be retained by the city to defray costs of conducting the investigation of the applicant.

(Ord. No. 659, § 4)

8-5.5 Investigation. Upon receipt of a completed application, the chief of police shall cause an investigation to be made into the character and background of the applicant and any persons financially interested in the business.

(Ord. No. 659, § 5)

8-5.6 Issuance or Denial of License. The chief of police shall issue such license unless:

a. The applicant or any person financially interested in the business has been convicted of any offense involving the use of force or violence upon the person of another, or any offense involving theft by fraud, deceit, false pretenses or trick and device within five years of the date of application;

b. The applicant made with the intent to deceive any false, misleading or fraudulent statement in the applicant or any other document required by the city; or

c. The investigation discloses that the applicant or any person financially interested in the business is not of good moral character or background.

Notification of any reasons for denial shall be immediately given in writing to the applicant by registered or certified mail or hand delivery.

As soon as the investigation is completed, the chief of police shall notify the city manager whether a license is issued or denied.

All licenses are valid for the fiscal year or any remaining portion thereof.

(Ord. No. 659, § 6; Ord. No. 1176, § 2)

8-5.7 Appeal. If the chief of police denies a license, the applicant may appeal the decision to the city council. Notice of such appeal by the applicant shall be filed within ten days after notice of denial is given. If no appeal is taken within the ten days, the action of the chief of police will be final.

The city council, after hearing the appeal, may for cause overrule the decision of the chief of police and order a license to be issued.

(Ord. No. 659, § 7)

8-5.8 Operating Regulations. Every licensee hereunder shall:

a. Daily Register. Keep a daily register, the form of which is to be approved by the chief of police, of all patrons, names and addresses. This daily register shall at all time during business hours be subject to inspection by the police department, and shall be kept on file for one year.

b. Notification of Change of Address. Report to the chief of police within five days any change in address of the applicant or licensee, partnerships, associations, or persons having a financial interest in the business, or transfer of interest in said business by such person, corporation, partnership or association.

c. Notice of Termination of Business and Surrender of License. At the termination of such business, notify the chief of police in writing within five days of such termination.

A licensee terminating business shall surrender his license to the chief of police. The license shall be held by the chief of police until expiration, or until the licensee re-establishes business in the city, whichever occurs first.

It shall be a violation of this section to fail to surrender a license as required.

d. Inspection. During business hours allow ready accessibility for inspection of the premises by law enforcement officers of the city, or other employees of the City of Novato, County of Marin, or State of California, who are charged with the enforcement of Health and Safety or Penal laws.

e. Annual Fee. Pay an annual license fee as established in city business license ordinance No. 654, as codified in section 8-1.

(Ord. No. 659, § 8)

8-5.9 Suspensions and Revocations.

a. The chief of police may suspend any license issued hereunder on the grounds that the licensee has violated any of the provisions of this section, has committed any act which would originally have constituted grounds for denial of this license, or has committed an act of theft by fraud, deceit, false pretenses, or tricks and device.

Suspensions shall be for a period of no less than three days nor longer than 60 days. Any suspension ordered by the chief of police shall take effect two days after notice of suspension has been delivered to a licensee, or in his absence, an employee of the licensed establishment.

The licensee, if he desires to appeal the action of the chief of police, shall within ten days file a notice with the city council. If such notice is not filed within the ten days, the action of the chief of police shall be final.

The suspension order by the chief of police shall not become effective upon the filing of an appeal notice by the licensee until after the appeal is reviewed by the city council. The city council has the authority to approve or disapprove the suspension.

b. The city council may, after hearing, revoke any license issued hereunder on the same grounds as set forth above regarding suspensions. If any single licensee should receive in any two consecutive years two suspensions, the chief of police shall bring the matter, together with his recommendation, to the attention of the city council for possible revocation.

(Ord. No. 659, § 9)

8-5.10 Penalty. Any person, firm, or corporation, whether as principal, agent, employee, or otherwise, violating any of the provisions of this section shall be deemed guilty of an infraction and upon conviction shall be punished as specified in subsection 1-5.1.

(Ord. No. 659, § 10; Ord. No. 1056, § 12)

8-6.1 Definitions. For the purposes of this section, the following terms shall have the following meanings:

a. "Authorized Agency" shall mean a person, firm, partnership or corporation charged with the security of the public's funds or other things of value or engaged in the business of installing and maintaining alarm signal systems for the protection of such funds or other things of value.

b. "Manager" shall mean the Novato city manager or his designate.

c. "Subscriber" shall mean a person, firm, business, corporation, or other entity for whose benefit the alarm system is installed.

d. "Protected Area" shall mean any area, building, or structure equipped with an alarm device.

e. "False Alarm" shall mean an alarm signal system necessitating response by the Novato Police Department where an emergency situation does not exist.

(Ord No. 214, § 1: Ord. No. 962, § 1)

8-6.2 Permits. The manager is hereby authorized and empowered to grant to an authorized agency a permit to connect to the police department terminal alarm panel and to maintain in electrical connection therewith an auxiliary alarm system of such other device as may be installed or maintained by the authorized agency in buildings located within the city for the protection of said authorized agency or its subscribers, subject to the restrictions and requirements specified in this section.

(Ord. No. 214, § 2)

8-6.3 Applications for Permits. A separate application in writing shall be filed for each and every connection desired and no alarm system subject to permit shall be installed until such application has been approved and a permit granted as herein provided. This application shall state the name and address of the authorized agency, the name and address of the subscriber, if any, for whom the alarm service is to be provided, the nature of the business conducted by the subscriber, the location of the proposed installation and such other essential information regarding the proposed installation as may be required. Applications shall be filed with the manager, who shall conduct such investigation as he may deem proper as to the justification for the alarm connection in the public interest and may deny this application when, in his opinion, good cause exists therefor.

(Ord. No. 214, § 3)

8-6.4 Liability for Costs. The manager shall determine whether the proposed connection and associated system is compatible with the electrical requirements of the police department terminal alarm panel and shall designate the manner of connection and the technical standards which are applicable thereto. Upon written order of the manager, the authorized agency shall proceed to make said connection or extension of connection at the sole expense of the agency. Should the authorized agency desire the abandonment or termination of a subscriber service, it shall make such disconnection or termination at the sole expense of the agency.

(Ord. No. 214, § 4)

8-6.5 Alterations in Alarm Panel. If at any time the city shall for any reason abandon, change, modify, relocate or in any way alter the operation, manner or characteristics of the police department terminal alarm panel and if the authorized agency shall desire to continue the maintenance of alarm connections under permit, then such addition, change or modification necessary to conform to the standards adopted by the city shall be made at the sole expense of the authorized agency. If the authorized agency shall not desire to continue the service of the connection to the police department terminal alarm panel, then it shall remove its associated wires and appurtenances on demand or the city shall make such disposition of the same as it shall deem fit.

(Ord. No. 214, § 5)

8-6.6 Responsibility for Alarm System; Disconnection of Installations.

a. Every alarm system installed and connected to the police department terminal alarm panel shall conform to the standards and requirements set forth by the manager. If at any time an installation connected to the police department terminal alarm panel under authority of a permit shall be, or in any way interfere with the safe and reliable operation of the police department terminal alarm panel or any portion thereof, the manager shall thereupon immediately have such installation disconnected from said alarm panel and it shall not be again connected until it shall have been determined by the manager to be in a safe and satisfactory condition. In every instance of a disconnection the manager shall give prompt notification thereof to the authorized agency responsible for the maintenance of the alarm service.

b. Both the authorizing agency and the subscriber shall be responsible for the proper use and operation of a protected area device whether silent or audible, including all necessary instruction in turning off the alarm, and in avoiding false alarms.

c. A protected area device shall constitute a public nuisance and be disconnected from the terminal alarm panel if it activates more than:

1. Four false alarms in any 30-day period.

2. Six false alarms in any 90-day period.

Subsections 1 and 2 shall be effective 30 days after installation is certified by the authorizing agency as operational.

d. A disconnected subscriber must reapply for a permit to connect to the police department terminal alarm panel. Application shall be filed with the manager, who shall conduct such investigation as he may deem proper as to the justification for the reconnection of the disconnected alarm. The subscriber must show good cause for reconnecting the alarm.

(Ord. No. 214, § 6; Ord. No. 962, §§ 2, 3)

8-6.7 Permits Non-Exclusive. No permit issued under this section shall grant an exclusive right or franchise nor shall it in any way limit or abridge the rights and powers of the city council to grant franchises or issue such permits as shall seem to be advisable to the council.

(Ord. No. 214, § 7)

8-6.8 Assignment of Permits. No permit issued under the provisions of this section shall be transferred or assigned without prior written approval of the manager.

(Ord. No. 214, § 8)

8-6.9 Abandonment of Alarm Panel. In the event of the abandonment by the city of the police department terminal alarm panel service, any and all permits issued under authority of this section shall automatically terminate, provided, however, that city may not abandon the service except upon 30 days prior written notice of said abandonment to any and all permittee's hereunder.

(Ord. No. 214, § 9)

8-6.10 Indemnity. The authorized agency shall indemnify, save harmless and defend the city and all of its officers, agents and employees, against any and all liabilities for injuries to or death of any person, or any injury to any property arising out of those acts in connection with any permit issued pursuant to this section on the part of authorized agency, its officers, agents or employees, or any contractor or subcontractor retained by, or on behalf of, said authorized agency, or the officers, agents or employees of any of the same. The authorized agency shall further indemnify, save harmless and defend the city and all of its officers, agents and employees, against any and all liability arising by reason of any claims or demands of contractors or subcontractors retained by, or on behalf of, the authorized agency, or by reason of any liens or other claims which may be filed by, or on behalf of, any of the same, or by, or on behalf of, any other person regarding any permit issued pursuant to this section.

(Ord. No. 214, § 10)

8-6.11 Extent of Permit. The services provided under any permit issued pursuant to this section shall not extend to or benefit any person or corporation or other entity other than those expressly named in said permit and no other party shall have any right or interest in or privilege except as expressly provided in the permit.

(Ord. No. 214, § 11)

8-6.12 Non-Liability of City for Damages. Any permit issued pursuant to this section shall provide that: (1) The authorized agency expressly waives any and all claims for compensation for any and all loss or damage sustained by reason of any failure, defect, deficiency or impairment of the police department terminal alarm panel, or any part thereof, or of any other system connected thereto, including any and all installations of the authorized agency made pursuant to any permit issued hereunder or arising from any act or omission on the part of the city or its officers, agents or employees or arising from any other cause, not limited to the foregoing, in connection with the activities of the authorized agency under said permit; (2) the authorized agency expressly releases and discharges the city and its officers, agents and employees from any and all demands, claims, actions and causes of action arising from any of the causes aforesaid.

(Ord. No. 214, § 12)

8-6.13 Use of City's Facilities. The granting of a permit hereunder shall not give any authorized agency the right or privilege to use, nor shall it be permitted to use, the conduits, poles or other facilities belonging to the city.

(Ord. No. 214, § 13)

8-6.14 Fees. The authorized agency shall pay to the city such fee or fees for the connection, maintenance and/or termination of each terminal alarm as shall be prescribed by city council resolution adopted from time to time. No fee shall be charged for connection by any governmental agency.

(Ord. No. 214, § 14)

8-6.15 Acceptance of Permit. The authorized agency shall file a written acceptance of each permit with the manager and the permit shall go into effect only when such acceptance has been filed.

(Ord. No. 214, § 15)

8-6.16 Automatic Dialing Device — Certain Interconnections Prohibited.

a. It is unlawful for any person to program an automatic dialing device to select any telephone line assigned to the City of Novato after the effective date of this ordinance.

b. It is unlawful for an alarm system user to fail to disconnect or reprogram such device within 12 hours of receipt of written notice from the coordinator that an automatic dialing device is so programmed.

c. This section shall not apply to those automatic dialing devices interconnected by separated dedicated line to the communication center of the Novato Police Department with the written permission of chief of police.

d. Any violation of the above sections shall be considered a misdemeanor.

(Ord. No. 962, § 4)

8-6.17 Termination; Surrender. A permit issued under authority of this section shall continue in full force and effect unless and until revoked by the city or surrendered by the authorized agency upon the giving of 30 days prior written notice.

(Ord. No. 214, § 16; Ord. No. 962, § 4)

8-7.1 Definitions. For the purpose of this chapter, the words and phrases defined in this section shall be construed in accordance with the following definitions:

a. "City" means the City of Novato.

b. "Company" means any entity operating a taxicab business, including without limitation, a natural person, firm, association, organization, partnership, business, trust, corporation, or public entity.

c. "Company permit" means a valid permit issued by the JPA authorizing a company to operate a taxicab business.

d. "Driver" means a person who drives or controls the movements of a taxicab.

e. "Driver's permit" means a valid permit issued by the JPA authorizing a person to drive or control the movements of a taxicab.

f. "JPA" means the Marin streetlight acquisition joint powers authority or successor entity.

g. "Operate a taxicab" means to drive a taxicab and either solicit or pick up passengers for hire in the city.

h. "Program" means the Marin streetlight acquisition joint powers authority taxicab regulation program adopted and administered by the JPA.

i. "Taxicab" means a motor vehicle regularly engaged in the business of carrying passengers for hire, designed for carrying not more than eight persons, excluding the driver.

j. "Vehicle permit" means a valid permit issued by the JPA authorizing a particular vehicle to be operated as a taxicab.

(Ord. No. 1496, § 1)

8-7.2 Compliance with Program. No driver or company shall operate or cause the operation of a taxicab in the city unless such operation complies with the terms and requirements of the program which shall be adopted by separate resolution of the city.

(Ord. No. 1496, § 1)

8-7.3 Driver's Permit Required. A person shall only operate a taxicab in the city if that person possesses a driver's permit. A company shall only allow a driver to operate a taxicab if that driver possesses a driver's permit.

(Ord. No. 1496, § 1)

8-7.4 Taxicab Vehicle Permit Required. A driver shall only operate a taxicab in the city if that vehicle displays a vehicle permit. A company shall only allow a taxicab to be operated in the city on its behalf if that vehicle displays a vehicle permit.

(Ord. No. 1496, § 1)

8-7.5 Company Permit Required. A company shall only operate a taxicab business in the city if that company possesses a company permit.

(Ord. No. 1496, § 1)

8-7.6 Application for Permits. Application for a driver's permit, vehicle permit and/or company permit shall be made to the JPA, upon a form provided by the JPA and shall be accompanied by an application fee sufficient to cover the administrative costs of processing such application as established by the JPA. The fee schedule established by the JPA shall be adopted by separate resolution of the city council.

(Ord. No. 1496, § 1)

8-7.7 Testing for Controlled Substances and Alcohol. A driver shall test negative for controlled substances and alcohol as required by the program and any and all applicable state statutes.

(Ord. No. 1496, § 1)

8-7.8 Insurance Required. A driver operating a taxicab in the city shall carry with him/her at all times proof of insurance covering that vehicle, with such policy limits and coverage as established by the JPA. Said proof of insurance must clearly identify the vehicle covered.

(Ord. No. 1496, § 1)

8-7.9 Equipment. A taxicab operated under the authority of this chapter shall be equipped according to the standards established by the JPA.

(Ord. No. 1496, § 1)

8-7.10 Mechanical Condition. A taxicab operated under the authority of this chapter shall be maintained according to the standards established by the JPA.

(Ord. No. 1496, § 1)

8-7.11 Operational Requirements.

a. A driver shall only carry a passenger to his/her destination by the most direct and accessible route.

b. A taxicab shall have all permits issued by the JPA conspicuously displayed according to the standards established by the JPA.

c. A taxicab shall have the following information continuously posted in a prominent location in the taxicab passenger compartment according to the standards established by the JPA:

1. A schedule of rates and charges for the hire of said taxicab;

2. The company's name, address and telephone number;

3. The company permit;

4. The taxicab identification number;

5. The driver's permit issued by the JPA; and

6. The vehicle permit issued by the JPA.

d. A driver shall give a receipt for the amount charged upon the request of the person paying the fare.

e. A taxicab shall only be operated if the passenger compartment is kept in a clean and sanitary condition free from offensive odors in accordance with the standards established by the JPA.

f. The name or trade name of the company shall be printed, stamped or stenciled conspicuously on the outside of each taxicab according to the standards established by the JPA.

(Ord. No. 1496, § 1)

8-7.12 Separate from Business Licensing. The requirements of this chapter are separate and independent from the business licensing and any other provisions under the city code. Any company and/or driver operating a taxicab in the city shall obtain a business license to the extent required under the terms of this code.

(Ord. No. 1496, § 1)

8-7.13 Enforcement and Penalty Provisions. The city intends to secure compliance with the provisions of this chapter by any of the following alternate, separate and distinct methods. Each method set forth herein is intended to be mutually exclusive and does not prevent concurrent or consecutive methods being used to achieve compliance against continuing violations nor does it prevent utilization of any other enforcement mechanisms and/or penalties available by law. Each day a violation exists constitutes a separate offense.

Notwithstanding any other provision of this chapter, each violation of the provisions of this chapter may be enforced alternatively as follows:

a. Infraction. Any person or entity including without limitation a driver or company violating any of the provisions or failing to comply with any of the mandatory requirements of this chapter may be prosecuted for an infraction. Written citations for infractions may be issued by police officers or nonsafety employees designated by the city by separate resolution. Any person convicted of an infraction under the provisions of this chapter shall be punished by:

1. A fine not exceeding one hundred ($100.00) dollars for a first violation;

2. A fine not exceeding two hundred ($200.00) dollars for a second violation within one year;

3. A fine not exceeding five hundred ($500.00) dollars for each additional violation within one year.

b. Misdemeanor. Any person or entity including without limitation a driver or company violating any of the provisions or failing to comply with any of the mandatory requirements of this chapter may be prosecuted for a misdemeanor. Written citations for misdemeanors may be issued by police officers or by nonsafety employees designated by the city by separate resolution. Any person convicted of a misdemeanor under the provisions of this chapter shall be punished by a fine not exceeding one thousand ($1,000.00) dollars or by imprisonment for a term not exceeding six months, or by both such fine and imprisonment.

c. Civil Action. The city attorney by and at the request of the city council, may institute an action in any court of competent jurisdiction to restrain, enjoin or abate the condition(s) found to be in violation of the provisions of this chapter, as provided by law.

(Ord. No. 1496, § 1)

8-8.1 Definitions. As used in this section the following words and phrases shall mean and include:

a. "Escort Service" shall mean any business, agency or person who, for a fee, commission, hire, reward or profit, furnishes or offers to furnish names of persons, or who introduces, furnishes or arranges for persons, who may accompany other persons to or about social affairs, entertainments or places of amusement, or who may consort with others about any place of public resort or within any private quarters. Excluded from this definition are businesses agencies or persons which provide escort services for frail older persons as defined in Welfare and Institutions Code Section 9111, when such services are provided as part of a Multipurpose Senior Services program as defined in Welfare and Institutions Code Section 9403.

b. "Escort" shall mean any person who, for a fee, commission, hire, reward or profit, accompanies other persons to or about social affairs, entertainments or places of amusement or consorts with others about any place of public resort or within any private quarters. Excluded from this definition are any persons employed by any business, agency or person excluded from the definition of "escort service" above.

c. "Person" shall mean an individual, firm, partnership, joint venture, association, social club, fraternal organization joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit, excepting the United States of America, the State of California, and any political subdivision thereof.

d. "Operator" shall mean any person operating an escort service, including but not limited to the owner or proprietor of the premises upon which it is located, and the lessee, sublessee, or mortgagee in possession.

e. "Employee" shall mean any and all persons who work in or about or render services whatsoever to the patrons or customers of an escort service and who receive compensation for such service.

(Ord. No. 1116, § 1)

8-8.2 Permit Required. It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on in the City of Novato, the operation of an escort service as herein defined, without first having obtained a permit from the chief of police.

(Ord. No. 1116, § 1)

8-8.3 Filing Fee. Every person desiring a permit to maintain, operate or conduct an escort service shall file an application with the chief of police upon a form provided by said chief of police and pay a filing fee which shall not be refundable.

(Ord. No. 1116, § 1)

8-8.4 Application for Escort Service Permit. The application for a permit to operate an escort service shall set forth the proposed place of business and facilities therefor and the name and present address of each applicant.

In addition to the foregoing, any applicant for a permit shall furnish the following information or documents about the applicant if he is an individual, about each director and officer if it is a corporation, about each partner if it is a partnership, or about each member if it is some other organization as listed in subsection 8-8.lc:

a. The present address and the two previous addresses immediately prior to the present address;

b. Written proof that each person is at least 18 years of age;

c. Height, weight, color of eyes and hair;

d. Three portrait photographs at least two inches by two inches (2″ × 2″);

e. Business occupation, or employment for the three years immediately preceding the date of application;

f. A listing of all criminal convictions except minor traffic violations including date and place of each such conviction;

g. If the applicant is a corporation, the name of the corporation exactly as shown in its articles of incorporation together with the names and residence addresses of each stockholder holding more than ten percent of the stock or beneficial ownership of the corporation. (If one or more of the partners of applicant is a corporation, these provisions apply to corporate applicant);

h. Whether applicant or each person of whom the above information is required or any other person who will be directly engaged in the management or operation of the escort service has been previously granted permits or licenses to engage in a business or occupation by the State of California or by the City of Novato, or a license or permit issued by the Alcoholic Beverage Control Commission, any of which permits or licenses has/have been revoked by the panting authority because of violation of law or violation of rules promulgated by the regulating agency. (The chief of police shall not take into account such revocation If such revocation occurred at least three years prior to the date of the application); and

i. Such other identification and information necessary to discover the truth of the matters hereinbefore specified as required to be set forth in the application.

Nothing contained herein shall be construed to deny to the chief of police the right to take the fingerprints and additional photographs of the applicant, its officers, directors, or partners nor shall anything contained herein be construed to deny the right of said chief of police to confirm, by independent investigation, the truth and accuracy of the above information.

(Ord. No. 1116, § 1)

8-8.5 Employee Permit Required. It shall be unlawful for any escort or other employee to work in or about an escort service in the City of Novato or to perform any services in the City of Novato for a customer of an escort service wherever located without first securing a permit from the chief of police.

(Ord. No. 1116, § 1)

8-8.6 Employee Permit. Every person desiring an employee permit shall file an application with the chief of police on a form provided by said chief of police and pay a filing fee which shall not be refundable. Every person now working as an escort or employee shall file for a permit within 30 days of the effective date of this section.

(Ord. No. 1116, § 1)

8-8.7 Application for Employee of an Escort Service. The employee of an escort service filing for a permit shall furnish the following information:

a. Name;

b. Residence address;

c. Escort service in which the employee is currently working;

d. Two previous addresses immediately prior to the present address of the employee;

e. Weight, height, color of eye and hair;

f. Written proof that employee is at least 18 years of age;

g. Three portrait photographs of at least two inches by two inches (2″ x 2″);

h. Previous employment of the employee for three years immediately preceding the date of application;

i. All criminal convictions except minor traffic violations including date and place of each such conviction;

j. Such other identification and information necessary to discover the truth of the matters hereinbefore specified; and

k. Whether employee has been previously granted permits or licenses to engage in a business or occupation by the State of California or the City of Novato, any of which permits or licenses has/have been revoked by the granting authority.

Nothing contained herein shall be construed to deny the chief of police the right to take the fingerprints and additional photographs of the applicant, nor shall anything contained herein be construed to deny the right of said chief of police to confirm, by independent investigation, the truth and accuracy of the above information.

(Ord. No. 1116, § 1)

8-8.8 Corporate Applicants; Exemption. The provisions of paragraphs a., b., c., d., e. and f. of subsection 8-8.4 relating to requirements for corporate applicants shall not apply to any of the following:

a. A corporation, the stock of which is listed on a stock exchange in the State of California or the City of New York, State of New York;

b. A bank, trust company, financial institution or title company to which application is made or to whom a license is issued in a fiduciary capacity; and

c. A corporation which is required by law to file periodic reports with the Securities and Exchange Commission.

(Ord. No. 1116, § 1)

8-8.9 Corporate Permittee; Maintenance of Stock Register; Report.

a. A corporation holding a permit under this section shall maintain a stock register at the principal office of the corporation in Novato and the stock register shall be available to the police department for inspection. Such corporation shall report to the department in writing any of the following:

1. Issuance or transfer of any shares of stock or beneficial ownership thereof to any person where the issuance or transfer results in the person owning ten percent or more of the stock or beneficial ownership of the corporation.

2. Changes of any of the corporate officers.

3. Changes of the members of its board of directors.

The report shall be filed with the police department within 30 days after the issuance or transfer of corporate stock or beneficial ownership thereof, changes of corporate officers, or changes of members of the board of directors.

b. The provisions of this section shall not apply to any of the following:

1. A corporation, the stock of which is listed on a stock exchange in the State of California or the City of New York, State of New York;

2. A bank, trust company, financial institution or title company to which a permit is issued in a fiduciary capacity; or

3. A corporation which is required by law to file periodic reports with the Securities and Exchange Commission.

(Ord. No. 1116, § 1)

8-8.10 Issuance of Permit for an Escort Service. The chief of police shall issue an escort service permit within 30 days following submission of a complete application if all requirements for an escort service described in this section are met unless he finds:

a. That the operation as proposed by the applicant if permitted would not have complied with all applicable laws, including, but not limited to, the Building, City Planning, Housing and Fire Codes of the City of Novato;

b. That the applicant or an officer, director or partner thereof and any other person who will be directly engaged in the management and operation of an escort service has been convicted of an offense within or without the State of California that would have constituted any of the following offenses if committed within the State of California:

1. An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code;

2. An offense involving the use of force and violence upon the person of another;

3. An offense involving sexual misconduct with children; or

4. An offense as defined in Sections 647(a), 647a, 647(b), 315, 316, 318, or 266 through 267 inclusive of the Penal Code of the State of California; or

c. That the applicant, an officer, director or partner thereof or any other person who will be directly engaged in the management and operation of the escort service has had a permit or license to engage in a business or occupation granted by the State of California or the City of Novato or a license or permit issued by the Alcohol Beverage Control Commission revoked by the granting authority.

The chief of police shall issue a permit to any person convicted of any of the crimes described in paragraphs b,1.; b,2.; b,3.; or b,4. of this subsection or subjected to a license or permit revocation as described in paragraph c. of this subsection if he finds that the termination of any disability resulting from such conviction or revocation occurred at least three years prior to the date of the application and the applicant, Its officers, directors and partners have had no subsequent felony convictions of any nature, no subsequent misdemeanor convictions for crimes mentioned in this subsection and no permit or license revocations as mentioned in paragraph c. of this subsection.

(Ord. No. 1116, § 1)

8-8.11 Applications Barred for One Year. Whenever any application is filed for a permit under this section and said application has been denied by the chief of police, or a permit issued under this section has been revoked, and no appeal has been taken to the city council or when any appeal from such denial or revocation has been taken to the city council and the council has concurred in the judgment or order of denial or revocation, said application for said permit, or for a like permit for the same location or by the same applicant shall not be heard by the chief of police until the expiration of one year from the date of the previous denial or revocation of said permit or application and there shall be no appeal to the city council for failure or refusal to hear any such application or appeal within said one year period. For the purposes of this section, "same applicant" shall mean a corporation having substantially the same shareholders as a prior corporate applicant, or a partnership having substantially the same membership as a prior partnership applicant; furthermore, "same applicant" shall mean any officer, director, shareholder or partner of a prior corporate or partnership applicant.

(Ord. No. 1116, § 1)

8-8.12 Issuance of Employee Permits. The chief of police shall issue an employee permit within 30 days following submission of a complete application, unless he finds that the applicant has had a permit or license to engage in a business or occupation granted by the State of California or the City of Novato or a permit or license granted by the Alcoholic Beverage Control Commission revoked by the granting authority or that the applicant has been convicted of any of the following offenses, or convicted of an offense within or without the State which would have constituted any of the following offenses if committed within the State of California:

a. An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code;

b. An offense involving the use of force and violence on the person of another;

c. An offense involving sexual misconduct with children; or

d. An offense as defined in Section 647(a), 647a, 647(b), 315, 316, 318 or 266 through 267, inclusive, of the Penal Code of the State of California.

The chief of police shall issue a permit to any person subjected to a revocation as described in this subsection or to any person convicted of any of the crimes enumerated in paragraphs a., b., c. or d. of this subsection if he finds that the termination of any disability resulting from such conviction or revocation occurred at least three years prior to the date of the application and the applicant has had no subsequent felony convictions of any nature, no subsequent misdemeanor convictions for crimes mentioned in this subsection and no subsequent permit revocation mentioned in this subsection.

(Ord. No. 1116, § 1)

8-8.13 Revocation or Suspension of Permit.

a. Any permit issued for an escort service may be revoked or suspended by the chief of police after a hearing before the chief of police or his designee where it is found that:

1. The permittee has violated any provision of this section; has knowingly allowed any employee of the permittee to violate any provision of this section; or

2. The permittee has failed to correct a violation of this section or other applicable laws after being notified of the violation by the city; or

3. The permittee has knowingly allowed a person to work as an employee of the permittee who does not have a valid employee permit issued by the city; or

4. Information contained in the permittee's permit application, or supplemental information requested from the applicant, is found to be false in any material detail.

5. The permittee has committed an act which would have constituted grounds for permit denial under subsection 8-8.10.

b. Any employee permit may be revoked or suspended after a hearing before the chief of police or his designee where it is found that:

1. The employee has committed an act which would have constituted grounds for permit denial under subsection 8-8.12;

2. The employee knowingly violated any provision of this section;

3. Information contained in the employee's permit application, or supplemental information requested from the employee is found to be false in any material detail.

(Ord. No. 1116, § 1)

8-8.14 Employment of Persons Under the Age of Eighteen Prohibited. It shall be unlawful for any owner, proprietor, manager or other person In charge of any escort service to employ any person who is not at least 18 years of age.

(Ord. No. 1116, § 1)

8-8.15 Age of Customer. It shall be unlawful for any owner, proprietor, manager or other person in charge of an escort service to allow any person under the age of 18 years to patronize an escort service as a customer or patron.

(Ord. No. 1116, § 1)

8-8.16 Sale or Transfer. Upon sale, transfer or relocation of an escort service, the permit and license therefor shall be null and void unless approved as provided in subsection 8-8.18 herein; provided, however, that upon the death or incapacity of the permittee, the escort service may continue in business for a reasonable period of time to allow for an orderly transfer of the permit.

If the permittee is a corporation, a transfer of 25 percent of the stock ownership of the permittee will be deemed to be a sale or transfer and the permit and license therefor shall be null and void unless approved as provided in subsection 8-8.18 herein; provided, however, that the provision shall not apply to a permittee corporation, the stock of which is listed on a stock exchange in this State or in the City of New York, State of New York, or which is required by law to file periodic reports with the Security and Exchange Commission.

(Ord. No. 1116, § 1)

8-8.17 Name and Place of Business — Change of Location. No person granted a permit pursuant to this section shall operate under any name or conduct his business under any designation for any location not specified in his permit.

(Ord. No. 1116, § 1)

8-8.18 Transfer or Assignment of Permit. No permit shall be transferred or assigned except with the written consent of the chief of police. An application for such a transfer shall be in writing and shall be accompanied by the same filing fee as for an initial application. The written application for such transfer shall contain the same information as required herein for an initial application for such a permit.

(Ord. No. 1116, § 1)

8-8.19 Penalty. Any person who violates any provision of this section shall be deemed guilty of an infraction and shall be punishable as stated in Chapter I, subsection 1-5.1.

(Ord. No. 1116, § 1)

8-8.20 Penalty; Limited Suspension or Revocation. Any permit issued under the terms of this section may be suspended for a period of 30 days or revoked by the chief of police if the chief of police deems, after a noticed hearing, that violations as enumerated in subsection 8-8.13 have occurred. The hearing shall be on twenty days mailed written notice to the permittee providing the time, date and place of hearing, and shall specify the violations. Service of the notice shall be deemed complete upon deposit in a regular mail facility, in a sealed envelope, with postage paid, addressed to the permittee, at the address of the escort service.

(Ord. No. 1116, § 1)

8-8.21 Appeal. If the chief of police denies an application for an escort service or an employee permit, or revokes or suspends a permit, any interested party may appeal the denial, revocation or suspension to the Novato City Council. Notice of such appeal by the applicant shall be filed with the city clerk within ten days after notice of denial, revocation or suspension. If no appeal is filed, the action of the chief of police will be final. If an appeal is filed, the city council shall hold a hearing and may affirm or overrule the denial, revocation or suspension of the chief of police.

(Ord. No. 1116, § 1)

8-8.22 Time Limit for Obtaining Permit. All premises required to obtain a permit and license pursuant to this section must obtain a permit within 60 days of the effective date of this section.* Failure to do so shall make continued operation of said escort service a violation of subsection 8-8.2.

(Ord. No. 1116, § 1)

* Editor's Note: Ordinance No. 1116 was finally passed and adopted on May 20, 1986 and became effective on June 19, 1986.

8-9.1 Title of Section. This section shall be known and may be cited as the Novato Film Permit Ordinance.

(Ord. No. 1225, § 1)

8-9.2 Purpose of Section. It is the purpose of this section to provide for rules governing the issuance of permits for filming activities on location within the city. The intent of this section is to ensure that motion picture, television, commercial and filming companies will be encouraged to use locations for filming activities within the city so long as those activities are consistent with the public health and safety and the protection of property.

(Ord. No. 1225, § 1)

8-9.3 Definitions.

a. "City Manager" shall mean the city manager of the City of Novato or his designee.

b. "Chief of Police" shall mean the chief of police or his authorized deputy.

c. "Filming Activity" shall mean the filming, videotaping, photographing, or other similar process conducted for the making of commercial motion pictures, television commercial production, television programs and no theatrical film productions on any public or private property, facility or residence.

d. "Film Permit" shall mean a permit issued in accordance with this section.

e. "News Purposes" shall mean a filming activity conducted for the purpose of reporting on persons or events which are in the news for television and other news services.

f. "Studio" shall mean a fixed place of business where filming activities are regularly conducted upon the premises.

(Ord. No. 1225, § 1; Ord. No. 1241, § 2)

8-9.4 Permit Required. It shall be unlawful to conduct a filming activity as defined in subsection 8-9.3c without first obtaining a film permit from the chief of police.

(Ord. No. 1225, § 1; Ord. No. 1241, § 1)

8-9.5 Permit Exemptions. The provisions of this section shall not apply to any of the following activities:

a. Film activities conducted for news purposes as defined in subsection 8-9.3e.

b. Filming activities conducted in a studio as defined in subsection 8-9.3f.

c. Filming activities conducted for use in a criminal investigation or civil court or criminal proceeding.

(Ord. No. 1225, § 1)

8-9.6 Deadline for Filing Permit Application.

a. Any person applying for a film permit hereunder shall file an application for such permit not less than five days in advance of the proposed filming activity where the filming activity requires or involves traffic control, special effects on streets, the application must be filed not less than seven days in advance, and where road closures are involved, not less than ten days in advance.

b. Application deadlines may be waived for good cause by the city manager if there is sufficient time remaining to process the application, and for the city to prepare for the requested filming activity.

(Ord. No. 1225, § 1; Ord No. 1241, § 3)

8-9.7 Application Form. Permit application shall be on a form furnished by the chief of police. Such form shall be a standardized permit application form provided by the California Film Commission and shall request the following information:

a. Name, business address and telephone number of applicant.

b. Location maps and daily time charts for proposed filming activity including hours and dates such activity will transpire.

c. Description of scenes to be filmed including details of any stunts, animals, chase scenes, pyrotechnics, special effects, and number of people used for a particular scene.

d. The name, address and telephone number of person(s) in charge on location and exact number of personnel involved.

e. Description of all vehicles and the time during which they will be parked on city streets or used during filming activities and a parking plan.

f. A traffic operations plan if public traffic flow is to be altered for the filming operations. The plan shall be prepared by the permit applicant and shall be subject to approval by the city engineer.

g. Such other information as the police department and/or city engineer may reasonably require to determine whether or not to grant a film permit pursuant to this section.

h. Telephone call application may be submitted by the FAX process.

(Ord. No. 1225, § 1)

8-9.8 Permit Approval/Denial.

a. The film permit shall be approved by the chief of police unless he determines from consideration of the application or other pertinent information, that any of the following conditions exist:

1. The filming activity will substantially disrupt the use of a street at a time when it is usually subject to traffic congestion, or interfere with the operation of emergency vehicles in the proposed permit area.

2. The location of the filming activity will substantially interfere with street maintenance work, or a previously authorized excavation permit.

3. The proposed permit location is on city-owned property and the filming activity will substantially interfere with municipal functions, or other previously authorized activities on city property.

4. The filming activity creates a substantial risk of injury to persons or property, or is particularly disruptive to a neighborhood.

5. The applicant failed to create the application after being requested to do so, or the information contained in the application is found to be false in any material detail.

6. The particular filming activity would violate federal, state or local law including license/permit requirements.

b. When the ground for permit denial can be eliminated by imposing reasonable permit conditions, the chief of police may impose such conditions rather than deny the permit.

(Ord. No. 1225, § 1)

8-9.9 Permit Conditions. In some cases the filming activity may result in an unreasonable inconvenience to the public and to emergency services in the use of a public street. Factors such as time of day, detour plans, and special traffic control plans may mitigate the effects of filming on city streets. The film permit may be conditioned on applicants complying with the special requirements including, but not limited to the following:

a. Requirements for the presence of Novato Police Department, Fire Department or Community Development employees at the applicant's expense.

b. Requirements of a traffic operations plan. All traffic shall be positively guided and/or controlled in compliance with the State Traffic Manual. The plan shall ensure that adequate signs and traffic control personnel will be available and be implemented during the times traffic disruption occurs. The plan shall also provide for advance (48 hour minimum) notice to fire and police departments and school district bus dispatcher and Golden Gate Transit.

c. Restrictions on the use of gunfire, explosions, and other noise-creating or hazardous devices.

d. Restriction on the hours of filming.

e. Requirements concerning adequate notice to affected property owners.

f. The encroachment permit from the city engineer will be required for work or activity which will take place within the public right-of-way which would cause destruction of or injury to any city facilities or property such as streets, sidewalks, signals, trees, etc.

When such activity is planned the encroachment permit shall be obtained before issuing of the film permit in accordance with section 15-2 of the city code. All other activities not causing damage to city facilities will be covered by the film permit and no encroachment permit will be required.

(Ord. No. 1225, § 1; Ord. No. 1241, § 4)

8-9.10 Fees.

a. A permit application processing fee in an amount established by city council resolution and shall be paid by the applicant at the time the application is filed.

b. A schedule of fees for city services and use of city property shall be established by city council resolution. The applicant shall prepay such fees prior to issuance of the film permit.

c. Charitable and nonprofit organizations shall be exempt from payment of all fees imposed by this section.

(Ord. No. 1225, § 1)

8-9.11 Change of Filming Date. Upon the request of the applicant, the issuing authority shall have the power, upon a showing of good cause, to change the date for which the permit has been issued, provided time and location designations are comparable with those approved for the initial permit.

(Ord. No. 1225, § 1)

8-9.12 Insurance.

a. The applicant for a film permit must possess or obtain liability insurance to protect against loss from liability imposed by law for damages on account of bodily injury and property damage arising from the filming activity. Such insurance shall name on the policy or by endorsement as insureds the City of Novato, its officers, employees and agents. Insurance coverage must be maintained for the duration of the filming activity.

Coverage shall be provided by a Comprehensive General Liability Insurance Policy in the amount prescribed by city council resolution. The insurance coverage afforded by the policy shall provide at a minimum the equivalent of insurance coverage provided by Insurance Service Office (ISO) Comprehensive General Liability Insurance coverage.

b. Proof of insurance coverage as specified in paragraph a above must be provided by the applicant and approval by the city prior to issuance of a film permit by the chief of police.

(Ord. No. 1225, § 1)

8-9.13 Indemnification Agreement. Prior to the issuance of a film permit, the permit applicant and authorized officer of the sponsoring organization (if any) must sign an agreement to reimburse the city for any costs incurred by it in repairing damage to city property occurring in connection with the permitted event proximately caused by the actions of the permittee/sponsoring organization, its officers, employees or agents, or any person who was, under the permittee's/sponsoring organization's control insofar as permitted by law. The agreement shall also provide that the permittee/sponsoring organization shall defend the city against, and indemnify and hold harmless from, any liability to any persons resulting from any damage or injury occurring in connection with the permitted event proximately caused by the actions of the permit/sponsoring organization, its officers, employees or agents, or any person who was under the permittee's sponsoring organization's control insofar as permitted by law.

(Ord. No. 1225, § 1)

8-9.14 Duties of Permittee.

a. Each permittee shall comply with all terms and conditions of the permit. Failure to comply with all permit terms and conditions is grounds for permit revocation by the chief of police.

b. Each permittee shall clean and restore all city-owned property utilized during the filming activity to the same condition as existed prior to the filming.

c. The person in charge of the filming activity shall retain a copy of the film permit on location at all times.

d. When a minor modification of the permit is necessary, the applicant shall apply for a permit rider, and state the reasons for changes and the nature of the requested change. A permit cannot be extended or amended by rider after the completion of the filming activity.

(Ord. No. 1225, § 1)

8-9.15 Appeal Procedure.

a. The applicant shall have the right to appeal the denial of a permit or a permit condition. The applicant shall also have the right to appeal the amount of fees, of cleanup deposits imposed pursuant to City Council Resolution, or a determination by the city that the applicant's insurance policy does not comply with the requirements specified in subsection 8-9.12. A notice of appeal shall be filed with the city clerk within five days after mailing or personal delivery of a notice of denial or of permit condition, setting the grounds for the appeal. The appeal must be filed no later than noon, one calendar week preceding a city council meeting, to be placed on the next regular meeting's agenda. The city council shall hear the applicant or a designated representative, receive any relevant information and documents, and act on the appeal at its next regular meeting. The decision of the city council is final.

b. If there is insufficient time for a timely appeal to be heard by the city council prior to the date on which the event is scheduled, the applicant may, at his option, request that the city clerk schedule the appeal before the city manager. The city manager or his/her designee shall hold a hearing no later than two business days after the filing of the appeal, and will render his/her decision no later than one business day after hearing the appeal. If the appeal is heard before the city manager, the city manager's decision is final.

(Ord. No. 1225, § 1)

8-9.16 Penalties. Any persons, firm or corporation, whether as principal, agent, employee, or otherwise, violating any of the provisions of this section shall be deemed guilty of an infraction and, upon conviction, shall be punished as specified in subsection 1-5.1. Such violations may also be addressed in a civil action.

(Ord. No. 1225, § 1)

8-10.1. Purpose and Authority. This chapter implements the Digital Infrastructure and Video Competition Act of 2006 (the "Act"; AB2987), as set forth at Public Utilities Code § 5800 and following. The Act creates a process for the state, rather than local cities and counties, to grant video service franchises. It will be administered by the California Public Utilities Commission (CPUC). Under the Act, some authority is retained by local cities and counties, and the purpose of this Chapter is to implement that local authority in the City.

8-10.2. Definitions.

a. The terms video service, video franchise and holder shall have the same meaning as those terms are defined in CPUC § 5830.

b. Gross revenue has the meaning set forth in CPUC § 5860(d).

c. Terms not defined here shall have the same meaning as established in (in order of priority): (1) the CPUC; (2) commission rules implementing the CPUC; and (3) Title 47 United States Code.

8-10.3. State Video Franchise Applications.

a. Copy of application to City. An applicant for a state video franchise within the City must concurrently provide a complete copy to the City Manager of any application or amendments to an application filed with the CPUC. (CPUC § 5840(n))

b. City Manager comments to CPUC. Within 30 days of receipt, the City Manager will provide any appropriate comments to the CPUC regarding an application or an amendment to an application for a state video franchise.

8-10.4 State Video Franchise Fee. For any state video franchise holder operating within the boundaries of the City, there shall be a fee paid to the City equal to five percent of the gross revenues derived from the operation of its franchise within the City. (CPUC § 5840(q)) A state video franchise holder shall pay the franchise fee to the City quarterly, within 45 days after the end of each calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the fee.

8-10.5 PEG Channel Capacity and Support.

a. PEG Channel Capacity.

(1) A state franchisee shall designate and activate no fewer than three Public, Education and Government ("PEG") channels on its network. The state franchisee shall designate and activate the PEG channels within three months from the date that the state franchisee receives a state franchise to provide video service in an area including the City, provided, however, that this three-month period shall be tolled for such a period, and only for such a period, during which the state franchisee's ability to designate or provide such PEG capacity is technically infeasible, as provided in Section 5870(a) of the California Public Utilities Code.

(2) Pursuant to Section 5870(b) a state franchisee shall ensure that to the extent feasible, the PEG channels are not separated numerically from other channels carried on the basic service tier and the channel numbers for the PEG channels shall be the same channel numbers used by the incumbent cable operator. After the initial designation of PEG channel numbers, the channel numbers shall not be changed without the agreement of the City Manager unless the change is required by federal law. Each PEG channel must be capable of carrying a National Television System Committee (NTSC) television signal.

(3) A state franchisee shall provide an additional PEG channel when the standards set forth in Section 5870(d) of the California Public Utilities Code are satisfied by the City or any entity designated by the City to be responsible for PEG access channel capacity and support.

b. PEG Support.

(1) Every state franchisee and cable operator operating within the jurisdictional boundaries of the City, either currently or in the future, shall pay a PEG support fee to the City in an amount equal to two percent of its gross revenues.

(2) The PEG support fee shall be used by the City for PEG purposes consistent with state and federal law.

(3) A state franchisee shall remit the PEG support fee to the City quarterly within 45 days after the end of each calendar quarter. Each payment shall be accompanied by a summary explaining the basis for the calculation of the PEG support fee.

(4) If a state franchisee fails to pay the PEG support fee, when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at an annual interest rate equal to the highest prime lending rate during the period of delinquency, plus one percent or the highest rate allowed by California law, whichever is lower.

c. PEG Carriage and Interconnection. State franchisees shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchisee shall be of similar quality and functionality to that offered by commercial channels on the state franchisee's lowest cost tier of service unless the PEG signal is provided to the state franchisee at a lower quality or with less functionality.

8-10.6 Customer Service Penalties.

a. Compliance with customer service and protection standards. The holder of a state video franchise shall comply with all applicable state and federal customer service and protection standards pertaining to the provision of video service in the City. (CPUC § 5900(a) and (b))

b. City monitoring; Notice of violation; Penalties. The City Manager shall monitor the compliance of state video franchise holders with respect to state and federal customer service and protection standards. The City Manager will provide the state video franchise holder written notice of any material breaches of applicable customer service standards, and will allow the state video franchise holder 30 days from the receipt of the notice to remedy the specified material breach. A material breach not remedied within the 30-day time period will be subject to the following City penalties:

(1) For the first occurrence of a violation, a fine of five hundred ($500.00) dollars shall be imposed for each day the violation remains in effect, not to exceed one thousand five hundred ($1,500.00) dollars for each violation.

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

(3) For a third or further violation of the same nature within 12 months, a fine of two thousand five hundred ($2,500.00) dollars shall be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred ($7,500.00) dollars for each violation. (CPUC § 5900(c) and (d))

c. Appeal. A state video franchise holder may appeal a penalty assessed by the City Manager to the City Council within 60 days of the initial assessment. The City Council shall set the matter for hearing, and hear all evidence and relevant testimony. The City Council may uphold, modify or vacate the penalty. The City Council's decision on the imposition of a penalty is final.

8-10.7 Public Rights-of-Way.

a. A state video franchise holder is required to obtain an encroachment permit from the City before constructing, operating, maintaining or repairing its facilities within the public right-of-way.

b. The City shall either approve or deny an encroachment permit application within 60 days of receiving a completed application. An application is considered complete when the applicant has complied with all statutory requirements, including the California Environmental Quality Act (Pub. Res. Code § 21000 and following).

c. If the City denies the encroachment permit, it shall provide the applicant with a detailed explanation of the reason for the denial. A determination regarding the encroachment permit by the City Manager, may be appealed. (CPUC §§ 5830(o), 5840(e) and 5885(c))

(Ord. No. 1535, § 1, 8-12-2008)

8-10.8 Reauthorization of Ordinance Establishing PEG Fees. Pursuant to the authority provided under Public Utilities Code Section 5870(n), Ordinance Number 1535 implementing PEG support fees is hereby reauthorized as to any state franchise which has expired as of the effective date of this ordinance [Ord. No. 1630], or will expire at any time thereafter.

(Ord. No. 1630, § 2, 12-12-2017)

8-11.05 Title. This section shall be known as the "Urgency Licensing of Commercial Cannabis Businesses" ordinance. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.1 Purpose and Intent. It is the purpose and intent of this section to implement the provisions of the Medicinal and Adult Use Cannabis Regulation and Safety Act ("MAUCRSA") to accommodate the needs of medically ill persons in need of, and provide access to, cannabis for medicinal purposes as recommended by their health care provider(s), and to provide adult use (recreational) access to persons over the age of 21 as authorized by the Control, Tax & Regulate the Adult Use Cannabis Act ("AUMA" or "Proposition 64" passed by California voters in 2016), while imposing sensible regulations on the use of land to protect the City's residents, neighborhoods and businesses from disproportionately negative impacts. As such, it is the purpose and intent of this section to regulate the cultivation, processing, manufacturing, testing, sale, delivery, distribution and transportation of cannabis and cannabis products in a responsible manner to protect the health, safety, and welfare of the residents of the City of Novato and to enforce rules and regulations consistent with state law. It is the further purpose and intent of this section to require all commercial cannabis operators to obtain and bi-annually renew a permit to operate within the City of Novato. Nothing in this section is intended to authorize the possession, use or provision of cannabis for purposes that violate state or federal law. The provisions of this section are in addition to any other permits, licenses and approvals which may be required to conduct business in the city, and are in addition to any permits, licenses and approval required under state, city or other law. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.2 Legal Authority. Pursuant to Section 7 of Article XI of the California Constitution, the provisions of MAUCRSA, any subsequent state legislation and/or regulations regarding same, the City of Novato is authorized to adopt ordinances that establish standards, requirements and regulations for the licensing and permitting of commercial cannabis activity. Any standards, requirements, and regulations regarding health and safety, security, and worker protections from time to time established by the State of California, or any of its departments or divisions, shall be the minimum standards applicable in the City of Novato to all commercial cannabis activity. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.3 Cannabis Cultivation and Commercial Cannabis Activities Prohibited Unless Specifically Authorized by this Section. Except as specifically authorized in this section, the commercial cultivation, manufacture, processing, storing, laboratory testing, labeling, sale, delivery, distribution or transportation (other than as provided under Business & Professions Code Section 26090(e)), of cannabis or cannabis product is expressly prohibited in the City of Novato. In addition to the requirements of this section, section 19.12.030 and section 19.34.066, commercial cannabis uses shall comply with all other applicable provisions of the City of Novato's General Plan and the Municipal Code ("code"). Except for hospitals and research facilities that obtain written permission for cannabis cultivation under federal law, it is unlawful to cultivate, distribute, manufacture, test or transport cannabis, in amounts that exceed personal use allowances under California law, within the city without a valid license issued pursuant to the provisions of this section and all requirements of Sections 19.12.030 and 19.34.066. Possession of other types of state or city permits or licenses does not exempt an applicant from the requirement of obtaining a license under this section. Unless specific distinctions are made in subsequent sections, requirements shall apply equally to either adult use or medicinal cannabis activities. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

This section provides the licensing and operating standards for all commercial cannabis activities, including both adult (recreational) and medicinal cannabis uses, to ensure neighborhood compatibility, minimize potential environmental impacts, mitigate potential nuisances, and provide safe, legal access to cannabis. Additional standards may apply to particular commercial cannabis uses, as established in other sections of the Code or by City Council resolution. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.4 Compliance with State and Local Laws. It is the responsibility of the owners and operators of the commercial cannabis business to ensure that the business is, always, operating in a manner compliant with all applicable state and local laws, including this section, and any regulations promulgated thereunder, any subsequently enacted state or local law or regulatory, licensing, or certifications requirements, and any specific, additional operating procedures or requirements which may be imposed as conditions of approval of the commercial cannabis business permit. Nothing in this section shall be construed as authorizing any activities that violate federal, state or local law with respect to the operation of a commercial cannabis business. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

The operator shall comply with all permit, license, approval, inspection, reporting, and operational requirements of other local, state or other agencies having jurisdiction over the type of operation. The operator shall provide copies of other agency and department permits, licenses, or certificates to the review authority to serve as verification of such compliance. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

Within seven days of the owner receiving an initial license or renewal from the state or its divisions, Owner shall deliver evidence of said license or renewal to the city. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.5 Definitions. All definitions pertaining to cannabis regulation that appear in Business and Professions Code Section 26001 are hereby incorporated by reference. Definitions appearing in this section are either those that are not covered by state law, pre-date Proposition 64 and the MAUCRSA, or are outside the scope of said Section 26001.

a. "Cannabis delivery permit" means a permit issued by the chief of police to a business allowing that business to deliver cannabis and cannabis products within the city limits of the City of Novato.

b. "Caregiver" or "primary caregiver" has the same meaning as that term is defined in Section 11362.7 of the California Health and Safety Code.

c. "Commercial cannabis activity" includes the possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale of cannabis and cannabis products as provided for in this section.

d. "Commercial cannabis business" means any business or operation which engages in medicinal or adult-use commercial cannabis activity.

e. "Commercial cannabis business permit ("CCBP")" means a regulatory permit issued by the City of Novato pursuant to this section, to a commercial cannabis business and is required before any commercial cannabis activity may be conducted in the city. The initial permit and any renewal of a commercial cannabis business permit is made expressly contingent upon the business' ongoing compliance with all of the requirements of this section and any regulations adopted by the city governing the commercial cannabis activity at issue.

f. "Conditional certificate" (sometimes referred to as "CC") means a conditional privilege awarded by the city council to a specific commercial cannabis business which grants that business the privilege of applying for a CCBP.

g. "Dispensing" means any activity involving the retail sale of cannabis or cannabis products from a retailer.

h. "Dispensary" means a business that holds a valid state license and conducts the retail sale of cannabis or cannabis products. "Dispensary" means the same thing as "retailer."

i. "Distribution" means the distribution of cannabis and cannabis products between state licensees, including testing laboratories, requiring adherence to state mandated transportation security and cargo manifest requirements.

j. "Distributor" shall have the same meaning as that appearing in Section 26070 of the Business and Professions Code.

k. "Licensee" or "state licensee" means a person holding a state license.

l. "Limited-access area" means an area in which cannabis is stored or held and is only accessible to some licensee and authorized personnel.

m. "Manufactured cannabis" means (1) a cannabis product that has been (i) produced using infusion or other processes as permitted under a Type N State License or (ii) packaged or re-packaged as permitted under a Type P State License or (2) a cannabis product package that has been labeled or relabeled as permitted under a Type P State License.

n. "Manufacturing site" means a location that (1) produces cannabis products by methods permitted under a Type N State License, (2) packages and/or repackages cannabis products under a Type P State License, (3) labels and/or re-labels cannabis product packages under a Type P State License, and (4) is owned and operated by a person issued a valid commercial cannabis business permit for manufacturing from the City of Novato and a valid State License Type N or Type P, as the case may be.

o. "Non-store front retail business" means a non-storefront cannabis business that sells and delivers cannabis or cannabis products to customers from a premises that is not open to the public. While the business shall have a physical location within the City of Novato all sales are consummated exclusively by delivery.

p. "Non-volatile solvent" means any solvent used in the extraction process that is not a volatile solvent as defined by state law. For purposes of this section, a nonvolatile solvent includes carbon dioxide (CO 2 ) used for extraction and ethanol used for extraction or post-extraction processing.

q. "Owner" means any of the following:

(1) A person with an aggregate ownership interest of five percent or more in the business applying for or holding a CCBP.

(2) The manager of a nonprofit or other entity applying for or holding a CCBP.

(3) A member of the board of directors of a for-profit or nonprofit entity applying for or holding a CCBP.

(4) An individual who will be or is participating in the direction, control, or management of the business applying for and/or holding a CCBP.

r. "Package" means any container or receptacle used or holding cannabis or cannabis products.

s. "Patient" or "qualified patient" shall have the same definition as California Health and Safety Code Section 11362.7 et seq., as it may be amended, and which means a person who is entitled to the protections of California Health and Safety Code Section 11362.22.

t. "Person" means an individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, whether organized as a nonprofit or for-profit entity, and includes the plural as well as the singular number.

u. "Person with an identification card" shall have the meaning given that term by California Health and Safety Code Section 11362.7.

v. "Proposal" means the materials and information submitted by the proposer(s) for consideration by the proposal review committee.

w. "Proposal review committee" ("PRC") means staff members of the City of Novato as well as staff of other local permitting agencies, as well as any consultants retained by the city for the purpose of reviewing conditional certificate applications.

x. "Proposer" means a person or persons submitting a conditional certificate proposal and a CCBP application to the City of Novato.

y. "Retailer" shall have the same meaning as the definition appearing in Section 26070(a)(1) of the Business and Professions Code.

z. "State license" means a permit or license issued by the State of California, or one of its departments or divisions, under MAUCRSA and any subsequent State of California legislation regarding the same to engage in commercial cannabis activity. A state license alone will not authorize the holder to operate a cannabis business in the city, as state law also requires a permit or other authorization issued by a local jurisdiction.

aa. "Topical cannabis" means a product intended for external application and/or absorption through the skin. A topical cannabis product is not considered a drug as defined by Section 109925 of the California Health and Safety Code.

ab. "Youth center" means any public or private facility that is used only to host recreation or social activities for minors.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.6 Commercial Cannabis Business Permit Required to Engage in Commercial Cannabis Business.

a. No person may engage in any commercial cannabis business or in any commercial cannabis activity within the City of Novato, including manufacture, processing, laboratory testing, transporting, dispensing, distribution, or sale of cannabis or a cannabis product unless the person (1) has a valid CCBP commercial cannabis business permit from the City of Novato; (2) has a valid state license; and (3) is currently in compliance with all applicable state and local laws and regulations pertaining to the commercial cannabis business and the commercial cannabis activities in which the business is engaged.

b. No CCBP shall be issued pursuant to this section for outdoor or mixed-light commercial cannabis cultivation or storefront retail sales, which are prohibited.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.7Evidence of Criminal Background Check Required.

a. Pursuant to California Penal Code Sections 11105(b)(11) and 13300(b)(11), authorizing municipalities to access state and local summary criminal history information for employment, licensing, or certification purposes and authorizes access to federal level criminal history information by transmitting fingerprint images and related information to the Department of Justice to be transmitted to the Federal Bureau of Investigation, any person who is an, owner, manager, supervisor, employee, or contract employee of a commercial cannabis business must submit fingerprints to the chief of police for a background check by the Novato Police Department.

b. A fee for the cost of the background investigation, which shall be the actual cost to the city to conduct the background investigation as it deems necessary and appropriate, shall be paid at the time the application for a commercial cannabis business is submitted or at any other time a background investigation is required under this section.

c. This provision applies to all employees of the commercial cannabis business, regardless of the date of hire.

d. The criminal background checks completed by the city will, at a minimum, identify the following:

(1) Whether the individual applying for employment has ever been convicted of a violent felony as defined by California Penal Code section 667.5, or equivalent offenses in other states;

(2) Whether the individual applying for employment has ever been convicted of a crime involving dishonesty, fraud, or deceit, including, but not limited to, fraud, forgery, theft, or embezzlement, as those offenses are defined in California Penal Code Sections 186.11, 470, 484 and 504a, respectively; or equivalent offenses in other states;

(3) Whether the individual applying for employment has ever been convicted of the illegal use, possession, transportation, distribution or similar activities related to controlled substances, as defined in the Federal Controlled Substances Act. This will not include cannabis-related offenses for which the conviction occurred after the passage of the Compassionate Use Act of 1996.

e. Evidence of a conviction of any of the offenses enumerated in Section 8-11.7(d) shall be grounds for denial of employment or working with or for a commercial cannabis business. Employers who wish to hire or retain an individual notwithstanding this rule shall apply to the chief of police, who at his/her sole discretion may issue a written waiver allowing employment or retention of persons convicted of said offenses.

Evidence of a conviction of any of the offenses enumerated in Section 8-11.7(d) shall also disqualify any person from submitting a proposal for a CC or applying for a CCBP.

f. The CCBPs of commercial cannabis businesses (i) which employ or retain the services of persons who have been convicted of the offenses enumerated in Section 8-11.7(d) without written waiver from the Chief of Police or (ii) the owners of which have been convicted of the offenses enumerated in Section 8-11.7(d) shall be subject to immediate suspension of the business' CCBP. Owner/operators who wish to contest a suspension of their CCBPs under this section may file an appeal with the City pursuant to section 8-11.19.

8-11.8 Personnel Prohibited from Holding a License or from Employment with a Cannabis Business Permittee; Past Civil Violations. In addition to the grounds for disqualification related to the results of the criminal background check described in section 8-11.7, evidence of past civil violations shall be grounds for disqualification as follows:

a. Any applicant, including but not limited to, any firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate or any other group or combination acting as a unit or any person owning, being a member or shareholder of, or any person having an interest in any of said entities or capacities shall be prohibited from holding a CCBP if any of the following is true:

1. The applicant has had a commercial cannabis license or permit suspended or revoked by any city, county, city and county or any other state cannabis licensing authority;

2. The applicant was notified that it/he/she was conducting commercial cannabis activity in violation of City of Novato ordinances, codes or requirements, and failed to cure the violation in a timely manner;

3. The applicant has entered into either a verbal or written agreement to lease, sublease, or any other agreement to use real property for commercial cannabis activity and engaged in that activity without having been issued a valid permit in a violation of the code.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.9 Maximum Number and Type of Authorized Commercial Cannabis Businesses Permitted.

a. Except as otherwise provided by ordinance, the following types and number of cannabis businesses are permitted in the city:

1. Non-store front retailer — unlimited.

2. Testing laboratory — maximum of two.

3. Manufacturing — maximum of two.

4. Indoor cultivation — maximum of two.

5. Microbusiness — maximum of three.

6. Distribution — maximum of one if permitted as a standalone business operation holding a State license Type 11 only. No limit if permitted as an ancillary activity to one of the above listed businesses (1 through 5), where permitted by state law.

Sections 19.12.030 and 19.34.066 contain additional limitations on permissible operations.

b. Section 8-11.9(a) is intended only to create a maximum number of commercial cannabis businesses that may be issued CCBPs to operate under each category. Nothing in this section creates a mandate that the city council must issue any or all of the CCs for the businesses identified above if (i) it is determined that the proposers do not meet the standards which are established in the proposal requirements or further amendments to the proposal process, or, (ii) the city council, upon further deliberation determines that the issuance of any or all CCBPs will adversely impact the public safety, health or welfare of the city and/or its residents.

c. Each year following the city council's initial award of CCs, if any, or at any time in the city council's discretion, the City Council may reassess the number and type of CCs and/or CCBPs which are authorized for issuance. The city council, at its discretion, may determine that the (i) number of CCs and/or CCBPs should stay the same or be increased, and/or (ii) the category of permitted commercial cannabis businesses should be changed.

d. Any commercial cannabis business which is granted a CCBP hereunder shall also be permitted to engage in distribution transport activities, provided that it first obtains the state distribution license necessary to engage in such activities.

e. Any commercial cannabis business which is granted a retailer's CCBP here under shall also be permitted to engage in delivery services.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.10 Consideration of Finalists for Award of Conditional Certificate.

a. The city council shall hold a duly noticed public hearing to consider the awarding of conditional certificates (CCs) to one or more finalists. The award of CC's shall be left to the sole discretion of the city council. The city council's award of each CC shall be memorialized in written decisions supporting each award and identifying any additional conditions and/or agreements required by the city council. The council may award CCs for each category of commercial cannabis business identified in section 8-11.9 in an amount no greater than the number assigned in said section. The city council reserves the right to reject any or all proposals and reserves the right to request and obtain additional information any proposer, should the city council find such actions necessary in order for the Council to make an informed decision or otherwise act in the best interests of the health, safety and/or welfare of the city.

b. At any time prior to a CCBP being issued to any proposer, the city council may modify, postpone, or cancel; (i) any requirement applicable to any proposal, or (ii) the entire program established under this section without any liability, obligation, or commitment to any proposer, party, firm or organization. All proposers assume the risk that all or any part of the program established under this section, or any particular category of permit potentially authorized under this section, may be cancelled or eliminated, as the case may be, at any time prior to the proposer in question being issued a CCBP.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.11Commercial Cannabis Businesses Awarded Conditional Certificates May Apply for Land Use Permits and Building Permits.

a. Upon being granted a conditional certificate, proposer(s) (hereinafter sometimes referred to as "applicants") shall be eligible to apply for and take the necessary steps to obtain all land use approvals and building permits necessary to construct, install and/or operate their specific commercial cannabis business at the location identified in their proposal. This includes any required environmental review pursuant to the California Environmental Quality Act (CEQA).

b. From the date the city council awards a conditional certificate to an applicant, the applicant shall have up to two years to:

1. Apply for and obtain the necessary land use permits. At a minimum, the applicant shall be required to apply for and obtain a zoning clearance or land use entitlement as specified in section 19.12.030 and 19.34.066 of the code. The granting of any such zoning clearance or land use entitlement to the applicant shall not confer any vested rights and shall not run with the land. The term of any such zoning clearance or other entitlement granted to the applicant related to the proposal shall be expressly limited to two years from the date of the clearance or entitlement's final approval; and

2. Apply for and receive building permit(s) and complete all necessary renovations and/or new construction and secure approval of a final inspection and/or certificate of occupancy; and

3. Satisfy all of the conditions of approval required and/or included in the conditional certificate awarded to the applicant and provide proof that all requirements of the CCBP have been met. This includes the applicant's execution and/or performance of all required legal contracts necessary to secure the proposed public benefit included in the proposal; and

4. Apply for and be issued a CCBP; and

5. Initiate activities authorized under the CCBP.

c. Extensions of this time period beyond two years shall be granted on a case-by-case basis by the city manager. Under no circumstances may this time period be extended for more than 180 days.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.12 Commercial Cannabis Businesses Permit (CCBP) Required.

a. Prior to commencing operations of a commercial cannabis business or conducting any commercial cannabis activity, the applicant must obtain a commercial cannabis business permit (CCBP) from the city manager.

b. To receive this ministerial permit, the applicant must provide proof of all of the following:

1. A valid conditional certificate awarded by the city council and a state license for the type of commercial cannabis business(es) the conditional certificate stipulates.

2. All necessary planning approvals, including but not limited to, a zoning clearance or land use entitlement(s).

3. All necessary building permits and approvals by agencies with jurisdiction, including but not limited to Novato Fire District, Novato Sanitation District, North Marin Water District, and Marin County Health, and any other agency approvals that may be required.

4. A City business licensed issued to the applicant for the relevant commercial cannabis business.

5. Satisfaction of any/or compliance with, all applicable provisions of this section, including, sections 8-11.11, 8-11.13 through 8-11.16 and 8-11.27.

c. Upon receipt of a complete application for a CCBP, the city manager shall ascertain whether the applicant has satisfied all of the conditions precedent to issuance of the CCBP specified in this section. Except in unusual circumstances, the city manager shall complete the inspection and investigation within 60 days of receiving the applicant's complete application.

d. The city manager's inspection and investigation shall include a review of the relevant documents and the proposed business location to ensure that the commercial cannabis business and its applicant have satisfied all of the applicable criteria set forth in this section and the code.

e. If the city manager cannot approve the CCBP, the city manager will provide written notice of the reasons therefor ("CM's Report") to the applicant within 15 working days of the determination. The city manager's decision is appealable pursuant to sections 8-11.20 and 8-11.21.

f. Issuance of a CCBP does not create a land use entitlement. No property interest, vested right or entitlement to receive future permits to operate a commercial cannabis business shall ever inure to the benefit of the holder of a CCBP as such permits are limited in duration, revocable and upon renewal must comply with all applicable laws then in effect. The CCBP shall expire on the earlier of: (1) the end of the term of the cognate zoning clearance or other land use entitlement; or, (2) twenty-four months from the date of the CCBP's issuance, unless it is renewed as provided herein. Furthermore, no permittee may begin operations, notwithstanding the issuance of a CCBP, (i) unless all of the state and local laws and regulations, including but not limited to the requirements of this section and of the CCBP, have been complied with, and (ii) until a state license is available and obtained by the permitted operator as set forth in section 8-11.6.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.13 City Business License. Prior to commencing operations and prior to issuance of a CCBP, a commercial cannabis business shall obtain a city business license. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.14Building Permits and Inspections. Prior to commencing operations and prior to issuance of a CCBP, a commercial cannabis business shall be subject to a mandatory building and fire inspection and must obtain all required permits and approvals which would otherwise be required for any business of the same size and intensity operating in that zone. This includes building permits, county health permits and other zoning or land use or utility permits or approvals. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.15 Certification from the Community Development Director. Prior to commencing operations and prior to issuance of a CCBP, a commercial cannabis business must obtain a certification from the community development director or designee, certifying that the business has secured all necessary land use permits and is located on a site that meets the requirements of sections 19.12.030 and 19.34.066. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.16 Right to Occupy and to Use Property. As a condition precedent to the city's issuance of a CCBP pursuant to this section, any person intending to open and operate a commercial cannabis business shall provide sufficient evidence of its/his/her legal right to occupy and to use the proposed location. In the event the proposed location will be leased from a property owner, the Proposer shall be required to provide a signed and notarized statement from the owner of the property, acknowledging that the property owner has read this section and consents to the operation of the commercial cannabis business on the owner's property. The property shall be identified sufficiently to verify the premises is consistent with the premises identified in the proposal and with state license applications. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.17 Revocation of Permits. CCBPs may be revoked for violation of any (i) law and/or rule, regulation and/or standard adopted pursuant to state law and/or local law, including, but not limited to, this section, (ii) condition or term made part of the awarding of the CC or the issuance of the CCBP, (iii) condition or term made part of the zoning clearance or other permit or entitlement granted to the proposer, and/or (iv) term or condition of any agreement entered into between the proposer and the city. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.18 Effect of State License Suspension, Revocation or Termination.

a. Suspension of a license issued to a commercial cannabis business by the State of California, or by any of its departments or divisions, shall immediately suspend the ability of that commercial cannabis business to operate with the city, until the state, or its respective department or division, reinstates or reissues the state license. Should the state, or any of its departments or divisions, revoke or terminate the license of a commercial cannabis business, such revocation or termination shall also immediately revoke or terminate that business' CCBP and CC and the ability of that commercial cannabis business to operate within the city. At the city manager's discretion, the cannabis business owner may re-apply for a CC and later a CCBP at such time as it can demonstrate that the grounds for revocation by the state no longer exist, or that the underlying deficiency has otherwise been cured. Any such re-application will be subject to all the provisions and payment of fees applicable to proposals for CCs and CCBPs.

b. Suspension of a CCBP issued to a commercial cannabis business by the City of Novato shall immediately suspend the ability of that commercial cannabis business to operate within the city, until such time as the city reinstates or reissues the license. Should the city, or any of its departments or divisions, revoke or terminate the license of a commercial cannabis business for violations of this ordinance or any related regulations established by resolution, such revocation or termination shall immediately revoke or terminate business' ability to operate within the City of Novato. At the city manager's discretion, the cannabis business owner may re-apply for a CC and later a CCBP at such time as it can demonstrate that the grounds for suspension, termination or revocation of the license no longer exist, or that the underlying deficiency has otherwise been cured. Any such re-application will be subject to all the provisions and payment of fees applicable to proposals for CC's and CCBP's. The city manager's decision regarding whether the owner may re-apply is appealable to the city council.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.19 Appeals. Unless specifically provided elsewhere to the contrary, whenever an appeal is provided for in this section from a decision of the city manager or designee(s), the appeal shall be conducted as prescribed in this section, specifically, pursuant to sections 8-11.20 and 8-11.21. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.20 Written Request for Appeal.

a. Within ten calendar days after the date of a decision of the city manager or designee to revoke, suspend or deny a permit, or to add conditions to a permit, the aggrieved party may appeal such action by filing a written appeal with the city clerk setting forth the reasons why the decision was not proper.

b. At the time of filing the appeal, the appellant shall pay the designated appeal fee, established by resolution of the city council from time to time.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.21 Appeal Hearing Process.

a. Upon receipt of the written appeal, the city clerk shall set the matter for a hearing before the city council. The city council shall hear the matter de novo and shall conduct the hearing pursuant to the procedures set by the city.

b. The appeal shall be held within a reasonable time after date of filing, but in no event later than 45 working days from the date of filing. The city shall notify the appellant of the time and location at least ten days prior to the date of the hearing.

c. At the hearing, the appellant may present any information s/he/it deems relevant to the decision appealed. The formal rules of evidence and procedure applicable in a court of law shall not apply to the hearing.

d. The decision of the council shall be final and shall be memorialized in a written decision.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.22 Change in Location; Updated Registration Form.

a. Any time an owner wishes to change the location of any cannabis activities specified in the CCBP, the owner must apply for and obtain a CC, and thereafter, a CCBP pertinent to the new location. The process and the fees applicable to this procedure shall be the same as the process and fees set forth in sections 8-11.10 and 8-11.16.

b. Within 15 calendar days of any other change in the information provided in the proposal or any change in status of compliance with the provisions of this section, including any change in the commercial cannabis business ownership or management members, the owner shall file an updated information form with the city manager or designee(s) for review along with a registration amendment fee. In addition, to the extent any other provisions of this section pertain to such changes, the owner shall be required to comply with those provisions.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.23 Transfer of Commercial Cannabis Business Permit.

a. The Owner of a CCBP shall not transfer ownership or control of the CCBP to another person or entity unless and until the transferee obtains an amendment to the CCBP from the city manager or his/her designee stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the city manager or his/her designee in accordance with all provisions of this section (as though the transferee were applying for an original CC and CCBP). The proposed transferee's application shall be accompanied by a transfer fee in an amount set by resolution of the city council (or if not set, shall be the same amount as the proposal fee).

b. The city manager or his/her designee shall conduct a hearing to determine whether the transferee passed the background check required for permittees and meets all other requirements of this section.

c. The CCBP issued through the grant of a transfer by the city manager or his/her designee shall be valid for a period of two years beginning on the day the city manager or his/her designee approves the transfer of the permit. Before the transferee's permit expires, the transferee shall apply for a renewal permit in the manner required by this section in the event the transferee desires to have its CCBP renewed.

d. Changes in ownership of a permittee's business structure or a substantial change in the ownership of a permittee business entity (changes that result in a change of more than 51 percent of the original ownership), must be approved by the city manager or his/her designee through the transfer process set forth in this section. Failure to comply with this provision is grounds for permit revocation.

e. A permittee may change the form of business entity without applying to the city manager or his/her designee for a transfer of permit, provided that either:

(1) The membership of the new business entity is substantially similar to original permit holder business entity (at least 51 percent of the membership is identical), or

(2) The original permittee is an unincorporated association mutual or public benefit corporation, agricultural or consumer cooperative corporation and subsequently transitions to or forms a new business entity as allowed under the MAUCRSA and in compliance with section 8-11.12, the individual(s) listed on the city proposal application of the original permittee entity is the same as board of directors of the new business entity.

Although obtaining permission to transfer is not required in these two circumstances, the permit holder is required to notify the city manager in writing of the change within ten days of the change. Failure to comply with this provision is grounds for permit revocation.

f. No CCBP may be transferred when the city manager or his/her designee has notified the permittee that the permit has been or may be suspended or revoked.

g. Any attempt to transfer a CCBP either directly or indirectly in violation of this section is hereby declared void, and such a purported transfer shall be deemed a ground for revocation of the permit.

h. Decisions of the city manager pertaining to proposed transfers of the CCBP shall be appealable to the city council as provided for in sections 8-11.19 through 8-11.21.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.24 Location and Design of Commercial Cannabis Businesses.

a. The commercial cannabis businesses permitted to operate in the city as set forth in section 8-11.9(a) must be located in appropriately designated zoning areas as detailed in sections 19.12.030 and 19.14.030 of the code, as well as the locational criteria set forth in section 19.34.066 of the code. No commercial cannabis activity and no commercial cannabis business shall be allowed to operate in the city unless it is expressly identified and listed as a permitted or conditionally permitted use in chapter 19's use tables or elsewhere in chapter 19 of the code. In addition, no CC, CCBP, business license, building permit or certification from the community development director pursuant to section 8-11.15 may be awarded, issued or granted, as the case may be, for any commercial cannabis activity or commercial cannabis business that is not expressly identified and listed as a permitted or conditionally permitted use in chapter 19's use tables or elsewhere in chapter 19 of the code.

b. Each proposed commercial cannabis business project shall:

1. Conform with the city's general plan, any applicable specific plans, master plans, and design requirements.

2. Comply with all applicable zoning and related development standards.

3. Be constructed in a manner that minimizes odors to surrounding uses, and promotes quality design and construction, and consistency with the surrounding properties.

4. Be adequate in size and shape to accommodate the yards, walls, fences, parking and loading facilities, landscaping and all items required for the operation or development.

5. Be served by highways or streets adequate in width and improved as necessary to carry the kind and quantity of traffic such use will generate. Be provided with adequate electricity, sewerage, disposal, water, fire protection and storm drainage facilities for the intended purposes.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.25 Limitations on City's Liability. To the fullest extent permitted by law, the city shall not assume any liability whatsoever with respect to having issued a CCBP pursuant to this section or otherwise approving the operation of any commercial cannabis business. As a condition to the approval of any CCBP, the proposer/applicant shall be required to meet all of the following conditions before they can receive the commercial cannabis business permit:

a. Execute an agreement, in a form approved by the city attorney, agreeing to indemnify, defend (at applicant's sole cost and expense), and hold the city and its officers, officials, employees, representatives, and agents, harmless, from any and all claims, losses, damages, injuries, liabilities or losses which arise out of, or which are in any way related to, the city 's issuance of the CCBP, the city's decision to approve the operation of the commercial cannabis business or activity, the process used by the city in making its decision, the operation of the commercial cannabis business or activity, or the alleged violation of any federal, state or local laws by the commercial cannabis business or any of its officers, employees or agents. The indemnity obligation arising under this paragraph does not include any claims arising out of gross negligence or willful misconduct by the city, its officers, officials, employees, representatives or agents.

b. Maintain insurance at coverage limits, and with conditions thereon determined necessary and appropriate from time to time by the city manager.

c. Reimburse the city for all costs and expenses, including but not limited to legal fees and costs and court costs, which the city may be required to pay as a result of any legal challenge related to the city's approval of the applicant's CCBP, or related to the city's approval of a commercial cannabis activity. The city may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve the applicant of any of the obligations imposed hereunder.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.26 Records and Recordkeeping.

a. Each owner and operator of a commercial cannabis business shall maintain accurate books and records in an electronic format, detailing all of the revenues and expenses of the business, and all of its assets and liabilities. On no less than an annual basis or at any time upon reasonable request of the city, each commercial cannabis business shall file a sworn statement detailing the number of sales by the commercial cannabis business during the previous twelve-month period (or shorter period based upon the timing of the request), provided on a per-month basis. The statement shall also include gross sales for each month, and all applicable taxes and fees paid or due to be paid. On an annual basis, each owner and operator shall submit to the city a financial audit of the business's operations conducted by an independent certified public accountant. Each permittee shall be subject to a regulatory compliance review and financial audit as determined by the city manager or his/her designee(s).

b. Each owner and operator of a commercial cannabis business shall maintain a current register of the names and the contact information (including the name, address, and telephone number) of anyone owning or holding an interest in the commercial cannabis business, and separately of all the officers, managers, employees, agents and volunteers currently employed or otherwise engaged by the commercial cannabis business. The register required by this paragraph shall be provided to the city manager or his/her designee(s) upon reasonable request.

c. All commercial cannabis businesses shall maintain an inventory control and reporting system that accurately documents the present location, amounts, and descriptions of all cannabis and cannabis products for all stages of the production or manufacturing, laboratory testing and distribution processes until purchase as set forth MAUCRSA.

d. Each commercial cannabis business shall allow city officials access to the business's books, records and accounts, together with any other data or documents relevant to its permitted commercial cannabis activities, for the purpose of conducting an audit or examination for purposes of determining compliance with this section, applicable law and the CCBP. Books, records, accounts, and any and all relevant data or documents will be produced or made available at a location specified by the city no later than 24 hours after receipt of the city's request, unless otherwise stipulated by the city. The city may require the materials to be submitted in an electronic format that is compatible with the city's software and hardware.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.27 Security Measures. A permitted commercial cannabis business shall implement sufficient security measures to deter and prevent the unauthorized entrance into areas containing cannabis or cannabis products, and to deter and prevent the theft of cannabis or cannabis products at the commercial cannabis business. All commercial cannabis businesses shall comply with additional requirements detailed in the regulations. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.28 Restriction on Alcohol and Tobacco Sales.

a. No person shall cause or permit the sale, dispensing, or consumption of alcoholic beverages on or about the premises of the commercial cannabis business.

b. No person shall cause or permit the sale of tobacco products on or about the premises of the commercial cannabis business.

c. No person shall consume cannabis, cannabis products, tobacco or alcohol on the premises of any commercial cannabis business. For purposes of this section, "premises" means the designated structure or structures and land specified in the proposal or application that is owned, leased, or otherwise held under the control of the proposer, applicant or licensee where the commercial cannabis activity will be or is conducted. The premises shall be a contiguous area and shall only be occupied by one licensee.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.29 Fees and Charges.

a. No person may commence or continue any commercial cannabis activity in the city without timely paying in full all fees and charges required for the operation of a commercial cannabis activity. Fees and charges associated with the operation of a commercial cannabis activity shall be established by resolution of the city council which may be amended from time to time.

b. All commercial cannabis businesses authorized to operate under this section shall pay all sales, use, business and other applicable taxes, and all license, registration, and other fees required under federal, state and local law. Each commercial cannabis business shall cooperate with the city with respect to any reasonable request to audit the commercial cannabis business' books and records pursuant to section 8-11.26 for the purpose of verifying compliance with this section, including but not limited to a verification of the amount of taxes required to be paid during any period.

c. Prior to operating in the city and as a condition of issuance of a CC or CCBP, the owner or operator of each cannabis facility shall enter into an operational or community benefit agreement with the city setting forth the terms and conditions under which the cannabis facility will operate that are in addition to the requirements of this section, including, but not limited to, public outreach and education, community service, payment of fees and other charges as mutually agreed, and such other terms and conditions that will protect and promote the public health, safety and welfare.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.30 Operating Requirements for Out of City Delivery Services. Prior to commencing operations, a cannabis out-of-city delivery service shall comply with the following requirements:

a. Obtain a permit from the city acknowledging/authorizing the delivery of cannabis and cannabis products within the city limits. A copy of this permit shall be retained by all drivers.

b. The retail business operating the delivery service shall provide the city manager with evidence of a valid state license for a commercial cannabis business on whose authorization the delivery service is performing the delivery function.

c. The retail business operating the delivery service shall furnish to the city manager the year, make, model, license plate number, and numerical Vehicle Identification Number (VIN) for any and all vehicles that will be used to deliver cannabis and cannabis products.

d. The retail business operating the delivery service shall apply for and obtain a city business license, and in that connection, shall pay all applicable sales and license taxes unless otherwise exempt from doing so.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.31 Cannabis Deliveries. Deliveries within the city limits shall only be permitted by persons that have a cannabis delivery permit issued by the chief of police, in consultation with the city manager or his/her designee. Any other cannabis delivery is prohibited. This permit can be issued either to a business located outside the city or can be included as part a CCBP issued to a cannabis retail or dispensary operation (collectively, these businesses shall be sometimes referred to herein as "cannabis delivery businesses").

a. Application. All of the information and stipulations listed below shall be supplied by the operator of a cannabis business providing delivery services to the chief of police. No commercial cannabis business may deliver cannabis or cannabis products to any person situated within the city's limits until and unless the chief of police, in consultation with the city manager or his/her designee, issues a cannabis delivery permit to that business. If the permit is denied, the applicant may appeal the decision of the chief of police to the city council, pursuant to section 8-11.19, appeals.

b. Fees. An administrative review fee deposit as adopted in the city's fee schedule shall submitted to the city along with the cannabis delivery permit to be used to cover the cost of all needed staff time, consultant costs and other resources utilized in vetting the cannabis delivery permit.

c. Cannabis delivery permits shall be subject to the following standards:

1. Each cannabis delivery business owner, as well as each employee shall submit specific personal information including names, birth dates, addresses, social security numbers, relevant criminal history, relevant work history, names of businesses owned or operated by the applicant within the last ten years, investor or partner information, and electronic fingerprint images and related information as required by the chief of police, in consultation with the city manager and his/her designee for the purpose of obtaining information as to the existence and content of a record of state or federal convictions and arrests. A mandatory criminal background check will be conducted. All confidential information shall be held in a confidential file, exempt from disclosure as a public record pursuant to Government Code Section 6255(a).

2. Cannabis delivery businesses shall provide to the chief of police a list of all vehicles to be used for delivery of cannabis and cannabis products, including each vehicle's make, model, year, license plate number and vehicle identification number. The cannabis delivery business shall update the list prior to any vehicle being added to or removed from service and provide that updated list to the chief of police on the same day the vehicle change is made.

3. Cannabis delivery businesses shall adhere to best practices in terms of handling currency as established by the chief of police, in consultation with the city manager or his/her designee.

4. Cannabis delivery businesses shall ensure that all delivery vehicles shall be in possession of a copy of all licenses and permits required by the State of California and the city.

5. All vehicles used by cannabis delivery businesses to deliver cannabis and/or cannabis products shall not be marked or otherwise identified with advertisements, the name of the cannabis delivery business, or any other distinctive markings associated with cannabis.

6. Cannabis delivery businesses shall only deliver cannabis directly to the residence or business address of the designated recipient; deliveries to any other location are prohibited.

7. Cannabis delivery businesses shall deliver cannabis or cannabis products only between the hours of 8:00 a.m. and 10:00 p.m.

8. Cannabis delivery businesses shall only deliver cannabis or cannabis products to persons 21 years of age or older, or a person 18 years of age or older who possesses a physician's recommendation for medicinal use only.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.32 Permissible Delivery Locations and Customers. Cannabis delivery businesses located inside or outside of the city which are permitted to engage in delivery of cannabis and cannabis products inside the City of Novato are subject to the following, additional requirements:

a. A licensed cannabis delivery business shall not deliver cannabis or cannabis products to an address located on publicly owned land or any address on land or in a building leased by a public agency.

b. A licensed cannabis delivery business shall comply with all requirements of state and local law pertaining to the business' operations and all subsequent policies, procedures and regulations which may be promulgated by the city manager from time to time.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.33 Fees Deemed Debt to the City of Novato. The amount of any fee, cost or charge imposed pursuant to this section shall be deemed a debt to the City of Novato that is recoverable via an authorized administrative process as set forth in the Code, or in any court of competent jurisdiction. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.34 Permit Holder Responsible for Violations. The person to whom a CCBP is issued pursuant to this section shall be responsible for all violations of the laws and regulations of the State of California or of the regulations and/or the ordinances of the City of Novato, whether committed by the owner, permittee or any employee or agent of the permittee, which violations occur in or about the premises of the commercial cannabis business and whether or not said violations occur within the permit holder's presence. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.35 Inspection and Enforcement.

a. The city manager, or his/her designee(s) charged with enforcing the provisions of the city's municipal code, or any provision thereof, may enter the location of a commercial cannabis business at any time, without notice, and inspect the location of any commercial cannabis business as well as any recordings and records required to be maintained pursuant to this section or under applicable provisions of state law.

b. It is unlawful for any person having responsibility over the operation of a commercial cannabis business, to impede, obstruct, interfere with, or otherwise not allow, the city to conduct an inspection, review or copy records, recordings or other documents required to be maintained by a commercial cannabis business under this section or under state or local law. It is also unlawful for a person to conceal, destroy, deface, damage, or falsify any records, recordings or other documents required to be maintained by a commercial cannabis business under this section or under state or local law.

c. The city manager, or his/her designee(s) charged with enforcing the provisions of this section may enter the commercial cannabis business at any time during the hours of operation, with or without notice for purposes of inspection of the premises and business records.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.36 Promulgation of Regulations, Standards and Other Legal Duties.

a. In addition to any regulations adopted by the city council, the city manager or his/her designee is authorized to establish and develop any additional rules, regulations, forms and standards governing the issuance, denial or renewal of CCBP, the ongoing operation of commercial cannabis businesses and the city's oversight, or concerning any other subject determined to be necessary to carry out the purposes of this section.

b. Regulations will be published on the city's website.

c. Regulations promulgated by the city manager shall become effective upon date of publication after first being approved by the city council. Commercial cannabis businesses shall be required to comply with all state and local laws and regulations, including but not limited to any rules, regulations or standards adopted by the city manager or his/her designee.

(Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.37 Compliance with State Regulations. It is the stated intent of this section to regulate commercial cannabis activity in the city in compliance with all provisions of MAUCRSA and any subsequent state legislation. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.38 Violations Declared a Public Nuisance. Each and every violation of the provisions of this section, and of any regulations established by resolution and promulgated pursuant to this section, is hereby deemed unlawful and a public nuisance. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.39 Each Violation a Separate Offense. Each and every violation of this section shall constitute a separate violation and shall be subject to all remedies and enforcement measures available to and authorized by the City of Novato. Additionally, as a nuisance per se, any violation of this section shall be subject to injunctive relief, and any permit issued in violation of this section shall be deemed null and void. The City of Novato may also pursue any and all remedies and actions available and applicable under state and local laws for any violations committed by the commercial cannabis business or persons related to, or associated with, the commercial cannabis activity. Additionally, when there is determined to be an imminent threat to public health, safety or welfare, the city manager, or his/her designee(s), may take immediate action to temporarily suspend a CCBP issued by the city, pending a hearing before the city manager, or his/her designee(s). (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.40 Criminal Penalties. Each and every violation of the provisions of this section may in the discretion of the district attorney or city attorney be prosecuted as an infraction or a misdemeanor and, in the case of an infraction, upon conviction be subject to a fine not to exceed the amounts specified in California Government Code Section 36900(b) and, in the case of a misdemeanor, upon conviction be subject to a fine not to exceed one thousand dollars ($1,000) or imprisonment for a period of not more than six months, or by both such fine and imprisonment. Each day a violation is committed or permitted to continue shall constitute a separate offense. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-11.41 Remedies Cumulative and Not Exclusive. The remedies provided herein are not to be construed as exclusive remedies. The city is authorized to pursue any proceedings or remedies provided by law. (Ord. No. 1655, § II, 11-12-2019; Ord. No. 1657, § 1, 11-12-2019)

8-12.1 Purpose and Intent. Short Term Rentals as defined in the Program documents and as may be amended or superseded, must obtain a Short Term Rental license from the City as a condition precedent to renting all or a portion of a dwelling unit. The procedures, requirements and basis upon which said licenses may be issued and revoked and Short Term Rentals may be operated are set forth and are subject to the policies and procedures specified in the Novato City Council's "Short-Term Rental Licensing Program Eligibility Standards, Licensing Procedures and Operational Parameters" ("Program") as adopted and amended from time to time by city council resolution, and all Short Term Rentals shall comply with such policies and procedures. (Ord. No. 1668, § II, 2-23-2021)

8-12.2 Violations a public nuisance; penalties, nuisance abatement, and other remedies. Any Short Term Rental operated, conducted or maintained contrary to the provisions of this Section and/or the Program shall be, and the same is hereby declared to be, unlawful and a public nuisance, and the city attorney may, in addition to, or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in the manner provided by law. Such remedies shall be in addition to any other judicial and administrative penalties and remedies available to the City under Sections 1-5, 1-6 and 1-7 of this Code. (Ord. No. 1668, § III, 2-23-2021)