Loading...
HomeMy WebLinkAboutTown Code Chapter 09-2002 fi'-~ CHAPTER 9 BUSINESS REGULATIONS Article 9-1 BUSINESS LICENSE Section 9-1-1 Licensed required; exceptions A. It is unlawful for any person, whether as principal or agent, e~her for himself or for another person, or for any corporation, or as a member of any firm or partnership, to commence, practice, transact or carry on any trade, calling, profession, occupation or business within the town limits without first having procured a license from the town to do so and without complying with all regulations of such trade, calling, profession, occupation or business as specified or required by the United States government or the State of Arizona and its political subdivisions. No license shall be issued without proof by the applicant of such compliance and verification by the town clerk that no violation of the town's zoning or sales tax regulations will occur by such issuance. B. The practicing or carrying on of any trade, calling, profession, occupation or business by any person, corporation or partnership without first having procured a license from the town to do so, or without complying with any and all regulations of such trade, calling, profession, occupation or business, as required by other law or by this article shall constitute a separate violation of this article for each and every day that such trade, calling, profession, occupation or business is practiced, carried on or conducted within the town. - C. The only exceptions to the licensing requirements of this article shall be: 1. Non-profit educational institutions, fraternal and service clubs, bona fide religious organizations, and agencies of any federal, state or local governments. 2. Non-profit private clubs where a basic membership fee covers the cost of the use of the facilities. 3. Community organizations/events upon approval of the town clerk. 4. Businesses and trades which are exempt from licensing and tax regulations under federal and state statutes. 5. Persons selling personal property within the confines of such person's residential premises, so long as such activity neither exceeds three consecutive days nor is performed more than four times within a one (1) year period. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Marana Town Code 9-1 MARANA TOWN CODE rev. 2002 Section 9-1-2 Application and issuance A It shall be the duty of the town clerk upon receiptof a properly completed application for a business license and verification of the data contained thereon, to prepare and issue a license under this article for every person, corporation or partnership required to pay a Itense fee hereunder and to state in each license the amount charged for the same, the period oftime covered, and the trade, calling, profession, occupation or business licensed, and the location or place of business where the trade, calling, profession, occupation or business is to be carried on, transacted or practiced. B. In no case, shall any mistake made by the town clerk in issuing any license or collecting the amount of fee for any license or the amount actually due from any person required to pay for a license as provided herein, prevent, prejudice or stop the town from collecting the correct amount of fee or charge for any license or the amount actually due from any person required to pay for a license as provided herein, or revoking any license erroneously issued and refunding the fee collected. C. It shall be a condition precedent to licensing that all ordinances and regulations affecting the public peace, health and safety be complied with in full. [Adopted by Ord. No. 96.09] Section 9-1-3 Fees; payment; term of licenses; annual renewal required A The fee for any license issued, including a renewal license, under this article shall be twenty-five dollars ($25.00) per year. B. In addition to the twenty-five dollar ($25.00) fee, every person, firm, corporation, or other entity applying for a spirituous liquor license, under the provisions of AR.S. section 4-101, et seq., whether it be for an original license or transfer of license, shall tender to the town a fee of fifty dollars ($50.00). Said fee shall be tendered to the town contemporaneous with the filing of an application for original license or transfer of license to the Arizona State Department of Liquor Licenses and Control. This fee shall not be applicable to wholesalers licensed under AR.S. section 4-209. C. The fee for any license issued to a person, firm, corporation or other entity operating a surface mining operation, as defined in Article 9-10, including a renewal license, shall be ten thousand dollars ($10,000.00). This increased free is necessary in order to: 1. support Town staff and other efforts to monitor, inspect, and enforce the provisions of Article 9-10, Surface Mining and Land Reclamation, and Article 10-1, Transportation and Dumping of Garbage or Aggregate Material as it relates to aggregate material, 2. ensure that surface mining operations as defined in Article 9-10 are maintained to standards of repair, orderliness, neatness, sanitation, and safety acceptable to industry standards and the Town of Marana, and Marana Town Code 9-2 MARANA TOWN CODE rev. 2002 ."'~ 3. ensure that surface mining operations as defined in Article 9-10 carry out all mining operations in an organized manner and in compliance with all federal and state laws and the regulations of appropriate state and federal agencies, having due regard for the health and safety of workers and other employees, and safeguard with fences, barriers, fills, covers, or other effective devices, any shafts, pits, tunnels, cuts, and other excavation which otherwise would unduly imperil life, safety or property of other persons. D. All charges for a license required by this article shall be paid in advance and in lawful money of the Un~ed States of America at the office of the town clerk. E. Any license issued pursuant to this article shall expire and a renewal charge for all licenses provided herein shall become due and payable on the anniversary date of the issuance of the license and every anniversary date thereafter. Any new license charge shall become due and payable and be paid on or before the day of commencing to carry on, transact, or practice the trade, calling, profession, occupation or business for which a license is required by this article. F. Any person, firm, company or corporation who discontinues the business, trade, calling, profession or occupation during the period covered by the current license shall not be entitled to any refund of license fee for that portion of the period remaining after discontinuing the business, trade, calling, profession or occupation. G. When the charge for any license required hereunder shall remain unpaid for fifteen (15) days from and after the due date, such charge shall be delinquent and the town clerk, on the day upon which said charge becomes delinquent, shall add thereto an amount equal to five dollars ($5.00) as a penalty and no receipt or license shall be issued thereafter by the town clerk until the charge and penalty shall be paid in full. [Adopted by Ord. No. 96.09; revised by Ord. No. 98.12.; revised by Ord. 2000.06; revised by Ord. 2002.07; effective January 1,2003]] Section 9-1-4 Number of licenses required A. A separate charge for a Iioonse shall be paid for each branch establishment or separate place of business in which any person, corporation or partnership shall carry on, transact or practice a trade, calling, profession, occupation or business. B. When more than one trade, calling, profession, occupation or business is carried on, transacted or practiced by the same person, corporation or partnership at one fixed place of business, only one license shall be required and the charge for such license shall be the charge applicable to any of the activities, and all activities shall be listed on the license issued. [Adopted by Ord. No. 96.091 Section 9-1-5 License to be exhibited -- A. Each person, corporation or partnership having a license and having a fixed place of business shall keep said license, while in force, at some conspicuous place or location within the place of business. Marana Town Code 9-3 MARANA TOWN CODE rev. 2002 ~ B. Each person, corporation or partnership having a license and having no fixed place of business shall carry such license with him or her at all times, while engaged in any activity for which the license was issued, except that a person acting for any such corporation, firm or company and not being the only person acting for such corporation, firm or company may carry with him or her a copy of the license which has been issued by the town clerk and plainly marked or stamped "Duplicate". C. Each person, corporation or partnership having a license shall produce and exhibit the same whenever requested to do so by the town clerk, any police officer or any agent of the town authorized to issue, inspect, or collect licenses. [Adopted by Ord. No. 96.09] Section 9-1-6 Inspector of licenses A. The town clerk shall be inspector of licenses, and all police officers of the town shall be assistant inspectors of licenses and, in addition to their several duties, are hereby required to see that all required licenses are obtained. The town clerk shall maintain a record for each license issued and record the reports of violations therein. B. Each assistant inspector of licenses, immediately upon the facts coming to his or her knowledge, shall report to the town clerk the name of any person, corporation or partnership carrying on, transacting or practicing any trade, calling, profession or business within the town without first having obtained a license as required by this article. [Adopted by Ord. No. 96.09] Section 9-1-7 Duties and powers of inspectors The inspector of licenses and the assistant inspectors, each in the discharge and performance of his or her duties, shall have and exercise the following powers: A. To issue a citation through an officer of the Marana Police Department for any violation of the provisions of this article. B. To enter, free of charge and at any reasonable time, any place of businessforwhich a license is required by this article and to demand exhibition of the license for the current period of time from any person, corporation or partnership engaged in carrying on, transacting or practicing any trade, calling, profession, occupation or business at such place of business and, if such person, corporation or partnership shall fail then and there to exhibit such license, such person, corporation or partnership shall be liable to the penalties provided for violation of this article. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] ,,~ Marana Town Code 9-4 MARANA TOWN CODE rev. 2002 .~. Section 9-1-8 Transfer of license No license issued under the provisions of this article shall be assigned or transferred to any other person, corporation or partnership without first obtaining permission from the town. [Adopted by Ord. No. 96.09] Section 9-1-9 Prorating prohibited No license fee herein provided shall be prorated. [Adopted by Ord. No. 96.09] Section 9-1-10 Denial; restrictions; suspension; revocation A. Licenses issued under the provisions of this article may be denied, restricted, suspended or revoked by the town clerk, after notice, for any of the following causes: 1. Fraud, misrepresentation or material false statement contained in the application for license; 2. ,.~ 3. 4. 5. Fraud, misrepresentation or material false statement made in the course of carrying on the business; Any violation of this article; Conducting business in violation of any town ordinance, county ordinance, state law or federal law, relating to the public health, safety and welfare; or If deemed necessary in the interest of public safety, protection, health, or morals. B. Upon notification of a violation, the business Itensee shall have thirty (30) days in which to remedy the violation before the license is suspended. Business activity shall be allowed to continue during this period, unless the violation threatens public health, protection, safety, or morals, in which case the business activity shall cease immediately upon notification of violation. C. If after thirty (30) days the violation has not been remedied or the remedial action not brought to the attention of the license inspector or town clerk, the license inspector shall give written notice to the licensee or the person in control of the business within the town by personal service or registered mail that the license is suspended pending a hearing before the town manager, or his or her appointee, for the purpose of determining whether the license should be revoked. The notice shall state the time and place at which the hearing is to be held, which shall be within fifteen (15) days from the date of service of the notice. The notice shall rontain a brief statement of the reasons for suspension and proposed revocation. Marana Town Code 9-5 MARANA TOWN CODE rev. 2002 D. The licensee may take the necessary actbns during the suspension period to remedy the violation(s), if allowable, and apply to the town derk to have the license fully restored. The suspension notice shall be void, and the suspended license shall be promptly reinstated as soon as the licensee in violation receives notice in writing from the appropriate town official indicating the violation has been cured, removed or rectified. E. During the period of the license suspension, or revocation but awaiting appeal, no business activity shall be conducted at, on, or in such premises or by any such person, principal, agent, corporation, group, or member of any firm or partnership. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-1-11 Appeal A. Any person aggrieved by the denial of an application for license or by the restrictions placed upon the license or by the suspension or revocation of such license, and who is not satisfied with the decision of the town manager or his or her designee shall have the right to an appeal before the town council. An appeal shall be taken by filing with the town clerk, within fifteen (15) days after the decision of the hearing officer, a written statement requesting an appeal, and setting forth fully the grounds for the appeal. If an appeal is not requested w~hin such time limit, no appeal shall be granted, and the decision of the hearing officer will become final and binding. Such written statement of appeal must be delivered in person to the town clerk. ."--- B. The town council shall hear the matter of the appeal at the next regularly scheduled meeting that provides sufficient notice to the licensee, and notice of such hearing shall be mailed to the appellant at least seven (7) days priorto the meeting. Notice shall be deemed delivered upon mailing, lNhether received or not. C. The decision and order of the town council on appeal shall be final. [Adopted by Ord. No. 96.09) Section 9-1-12 Additional reporting requirements To ensure compliance with the provisions of article 9-6, Sexually Oriented Businesses, any businesses licensed under this article shall provide to the town clerk upon initial or renewal application and every three months thereafter, statements detailing the sales and stock percentage for any merchandise or services falling within the scope of article 9-6. Any licensee or applicant representing an establishment not having a principal business purpose within the scope of article 9-6, may certify to that effect upon initial or renewal application; such certification is effective until revoked or amended by the applicant or licensee and is made in lieu of the additional reporting requirements of this section. [Adopted by Ord. No. 2000.10] ~ Marana Town Code 9-6 MARANA TOWN CODE rev. 2002 .~^ Article 9-2 PEDDLERS, SOLICITORS AND TRANSIENT MERCHANTS Section 9-2-1 Definitions In this article, unless the context otherwise requires: A. "Peddler" means any corporation, partnership, individual, firm, or other entity, whether resident of the town or not, who travels or whose agents travel from place to place, from house to house, from street to street or business to business carrying, conveying or transporting goods, \Nares, merchandise, edible foodstuffs or provisions, offering and exposing the same for sale or making sales and delivering articles to purchasers. It is further provided lhat a person who solidts orders and, as a separate transaction, makes delivery to purchasersas a part of the scheme or design to evade the provisions of this chapter shall be deemed a peddler subject to the provisions herein contained. B. "Solicitor" means any person, corporate or individual, orfirm, whether resident ofthe town or not, who travels, or whose agents move or travel from place to place, from house to house, from street to street or from business to business taking or attempting to take orders for sale of goods, wares and merchandise, edible foodstuffs, personal property of any nature whatsoever for future delivery or for services to be furnished or performed in the future, whether collecting advance payments on such sales or not, provided that such defin~ion shall include any person or firm who, for himself or itself or for another person or firm, hires, leases, uses or occupies any building, struc1ure, tent, hotel room, lodging house, apartment, shop or any other place within the town for the sole purpose of exhibiting samples and taking orders for future delivery. .-- c. "Transient merchant" means any person, corporate or individual, or firm, whether owner or otherwise, whether a resident of the town or not, who engages or whose agents engage, in a temporary business of selling and delivering goods, wares, merchandise, edible foodstuffs, services or provisions, within the town, and who, in furtherance of such purpose, hires, leases, uses or occupies any building, structure, motor vehicle, tent, public room in a hotel, lodging house, apartment, shop, or any street, alley or other place within the town for the exhibition and sale of such goods, wares, merchandise and edible foodstuffs, either privately or at public auction. The person or firm so engaged shall not be relieved from complying with the provisions of this chapter merely by reason of associating temporarily with any local dealer, trader, merchant or auctioneer or by conducting such transient business in connection with, as a part of or in the name of any such local dealer, trader, merchant or auctioneer. [Adopted by Ord. No. 96.09: revised by Ord. 2000.06] Section 9-2-2 License required; prohibited activities A. Subject to the provisions of A.R.S. ~ 3-563, any person operating as a solicitor, peddler, or transient merchant within the town shall register with the town clerk and obtain a license showing such registration. ,"1'-'''''- Marana Town Code 9-7 MARANA TOWN CODE rev. 2002 "~ B. When more than one trade, calling, profession, occupation or business shall be carried on, transacted or practiced by the same person, corporation or partnership without any fixed place of business, a separate license shall be required and a separate appropriate charge be paid for each activ~y for which a license is required by this article. C. It is unlawful for: 1. Any peddler, solicitor or transient merchant to make exclusive use of any location on any street, alley, sidewalk or right-of-way for the purpose of selling, delivering, or exhibiting goods or merchandise. 2. Any peddler, solicitor, or transient merchant to operate in a congested area where such operation may impede or inconvenience the public use of such street, alley, sidewalk, or right-of-way. For the purpose of this article, the judgment of a police office, exercised in good faith, is conclusive as to whether the area is congested and the public impeded or inconvenienced. 3. Any person to exhibit or display any copy or facsimile of the original license issued under this article. 4. Any child or children under the age of sixteen (16) to solicit or peddle within the town pursuant to a permit granted under this article unless supervised by a responsible adu~ holding a permit issued pursuant to this article. ,.,..~ 5. Any solicitor or peddler to commence earlier than 9:00 a.m. or extend later than 9:00 p.rn. on any day. 6. Any solicitor or peddler under the age of sixteen (16) to solicit at any time other than between 9:00 a.m. and 7:00 p.m. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-2-3 Exemptions The terms of this article do not include the acts of persons conducting bona fide religious or charitable business, persons selling personal property at wholesale to dealers in such articles, news vendors, the acts of merchants or their employees in delivering goods in the regular course of business, nor to persons conducting periodic sales of personal property upon their living premises (i.e. yard or garage sales). Nothing contained in this article prohibits any sale required by statute or by order of any court, or prevents any person conducting a bona fide auction sale pursuant to law. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] ".,..- Marana Town Code 9-8 MARANA TOWN CODE rev. 2002 Section 9-2-4 Conducting business without license prohibited It is unlawful for any solicitor, peddler, or transient merchant to conduct or transact business without having registered with the town clerk and without having obtained a licensetherefor; without having such license in possession; orto fail to exhibit such license upon request by any official of the town. Each violation of this article shall constitute a separate violation for each and every day that such activity occurred within the town. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-2-5 Peddling on posted premises; refusal to leave premises It is unlawful for any peddler, solicitor, or transient merchant, their agents or representatives, to come upon any premises whereon a sign bearing the words "no peddlers" or "no canvassers" or "no solicitors" or any combination of such terms or terms similar thereto is exposed to public view or to remain on any premises after having been requested to leave by the owner or occupant thereof whether such premises are posted as specified above or not [Adopted by Ord. No. 96.09] Section 9-2-6 Application and issuance A. Applicants for a license under this article shall file with the town clerk a sworn application in writing, on a form to be furnished by the town clerk, which shall give the following information: 1. Name and physical description of the applicant; 2. Complete permanent home and local addresses of the applicant and, in the case of a transient merchant, the local address from which proposed sales will be made; 3. A brief description of the nature of the business and goods to be sold; 4. If employed, the name and address of the employer (no post office box address will be accepted); 5. The length of time for which the right to do business is desired; 6. The source of supply ofthe goods cr property proposed to be sold, or orders taken for the sale thereof, or services to be provided, where such goods, services or products are located at the time said application is filed, and the proposed method of delivery; 7. A statement as to whether or not the applicant has been convicted of any crime, misdemeanor or violation of any municipal ordinance, other than traffic violations, the nature of the offense and the punishment or penalty assessed therefor; Marana Town Code 9-9 MARANA TOWN CODE rev. 2002 .~~- 8. The most recent counties, cities, or towns, if any, where applicant carried on business immediately preceding the date of application and the address from which such business was conducted in those municipalities; and 9. Description of any vehicles, including license numbers, to be used in conducting business in the town. B. Licenses issued pursuant to this article shall be given to all applicants who have complied with the requirements of this article, unless the town clerk discovers through any investigation that the applicant, his or her agents, or representatives have been convicted of or have pending charges for any felony or misdemeanor affecting their truth, honesty or veracity, as provided for in section 9-2-12. In such cases the application shall be denied or revoked. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-2-7 Charitable, religious, patriotic or philanthropic organizations Any organization, society, association or corporation desiring to solicit or have solicited in its name money, donations of money or property or financial assistance of any kind or desiring to sell or distribute any item of literature or merchandise to persons other than members of such organization upon the streets, in office or business buildings, byhouse-to- house canvass or in public places for charitable, religious, patriotic or philanthropic purpose exclusively shall be exempt from the provisions of this article. ,""",-., [Adopted by Ord. No. 96.09] Section 9-2-8 Fees A. Every applicant peddler, solicitor, or transient merchant under this article shall pay the $25.00 per business endeavor conducted in the town for a license or a renewal thereof. B. No greater or lesser amount of money shall be charged or received by the town clerk for any license provided for in this artide, and no license shall be issued for any period of time other than as provided herein. c. All charges for a license required by this article shall be paid in advance and in lawful money of the Un~ed States of America at the office of the town clerk. D. A license issued pursuant to this article shall expire and a renewal charge for all licenses provided herein shall become due and payable on the anniversary date of the issuance of the license and every anniversary date thereafter. Any new license charge shall become due and payable and be paK:l on or before the day of commencing to carry on, transact, or practice the trade, calling, profession, occupation or business for which a license is required by this article. Marana Town Code 9-10 MARANA TOWN CODE rev. 2002 /",.- E. Any person, firm, company or corporation who discontinues the activity during the period covered by the current license shall not be entitled to any refund of license fee for that portion of the perbd remaining after discontinuing the activity. F. Fees provided for this article shall become delinquent fifteen (15) days after they become due and the town clerk, on the day upon which said charge becomes delinquent, shall add thereto an amount equal to five dollars ($5.00) as a penalty and no receipt or license shall be issued thereafter by the town clerk until the charge and penalty shall be paid in full. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-2-9 Enforcement of article; record of licenses issued and violations It shall be the duty of any police officer of the town to enforce this article. The chief of police shall report to the town clerk all citations issued for a violation of this article, and the town clerk shall maintain a record for each license issued and record the reports of violations therein. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-2-10 Exhibition of license - Peddlers, solicitors, and transient merchants are required to exhibit their original license at the request of any person. Exhibition of any copy or facsimile of the original shall not be considered in compliance with this article. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-2-11 Transfer of registration No license issued under the provisions of this article shall be assigned or transferred to any other person, corporation or partnership without first obtaining permission from the town clerk. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-2-12 Denial; restriction; suspension; revocation A. A license issued under the provisions of this article may be denied, restricted, suspended or revoked by the town clerk for any of the fdlowing causes: 1. Fraud, misrepresentation or material false statement contained i1 the application for license; 2. Fraud, misrepresentation or material false statement made in the course of carrying on the business; Marana Town Code 9-11 MARANA TOWN CODE rev. 2002 3. Any violation of this article, town ordinance, state or federal law; 4. Conviction of any felony or a misdemeanor involving moral turpitude; 5. Conducting business in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the hea~h, safety or general welfare of the public; or 6. If deemed necessary in the interest of public safety and protection. B. In the event a license is revoked, the revocation shall be effective immediately and the applicant shall not conduct any business activity within the town. C. At the time of denial or revocation the town clerk shall give written notice to the person in control of the business, by personal service or registered mail, that the license has been denied or revoked. Such notice shall also advise that the licensee shall have fifteen (15) days to request a review hearing before the town manager or his or her appointee for the purpose of determining whether the license should have been denied or revoked. D. In the event the licensee requests a review hearing, the hearing shall be scheduled within fifteen (15) days of the request and the licensee shall receive notice of the date, time and place of the review hearing by personal service or registered mail. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] "...- Section 9-2-13 Appeal A. Any person aggrieved by the denial of an application for a license or by the restrictions placed upon the license or by the suspension or revocation of such license who is not satisfied with the decision of the town manager or his or her designee shall have the right to an appeal before the town council. An appeal shall be taken by filing with the town clerk, within fifteen (15) days after the decisbn of the town manager or his or her appointee, a written statement requesting an appeal, and setting forth fully the grounds for the appeal. If an appeal is not requested within such time limit, no appeal shall be granted, and the decision of the town manager or his or her appointee \Mil become final and binding. Such written statement of appeal must be delivered in person to the ta.vn clerk. B. The town council shall hear the matter of the appeal at the next regularly scheduled meeting that provides sufficient notice to the appellant, and notice of such hearing shall be mailed to the appellant at least seven (7) days prior to the meeting. Notice shall be deemed delivered upon mailing, whether received or not. C. The decision and order of the town council on appeal shall be final. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Marana Town Code 9-12 MARANA TOWN CODE rev. 2002 .- Article 9-3 SWAP MEETS Section 9-3-1 Definitions In this article, unless the context otherwise requires: A. "Swap meet operator" means any person, organization or firm who operates or conducts a swap meet R "Swap meet" means a place of commercial activity, popularly known as a swap meet, flea market, park-and-swap, which is: 1. Open to the general public for the purchase of merchandise on the premises; 2. Available to the general public who wish to sell merchandise on the premises, whether such sellers or vendors are in the business of vending or are making casual sales or some combination thereof; 3. Composed of stalls, stands or spaces allotted to vendors who do not occupy the same allotted space or spaces on an uninterrupted continuous daily basis. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] ."",- Section 9-3-2 License required A. It is unlawful for any swap meet operator to engage in any swap meet business within the town without first complying with the licensing requirements of article 9-1. B. It is unlawful for any vendor conducting or transacting business within the confines of a swap meet to engage in any swap meet business within the toon without first complying with the licensing requirements of article 9-1 unless the appropriate swap meet operator is licensed and registered pursuant to article 9-1. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-3-3 Exemptions A. The terms of this article do not include acts of persons selling personal property within the confines of such person's residential premises, so long as such activity does not exceed three (3) consecutive days and is not performed more than four (4) times a year. B. Any vendor who conducts or transacts business at a swap meet and whose regular business activity subjects him or her to the licensing requirements set forth in article 9-1 shall have a business license for conducting regular business activity, but shall be exempt from the licensing requirements of this article. Marana Town Code 9-13 MARANA TOWN CODE rev. 2002 [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Article 9-4 MASSAGE THERAPISTS AND ESTABLISHMENTS Section 9-4-1 Definitions In this article, unless the context otherwise requires, the following words and phrases shall be construed as follows: A. A "massage therapy technique" means the therapeutic touching, application of pressure upon or manipulation of the human body through the skillful application of varied movements of the hands and fingers of the therapist upon the muscles and other soft tissues of the external parts of the body, including effleurage, petrissage, tapotement, friction, vibration, rolling, oil rubs, salt gbws, alcohol rubs, and the rotation, circumduction, flexion and extension of the extremities. "Massage therapy techniques" also include hydrotherapy, consisting of tub, shower or cabinet baths, hot and cold packs, and adjunctive therapies, including the use of electrical devices such as heat lamps and vibrators which have been approved by the American Massage Therapy Association and methodical pressure. All massage therapy techniques are to be applied to external parts of the body only. B. "Massage therapist" means a person who has completed a course of study, as specified herein, in a recognized school of massage therapy and who practices and administers any or all massage techniques described in this article for a fee or consideration of any kind in the tONn. C. "Massage establishment" means a place of business wherein any massage therapy technique is administered or practiced for compensation or from which is dispatched a person for administering or practicing any massage therapy technique, and includes an establishment providing baths and other forms of hydrotherapy, provided that the business of providing sauna baths or shower facilities for patrons or customers shall not be considered within this definition. D. "Recognized school of massage therapy" means an institution of learning which teaches the theory, practice, application, and ethics of massage therapy, Rolfing, anatomy and physiology, or hydrotherapy. The institution must offer a residential course of study and require no less than 500 hours of classroom instruction and training, issue a certificate or diploma upon successful completion ofthe course of study, and provide an official transcript. If located within the State of Arizona, such an institution must be licensed by the State Board of Private T echn;cal and Business Schools. E. "Attendant" means any employee whoadministers any of the services ofa massage establishment within the bath or massage rooms. F. "Rolfing" means a technique developed by Ida P. Rolf, Ph.D., as a system for integrating the human physical structure, which is a form of deep connective tissue manipulation and education based upon the assumption that the human body is changeable. Marana Town Code 9-14 MARANA TOWN CODE rev. 2002 ,~ [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-2 License required A. It shall be unlawful for any person to practice or administer any massage therapy technique without first obtaining and maintaining a massage therapist license as required by this article. B. It shall be unlawful for any person, association, firm or corporation to operate a massage establishment without first obtaining and maintaining a massage establishment license as required by this article. A license for a massage therapist practicing alone shall suffice as a combined therapist and establishment license for that person who shall conform his massage establishment to all the requirements of this article. C. It shall be unlawful for any person, association, firm or corporation to employ as a massage therapist any person who does not hold a current, unrevoked and unsuspended massage therapist license as required by this article. D. It shall be unlawful for any person, association, firm or corporation licensed as provided in this article to operate under any name or conduct business under any designation not specified in such license. E. All licenses issued pursuant to this article shall be nontransferable, except that a licensee may change his or her location as provided herein. ",~ F. The license required by this section shall be in addition to any other licenses or permits required in order to engage in the business or occupation, as applicable, by either the town, the county or the state, and persons engaging in activities described by this article shall comply with all other ordinances and laws, including the town zoning ordinance, as may be required to engage in a business or profession. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-3 License exceptions No license shall be required under this article for: A. Naturopaths, chiropractors, physical therapists, osteopathic physicians or medical doctors who hold state licenses, nor shall the attendants working under the direct supervision and in the same establishment as such excepted individuals be required to hold a license under this article. B. Persons employed as athletic trainers for any bona fide athlete or athletic team, while acting within the scope of that employment. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] - Marana Town Code 9-15 MARANA TOWN CODE rev. 2002 ,- Section 9-~4 Administration; license duration; fees; duplicate A. The administration of this article, including the duty of prescribing forms, is vested in the town clerk, except as otherwise specifically provided. The chief of police shall render such assistance in the administration and enforcement of this article as may be required by the town derk or his or her designee, as appropriate. B. License applications made pursuant to this article shall be submitted to the town clerk, who shall have the authority to issue, deny, renew, or revoke licenses in accordance with the provisions of this article c. All licenses issued pursuant to this article shall be for a period of one (1) calendar year and shall be renewable under the terms and condftions provided herein. Licenses in effect on the effective date of this article shall be renewable annually, one (1) year from the date of original issue or renewal, as applicable. D. The town clerk shall be responsible for the preparation and issuance of all licenses issued pursuant to this article which shall contain a recent photograph of the licensee. E. A nonrefundable, non prorated fee in the amount of one hundred dollars ($100.00) shall accompany each massage establishment license or renewal application submitted pursuant to this article. F. A nonrefundable, non prorated fee in the amount of fifty dollars ($50.00) shall accompany each massage therapist license or renewal application submitted pursuant to this article. ...-- G. Upon request and the payment of a ten-dollar fee, the town clerk shall issue a duplicate license to a licensee whose license has been lost, stolen or destroyed. A licensee applying for a duplicate licensee identification card shall also provK:le the town clerk with a portrait photo, two (2) inches by two (2) inches in size, taken within the previous six (6) months. The town clerk shall coordinate with the police department, as necessary, to issue any duplicate license. A duplicate license shall expire on the expiration date of the original license. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-~5 License application A person applying for a massage establishment or massage therapist license shall provide the following information: A. The full legal name and current residence address of the applicant; B. Any other names by which the applicant has been known during the previous five (5) years; c. The two (2) residence addresses immediately prior to the present address of the applicant, and the dates of residence at each address; ,~ Marana Town Code 9-16 MARANA TOWN CODE rev. 2002 D. Proof the applicant is eighteen (18) years of age (e.g. birth certificate, naturalization papers or resident alien card); E. The address at which the applicant desires to do business or, as appropriate, the names and addresses of the massage facilities or business locations at which the applicant will be working; F. The applicant's height, weight and hair and eye color; G. Two (2) portrait photographs, two (2) inches by two (2) inches in size, taken within the previous six (6) months; H. The business, occupation oremployment history of the applicant during the previous five (5) years and whether the applicant has ever previously operated in this or another town, city or state under a license and has had such license revoked or suspended, the reason therefor, and the business activity or occupation subsequent to such suspension or revocation; I. A statement certifying that the applicant is a United States citizen or lawful permanent resident alien, or an alien who is authorized to oork by the United States Department of Justice, Immigration and Naturalization Service; J. Complete information regarding whether or not the applicant has ever been convicted in any jurisdiction of a felony, or any misdemeanor involving fraud, theft, dishonesty, assaultive conduct or moral turpitude. The applicant shan provide specific information describing each conviction, including where, when and in which court or courts they were entered, the nature of the offense or offenses, and dispositions; K. The applicant's complete fingerprints, if needed by the police department; L. The names of all persons to be employed by the applicant as massage therapists along with copies of their massage therapist licenses, where applicable; and M. Such other information as may be deemed by the town clerk as reasonably necessary to fully evaluate the application. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-6 Background investigation; time for issuance A. The police department shall conduct a background investigation of the applicant and shall advise the town clerk of the findings of such investigation within the period allowed to the town clerk to issue or deny a license. B. No license for the operation of a massage establishment shall be issued unless and until the town clerk receives notice from the town police department that the applicant has fully romplied with all requirements of this article and the tOV\ll1 clerk determines that the applicant in not in violation of any grounds for license revocation. The town clerk shall make reasonable efforts to e~her issue or deny an Marana Town Code 9-17 MARANA TOWN CODE rev. 2002 application within thirty (30) days of its completed submission to the town. The issuance of any license shall in no way be construed as a waiver of any right of denial or revocation the town may have at the time of issuance. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-7 Massage therapist license; special application requirements Any person desiring to obtain a massage therapist license shall provide the information generally required to obtain a massage license, and additionally: A. A summary of the applicant's education, training and experience in the administration and practice of massage therapy techniques, including the applicant's diploma or certificate, and an official transcript from a recognized school of massage; B. A certificate from a health care provider stating that the applicant has, w~hin thirty (30) days immediately prior thereto, been examined and found to be free of any contagious or communicable disease. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-8 Massage establishment license; special application requirements A. No massage establishment license shall be issued or renewed unless the applicant certifies that the site of the proposed or existing massage establishment complies with each of the following minimum requirements: 1. Compliance with all applicable state, county, and town laws, including all applicable fire and building codes and zoning ordinances; 2. Adequate equipment shall be provided for disinfecting and sterilizing instruments used in administering or practicing any massage therapy technique; 3. Hot and cold running water, tempered by means of a mixing valve faucet, shall be provided at all times; 4. Closed cabinets shall be provided and used for the storage of clean linens; 5. Adequate dressing and toilet fadlities shall be provided for patrons. One dressing room (may be the same as the massage treatment room), one toilet and one wash basin shall be provided by every massage establishment with one (1) to three (3) treatment rooms. Another toilet and wash basin must be provided when there are four (4) or more treatment rooms in an establishment. Each dressing room/treatment room shall contain a locker for each patron to be served, which locker shall be capable of being locked. If both male and female patrons are to be simultaneously Marana Town Code 9-18 MARANA TOWN CODE rev. 2002 ,~~ or consecutively served, a separate dressing facility shall be provided for male and female patrons; 6. A minimum of one (1) shower ortub shall be provided for any establishment offering colon therapy, colonies or any hydrotherapy services such as whirlpool baths, saunas, steam baths, herbal wraps, etc.; 7. All steam rooms, toilets and wash basins shall be thoroughly cleaned each day business is in operation and maintained in good repair and in a clean and sanitary condition. Where provided, shower compartments and bathtubs shall be thoroughly cleaned after each use; 8. Clean and sanitary sheets and towels shall be provided for each patron of the establishment. The head rest of each table shall be provided with a clean and sanitary covering for each patron; and 9. A hand wash basin shall be provided in each treatment room providing colon therapy, colonics, or hydrotherapy services such aswhirlpool baths, saunas, steam baths, or herbal wraps. B. In the event that a massage establishment is located in a private residence, the following additional requirements must be met: 1. The massage treatment room must consist ri a separate room not used as a living space; 2. Only one massage treatment room w~hin a residence is permitted; 3. Toilet and wash basin facilities shall be located on the same floor as the massage treatment room and shall be easily accessible to the massage treatment room; and 4. A massage establishment shall be separated from the residence by complete partitioning and doors. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-9 Display of license Every person, association, firm or corporation to whom a license has been granted shall display the license in a conspicuous place upon the business premises. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-10 License revocation, suspension and denial A. The license of a massage therapist or of a massage establishment may be revoked, suspended or denied by the town clerk upon anyone (1) or more of the following grounds: Marana Town Code 9-19 MARANA TOWN CODE rev. 2002 w',,-.., 1. The licensee is gui~y of fraud in conducting the business of massage therapist or massage establishment, or of fraud or deceit in obtaining a license to conduct such business; 2. The licensee has been convicted within the last five (5) years in a court of competent jurisdiction of a febny or of any offense involving moral turpitude; 3. The licensee is guilty of untrue, fraudulent, misleading or deceptive advertising; 4. The licensee is gui~y of willful negligence in the business of massage therapy; 5. The licensee is engaged in the business of massage therapy or massage therapy establishment under a false or assumed name, or is impersonating another practitioner; 6. The licensee has engaged in the unlawful practice of any of the healing arts subject to Arizona state licensing, except massage as defined in this article; or 7. The licensee has vidated any other the provisions of this article. B. A licensee whose license is revoked or suspended may request a hearing as provided in sections 9-1-11 and 9-1-12. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-11 Application after denial or revocation of license No person, association, firm or corporation may apply for any massage establishment or massage therapist license within one (1) year from the denial of any such license to such applicant, or from the nonrenewal or revocation of any such license, unless the cause of such denial, suspension, revocation or nonrenewal has been, to the satisfaction of the town clerk, removed within such time. [Adopted by Ord. 2000.06] Section 9-4-12 License renewal A. Licenses issued or renewed pursuant to this article shall be renewed annually by submitting the following to the tONn clerk, accompanied by the fee or fees required by this article: 1. A letter of intent from the licensee requesting that the license be renewed, accompanied by a renewal fee in the amount required by this article; 2. Two (2) portrait photographs, two (2) inches by two (2) inches in size, taken within the six (6) months previous to the application for renewal; Marana Town Code 9-20 MARANA TOWN CODE rev. 2002 '1~'''- 3. Complete information regarding whether or not the applicant for renewal has been convicted within the two (2) year period immediately preceding the application for renewal in any jurisdiction of a felony, any misdemeanor involving fraud, theft, dishonesty, assau~ive conduct or moral turpitude or any violation of this article. The applicant shall provide specific information describing each conviction or violatbn, including where, when, and in which court or courts the convictions were entered, and the nature of the offenses or violations. B. Applications for license renewal shall be filed with the town clerk not later than thirty (30) days prior to the expiratbn of the license currently in effect. An application for a license renewal shall not be accepted after the expiration date of the license. In the event that a license expires without the licensee having submitted a timely application for renewal, the holder of the expired license must file a new application for initial license and shall comply with all requirements provided herein for obtaining an initial license. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-13 Change of location or employment A. A massage establishment licensee must notify the town clerk in writing within fifteen (15) days of any change in location of either his or her massage establishment, or any change of massage therapists operating from that location. Any change must be approved by the town clerk or his or her designee to verify that all applicable ordinances and regulations of the tONn are complied with. The town clerk shall approve changes under such circumstances. ,"i~ B. A massage therapist licensee must notify the town clerk in writing within fifteen (15) days of any change in his or her place of employment, or place of dispatch for massage therapy services. C. The operator of each massage establishment shall keep and maintain an up-to-date register of all employees including the following: each employee's name, address, age, sex, duties and such other information as the town clerk may reasonably require. The operator of a massage establishment must notify the town clerk in writing w~hin fifteen (15) days of hiring any massage therapist or attendant. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-14 Sale, transfer or expansion A. Upon the sale or transfer of a substantial interest in a massage establishment, the license therefor shall be null and void, unless the transaction was approved in advance by the town clerk, under the application procedures of this article. A new application shall be made by any person, association, firm or corporation desiring to own or operate the establishment Marana Town Code 9-21 MARANA TOWN CODE rev. 2002 B. Any such sale or transfer of any interest in an existing massage establishment, or any enlargement or expansion of the place of business of a massage establishment, shall require a new certification under and full compliance with section 9-4-8. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-15 Prohibition of certain services and operations No massage establishment or massage therapist shall: A. Allow treatment of multiple persons in the same room at the same time. B. Provide to any person, at any time, services which may be reasonably considered to be clearly dangerous to health or safety. c. Remain open or provide services, at any time between the hours of 12:00 midnight and 6:00 a.m. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-4-16 Inspection A. The town building inspector or his or her designee shall regularly inspect all places of business subject to the provisions of this article, and shall report all violations to the town clerk. ~ B. No inspector shall enter the room or immediate quarters in which a person of the opposite sex to the inspector is undergoing treatment or receiving services. [Adopted by Ord. 2000.06] Section 9-4-17 Applicability of regulations to existing businesses The provisions of this article shall apply to all activ~ies regulated by this article, and such persons and businesses described herein, whether such activities were commenced before or after the effective date of this article, except that persons holding valid massage establishment licenses on the effective date of this article shall net be required to file a certification of compliance as provided in this article, but shall be required to do so upon application for a renewal license in the event that the license expires, or upon a change in location pursuant to the requirements of this article. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Article 9-5 CLOTHING AND CONDUCT FOR QUALIFIED ESTABLISHMENTS Marana Town Code 9-22 MARANA TOWN CODE rev. 2002 Section 9-5-1 Definitions In this article, unless the context otherwise requires, the following words and phrases shall be construed as follows: A. "Entertainer" means any person who performs any dance, show, exhibition, or performance for any number of persons. The entertainer need not receive compensation from any source to be covered under this article. B. "Employee" means any employee, independent contractor, agent, consultant, or other like person. c. "Opaque" means not allowing any light to pass through; not transparent, semi- transparent, or translucent. D. "Premises" means land with its appurtenances and structures thereon as well as any other property adjoining the land that the qualified establishment usesor allows to be used for its benefit. E. "Qualified Establishment" means any restaurant, nightclub, bar, tavern, taproom, theater or private, fraternal, social, golf, or country club, or any place that holds a valid Arizona liquor license, which serves spirituous liquors as defined by Arizona Revised Statutes title 4, chapter 1, article 1 (A.R.S. 94-101 et seq.). This includes the entire premises owned, leased, or otherwise occupied by such establishment, whether the liquor license extends to that portion of the premises or not. [Adopted by Ord. No. 96.09: revised by Ord. 2000.06] Section 9-5-2 Purpose The purpose of this article is to: A. Provide for the clothing requirements of entertainers, employees serving spirituous liquors, and other employees inqualified establishments that serve spirituous liquors as defined by Arizona Revised Statutes title 4, chapter 1, article 1 (A.R.S. 94-101 et seq.); B. Provide for conduct requirements of entertainers, employees serving spirituous liquors, employees, patrons, and operators in qualified establishments; C. Provide for requirements of employment for entertainers, employees serving spirituous liquors, and employees in qualified establishments; D. Provide for penalties, to be enforced by the town, for anyone violating the provisions of this article; E. Regulate the conduct and dress of entertainers, employees serving spirituous liquors, and other employees in qualified establishments so as to encourage public health, morals, and safety. Marana Town Code 9-23 MARANA TOWN CODE rev. 2002 [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-5-3 Clothing requirements for female entertainers and employees serving spirituous liquors in qualified establishments; penalty Any female entertaining or performing any dance, show, exhibition, or performance, and any female serving spirituous liquors as defined by A.R.S. title 4, chapter 1, article 1, as amended, or any female employee, in a qualified establishment, who appears clothed, costumed, unclothed, or uncostumed shall appear in such a manner that any portion of the nipple and the areola (the more darkly pigmented portion of the breast encircling the nipple) is not visible and is firmly covered by a fully opaque material, which does not resemble or simulate the actual appearance of an areola and/or nipple. No person may knowingly conduct, maintain, emn, manage, and/or operate any qualified establishment where any person is in violatbn of this section. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-5-4 Clothing requirements for all entertainers, employees serving spirituous liquor, and employees, in qualified establishments; penalty Any person entertaining or performing any dance, show, exhibition, or performance, and any person serving spirituous liquors as defined by A.R.S. title 4, chapter 1, article 1, as amended, in a qualified establishment, who appears cbthed, costumed, unclothed, or uncostumed shall appear in such a manner that the lower portbn of his or her torso, consisting of the genitals, pubic hair, or anal cleft or buttocks, is covered by a fully opaque material and is not so thinly covered as to appear uncovered. No person may knowingly conduct, maintain, own, manage, and/or operate any qualified establishment where any person is in violatbn of this section. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-5-5 Screening requirements; operation of qualified establishments in violation of screening requirements If any entertainer, employee serving spirituous liquors, empbyee, owner, operator, manager, or patron in a qualified establishment is able to view, either on or off the premises of the qualified establishment, any person who would be i1 violation of this article if that person were on the premises of a qualified establishment, the viewing person shall effectively screen such violating person or persons from view. No person may knowingly conduct, maintain, own, manage, and/or operate any qualified establishment where any person is in violatbn of this section. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Marana Town Code 9-24 MARANA TOWN CODE rev. 2002 Section 9-5-6 Prohibited acts The following acts are prohibited by entertainers, employees serving spirituous liquors, employees, owners, operators, managers, and patrons, in qualified establishments: A. No employee, entertainer or person on the premises of a qualified establishment shall wear or use any devise or covering exposed to view, and no licensee, operator, manager, or ovmer of a qualified establishment shall permit, on the licensed premises, any employee, entertainer or person to wear or use any devise or covering exposed to view, which simulates the breast, genitals, anus, pubic hair or any private portion thereof. B. No person on orvisible from the premises of a qualified establishment shall perform, and no licensee, operator, manager, or owner of a qualified establishment shall permit on the premises or from any bcation visible to the premises of a qualified establishment, any person to perform acts of or acts which constitute or simulate: 1. Sexual intercourse, masturbation, scx:lomy, bestiality, oral copulation, flagellation, or any sexual acts which are prohibited by law; 2. The touching, caressing or fondling of the breast, buttocks, anus or genitals. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Section 9-5-7 Restrictions on employment of entertainers A. No entertainer under the age of eighteen (18) years shall be employed in a qualified establishment. All entertainers employed at a qualified establishment must provide the following to the empbyer to be kept on permanent tHe: 1. Valid Arizona driver's license or state 10 card; and, 2. A certified copy of the entertainer's birth certificate. B. The operator, manager, or owner of the qualified establishment shall have and keep on file the documents required by this section. [Adopted by Ord. No. 96.09; revised by Ord. 2000.06] Article 9-6 SEXUALLY ORIENTED BUSINESSES Section 9-6-1 Purpose It is the purpose of this article to regulate sexually oriented businesses and related activities to promote the health, safety, morals, and general welfare of the citizens of the town of Marana, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the Town. The provisions of this article have netther the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, Marana Town Code 9-25 MARANA TOWN CODE rev. 2002 it is not the intent nor effect of this article to restrict or deny access by adults to sexually oriented materials protected by the Rrst Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this article to condone or legitimize the distribution of ol:Ecene materials. [Adopted by Ord. No. 2000.06] Section 9-6-2 Definitions A. "Adult arcade" means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to regularly show images to five or fewer persons per machine at anyone time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activ~ies or specified anatomical areas. B. "Adult bookstore," "adult novelty store" or "adult video store" means a commercial establishment that, regardless of any other purposes it may have, and as one of ~s principal business purposes, offers for sale or rental for any form of consideration anyone or more of the following: 1. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representatbns that depict or describe specified sexual activ~ies or specified anatomical areas; or 2. Instruments, devices, or paraphernalia that are designed for use in connection with specified sexual activities. c. "Adult cabaret" means a nightclub, bar, restaurant, or similar commercial establishment that regularly features: 1. Persons who appear in a state of nudity or semi-nudity; 2. Live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities; 3. Films, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or descriptbn of specified sexual activities or specified anatomical areas. D. "Adult motel" means a hotel, motel or similar commercial establishment that offers accommodation to the public for any form of consideration and provides patrons with closed-circuit television transmissions, films, motbn pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public right of way that advertises the availability of this adult type of photographic reproductions; and Marana Town Code 9-26 MARANA TOWN CODE rev. 2002 1. Offers a sleeping room for rent for a period of time that is less than twenty- four (24) hours; or 2. Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than twenty-four (24) hours. E. "Adult motion picture theater" means a commercial establishment where, for any form of consideration, films, motbn pictures, video cassettes, slides, or similar photographic reproductions are regularly shown that are characterized by the depiction or description of specified sexual activities or specified anatomical areas. F. "Adult theater" means a theater, concert hall, auditorium, or similar commercial establishment that regularly features persons who appear, in person, in a state of nudity and/or semi-nudity, and/or live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities. G. "Adult vending machine" means any mechanical device that, regardless of any other purposes it may have, regularly publicly dispenses forany form or consideration any books, magazines, periodicalsor other printed matter, or photographs, films, motion pictures, video cassettes or video reproductbns, slides, or other visual representations that are characterized by the depiction or descriptbn of specified sexual activities or specified anatomical areas. H. "Employee" means a person who performs any service on the premises of a sexually oriented business on a full time, part time, contract basis, or independent basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise, and whether ornot the said person is paid a salary, wage, commission or other compensation by the operator of said business. A person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises, as well as a person exclusively on the premises as a patron or customer is not an employee within the meaning of this article. -",;,i'~ I. "Escort" means a person who, for pecuniary or other consideration, agreesor offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person. J. "Escort agency" means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration. K. "Establishment" means and includes any of the following: 1. The opening or commencement of any sexually oriented business as a new business; 2. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; Marana Town Code 9-27 MARANA TOWN CODE rev. 2002 3. The addition of any sexually oriented business to any other existing sexually oriented business; 4. The relocation of any sexually oriented business; or 5. A sexually oriented business or premises on which the sexually oriented business is located. L. In assessing whether a particular business is a "family-oriented entertainment business,"the town clerk shall consider the fdlowing factors related to the business: 1. Whether a primary business purpose is related to the sale of food or food services; 2. Whether a primary business purpose relates to the sale or use of entertainment or educational products, services, facil~ies or activities; 3. The age of patrons for or by which the services, facilities or activities of the business are primarily appropriate and utilized; and 4. Whether the business is primarily a retail establishment. A business determined to be primarily a retail or a food services establishment is presumed to not qualify as a family-oriented entertainment business unless articulable reasons to the contrary are established by the town clerk. M. "Licensee" means a person in whose name a license has been issued, as well as the individual listed as an applicant on the application for a license. N. "Nude model studio" means any place where a person who appears in a state of nudity or displays specified anatomical areas is regularly provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons for consideration. O. "Nudity" or a "state of nudity" means the appearance of a human bare buttock, anus, anal cleft or cleavage, pubic area, male genitals, female genitals, or vulva, with less than a fully opaque covering; or a female breast with less than a fully opaque covering of any part ofthe nipple; or human male genitals in a discernibly turgid state even if completely and opaquely covered. P. "Person" means an individual, proprietorship, partnership, corporation, association, or other legal entity. Q. "Premises" means the real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for a business license pursuant to this article. Marana Town Code 9-28 MARANA TOWN CODE rev. 2002 R. "Regularly," "regularly features," or"regularly shown" shall be construed to apply the provisions of this article only activities that take place outside the context of some larger form of expression. S. "School" means a child care facil~y licensed pursuant to the Arizona Revised Statutes, title 36, chapter 7.1, or any public or private institution established for the purposes of offering instruction to pupils in programs for preschool children INith disabilities, kindergarten programs or any combination of grades one through twelve, including but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools; schools includes the school ground but does not include the facilities used primarily for another purpose and only incidentally as a school. 1. "Semi-nude" or "semi-nudity" means the appearance of the female breast below a horizontal line across the top of the areola at its highest point. This definition shall include the entire 10000er portion of the human female breasts, but shall not include any portion of the cleavage of the human female breasts exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided the areola is not exposed in whole or in part. U. "Sexual encounter center" means a business or commercial enterprise that, as one of its prindpal business purposes, offers for any form of consideration for: 1. Physical contact in the form of wrestling or tumbling between any two persons of the opposite sex when one (1) or more of the persons is in a state of nudity or semi-nud~y; or 2. Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nud~y or semi-nudity. V. "Sexually oriented business" means an adult arcade, adult vending machine, adult bookstore, adult novelty store or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, adult novelty store and sexual encounter center. W. "Specified anatomical area" means: 1. The human male genitals in a discernibly turgid state, even if fully and opaquely covered; or 2. Less than completely and opaquely covered human genitals, pubic region, buttocks, or a female breast below a point immediately above the top of the areola. X. "Specified criminal activity" means any of the following offenses: 1. Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution, or display of harmful material to a minor; sexual performance by Marana Town Code 9-29 MARANA TOWN CODE rev. 2002 a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; sexual assau~; molestation of a child; or any sex-related offenses similar to those described under the criminal code of Arizona, other states, or other countries; 2. For which: i. Less than two (2) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense; ii. Less than five (5) years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a felony offense; or iii. Less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement imposed for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination ofmisdemeanor offenses occurring within any twenty-four (24) month period. 3. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant. Y. "Specified sexual activities" means and indudes any of the following: 1. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts, whether covered or uncovered; 2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; 3. Masturbation, actual or simulated; or 4. Excretory functions as part of or in connection with any of the activities set forth in (A) through (C) above. Z. "Substantial enlargement" of a sexually oriented business means the increase in floor area occupied by the business by more than twenty-five (25%) percent, as the floor areas exist on May 2, 2000. AA. "Transfer of ownership or control" of a sexually oriented business means and includes any of the following: 1. The sale, lease, or sublease of the business; 2. The transfer of securities that form a controlling interest in the business, whether by sale, exchange, or similar means; or Marana Town Code 9-30 MARANA TOWN CODE rev. 2002 3. The establishment of a trust, gift, or other similar legal device that transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-3 Classification Sexually oriented businesses are classified as follows: A. Adult arcades; B. Adult bookstores, adult novelty shops or adult video stores; C. Adult cabarets; D. Adult motels; E. Adult motion picture theaters; F. Adult theaters; G. Adult vending machines; H. Escort agencies; I. Nude model studios; and J. Sexual encounter centers. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-4 License required; non-transferability; exceptions A. It shall be unlawful for any person to operate a sexually oriented business without first obtaining and maintaining a valid sexually oriented business license issued pursuant to this article. B. It shall be unlawful for any person who operates a sexually oriented business to employ a person to work and/or perfam services on the premises of the sexually oriented business, if such employee is not in possession of a valid sexually oriented business employee license issued to such employee pursuant to this article. C. It shall be unlawful for any person to obtain employment with a sexually oriented business if such person is not in possession of a valid sexually oriented business employee license issued to such person pursuant to this article. Marana Town Code 9-31 MARANA TOWN CODE rev. 2002 D. It shall be unlawful for any person, association, firm or corporation licensed as provided in this artide to operate under any name or conduct business under any designation not specified in such license. E. All licenses issued pursuant to this article shall be nontransferable except as provided in this article. F. The license required by this section shall be in addition to any other licenses or permits required in order to engage in the business or occupation, as applicable, by either the town, the county or the state, and persons engaging in activities described by this article shall oomply with all other ordinances and laws, including the town zoning ordinance, as may be required to engage in a business or professioo. G. It shall be a defense to subsections (B) and (C) ofthis section if the employment is of limited duration and for the sole purpose of repair and/or maintenance of machinery, equipment, or the premises. [Adopted by Ord. No. 2000.06] Section 9-6-5 License application A. An application for a sexually oriented business license, including a renewal application, must be made on a form provided by the town. The application must be accompanied by a sketch or a diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. The town clerk may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it vvas prepared. B. Prior to applying for an original sexually oriented business license, all applicants for such a license must have the premises inspected and approved by the health department, fire department, building department, and zoning department. Written certification of such inspections and approvals by each inspecting agency must be submitted with each sexually oriented business license application. Alicensee who has not submitted such certificatioos within the five previous years or a licensee for an establishment which expanded since the time of the previous license application must also have the respective premises inspected and submit written certification of such inspections and approvals by each inspecting agency with the licensee's next application for the renewal of a sexually oriented business license. Agendes responsible for inspecting the premises of an existing or anticipated sexually oriented business must complete the requested inspections within thirty (30) days of applicant's request; i1 the event one or more agencies fails to timely inspect the requested premises, the requirements of this subsection as they relate to that one or more inspection are waived by the town. C. The application may request, and the applicant shall provide, such information (including fingerprints) as the town may require to enable the town to determine Marana Town Code 9-32 MARAN A TOWN CODE rev. 2002 whether the applicant meets the qualifications established under this article. The applicant has an affirmative duty to supplement a pending application with new information received subsequent to the date the application was deemed completed. D. All applications to own or operate a sexually oriented business must be submitted by a natural person who must sign the application. If a legal entity wishes to own or operate a sexually oriented business, each natural person who owns or controls a twenty (20%) percent or greater interest in the business must sign the application for a business license as an applicant. If a corporation is listed as owner of a sexually oriented business or as the entity that wishes to operate such a business, each individual havirg a twenty (20%) percent or greater interest in the corporation must sign the applicatioo for a business license as an applicant. In all cases, any person involved in the day-to-day operation of the business or has the capacity to significantly influence the operation of the business must sign the application as an applicant. E. Each application for a sexually oriented business license shall be accompanied by the following: 1. Payment of the application fee in full; 2. The name of the applicant or organization applying for the license and the name under which the sexually oriented business will operate. 3. If the establishment is a State of Arizona corporatbn, a copy of the articles of incorporation, together with all amendments thereto and a signed statement that the corporation is in good standing in the State of Arizona; 4. If the establishment is a foreign corporation, a copy of the certificate of authority to transact business in this State, together with all amendments thereto and a signed statement that the corporation is in good standing in the state of incorporation; 5. If the establishment is a limited partnership formed under the laws of the State of Arizona, a copy ofthecertificate of limited partnership, together with all amendments thereto and a signed statement that the corporation is in good standing in the State of Arizona; 6. If the establishment is a foreign limited partnership, a copy of the certificate of limited partnership and the qualification documents, together with all amendments thereto and a signed statement that the corporation is in good standing in the state of incorporation; 7. Proof of the current fee ownership of the tract of land on which the establishment is to be situated in the form of a copy of the recorded deed; 8. If the persons identified as the fee owner(s) of the tract of land in item (6) are not also the owners of the establishment, then the lease, purchase contract, purchase option contract, lease option contract or other document(s) evidencing the legally enforceable right of the applicants to Marana Town Code 9-33 MARANA TOWN CODE rev. 2002 have or obtain the use and possession of the tract or portion thereof that is to be used for the establishment for the purpose of the operation of the establishment; 9. A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a registered land surveyor depicting the property lines and the structures containing any existing sexually oriented businesses within 1,500 feet of the property to be certified; the property lines of any established religious institution/synagogue, public park or recreation area, or family-oriented entertainment business within 1,500 feet of the property to be certified; the property lines of any school established within 1500 feet of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is in existence at the time an application is submitted; 10. Any of items (2) through (8), above, shall not be required for a renewal application or for an application for a secondary classification of sexually oriented business operated within the same establishment as the primary application or license if the applicant states that the documents previously furnished the town clerk with the original application or previous renewals thereof remain correct and current. F. Applications for an employee license to work and/or perform services in a sexually oriented business, whether original or renewal, must be made tothe town clerk by the person to whom the employee lirense shall issue. Each application for an employee license shall be accompanied by payment of the application fee in full. Application forms shall be supplied by the town clerk. Applications must be submitted to the offire of the town clerk or the town clerk's designee during regular working hours and contain the following information: 1. The applicant's given name, and any other names by which the applicant is or has been known, including "stage" names andlor aliases; 2. Age, date and place of birth; 3. Height, weght, hair cdor, and eye color; 4. Present residence address and telephone number; 5. Present business address and telephone number; 6. Date, issuing state, and number of photo driver's license, or other state issued identification card information; 7. Social Security number; and 8. Proof that the individual is at least eighteen (18) years old. Marana Town Code 9-34 MARANA TOWN CODE rev. 2002 All information submitted to the Town pursuant to this paragraph is confidential and will not be released except as pursuant to a valid law enforcement investigation, court order or as otherwise may be required by law. G. Each person signing an application as an applicant shall attach to the application form the following: 1. Two (2) identical, passport-quality color photographs of the applicant clearly showing the applicant's face and taken within the preceding month, and two (2) sets of the applicant's complete fingerprints on a form provided by the police department. Any fees for the photographs and fingerprints shall be paid by the applicant 2. A statement detailing the sexually oriented business license history of the applicant for the five (5) years immediately preceding the date of the filing of the application, including whether such applicant, in this or any other town, city, county, state, or country, has ever had any sexually oriented business license, permit, or authorization to do business denied, revoked, or suspended, or had any professional or vocational license or permit denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, state the name(s) under which the license was soughtand/or issued, the name( s) of the issuing or denying jurisdiction, and describe in full the reason(s) for the denial, revocation, or suspension. A copy of any order of denial, revocation, or suspension shall be attached to the application. 3. A statement whether the applcant or any person over the age of eighteen (18) years with whom the applicant resides has been convicted, or is awaiting trial on pending charges, of a specified criminal activity and, if so, the nature of the specified criminal activity involved, the date, place and jurisdiction of each. 4. A statement made under oath that the applicant has personal knowledge of the information contained in the application, that the information contained therein and furnished therewith is true and correct and that the applicant has read the provisions of this article. H. A separate application and sexually oriented business license shall be required for each sexually oriented business classification operating WIThin the same establishment. I. The fact that a person possesses other types of permits and/or licenses does not exempt such person from the requirement of obtaining a sexually oriented business or employee license. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Marana Town Code 9-35 MARANA TOWN CODE rev. 2002 Section 9-6-6 Issuance of license; denial; annual renewal required A. Upon the filing of an application for a sexually oriented business employee license, the town c1erkshall issue a temporary license to said applicant. The application shall then be referred to the appropriate town departments for investigation to be made on the information contained in the application. Any inspection requirement of a particular town agency shall be waived if the respective town agency fails to complete its inspection within twenty (20) days of the date it reooived an inspection request. The application review process shall be completed within thirty (30) days from the date of the completed a~lication. After the investigation, the town clerk shall issue an employee license, unless it is determined by a preponderance ofthe evidence that one or more ofthe following findings is true: 1. That the applicant has failed to provide the information required by this article for issuance of the license or has falsely answered a question or request for nformation on the application form; 2. The applicant is under the age of eighteen (18) years; 3. The applicant has been convicted of a specified criminal activity; 4. The sexually oriented business employee license is to be used for employment in a business prohibited by local or state law, statute, rule, or regulation, or prohib~ed by a particular provision of this article; or 5. The applicant has had a sexually oriented business employee license revoked by any jurisdiction within two (2) years of the date of the current application. B. If an application for a sexually oriented busness employee license is denied, the temporary license previously issued is immediately deemed null and void. c. Denial, suspension, or revocation of a license issued pursuant to this section shall be subject to appeal as set forth in this article. D. A license issued pursuant to subsection (A) of this section, if granted, shall state on its face the name of the person to whom it is granted, the expiration date, and the address of the sexually oriented business. The employee shall keep the license on the employee's person at all times while engaged in employment or performing services on the sexually oriented business premises so that said license may be available for inspection upon lawful request. E. If application is made for a sexually oriented business license, the town clerk shall approve or deny issuance of the license within forty-five (45) days of receipt of the completed application. The failure of the town or a particular town official or agency to timely act shall result in the waiver by the town of any requirement under this article as applied to that particular town official or agency. The town clerk shall issue a license to an applicant unless it is determined that one or more of the following findings is true: Marana Town Code 9-36 MARAN A TOWN CODE rev. 2002 1. An applicant has failed to provide the information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form; 2. An applicant is under the age of eighteen (18) years; 3. An applicant has been denied a license by the town to operate a sexually oriented business within the preceding twelve (12) months, or applicant's license to operate a sexually oriented business has been revoked within the pr.eceding twelve (12) months; 4. An applicant is overdue in payment to the town in taxes, fees, fines, or penalties assessed against or imposed upon him/her in relation to any business; 5. An applicant has been convicted of a specified criminal activity; 6. The premises to be used for the sexually oriented business have not been approved by the health department, fire department, and the building department as being in compliance with applicable laws and ordinances; 7. The premises to be used for the sexually oriented business is located within 1,500 feet of any residential zone, single- or multiple-family dwelling, family- oriented entertainment business, church, park or school; I"';'~ 8. The premises to be used for the sexually oriented business is located within 1,500 feet of either any other sexually oriented business licensed under this article or any other sexually oriented business that would be licensed under this article if it were located with the town limits; 9. The license fee required under this article has not been paid; or 10. An applicant of the proposed establishment is in violation of or is not in compliance with one or more of the provisions of this article. F. A license issued pursuant to subsection (E) of this section, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, the address of the sexually oriented business, and the section 9-6-3 classification for which the license is issued. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time. G. A sexually oriented business license shall issue for only one classification, as set forth in section 9-6-3. Each classification operating within the same establishment and wholly owned by that establishment requires a separate license. H. In the event that the town clerk determines that an applicant is not eligible for a sexually oriented business Icense, the applicant shall be given notice in writing of the reasons for the denial v.Athin forty five (45) days of the receipt ofthe completed application by the town clerk, provided that the applicant may request, in writing at Marana Town Code 9-37 MARANA TOWN CODE rev.2002 ,!~ any time before the notice is issued, that such period be extended for an additbnal period of not more than ten (10) days in order to make modificatbns necessary to comply with this article. I. Each license issued pursuant to this section shall be subject to annual renewal upon the written application of the applicant and a finding by the town clerk that the applicant has not been convicted of any specified criminal activity, or committed any act during the existence of the previous license which would be grounds to deny the initial license application. The decision whether to renew a license shall be made within thirty (30) days of receiving the completed applicaton. The renewal of a license shall be subject to the fee as set forth in section 9-6-7. Non-renewal of a license shall be subject to appeal as set forth in this article. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-7 Fees The annual fee for a new sexually oriented business license is Five Hundred ($500.00) Dollars, whether new or renewal, except as noted herein. The annual fee of Fifty ($50.00) Dollars is required for a sexually oriented business employee license, whether new or renewal. The annual fee of Fifty ($50.00) Dollars is required for a renewal sexually oriented business license or for a license for a second classification of a sexually oriented business operated within the same establishment as the primary application or license where no modifications to the premises or the primary application are required. These fees are to be used to pay for the cost of the administration and enforcement of this article. The fees are nonrefundable and may not be prorated for a license period of less than one year. The fee requirements under this article shall not result in the suspension, non-renewal or revocation of a license pursuant to this article if the applicant or licensee makes full payments within fifteen (15) days of being notified of the fee requirements. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-8 Inspection A. An applicant or licensee shall permit representatives of the Polioo Department, Health Department, Fire Department, Building Department, or other town, state or federal departments or agencies to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied or open for business. Such inspection shall be limited to visual assessment of the activities conducted in areas in accord with the provisions of this article: areas to which patrons have access or are allowed access; to requests for inspection of the licenses required under this article; and to requests for identification of those individuals who reasonably appearto be under the age of 18. B. It shall be unlawful for an applicant, licensee or employee of a sexually oriented business to refuse to permit law enforcement officers or any other agent allowed by this section to inspect the premises at any time the premises is occupied or open for business. Marana Town Code 9-38 MARANA TOWN CODE rev. 2002 ~- c. The provisions of this section do not apply to areas of an adult motel that are currently being rented for use as temporary or permanent hab~ation. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-9 Expiration of license A. Each license shall expire one year from the date of issuance and may be renewed only by submitting a renewal application to the town. Application for renewal shall be made at least thirty (30) days before the expiration date. B. If the town clerk denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. Notwithstanding the provisions of this section, in the event a licensee appeals the non-renewal of a license, the status quo immediately prior to the non-renewal shall be maintained throughout the pendency of the appeal. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-10 Suspension A. The town clerk shall issue a notice and order of suspension, suspending a license for a period not to exceed thirty (30) days, if the town clerk determines that the licensee or an employee of the licensee has: 1. Violated or is not in compliance with any section of this article; 2. Operated or performed services in a sexually oriented business while intoxicated by the use of alcoholic beverages or controlled substances; 3. Refused to allow prompt inspection of the sexually oriented business premises as authorized by this article; or 4. Knowingly or intentionally permitted gambling by any person on the sexually oriented business premises. B. The notice and order of suspension shall become effective within ten (1 O)days after issuance unless the licensee appeals the suspension of a license. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-11 Revocation A. The town clerk shall issue a notice and order or revocation, revoking a license issued pursuant to this article if any of the fdlowing occur: 1. A cause of license suspension occurs and the license has been suspended within the proceeding twelve (12) months; 1";.......... Marana Town Code 9-39 MARANA TOWN CODE rev. 2002 -- 2. A licensee knowingly or intentionally gave false or misleading information in the material submitted during the application process; 3. A licensee, or a person with whom the licensee resides, is convicted of a specified criminal activity on a charge that was pending prior to the issuance of the license; 4. A licensee, subsequent to licensing, is convicted of a specified criminal activity; 5. A licensee knowingly or intentionally permitted the possession, use, or sale of controlled substances 011 the premises; 6. A licensee knowingly or intentionally permitted the sale, use, or consumption of alcoholic beverages on the premises; 7. A licensee knowingly or intentionally permitted prostitution on the premises; 8. A licensee knowingly or intentionally operated the sexually oriented business during a period of time when the licensee's license was suspended; 9. A licensee knowingly or intentionally permitted any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual conduct to occur in or on the licensed premises; 1""'- 10. A licensee knowingly or intentionally is delinquent in payment to the Town, County or State for any taxes or fees; 11. A licensee knowingly orintentionally permitted a person undereighteen(18) years of age to enter the establishment; 12. A licensee knowingly or intentionally attempted to sell his business license, or has sold, assigned, or transferred ownership or control of the sexually oriented business to a non-licensee; or 13. A licensee knowingly or intentionally permitted a person or persons to engage in specified sexual activities on the premises of the sexually oriented business. B. When the town clerk revokes a license, the revocation shall continue for one (1) year, and the licensee shall not be issued a sexually oriented business license for one (1) year from the date revocation became effective. If, subsequent to revocation, the Town determines that the basis for the revocation has been corrected or abated, the applicant shall be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. C. The notice and order of revocation shall become effective within ten (10) days after issuance unless the licensee appeals the suspension of a license. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] - Marana Town Code 9-40 MARANA TOWN CODE rev. 2002 1"-' Section 9-6-12 Administrative appeal An applicant may appeal the decision of the town clerk regarding a denial, revocation or suspension to the town council by filing a written notice of appeal with the town clerk within fifteen (15) days after service of notice upon the applicant of the town clerk's decision. The notice of appeal shall be accompanied by a memorandum or other writing setting out fully the grounds for such appeal and all arguments in support thereof. The town clerk may, within fifteen (15) days of seNice upon the town clerk of the applicant's memorandum, submit a memorandum in response to the memorandum filed by the applicant on appeal to the town council. The applicant shall be afforded a hearing before the town council at which the applicant or the applicant's attorney shall be afforded the right to address the council and the town clerk's decision, after which the town may respond to the applicant's presentation; the hearing shall be taken within thirty-one (31) calendar days after the date on which the town clerk receives the notice of appeal. After reviewing submitted memoranda and exhibits as well as the arguments orally presented by the applicant and the town, the town council shall vote either to uphold or overrule the town clerk's decision. The town council's decision shall be effective upon its rendering. Judicial review of a denial by the town clerk and town council may then be made pursuant to this article. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-13 Judicial review I'''''''''''''' After denial of an initial or renewal application, or suspension or revocation of a license by the town council, the applicant or licensee may seek judicial review of such administrative action in any court of competent jurisdiction. At such time as the town is notified that an applicant has filed for judicial review of the administrative action resulting in the denial of an application, the town shall issue a provisional license to applicant allowing it to carry on its requested activities, subject to the orders of the reviewing court. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-14 Change of employment A. An establishment operator covered by this article shall keep and maintain an up-to- date register of all employees including the following: each employee's name, address, age, sex and duties. The licensee must notify the town clerk in writing within fifteen (15) days of hiring any attendant or employee. B. An establishment operator covered by this article must notify the town clerk in writing within fifteen (15) days of any change of licensed employees employed at the establishment. c. An employee covered by this article must notify the town clerk in writing within fifteen (15) days of any change in the employee's place of employment from one establishment covered by this artide to another. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] f""- Marana Town Code 9-41 MARANA TOWN CODE rev. 2002 i.~'~~' Section 9-6-15 Sale, transfer or expansion A. Upon the sale or transfer of a substantial interest in a sexually oriented business, the license therefor shall be null and void, unless the transactbn was approved in advance by the town clerk, under the application procedure of this article. An original application shall be made by any person, association, firm or corporation desiring to own or operate the establishment upon its transfer. B. An establishment licensee shall submit, upon sale or transfer of any interest in an existing sexually oriented business, or any enlargement or expansion of the place of business of a sexually oriented business, new certifications of inspection as required of original applicants by this article. [Adopted by Ord. No. 2000.06] Section 9-6-16 Notices. A. Any notice required or permkted to be given by the tONn clerk or any other town office, division, department or other agency under this article to any applicant, operator or owner of a sexually oriented business may be given either by personal delivery or by certified United States mail, postage prepaid, return receipt requested, addressed to the most recent address as specified in the application for the license, or any notice of address change that has been received by the town clerk. Notices mailed as above shall be deemed given upon their deposit in the United States mail. In the event that any notice given by maR is returned by the postal service, the town clerk or the town clerk's designee shall cause it to be posted at the principal entrance to the establishment. t"'-- B. Any notice required or permitted to be given to the town clerk by any person under this article shall not be deemed given untO and unless it is received in the office of the town clerk. C. It shall be the duty of each owner who is designated on the license application and each operator to furnish notice to the town clerk in wrking of any change of residence or mailing address. [Adopted by Ord. No. 2000.06] Section 9-6-17 [Reserved] [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-18 Additional regulations for escort agencies. A. An escort agency shall not employ any person under the age of 18 years; neither shall any person who is under the age of 18 may be employed or act as an escort. ,- Marana Town Code 9-42 MARANA TOWN CODE rev. 2002 ,.~ B. A person shall not act as an escort or agree to act as an escort for any person under the age of 18 years; neither shall an escort agency arrange for an escort for any person under the age of 18 years. [Adopted by Ord. No. 2000.06] Section 9-6-19 Additional regulations for nude model studios A. A nude model studio shall not employ any person under the age of 18 years. B. A person under the age of 18 years shall not appear semi-nude or in a state of nudity in or on the premises of a nude model studb. C. A person shall not appear in a state of nudity, or with knowledge, allow another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from the public right of way. D. A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public and containing a partitbn to prevent visibility into the studio. [Adopted by Ord. No. 2000.06] Section 9-6-20 Solicitation of gratuity prohibited An employee of a sexually oriented business, while nude or semi-nude, shall not solicit any gratuity from any patron or customer on the sexually oriented business premises, nor shall any patron or customer payor give any gratuity to any employee who appears in a state of nudity or semi-nudity on the sexually oriented business premises. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-21 Regulations pertaining to exhibition of sexually explicit films and videos A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhbits on the premises in a viewing room of less than one hundred fifty (150) square feet offloor space, a film, video cassette, or other video reproduction, that depicts specified sexual activities or specified anatomical areas, shall comply with the following requiremenls: A. Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the business license will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each -- Marana Town Code 9-43 MARANA TOWN CODE rev. 2002 .,;......... diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six (6") inches. The town clerk may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. B. The application shall be sworn to be true and correct by the applicant. C. No alteration in the configuration or location of a manager's station may be made without the prior approval of the town clerk or the town clerk's designee. D. It is the duty of the owner and operator of the premises to ensure that at least one employee is on duty and situated in each manager's station at all times that any patron is present inside the premises. E. The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of the entire area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms may neither contain nor be surveilled by video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of the entire area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. F. It shall be the duty of the operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that the view area specified in subsection (E) of this section remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises that has been designated as an area in which patrons will not be permitted, as designated in the application filed pursuant to subsection (A) ofthis section. G. No viewing room may be occupied by more than one person at any time. H. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than five (5.0) foot-candle as measured at the floor level. I. It shall be the duty of the operator, and it shall also be the duty of any agents and employees present in the premises, toensure that the illumination described above is maintained at all times that any patron is present in the premises. J. No licensee shall allow an opening of any kind to exist between viewing rooms or booths. K. No person shall make any attempt to make an opening of any kind between the viewing booths or rooms. ('....- Marana Town Code 9-44 MARANA TOWN CODE rev. 2002 L. The operator of the sexually oriented business shall, during each business day, inspect the walls between the viewing rooms or booths to determine if any openings or holes exist. No licensee or employee of a sexually oriented business may permit a patron to occupy a viewing room or booth containing any openings or holes allowing viewing between two or more booths. M. The operator of the sexually oriented business shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting. N. The operator of the sexually oriented business shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently rovered by, nonporous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within forty eight (48") inches of the floor. [Adopted by Ord. No. 2000.06] Section 9-6-22 Exterior portions of sexually oriented businesses A. An owner or operator of a sexually oriented business shall not allow the merchandise or activities of the establishment to be visible from a point outside the establishment. B. An owner or operator of a sexually oriented business shall abide by the provisions of this article regulating the content of signs. C. An owner or operator of a sexually oriented business shall not allow exterior portions of the establishment to be painted any color other than a single achromatic color. This provision shall not apply to a sexually oriented business if the follONing conditions are met: 1. The establishment is a part of a commercial mult~unit center; 2. The exterior portions of each individual unit in the commercial multi-unit center, including the exterior portions of the business, are painted the same color as one another or are painted in such a way so as to be a component of the overall architectural style or pattern of the commercial multi-unit center; but 3. Nothing in this article shall be construed to require the painting of an otherwise unpainted exterbr portion of a sexually oriented business. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10] Section 9-6-23 Signage A. Notwithstanding any other provision ofthe code, it shall be unlawful for the operator of any sexually oriented business or any other person to erect, construct, or maintain any sign for the sexually oriented business other than the one (1) primary c~ Marana Town Code 9-45 MARANA TOWN CODE rev. 2002 sign and one (1) secondary sign, as provided herein. This section is intended to augment the town sign code, not supplant it. B. Primary signs shall have no more than two (2) display surfaces. Each such display surface shall: 1. Not contain any flashing lights; 2. Be a flat plane, rectangular in shape; 3. Not exceed seventy-five (75) square feet in area; and 4. Not exceed ten (10) feet in height or ten (10) feet in length. C. Primary and secondary signs shall contain no photographs, silhouettes, drawings or pictorial representations in any manner, and may contain only the name of the enterprise. D. Each letter forming a word on a primary or secondary sign shall be of solid color, and each such letter shall be the same print-type, size and color. The background behind such lettering on the display surface of a primary sign shall be of a uniform and solid color. E. Secondary signs shall have only one (1) display surface. Such display surface shall: 1. Not contain any flashing lights; 2. Be a flat plane, rectangular in shape; 3. Not exceed twenty (20) square feet in area; 4. Not exceed five (5) feet in height or five (5) feet in width; and 5. Be affixed or attached to a wall or door of the enterprise. [Adopted by Ord. No. 2000.06] Section 9-6-24 Sale, use, or consumption of alcoholic beverages prohibited The sale, use, or consumption of alcoholic beverages on the premises of a sexually oriented business is prohibited. [Adopted by Ord. No. 2000.06] Section 9-6-25 Persons younger than eighteen prohibited from entry; attendant required. A. An owner or operator of a sexually oriented business shall not allow a person who is younger than eighteen (18) years of age to enter or be on the premises of a "r""-' Marana Town Code 9-46 MARANA TOWN CODE rev.2002 sexually oriented business at any time the sexually oriented business is open for business. B. It shall be the duty ofthe operator of each sexually oriented business to ensure that an attendant is stationed at each public entrance to the sexually oriented business at all times during such sexually oriented business' regular business hours. It shall be the duty of the attendant to prohibit any person under the age of eighteen (18) years from entering the sexually oriented business. It shall be presumed that an attendant knew a person was under the age of eighteen (18) unless such attendant asked for and was furnished: 1. A valid operator's, commercial operator's, or chauffeur's driver's license; or 2. A valid personal identificatbn issued by the State of Arizona reflecting that such person is eighteen (18) years of age or ok:ler. [Adopted by Ord. No. 20.0.0.0.6] Section 9-6-26 Hours of operation No sexually oriented business, except for an adult motel, may remain open at any time between the hours of one a.m. (1 :00) and eight a.m. (8:00) on weekdays and Saturdays, and one a.m. (1 :00) and twelve p.m. (12:00) on Sundays. [Adopted by Ord. No. 20.0.0..0.6] Section 9-6-27 Applicability to existing businesses The provisions of this Article shall apply to the activities of all persons and sexually oriented businesses described herein, whether such business or activities were established or commenced before, on or after the effective date of this section, except that the requirements that sexually oriented businesses be separated from certain types of land uses shall not apply to businesses existing on the date of passage of this ordinance. For purposes of this section, a use shall be considered existing or established if it is in existence as of July 18, 2000. [Adopted by Ord. No. 20.0.0..10.] Section 9-6-28 Violations, penalty and abatement A. It shall be unlawful for a person having a duty under this article to knowingly fail to fulfill that duty. B. A person who violates any provision of this article is guilty of a class one misdemeanor. C. In addition to prosecution for a criminal violation of this article, the operation of a sexually oriented business without a valid license shall constitute a nuisance and the Town Attorney may file an action in a court of competent jurisdiction against a Marana Town Code 9-47 MARANA TOWN CODE rev. 2002 person or entity operating or causing to be operated such business for injunctive relief or to abate the nuisance arising out of violation of this ordinance. [Adopted by Ord. No. 2000.10] Article 9-7 LIQUOR LICENSE TAX Section 9.7.1 Exemptions This article is not applicable to wholesalers licensed under AR.S. S 4-209. [Adopted by Ord. No. 96.09] Section 9.7.2 Fees Every person, firm, corporation or other entity applying for a spirituous liquor license, under the provisions of AR.S. S 4-101 et seq., whether it be for an original license or transfer of license, shall tender to the town a fee of fifty dollars ($50.00). Said fee shall be tendered to the town contemporaneous with the filing of an application for original license or transfer of license to the Arizona State Department of Liquor Licenses and Control. [Adopted by Ord. No. 96.09] Article 9.8 CABLE TELEVISION I""'''-'~ Section 9-8.1 Intent A The Town of Marana, pursuant to applicable federal and state law, is authorized to grant one or more nonexclusive Franchises to construct, operate, maintain and reconstruct Cable Television Systems within the Town limits. B. The Town Council finds that the development of Cable Television Systems has the potential of having great benefit and impact upon the residents of Marana. Because of the complex and rapidly changing technology associated with cable television, the Town Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the Town or such Persons as the Town shall designate. It is the intent of this article and subsequent amendments to provide for and specify the means to attain the best possible cable television service to the public and any Franchises issued pursuant to this article shall be deemed to include this finding as an integral part thereof. Section 9.8.2 Definitions For the purpose of this article, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. All capitalized terms used in the definition of any other term shall have their meaning as otherwise defined in this Section 9-8-2. The words "shall" and "will" Marana Town Code 9-48 MARANA TOWN CODE rev. 2002 are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. A. "Basic Cable Service" means any service tier which includes the retransmission of local television broadcast signals. B. "Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. 99 521-611 (1982 & Supp. V 1987), as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. NO.1 02-385, and as may, from time to time, be amended. C. "Cable Service" means: 1. The one-way transmission to Subscribers of video programming or other programming service; and 2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. D. "Cable Television System," "System" or "Cable System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include: 1. A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; 2. A facility that serves Subscribers without using any public rights-of-way; 3. A facility of a common carrier that is subject, in whole or in part, to the provisions of 47 U.S.C. 99 201-226, except that such facility shall be considered a Cable System to the extent that such facility whether on a common carrier basis or otherwise is used in the transmission of video programming directly to Subscribers; or 4. Any facilities of any electric utility used solely for operating its electric utility System. E. "Channel" or "Cable Channel" means a portion of the electromagnetic frequency spectrum that is used in a Cable System and which is capable of delivering a television Channel as defined by the Federal Communications Commission. F. "Council" means the Town Council of the Town of Marana. G. "FCC" means the Federal Communications Commission, its designated representative or its lawful successor. H. "Franchise" means an initial authorization, or renewal thereof, issued by the Town, whether such authorization is designated as a Franchise, permit, license, resolution, Marana Town Code 9-49 MARANA TOWN CODE rev. 2002 contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a Cable System. I. "Franchise Agreement" means a Franchise granted pursuant to this article, containing the specific provisions of the Franchise granted, including references, specifications, requirements and other related matters. J. "Franchise Fee" means any tax, fee or assessment of any kind imposed by the Town or other governmental entity on a Grantee or cable Subscriber, or both, solely because of their status as such. The term "Franchise Fee" does not include: 1. any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable Subscribers); 2. capital costs that are required by the Franchise Agreement to be incurred by the cable operator for public, educational, or Governmental Access Facilities; 3. requirements or charges incidental to the awarding or enforcing of the Franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or 4. any fee imposed under Title 17 of the United States Code. K. "Grantee" means any Person receiving a Franchise pursuant to this article and its agents, employees, officers, designees, or any lawful successor, transferee or assignee. L. "Grantor" or "Town" means the Town of Marana as represented by the Councilor any delegate acting within the scope of its jurisdiction. M. "Gross Annual Receipts" means all revenues derived directly or indirectly by the Grantee or any Person in which the Grantee has a financial interest from or in connection with the operation of the System pursuant to a Franchise granted hereunder, except it shall not include bad debt, sales tax or other taxes or charges imposed on Grantee in addition to its Franchise obligations and collected for direct pass-through to state or federal government. N. "Initial Service Area" means the area of the Town that will receive Cable Service initially, as set forth in any Franchise Agreement. O. "Installation" means the connection of the System to Subscribers' terminals, and the provision of Cable Service. P. "Normal Business Hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "Normal Business Hours" must include some evening hours at least one (1) night per week and/or some weekend hours. Marana Town Code 9-50 MARANA TOWN CODE rev. 2002 a. "Normal Operating Conditions" means those service conditions that are within the control of the Grantee. Those conditions that are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions, and significant legislative or regulatory requirements. Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay-per-view events, regular peak or seasonal demand periods, and maintenance or upgrade of the System. R. "Person" means any natural person or any association, firm, individual, partnership, joint stock company, joint venture, trust, corporation, limited liability company, syndicate, business or other legally recognized entity, private or public, whether for- profit or not-for-profit. S. "Public, Educational or Government Access Facilities" or "PEG Access Facilities" means: 1. Channel capacity designated for public, educational, or governmental use; and 2. Facilities and equipment for the use of such Channel capacity. T. "Section" means any section, subsection, or provision of this article. u. "Service Area" or "Franchise Area" means the entire geographic area within the Town as it is now constituted or may in the future be constituted, unless otherwise specified in the Franchise Agreement. V. "Service Interruption" means the loss of picture or sound on one or more Cable Channels affecting at least ten percent (10%) of the Town's subscribers on the System. W. "State" means the State of Arizona. X. "Street" means each of the following that have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the Town limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the Grantor shall permit to be included within the definition of Street from time to time. Y. "Subscriber" means any Person who or which lawfully elects to subscribe to, for any purpose, Cable Service provided by the Grantee by means of or in connection with the Cable System and who pays the charges therefor, except such Persons or entities authorized to receive Cable Service without charge as described in the Franchise Agreement. Marana Town Code 9-51 MARANA TOWN CODE rev. 2002 Section 9-8-3 Franchise to Install and Operate A Franchise granted by the Town under the provisions of this article shall encompass the following purposes: A. To engage in the business of providing Cable Service, and such other services as may be permitted by the Franchise Agreement. B. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of a Cable System in, on, over, under, upon, along and across Streets or other public places within the designated Service Area. C. To maintain and operate said Franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals for the delivery of Cable Services and any other services permitted by the Franchise Agreement. D. To set forth the obligations of a Grantee under the Franchise Agreement. Section 9-8-4 Franchise Required It shall be unlawful for any Person to construct, install or operate a Cable Television System in the Town within any Street without a properly granted Franchise awarded pursuant to the provisions of this article. Section 9-8-5 Term of the Franchise A. A Franchise granted hereunder shall be for a term established in the Franchise Agreement, commencing with the Grantor's adoption of an ordinance or resolution authorizing the Franchise. B. A Franchise granted hereunder may be renewed upon application by the Grantee pursuant to the provisions of applicable state and federal law and of this article. Section 9-8-6 Franchise Territory Any Franchise shall be valid within all the territorial limits of the Town, and within any area added to the Town during the term of the Franchise, unless otherwise specified in the Franchise Agreement. Section 9-8-7 Federal, State and Town Jurisdiction A. This article shall be construed in a manner consistent with all applicable federal and state laws. B. In the event that the state or federal government discontinues preemption in any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal regulatory authority, Grantor may, Marana Town Code 9-52 MARANA TOWN CODE rev. 2002 if it so elects, adopt rules and regulations in these areas to the extent permitted by law. C. This article shall apply to all Franchises granted or renewed after the effective date of this article. It shall further apply to the extent permitted by applicable federal or state law to all existing Franchises granted prior to the effective date of this article. D. Grantee's rights are subject to the police powers of the Town to adopt and enforce ordinances necessary to the health, safety and welfare of the public. Grantee shall comply with all applicable general laws and ordinances enacted by the Town pursuant to that power. E. Grantee shall not be relieved of its obligation to comply with any of the provisions of this article or any Franchise granted pursuant to this article by reason of any failure of the Town to enforce prompt compliance. F. This article and any Franchise granted pursuant to this article shall be construed and enforced in accordance with the substantive laws of the State of Arizona. Section 9-8-8 Franchise Non-Transferable A. Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, consolidation or otherwise, the Franchise and/or Cable System or any of the rights or privileges granted by the Franchise, without the prior consent of the Council which consent shall not be unreasonably denied or delayed and shall be denied only upon a good faith finding by the Town that the proposed transferee lacks the legal, technical or financial qualifications to perform its obligations under the Franchise Agreement. Any attempt to sell, transfer, lease, assign or otherwise dispose of the Franchise and/or Cable System without the consent of the Council shall be null and void. This provision shall not apply to sales of property or equipment in the normal course of business. No consent from the Town shall be required for a transfer in trust, mortgage, or other instrument of hypothecation, in whole or in part, to secure an indebtedness, or for a pro forma transfer to a corporation, partnership or other entity controlling, controlled by or under common control with Grantee. B. The following events shall be deemed to be a sale, assignment or other transfer of the Franchise and/or Cable System requiring compliance with this Section: 1. The sale, assignment or other transfer of all or a majority of Grantee's assets; 2. The sale, assignment or other transfer of capital stock or partnership, membership or other equity interests in Grantee by one or more of its existing shareholders, partners, members or other equity owners so as to create a new controlling interest in Grantee; 3. The issuance of additional capital stock or partnership, membership or other equity interest by Grantee so as to create a new controlling interest in Grantee; and Marana Town Code 9-53 MARANA TOWN CODE rev. 2002 4. The entry by the Grantee into an agreement with respect to the management or operation of the Grantee and/or the System. The term "Controlling Interest" as used herein means majority equity ownership of the Grantee. C. Except as provided below, no Grantee may sell or otherwise transfer ownership in a Franchise and/or Cable System, without the prior consent of the Council which consent shall not be unreasonable denied or delayed and shall be denied only upon a good faith finding by the Town that the proposed transferee lacks the legal technical or financial qualifications to perform its obligations under the Franchise Agreement following either the acquisition or initial construction of said System by Grantee. In the case of a sale of multiple Systems, if the terms of the sale require the buyer to subsequently transfer ownership of one or more such Systems to one or more third parties, such transfer shall be considered a part of the initial transaction. No consent from the Town shall be required for the following: 1. Any transfer of ownership interest in any Franchise and/or Cable System which is not subject to federal income tax liability; 2. Any sale required by operation of any law or any act of any agency, any state or political subdivision or the Town; or 3. Any sale, assignment, or transfer, to one or more purchasers, assignees, or transferees controlled by, controlling, or under common control with, the seller, assignor, or transferor. D. In the case of any sale or transfer of ownership of any Franchise and/or Cable System following acquisition of such System, the Town shall have one hundred twenty (120) days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with Federal Communications Commission Regulations, the requirements of this article and such other reasonable information as the Town, in its sole discretion, may request. If the Town fails to render a final decision on the request within one hundred twenty (120) days from receipt by the Town of all required information, such request shall be deemed granted unless the requesting party and the Town agree to an extension of time. E. Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the Franchise property of the Grantee or upon the termination of any lease or interest covering all or a substantial part of said Franchise property. Such notification shall be considered by Grantor as notice that a change in control of ownership of the Franchise has taken place and the provisions under this Section governing the consent of Grantor to such change in control of ownership shall apply. F. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, Grantor may inquire into the legal, financial, and technical qualifications of the prospective transferee or controlling party, and Grantee shall assist Grantor in any such inquiry. The transferee shall be required to establish that Marana Town Code 9-54 MARANA TOWN CODE rev. 2002 it possesses the legal, technical and financial qualifications to operate and maintain the System and comply with all Franchise requirements for the remainder of the term of the Franchise. If, after considering the legal, financial, and technical qualities of the applicant and determining that they are satisfactory, the Grantor finds that such transfer is acceptable, the Grantor shall transfer and assign the rights and obligations of such Franchise. The consent of the Grantor to such transfer shall not be unreasonably denied. G. Any financial institution having a pledge of the Grantee or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor shall take control of and operate the Cable Television System, in the event of a Grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation within thirty (30) days of assuming such control that will insure continued service and compliance with all Franchise requirements during the term the financial institution exercises control over the System. The financial institution shall not exercise control over the System for a period exceeding one (1) year unless extended by the Grantor in its discretion and during said period of time it shall have the right to petition the Grantor to transfer the Franchise to another Grantee. Section 9-8-9 Purchase by Town Upon Expiration or Revocation A. If, subject to the provisions of the Cable Act, a renewal of a Franchise is denied, the Town may purchase to the extent permitted by Federal law and upon payment to the Grantee of the Cable Systems' fair market value as a going concern, exclusive of any value allocated to the Franchise itself, that portion of Grantee's Cable System serving the Town of Marana. B. Subject to the Cable Act, if a Franchise is revoked for cause, the Town may, to the extent permitted by Federal law, acquire that portion of the Cable System serving the Town of Marana upon payment of an equitable price. Section 9-8-10 Geographical Coverage A. Grantee shall design, construct and maintain the Cable Television System to have the capability to pass every dwelling unit in the Service Area, subject to any line extension requirements of the Franchise Agreement. B. After service has been established by activating trunk and/or distribution cables for any part of the Service Area, Grantee shall provide Cable Service to any requesting Subscriber within that Service Area within thirty (30) days from the date of request, provided that the Grantee is able to secure all rights-of-way necessary to extend service to such Subscriber within such thirty (30) day period on reasonable terms and conditions. Marana Town Code 9-55 MARANA TOWN CODE rev. 2002 Section 9-8-11 Nonexclusive Franchise Any Franchise granted shall be nonexclusive. The Grantor specifically reserves the right to grant, at any time, such additional Franchises for a Cable Television System or any component thereof, as it deems appropriate, subject to applicable state and federal law, provided, however, that no Franchise shall be granted on terms materially less burdensome or more favorable than any other Franchise granted hereunder. Section 9-8-12 Multiple Franchises A. Grantor may grant one or more Franchises for a Service Area. Grantor may, in its sole discretion, limit the number of Franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations; such as: 1. The capacity of the public rights-of-way to accommodate multiple coaxial cables in addition to the cables, conduits and pipes of the utility Systems, such as electrical power, telephone, gas and sewerage. 2. The impact on the community of having multiple Franchises. 3. The disadvantages that may result from Cable System competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations of the rights-of-way. 4. The financial capabilities of the applicant and its guaranteed commitment to make necessary investment to erect, maintain and operate the proposed System for the duration of the Franchise term. B. Each Grantee awarded a Franchise to serve the entire Town shall offer service to all residences in the Town, in accordance with construction and service schedules mutually agreed upon between Grantor and Grantee, and consistent with applicable law. C. Developers of new residential housing with underground utilities shall provide conduit to accommodate cables for at least two (2) Cable Systems in accordance with the provisions of Section 9-8-19(0). D. Grantor may require that any new Grantee be responsible for its own underground trenching and the costs associated therewith, if, in Grantor's opinion, the rights-of- way in any particular area cannot feasibly and reasonably accommodate additional cables. E. Any additional Franchise granted by the Town to provide Cable Service in a part of the Town in which a Franchise has already been granted and where an existing Grantee is providing service shall require the new Grantee to provide service throughout its Service Area within a reasonable time and in a sequence which does not discriminate against lower income residents. Marana Town Code 9-56 MARANA TOWN CODE rev. 2002 Section 9-8-13 Initial Franchise Applications Any Person desiring an initial Franchise for a Cable Television System shall file an application with the Town. A reasonable nonrefundable application fee established by the Town shall accompany the application. Such application fee shall not be deemed to be "Franchise Fees" within the meaning of Section 622 of the Cable Act (47 U.S.C. S 542), and such payments shall not be deemed to be (i) "payments in kind" or any involuntary payments chargeable against the compensation to be paid to the Town by Grantee pursuant to Section 9-8-18 hereof and applicable provisions of a Franchise Agreement, or (ii) part of the compensation to be paid to the Town by Grantee pursuant to Section 9-8-18 hereof and applicable provisions of a Franchise Agreement. An application for an initial Franchise for a Cable Television System shall contain, where applicable: A. A Statement as to the proposed Franchise and Service Area. B. Resume of prior history of applicant, including the legal, technical and financial expertise of applicant in the cable television field. C. List of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each shareholder, if a corporation. D. List of officers, directors and managing employees of applicant, together with a description of the background of each such Person. E. The names and addresses of any parent or subsidiary of applicant or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by applicant. F. A current financial Statement of applicant verified by a CPA audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the Town. G. Proposed construction and service schedule. H. Any additional information that the Town deems applicable. Section 9-8-14 Consideration of Initial Applications A. Upon receipt of any application for an initial Franchise, the Town Manager shall prepare a report and make his recommendations respecting such application to the Town Council. B. A public hearing shall be set prior to any initial Franchise grant, at a time and date approved by the Council. Within thirty (30) days after the close of the hearing, the Council shall make a decision based upon the evidence received at the hearing as to whether or not the Franchise(s) should be granted, and, if granted, subject to what conditions. The Council may grant one (1) or more initial Franchises, or may decline to grant any Franchise. Marana Town Code 9-57 MARANA TOWN CODE rev. 2002 Section 9-8-15 Franchise Renewal Franchise renewals shall be in accordance with applicable law including, but not necessarily limited to the Cable Communications Policy Act of 1984, as amended. Grantor and Grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the Franchise. Section 9-8-16 Consumer Protection and Service Standards A. Except as otherwise provided in the Franchise Agreement, Grantee shall maintain a local office or offices to provide the necessary facilities, equipment and personnel to comply with the following consumer protection standards under Normal Operating Conditions: 1. Cable System office hours and telephone availability: i. Grantee will maintain a local, toll-free or collect call telephone access line which will be available to its Subscribers twenty-four (24) hours a day, seven (7) days a week. (1) Trained Grantee representatives will be available to respond to customer telephone inquiries during Normal Business Hours. (2) After Normal Business Hours, the access line may be answered by a service or an automated response System, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained Grantee representative on the next business day. ii. Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less then ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis. iii. The Grantee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. iv. Under Normal Operating Conditions, the customer will receive a busy signal less than three percent (3%) of the time. v. Customer service center and bill payment locations will be open at least during Normal Business Hours and will be conveniently located. Marana Town Code 9-58 MARANA TOWN CODE rev. 2002 Marana Town Code 2. Installations, outages and service calls. Under Normal Operating Conditions, each of the following four standards will be met no less than ninety-five percent (95%) of the time measured on a quarterly basis: i. Standard Installations will be performed within seven (7) business days after an order has been placed. "Standard" Installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution System. ii. Excluding conditions beyond the control of Grantee, Grantee will begin working on "Service Interruptions" promptly and in no event later than 24 hours after the interruption becomes known. The Grantee must begin actions to correct other service problems the next business day after notification of the service problem. iii. At the subscriber's request, the "appointment window" alternatives for Installations, service calls, and other Installation activities will be within a two to four hour time block during Normal Business Hours. (The Grantee may schedule service calls and other Installation activities outside of Normal Business Hours for the express convenience of the customer.) iv. Grantee may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. v. If Grantee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time that is convenient for the customer. 3. Communications between Grantee and cable Subscribers: i. Notifications to Subscribers: (1) The Grantee shall provide written information on each of the following areas at the time of Installation of service, at least annually to all Subscribers, and at any time upon request: (a) Products and services offered; (b) Prices and options for programming services and conditions of subscription to programming and other services; (c) Installation and service maintenance policies; (d) Instructions on how to use the Cable Service; 9-59 MARANA TOWN CODE rev. 2002 (e) Channel positions for programming carried on the System; and (f) Billing and complaint procedures, including the address and telephone number of the Town's cable office. (2) Customers will be notified of any changes in rates, programming services or Channel positions as soon as possible through announcements on the Cable System and in writing. Notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Grantee. In addition, the Grantee shall notify Subscribers thirty (30) days in advance of any significant changes in the other information required by the preceding paragraph. ii. Billing: (1) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (2) In case of a billing dispute, the Grantee must respond to a written complaint from a Subscriber within thirty (30) days. iii. Refunds: Refund checks will be issued promptly, but no later than either: (1) The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (2) The return of the equipment supplied by the Grantee if service is terminated. iv. Credits: Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. Section 9-8-17 Rate Regulation A. The Town reserves the right to regulate rates for Basic Cable Service and any other services offered over the Cable System, to the extent permitted by federal or state law. The Grantee shall be subject to the rate regulation provisions provided for herein, and those of the FCC at 47 C.F.R., Part 76.900, Subpart N. The Town shall follow the rules relating to cable rate regulation promulgated by the FCC at 47 C.F.R., Part 76.900, Subpart N. Marana Town Code 9-60 MARANA TOWN CODE rev. 2002 B. Except to the extent otherwise expressly permitted by applicable law, Grantee shall provide Cable Service to each resident within the Service Area at a uniform rate. Section 9-8-18 Franchise Fee A. Following the issuance and acceptance of a Franchise, the Grantee shall pay to the Grantor a Franchise Fee in the amount set forth in the Franchise Agreement. B. The Grantor, on an annual basis, shall be furnished a Statement within sixty (60) days of the close of the calendar year, certified by an officer of the Grantee or audited by a Certified Public Accountant, reflecting the total amounts of gross annual revenues and all payments, and computations for the previous calendar year. Upon ten (10) days prior written notice, Grantor shall have the right to conduct an independent audit of Grantee's records, in accordance with generally accepted accounting principles and if such audit indicates a Franchise Fee underpayment of ten percent (10%) or more, the Grantee shall assume all reasonable costs of such an audit. C. Except as otherwise provided by law, no acceptance of any payment by the Grantor shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have for further or additional sums payable as a Franchise Fee under this article or any Franchise Agreement or for the performance of any other obligation of the Grantee. D. In the event that any Franchise Fee payment or recomputed amount is not made on or before the dates specified in the Franchise Agreement, Grantee shall pay as additional compensation an interest charge, computed from such due date, at an annual rate equal to the prime lending rate plus one and one-half percent (1-1/2%) during the period for which payment was due. E. Franchise Fee payments shall be made in accordance with the schedule indicated in the Franchise Agreement. Section 9-8-19 Design and Construction Requirements A. Grantee shall not construct any Cable System facilities until Grantee has secured, at its own expense, all necessary permits, licenses or other forms of approval or authorization from Grantor and other cognizant public agencies. B. In those areas of the Town where transmission or distribution facilities of all the public utilities providing telephone and electric power service are underground, the Grantee likewise shall construct, operate and maintain its transmission and distribution facilities therein underground. C. In those areas of the Town where Grantee's cables are located on the above- ground transmission or distribution facilities of the public utility providing telephone or electric power service, and in the event that the facilities of both such public utilities subsequently are placed underground, then the Grantee likewise shall construct, operate and maintain its transmission and distribution facilities underground, at Grantee's cost. Certain of Grantee's equipment, such as pedestals, 1'*"--' Marana Town Code 9-61 MARANA TOWN CODE rev. 2002 amplifiers and power supplies, which normally are placed above ground, may continue to remain in above-ground closures. D. In new residential developments in which all the electric power and telephone utilities are underground, the following procedure shall apply with respect to access to and utilization of underground easements: 1. The developer shall be responsible for contacting and surveying all Franchised cable operators to ascertain which operators desire (or, pursuant to the terms and provisions of this article and any Franchise Agreement, may be required) to provide Cable Service to that development. The developer may establish a reasonable deadline to receive cable operator responses. The final development map shall indicate the cable operators that have agreed to serve the development. 2. If one (1) or two (2) cable operators wish to provide service, they shall be accommodated in the joint utilities trench on a nondiscriminatory shared basis. If fewer than two (2) operators indicate interest, the developer shall provide conduit to accommodate two (2) sets of cable television cables and dedicate to the Town any initially unoccupied conduit. The developer shall be entitled to recover from Grantor the cost of such initially unoccupied conduit in the event that Grantor subsequently leases or sells occupancy or use rights to any Grantee. 3. The developer shall provide at least ten (10) working days notice of the date that utility trenches will be open to the cable operators that have agreed to serve the development. When the trenches are open, cable operators shall have two (2) working days to begin the Installation of their cables, and five (5) working days after beginning Installation to complete Installation. 4. The final development map shall not be approved until the developer submits evidence that: i. It has notified each Grantee that underground utility trenches are to open as of an estimated date, and that each Grantee will be allowed access to such trenches, including trenches from proposed Streets to individual homes or home sites, on specified nondiscriminatory terms and conditions; and ii. It has received a written notification from each Grantee that the Grantee intends to install its facilities during the open trench period on the specified terms and conditions, or such other terms and conditions as are mutually agreeable to the developer and Grantee, or has received no reply from a Grantee within ten (10) days after its notification to such Grantee, in which case the Grantee will be deemed to have waived its opportunity to install its facilities during the open trench period. 5. Sharing the joint utilities trench shall be subject to compliance with state regulatory agency and utility standards. If such compliance is not possible, Marana Town Code 9-62 MARANA TOWN CODE rev. 2002 the developer shall provide a separate trench for the cable television cables, with the entire cost shared among the participating cable operators. With the concurrence of the developer, the affected utilities and the cable operators, alternative Installation procedures, such as the use of deeper trenches, may be utilized, subject to applicable law. 6. Any cable operator wishing to serve an area where the trenches have been closed shall be responsible for its own trenching and associated costs and shall repair all property to the condition which existed prior to such trenching. E. Grantee shall remove, replace or modify at its own expense the installation of any of its facilities within any Street when required to do so by the Town to allow the Town to change, maintain, repair, improve or eliminate a Street. Nothing in this section shall prevent Grantee from seeking and obtaining reimbursement from sources other than the Town. F. At the request of any person holding a valid building moving permit and upon sufficient notice, Grantee shall temporarily raise or lower its wires as necessary to facilitate such move upon not less than seventy-two (72) hours advance notice. The direct expense of such temporary changes, including standby time, shall be paid by the holder of the moving permit and Grantee may require payment in advance. Section 9-8-20 Technical Standards A. The Grantee shall construct, install, operate and maintain its System in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, Federal Communications Commission technical standards, and any standards set forth in its Franchise Agreement. In addition, the Grantee shall provide to the Grantor, upon request, a written report of the results of the Grantee's periodic proof of performance tests conducted pursuant to Federal Communications Commission standards and guidelines. B. Repeated and verified failure to maintain specified technical standards shall constitute a material Franchise violation. C. All construction practices shall be in accordance with all applicable Sections of the Occupational Safety and Health Act of 1970, as amended, as well as all other applicable local, state and federal laws and regulations. D. All Installation of electronic equipment shall be installed in accordance with the provisions of the National Electrical and Safety Code and National Electrical Code, as amended, and as may from time to time be amended. E. Antennae and their supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable local, state and federal laws and regulations. F. All of Grantee's plant and equipment, including, but not limited to, the antenna site, headend and distribution system, towers, house connections, structures, poles, Marana Town Code 9-63 MARANA TOWN CODE rev. 2002 tl',....~.. wire, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements that the Town may deem appropriate to make, or to interfere in any manner with the rights or reasonable convenience of any property owner, or to unnecessarily hinder or obstruct public use of the Streets or pedestrian or vehicular traffic. G. Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. Section 9-8-21 Trimming of Trees Grantee shall have the authority to trim trees, in accordance with all applicable utility restrictions, ordinance and easement restrictions, upon and hanging over Streets, alleys, sidewalks, and public places of the Town so as to prevent the branches of such trees from coming in contact with the wires and cables of Grantee. Town representatives shall have authority to supervise and approve all trimming of trees conducted by Grantee. Section 9-8-22 Use of Grantee Facilities The Town shall have the right to install and maintain, free of charge, upon the poles and within the underground pipes and unused conduits, any wires and fixtures desired by the Town to the extent that such Installation and maintenance does not interfere with existing operations and future use of Grantee. Section 9-8-23 Hold Harmless A. Grantee, under any Franchise operated pursuant to this article, shall agree to indemnify, hold harmless, release and defend the Town, its officers, boards, commissions, agents and employees from and against any and all lawsuits, claims, causes of action, actions, liability, demands, damages, disability, losses, expenses, including reasonable attorneys' fees and costs or liabilities of any nature that may be asserted by any Person resulting or in any manner arising from the action or inaction of the Grantee in constructing, operating, maintaining, repairing or removing the System, in carrying on Grantee's business or operations in the Town or in exercising or failing to exercise any right or privilege granted by the Franchise. This indemnity shall apply, without limitation, to any action or cause of action for invasion of privacy, defamation, antitrust, errors and omissions, theft, fire, violation or infringement of any copyright, trademark, trade names, service mark or patent, or any other right of any Person, firm or corporation, whether or not any act or omission complained of is authorized, allowed or prohibited by this article or any Franchise Agreement, but shall not include any claim or action arising out of the actions or omissions of Town officers, employees or agents or related to any Town programming or other access programming for which the Grantee is not legally responsible. Marana Town Code 9-64 MARANA TOWN CODE rev. 2002 B. The Town shall promptly notify Grantee of any claims subject to indemnification by Grantee and shall cooperate with all reasonable requests by Grantee for information, documents, testimony or other assistance appropriate to a resolution of such claims. Grantee shall have full responsibility for and control of any action or undertaking directed at the resolution of such claims. Section 9-8-24 Insurance Grantee shall provide insurance as specified in the Franchise Agreement. Section 9-8-25 Records Required and Grantor's Right to Inspect A. Grantee shall at all times maintain: 1. A full and complete set of plans, records and "as-built" maps showing the location of the Cable Television System installed or in use in the Town, exclusive of Subscriber service drops and equipment provided in Subscribers' homes. 2. If requested by Grantor, a summary of service calls, identifying the number, general nature and disposition of such calls, on a monthly basis. A summary of such service calls shall be submitted to the Grantor within thirty (30) days following its request in a form reasonably acceptable to the Grantor. B. Upon forty-eight (48) hours written notice, and during Normal Business Hours, Grantee shall permit examination by any duly authorized representative of the Grantor, of all Franchise property and facilities, together with any appurtenant property and facilities of Grantee situated within the Town, and all records relating to the Franchise, provided they are necessary to enable the Grantor to carry out its regulatory responsibilities under local, state and federal law, this article and the Franchise Agreement. Such records include all books, records, maps, plans, financial Statements, service complaint logs, performance test results, records of request for service, and other like materials of Grantee. Grantee shall have the right to be present at any such examination. I""""'" C. If any of the records described in the previous subsection are proprietary in nature or must be kept confidential by state, federal or local law, upon proper request by Grantee, such information obtained during such an inspection shall be treated as confidential. To the extent that any state or federal law requires Grantor to disclose any such records, the Grantor shall be entitled to disclose those records. D. Copies of all petitions, applications, communications and reports submitted by Grantee, or on behalf of or relating to Grantee, to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction with respect to any matters affecting the Cable System authorized pursuant to this article and any Franchise shall be made available to the Town upon request. Copies of responses from the regulatory agencies to Grantee shall likewise be furnished to the Town upon req uest. I~""'IO-' Marana Town Code 9-65 MARANA TOWN CODE rev. 2002 Section 9-8-26 Annual Reports ,.... A. Grantee shall submit a written end of the year report to Grantor with respect to the preceding calendar year containing the following information 1. A Summary of the previous year's (or in the case of the initial reporting year, the initial year's) activities in development of the Cable System, including but not limited to, services begun or discontinued during the reporting year. 2. A list of Grantee's officers, members of its board of directors, and other principals of Grantee. 3. A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in Grantee. 4. Information as to the number of Subscribers and the number of basic and pay service Subscribers. 5. The Town, including its agents and representatives, shall have the authority, during Normal Business Hours, to arrange for and conduct an inspection of Annual Reports required pursuant to this article or a Franchise Agreement. The Town shall give the Grantee seventy-two (72) hours written notice of the inspection request. 6. If the requested information is proprietary in nature or must be kept confidential by state, federal or local law, upon proper request by Grantee, such information obtained during such an inspection shall be treated as confidential. To the extent that any state or federal law requires Grantor to disclose any such records, the Grantor shall be entitled to disclose those records. -ir-- B. All reports and records required under this article shall be furnished at the sole expense of Grantee, except as otherwise provided in this article or the Franchise Agreement. Section 9-8-27 Franchise Violation If Grantee fails to perform in a timely manner any material obligation required by this article or a Franchise granted hereunder, following notice from the Grantor and an opportunity to cure such nonperformance, Grantor may act to remedy such violation in accordance with the following procedures: A. Grantor shall notify Grantee of any alleged material violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than ten (10) business days in the case of the failure of the Grantee to pay any sum or other amount due the Grantor under this article or the Grantee's Franchise and thirty (30) days in all other cases. B. If Grantee fails either to correct the violation within the time prescribed or to commence correction of the violation within the time prescribed and thereafter after Marana Town Code 9-66 MARANA TOWN CODE rev. 2002 diligently pursue correction of such violation, the Grantor shall then give written notice of not less than twenty (20) business days of a public hearing to be held before the Council. Said notice shall specify the violations alleged to have occurred. C. At the public hearing, the Council shall hear and consider relevant evidence and thereafter render findings and its decision. In the event that the Council finds that a material violation exists and that Grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from Grantor and is not diligently proceeding to fully remedy such violation, the Council may revoke the Franchise or impose another penalty permitted by the Franchise agreement. D. The Grantor shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth with specificity the exact nature of the noncompliance. The Grantee shall have sixty (60) days from the receipt of the notice to object in writing and to state its reasons for such objection. In the event the Grantor has not received a satisfactory response from the Grantee, it may then seek termination of the Franchise at a public hearing. The Grantor shall cause to be served upon the Grantee, at least ten (10) days prior to the public hearing, a written notice specifying the time and place of the hearing and stating its intent to request termination of the Franchise. E. At the hearing, the Grantor shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the Franchise shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The decision of the Grantor shall be in writing and shall be delivered to the Grantee. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the Grantor and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the Grantor. '1".""'''+ Section 9.8.28 Force Majeure: Grantee's Inability to Perform In the event Grantee's performance of any of the terms, conditions or obligations required by this article or a Franchise grant hereunder is prevented by a cause or event not within Grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof. For the purpose of this Section, causes or events not within the control of Grantee shall include without limitation acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, failure or loss of utilities, explosion, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires. Marana Town Code 9-67 MARANA TOWN CODE rev. 2002 Section 9-8-29 Abandonment or Removal of Franchise Property I,i<~, A. In the event that the use of any property of Grantee within the Franchise Area or a portion thereof is discontinued for a continuous period of twelve (12) months, Grantee shall be deemed to have abandoned that Franchise property. B. Grantor, upon such terms as Grantor may impose, may give Grantee permission to abandon, without removing, any System facility or equipment laid, directly constructed, operated or maintained under the Franchise. Unless such permission is granted or unless otherwise provided in this article, the Grantee shall remove all abandoned above-ground facilities and equipment upon receipt of written notice from Grantor and shall restore any affected Street to its former state at the time such facilities and equipment were installed, so as not to impair its usefulness. In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles or attachments. Grantor shall have the right to inspect and approve the condition of the public ways, public places, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this article and any security fund provided in the Franchise shall continue in full force and effect during the period of removal and until full compliance by Grantee with the terms and conditions of this Section. C. Upon abandonment of any Franchise property in place, the Grantee, if required by the Grantor, shall submit to Grantor an instrument, satisfactory in form to the Grantor, transferring to the Grantor the ownership of the Franchise property abandoned. D. At the expiration of the term for which the Franchise is granted, or upon its revocation or earlier expiration, as provided for herein, in any such case without renewal, extension or transfer, the Grantor shall have the right to require Grantee to remove, at its own expense, all above-ground portions of the Cable Television System from all Streets and public ways within the Town within a reasonable period of time, which shall not be less than one hundred eighty (180) days. E. Notwithstanding anything to the contrary set forth in this article, the Grantee may abandon any underground Franchise property in place so long as it does not materially interfere with the use of the Street or public rights-of-way in which such property is located or with the use thereof by any public utility or other cable Grantee. Section 9-8-30 Extended Operation and Continuity of Services Upon either expiration or revocation of the Franchise, the Grantor shall have discretion to permit and/or require Grantee to continue to operate the Cable Television System for an extended period of time not to exceed six (6) months from the date of such expiration or revocation. Grantee shall continue to operate the System under the terms and conditions of this article and the Franchise and to provide the regular Subscriber service and any and all of the services that may be provided at that time. Marana Town Code 9-68 MARANA TOWN CODE rev. 2002 Section 9-8-31 Receivership and Foreclosure A. A Franchise granted hereunder shall, at the option of Grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of Grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: 1. Such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this article and the Franchise granted pursuant hereto, and the receivership or trustees within said one hundred twenty (120) days shall have remedied all the faults under the Franchise or provided a plan for the remedy of such faults which is satisfactory to the Grantor; and 2. Such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the Franchise granted. B. In the case of a foreclosure or other judicial sale of the Franchise property, or any material part thereof, Grantor may serve notice of termination upon Grantee and the successful bidder at such sale, in which event the Franchise granted and all rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless: 1. Grantor shall have approved the transfer of the Franchise, as and in the manner that this article provides; and 2. Such successful bidder shall have covenanted and agreed with Grantor to assume and be bound by all terms and conditions of the Franchise. Section 9-8-32 Rights Reserved to Grantor A. In addition to any rights specifically reserved to the Grantor by this article, the Grantor reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under the Franchise. B. The Grantor shall have the right to waive any provision of the Franchise, except those required by federal or state regulation, if the Grantor determines (1) that it is in the public interest to do so, and (2) that the enforcement of such provision will impose an undue hardship on the Grantee orthe Subscribers. To be effective, such waiver shall be evidenced by a Statement in writing signed by a duly authorized representative of the Grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the Franchise unless the Statement so recites. Marana Town Code 9-69 MARANA TOWN CODE rev. 2002 Section 9-8-33 Rights of Individuals A. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers, Channel users, or general citizens on the basis of race, color, religion, national origin, age, disability, gender or sexual preference. Nor shall Grantee fail to extend service to any part of the Town within its licensed Service Area on the basis of the income of the residents. Grantee shall comply at all times with all other applicable federal, state and local laws and regulations, relating to nondiscrimination. B. Grantee shall adhere to the applicable equal employment opportunity requirements of federal, state and local regulations. C. Neither Grantee, nor any Person, agency, or entity shall, without the Subscriber's consent, tap or arrange for the tapping, of any cable, line, signal input device, or Subscriber outlet or receiver for any purpose except routine maintenance of the System, detection of unauthorized service, polling with audience participating, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified. D. In the conduct of providing its services or in pursuit of any collateral commercial enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the invasion of a Subscriber's or general citizen's right of privacy or other personal rights through the use of the System as such rights are delineated or defined by applicable law. Grantee shall not, without lawful court order or other applicable valid legal authority, utilize the System's interactive two-way equipment or capability for unauthorized personal surveillance of any Subscriber or general citizen. E. No cable line, wire amplifier, converter, or other piece of equipment owned by Grantee shall be installed by Grantee in the Subscriber's premises, other than in appropriate easements, without first securing any required consent. If a Subscriber requests service, permission to install upon Subscriber's property shall be presumed. Where a property owner or his predecessor has granted an easement including a public utility easement or a servitude to another and the servitude by its terms contemplates a use such as Grantee's intended use, Grantee shall not be required to obtain the written permission of the owner for the Installation of cable television equipment. Section 9-8-34 Conflicts In the event of a conflict between any provision of this article and a Franchise Agreement entered pursuant to it, the provisions of this article shall control, except as may be specifically otherwise provided in the Franchise Agreement. Section 9-8-35 Severability If any provision of this article is held by any court or by any federal or state agency of competent jurisdiction to be invalid as conflicting with any federal or state law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, such Marana Town Code 9-70 MARANA TOWN CODE rev. 2002 provision shall be considered a separate, distinct, and independent part of this article, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof which had been held invalid or modified is no longer in conflict with such law, rule or regulation, said provision shall thereupon return to full force and effect and shall thereafter be binding on Grantor and Grantee, provided that Grantor shall give Grantee thirty (30) days written notice of such change before requiring compliance with said provision or such longer period of time as may be reasonably required for Grantee to comply with such provision. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10; revised by Res. No. 2002-144 and Ord No. 2002.29] Article 9-9 SURFACE MINING AND LAND RECLAMATION Section 9-9-1 Purpose and Intent It is the purpose and intent of this article to establish an effective and comprehensive surface mining and reclamation policy including regulation of surface mining operations so as to assure that: A. Adverse environmental effects are prevented or minimized and that mined lands are reclaimed in a timely manner, to a usable condition which is readily adapted for alternative land use. B. The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment. C. Residual hazards to public health and safety are eliminated. Section 9-9-2 Definitions For the purposes of this article the following definitions shall apply: A. "Financial assurance amount" means that amount of money necessary to conduct a complete reclamation on the mined lands in accordance with the approved reclamation plan, plus a reasonable estimate of the administrative costs and expenses which would be incurred by the Town of Marana. B. "Financial assurance" means a bond, instrument, fund or other form of financial assurance acceptable to the Town. C. "Government mine" means any surface mine owned and operated by federal, state or local governmental entity. D. "Idle" means to curtail for a period of one year or more surface mining operations by more than 90 percent of the operation's previous maximum annual mineral production, with the intent to resume those surface mining operations at a future date. Marana Town Code 9-71 MARANA TOWN CODE rev. 2002 E. "Interim management plan" is the plan which the operator of an idle mine shall submit and gain approval for, in order to assure that the site shall be maintained in compliance with the approved reclamation plan, use permit, and applicable conditions, until the mine operation is resumed or the mine is fully reclaimed in accordance with the approved reclamation plan. F. "Mined lands" includes the surface, subsurface, and groundwater of an area in which surface mining operations will be, are being, or have been conducted, including private ways and roads appurtenant to any such area, land excavations, workings, mining waste, and areas in which structures, facilities, equipment, machines, tools, or other materials or property which result from, or are used in, surface mining operations are located. G. "Minerals" means any naturally occurring compound, or groups of elements and compounds, formed from inorganic processes and organic substances, including, but not limited to sand, gravel and rock. H. "Mining waste" includes the residual of soil, rock, mineral, liquid, vegetation, equipment, machines, tools, or other materials or property directly resulting from, or displaced by, surface mining operations, excluding stockpiles as defined herein. I. "Operator" means any person who is engaged in surface mining operations himself, or who contracts with others to conduct operations on his behalf, except a person who is engaged in surface mining operations as an employee with wages as his sole compensation. J. "Overburden" means soil, rock, or other materials that lie above a natural mineral deposit or in between deposits, before or after their removal by surface mining operations. K. "Person" includes any individual, firm, association, corporation, organization, or partnership, or any city, county, district, or the state or any department or agency thereof. L. "Pledge of revenue" means a financial assurance mechanism by which a governmental entity proposes to make specific, identified future revenue available to perform reclamation pursuant to the approved reclamation plan. M. "Reclamation" means the combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion, or other adverse effects from mining operations, including adverse surface effects incidental to underground mines, so that mined lands are reclaimed to a usable condition which is readily adaptable for alternate land use and creates no danger to public health or safety. The process may extend to affected lands surrounding mined lands, and may require backfilling, grading, resoiling, revegetation, soil compaction, stabilization, restoration of water bodies, and slope stability or other measures. N. "Reclamation plan" means the plan required by the Town pursuant to this article and adopted in accordance therewith and should include beginning and estimated Marana Town Code 9-72 MARANA TOWN CODE rev. 2002 ending dates for each phase, all reclamation activities required, criteria for measuring completion of activities and estimated costs for each phase of reclamation. O. "Sand and gravel operation" means any operation the principal product of which is sand, gravel, pumice or any other common variety of mineral. P. "Stockpile" means a volume of stored mined material which is residual or secondary material extracted during a surface mining operation and which has a demonstrated future economic value sufficient to warrant its protection and preservation. a. "Surface mining operations" means all, or part of, the process involved in the mining of minerals on mined lands by removing overburden and mining directly from the mineral deposits, open-pit mining of minerals naturally exposed, mining by auger methods, dredging, and quarrying. Surface mining operations include, but are not limited to: 1. In place distillation, retorting or leaching. 2. The producing and disposal of mining wastes. 3. Prospecting and exploratory activities. 4. Borrow pitting, streambed skimming, segregation and stockpiling of mined materials (and recovery of same). Section 9-9-3 Scope A. The provisions of this article shall apply to all the incorporated areas of the Town. B. The provisions of this article are not applicable to: 1. Excavation or grading for farming, onsite construction, or restoration of land following a flood or natural disaster or other activities separately regulated by Town ordinances. 2. Reclamation of lands mined prior to February 5, 2002, unless subject to approved development agreements and zoning conditions enacted or agreed to after February 5, 2002. 3. Surface mining operations that are required by federal law in order to protect a mining claim, if those operations are conducted solely for that purpose. 4. Prospecting for, or the extraction of, minerals for commercial purpose and the removal of overburden in total amounts of less than one thousand cubic yards in anyone location of one acre or less. Marana Town Code 9-73 MARANA TOWN CODE rev. 2002 Section 9-9-4 Reclamation Plan Requirements A. Any person who proposes to engage in a surface mining activity shall, prior to the commencement of the operations, obtain approval of a permit to mine, submit a reclamation plan, and have financial assurances in place sufficient to implement the approved plan. Approval to mine and approval of the reclamation plan, in accordance with the provisions set forth in this article, shall be obtained from the Marana Development Services Director. B. The reclamation plan shall be applicable to a specific piece of property or properties, shall be based upon the character of the surrounding area and such characteristics of the property as type of overburden, soil stability, topography, geology, climate, stream characteristics, and principal mineral commodities, and shall establish site- specific criteria for evaluating compliance with the approved reclamation plan, including topography, revegetation, sediment and erosion control, and current and proposed zoning. The reclamation plan shall include a certification by the operator that all public agencies having possible jurisdiction over the surface mining activity, including but not limited to county, state and federal agencies, have reviewed and approved the plan, and that all necessary permits have been obtained. C. Reclamation plans issued pursuant to this article shall be recorded with the county recorder and shall run with the land affected thereby and shall be binding on all successors, heirs, and assigns of the permittee. D. Applicants having a surface mining operation that involves separate, noncontiguous parcels of land may file one reclamation plan for the entire operation covering each parcel of land, provided that the type of operation is the same on each parcel of land and each parcel of land is identified in the reclamation plan. A separate phasing schedule shall be required for each parcel. Section 9-9-5 Application All applications for a reclamation plan for any mining operation shall be made on forms provided by Town Development Services Department. The application shall be filed in accordance with this article and procedures established by the Town. Section 9-9-6 Fees A. The fees for a reclamation plan, amendment to reclamation plan, and Interim Management Plan shall be as the same as those set forth in the Town fee schedule for development plans, and shall be paid to the Development Services Department at the time of filing of the reclamation plan amendment to reclamation plan, or interim management plan. B. A business license fee shall be paid the Town of Marana for inspections and monitoring of a surface mine as set forth in section 9-1-3 of the Marana Town Code. Marana Town Code 9-74 MARAN A TOWN CODE rev. 2002 r<- Section 9.9.7 Financial Assurances A. In order to ensure that reclamation will proceed in accordance with the approved Reclamation Plan, the Town shall require as a condition of approval financial assurances. B. Financial assurances may take the form of surety bonds, irrevocable letters of credit, trust funds or other mechanisms acceptable to the Town. C. Public Agencies may satisfy financial assurance requirements by using "Pledges of Revenue" or "Budget Set Aside" as acceptable financial assurances mechanisms. D. The financial assurances shall remain in effect for the duration of the surface mining operation and any additional period until reclamation is completed. E. The amount of the financial assurances shall be calculated by the applicant based on the projected expense to complete the reclamation for the intended future use as approved by the Development Services Director. Approval of the amount of financial assurances will be subject to the review and approval of the Development Services Director. F. The amount of financial assurances required of a surface mining operation for any one year shall be adjusted annually to account for new lands disturbed by surface mining operations, inflation, and reclamation of lands accomplished in accordance with the approved reclamation plan. G. The financial assurances shall be made payable to the Town of Marana. However, if a surface mining operation has received approval of its financial assurances from a public agency other than the Town, the Town shall review those financial assurances to ascertain whether they are adequate for purposes of this section, or shall credit them toward fulfillment of the financial assurances required by this section, if they are made payable to the Town of Marana. H. If a sand and gravel surface mining operation is sold or ownership is transferred to another person, the existing financial assurances shall remain in force and shall not be released by the Town of Marana until new financial assurances are secured from the new owner and have been approved by the Town. I. The release of financial assurances shall be with the concurrence of all agencies named on the financial assurance. The criteria for release of financial assurances, or part of the financial assurances, shall be made part of the Reclamation Plan. In no case shall the financial assurance be released until reclamation has been completed. J. The amount of financial assurances shall be reviewed and adjusted, if required, pursuant to section 9-10-10. Marana Town Code 9-75 MARANA TOWN CODE rev. 2002 Section 9-9-8 Public Records Reclamation plans, reports, applications and other documents submitted pursuant to this article are public records unless it can be demonstrated to the satisfaction of the Town that the release of such information, or any part thereof, would reveal production, reserves, or rate of depletion entitled to protection as proprietary information and is not required by law. The Town shall identify such proprietary information as a separate part of each application. Proprietary Information shall be made available to persons other than the mine operator or mine owner only when authorized by law or by the mine operator and by the mine owner. Section 9-9-9 Procedures Once all required and approved documents and other related materials and requirements are submitted and approved as required under this article, including the submittal of the financial assurances in the amount approved by the Development Services Director, the Development Services Director shall expeditiously issue approval to commence operation of the approved surface mining operation and reclamation plan. Section 9-9-10 Periodic Review and Inspections A. The Town shall monitor and inspect each surface mining operation on a regular basis. B. The required financial assurances shall be reviewed annually by the Town. Financial assurances shall be adjusted to account for new lands disturbed by surface mining operations, inflation, reclamation of lands accomplished in accordance with the approved reclamation plan, or other factors related to the cost of reclamation which have changed since the previous review. C. At the time of the annual inspection, the mine operator shall make available to the Town an updated reclamation cost estimate prepared by the operator. D. The person in charge of the surface mining operation shall make the surface mining operation open and available for such monitoring and inspection during regular Town and operator business hours or at such other times as may be mutually agreed upon by him and the Development Services Department. The provisions of this subsection shall be deemed to be a condition of the reclamation plan. E. The Development Services Department shall make a report of the results of the inspection. This report shall be filed with the Development Services Director. Section 9-9-11 Idle Mine -Interim Management Plans Within ninety (90) days of a surface mining operation becoming idle, the operator shall submit an Interim Management Plan. The Interim Management Plan shall be developed in accordance with this article. Interim Management Plans shall be sent to the Development Services Director for review in the same manner as amendments to Reclamation Plans. Financial Assurances as required shall remain in effect during the period that the surface mining operation is idle. Marana Town Code 9-76 MARANA TOWN CODE rev. 2002 1'--- Section 9-9-12 Amendments to Plan Amendments to an approved reclamation plan may be submitted detailing proposed changes from the original plan. Substantial deviations from the original plan shall not be undertaken until such amendment has been filed and approved, in the same manner as established herein for original application. The foregoing notwithstanding, in emergency situations where irreversible physical damage to the environment may occur, an operator may take such action which is necessary to prevent such damage and shall forthwith report the taking of the action to the Development Services Department. Applications for an amendment are subject to the fee in accordance with Section 9-10-6. Section 9-9-13 Enforcement A. Where it appears to the Development Services Department that a surface mining operation is in violation of any condition of an approved reclamation plan or applicable statute, regulation, or ordinance, the Development Services Department shall serve formal notice to the Operator stating the nature of the violation and the specified time frame to correct the violation before an order is issued. B. The time within which the permittee must commence correction of the violation shall be sooner than sixty (60) days from the notice of violation. C. An order shall be issued if the Operator fails to comply with the notice within the specified time limit. Not sooner than 30 days after the date of the order, a hearing shall be held by the Development Services Director or his designee, for which at least ten days' written notice has been given to the operator. The order shall not take effect until the Operator has been provided the hearing. The date of issuance of the order is the date of receipt by the operator. D. Failure to comply with the order shall be subject to an order setting administrative penalties. Penalties shall be assessed from date of original non-compliance. E. In determining the amount of administrative penalty, the Town shall take into consideration the nature, circumstances, extent, and gravity of the violation or violations, any prior history of violations, the degree of culpability, economic savings, if any, resulting from the violation, and any other matters justice may require. F. Orders setting administrative penalties shall become effective upon issuance thereof and payment shall be made to the Development Services Department, unless the Operator files an appeal with the Town Manager within 30 days. The Town Manager shall notify the Operator by personal service or certified mail whether it will review the order setting administrative penalties. If after hearing, the Town Manager affirms the order, the Operator shall pay the administrative penalties set by the Town Manager's order within 30 days of the service of that order. G. The provisions of this article shall be enforced by the Development Services Director, the Assistant Town Manager, Town Manager, or a designated appointee. H. Notwithstanding the foregoing, a violation of this article may be enforced by the Town by the use of any legal or equitable remedy the Town may have. Marana Town Code 9-77 MARANA TOWN CODE rev. 2002 Section 9-9-14 Application Fees No application shall be accepted unless it is in full compliance with all requirements of this article, and accompanied by the fee specified in Section 9-10-6 of the Marana Town Code. No part of any required fee shall be returnable, and every such fee shall be deposited with the Town. [Adopted by Res. 2002.28 and Ord. 2002.08] Marana Town Code 9-78 MARANA TOWN CODE rev. 2002 person or entity operating or causing to be operated such business for injunctive relief or to abate the nuisance arising out of violation of this ordinance. [Adopted by Ord. No. 2000.10] Article 9-7 LIQUOR LICENSE TAX Section 9-7-1 Exemptions This article is not applicable to wholesalers licensed under AR.S. S 4-209. [Adopted by Ord. No. 96.09] Section 9-7-2 Fees Every person, firm, corporation or other entity applying for a spirituous liquor license, under the provisions of AR.S. S 4-101 et seq., whether it be for an original license or transfer of license, shall tender to the town a fee of fifty dollars ($50.00). Said fee shall be tendered to the town contemporaneous with the filing of an application for original license or transfer of license to the Arizona State Department of Liquor Licenses and Control. [Adopted by Ord. No. 96.09] Article 9-8 CABLE TELEVISION Section 9-8-1 Intent A The Town of Marana, pursuant to applicable federal and state law, is authorized to grant one or more nonexclusive Franchises to construct, operate, maintain and reconstruct Cable Television Systems within the Town limits. B. The Town Council finds that the development of Cable Television Systems has the potential of having great benefit and impact upon the residents of Marana. Because of the complex and rapidly changing technology associated with cable television, the Town Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the Town or such Persons as the Town shall designate. It is the intent of this article and subsequent amendments to provide for and specify the means to attain the best possible cable television service to the public and any Franchises issued pursuant to this article shall be deemed to include this finding as an integral part thereof. Section 9-8-2 Definitions For the purpose of this article, the following terms, phrases, words and their derivations shall have the meaning given herein. Words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. All capitalized terms used in the definition of any other term shall have their meaning as otherwise defined in this Section 9-8-2. The words "shall" and "will" Marana Town Code 9-48 MARANA TOWN CODE rev. 2002 are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. A. "Basic Cable Service" means any service tier which includes the retransmission of local television broadcast signals. B. "Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. 99 521-611 (1982 & Supp. V 1987), as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No.1 02-385, and as may, from time to time, be amended. C. "Cable Service" means: 1. The one-way transmission to Subscribers of video programming or other programming service; and 2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. D. "Cable Television System," "System" or "Cable System" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple Subscribers within a community, but such term does not include: 1. A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations; 2. A facility that serves Subscribers without using any public rights-of-way; 3. A facility of a common carrier that is subject, in whole or in part, to the provisions of 47 U.S.C. 99 201-226, except that such facility shall be considered a Cable System to the extent that such facility whether on a common carrier basis or otherwise is used in the transmission of video programming directly to Subscribers; or 4. Any facilities of any electric utility used solely for operating its electric utility System. E. "Channel" or "Cable Channel" means a portion of the electromagnetic frequency spectrum that is used in a Cable System and which is capable of delivering a television Channel as defined by the Federal Communications Commission. F. "Council" means the Town Council of the Town of Marana. G. "FCC" means the Federal Communications Commission, its designated representative or its lawful successor. H. "Franchise" means an initial authorization, or renewal thereof, issued by the Town, whether such authorization is designated as a Franchise, permit, license, resolution, Marana Town Code 9-49 MARANA TOWN CODE rev. 2002 contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a Cable System. I. "Franchise Agreement" means a Franchise granted pursuant to this article, containing the specific provisions of the Franchise granted, including references, specifications, requirements and other related matters. J. "Franchise Fee" means any tax, fee or assessment of any kind imposed by the Town or other governmental entity on a Grantee or cable Subscriber, or both, solely because of their status as such. The term "Franchise Fee" does not include: 1. any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and cable operators or their services but not including a tax, fee, or assessment which is unduly discriminatory against cable operators or cable Subscribers); 2. capital costs that are required by the Franchise Agreement to be incurred by the cable operator for public, educational, or Governmental Access Facilities; 3. requirements or charges incidental to the awarding or enforcing of the Franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or 4. any fee imposed under Title 17 of the United States Code. K. "Grantee" means any Person receiving a Franchise pursuant to this article and its agents, employees, officers, designees, or any lawful successor, transferee or assignee. L. "Grantor" or "Town" means the Town of Marana as represented by the Councilor any delegate acting within the scope of its jurisdiction. M. "Gross Annual Receipts" means all revenues derived directly or indirectly by the Grantee or any Person in which the Grantee has a financial interest from or in connection with the operation of the System pursuant to a Franchise granted hereunder, except it shall not include bad debt, sales tax or other taxes or charges imposed on Grantee in addition to its Franchise obligations and collected for direct pass-through to state or federal government. N. "Initial Service Area" means the area of the Town that will receive Cable Service initially, as set forth in any Franchise Agreement. O. "Installation" means the connection of the System to Subscribers' terminals, and the provision of Cable Service. P. "Normal Business Hours" means those hours during which most similar businesses in the community are open to serve customers. In all cases, "Normal Business Hours" must include some evening hours at least one (1) night per week and/or some weekend hours. Marana Town Code 9-50 MARANA TOWN CODE rev. 2002 Q. "Normal Operating Conditions" means those service conditions that are within the control of the Grantee. Those conditions that are not within the control of the Grantee include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions, and significant legislative or regulatory requirements. Those conditions which are ordinarily within the control of the Grantee include, but are not limited to, special promotions, pay-per-view events, regular peak or seasonal demand periods, and maintenance or upgrade of the System. R. "Person" means any natural person or any association, firm, individual, partnership, joint stock company, joint venture, trust, corporation, limited liability company, syndicate, business or other legally recognized entity, private or public, whether for- profit or not-for-profit. S. "Public, Educational or Government Access Facilities" or "PEG Access Facilities" means: 1. Channel capacity designated for public, educational, or governmental use; and 2. Facilities and equipment for the use of such Channel capacity. T. "Section" means any section, subsection, or provision of this article. U. "Service Area" or "Franchise Area" means the entire geographic area within the Town as it is now constituted or may in the future be constituted, unless otherwise specified in the Franchise Agreement. V. "Service Interruption" means the loss of picture or sound on one or more Cable Channels affecting at least ten percent (10%) of the Town's subscribers on the System. W. "State" means the State of Arizona. X. "Street" means each of the following that have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and located within the Town limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the Grantor shall permit to be included within the definition of Street from time to time. Y. "Subscriber" means any Person who orwhich lawfully elects to subscribe to, for any purpose, Cable Service provided by the Grantee by means of or in connection with the Cable System and who pays the charges therefor, except such Persons or entities authorized to receive Cable Service without charge as described in the Franchise Agreement. 9-51 MARANA TOWN CODE rev. 2002 Marana Town Code Section 9-8-3 Franchise to Install and Operate A Franchise granted by the Town under the provisions of this article shall encompass the following purposes: A. To engage in the business of providing Cable Service, and such other services as may be permitted by the Franchise Agreement. B. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain, and retain cable lines, related electronic equipment, supporting structures, appurtenances, and other property in connection with the operation of a Cable System in, on, over, under, upon, along and across Streets or other public places within the designated Service Area. C. To maintain and operate said Franchise properties for the origination, reception, transmission, amplification, and distribution of television and radio signals for the delivery of Cable Services and any other services permitted by the Franchise Agreement. D. To set forth the obligations of a Grantee under the Franchise Agreement. Section 9-8-4 Franchise Required It shall be unlawful for any Person to construct, install or operate a Cable Television System in the Town within any Street without a properly granted Franchise awarded pursuant to the provisions of this article. Section 9-8-5 Term of the Franchise A. A Franchise granted hereunder shall be for a term established in the Franchise Agreement, commencing with the Grantor's adoption of an ordinance or resolution authorizing the Franchise. B. A Franchise granted hereunder may be renewed upon application by the Grantee pursuant to the provisions of applicable state and federal law and of this article. Section 9-8-6 Franchise Territory Any Franchise shall be valid within all the territorial limits of the Town, and within any area added to the Town during the term of the Franchise, unless otherwise specified in the Franchise Agreement. Section 9-8-7 Federal, State and Town Jurisdiction A. This article shall be construed in a manner consistent with all applicable federal and state laws. B. In the event that the state or federal government discontinues preemption in any area of cable communications over which it currently exercises jurisdiction in such manner as to expand rather than limit municipal regulatory authority, Grantor may, Marana Town Code 9-52 MARANA TOWN CODE rev. 2002 if it so elects, adopt rules and regulations in these areas to the extent permitted by law. C. This article shall apply to all Franchises granted or renewed after the effective date of this article. It shall further apply to the extent permitted by applicable federal or state law to all existing Franchises granted prior to the effective date of this article. D. Grantee's rights are subject to the police powers of the Town to adopt and enforce ordinances necessary to the health, safety and welfare of the public. Grantee shall comply with all applicable general laws and ordinances enacted by the Town pursuant to that power. E. Grantee shall not be relieved of its obligation to comply with any of the provisions of this article or any Franchise granted pursuant to this article by reason of any failure of the Town to enforce prompt compliance. F. This article and any Franchise granted pursuant to this article shall be construed and enforced in accordance with the substantive laws of the State of Arizona. Section 9-8-8 Franchise Non-Transferable A. Grantee shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part, either by forced or involuntary sale, or by ordinary sale, consolidation or otherwise, the Franchise and/or Cable System or any of the rights or privileges granted by the Franchise, without the prior consent of the Council which consent shall not be unreasonably denied or delayed and shall be denied only upon a good faith finding by the Town that the proposed transferee lacks the legal, technical or financial qualifications to perform its obligations under the Franchise Agreement. Any attempt to sell, transfer, lease, assign or otherwise dispose of the Franchise and/or Cable System without the consent of the Council shall be null and void. This provision shall not apply to sales of property or equipment in the normal course of business. No consent from the Town shall be required for a transfer in trust, mortgage, or other instrument of hypothecation, in whole or in part, to secure an indebtedness, or for a pro forma transfer to a corporation, partnership or other entity controlling, controlled by or under common control with Grantee. B. The following events shall be deemed to be a sale, assignment or other transfer of the Franchise and/or Cable System requiring compliance with this Section: 1. The sale, assignment or other transfer of all or a majority of Grantee's assets; 2. The sale, assignment or other transfer of capital stock or partnership, membership or other equity interests in Grantee by one or more of its existing shareholders, partners, members or other equity owners so as to create a new controlling interest in Grantee; 3. The issuance of additional capital stock or partnership, membership or other equity interest by Grantee so as to create a new controlling interest in Grantee; and .''''''''~ Marana Town Code 9-53 MARANA TOWN CODE rev. 2002 4. The entry by the Grantee into an agreement with respect to the management or operation of the Grantee and/or the System. The term "Controlling Interest" as used herein means majority equity ownership of the Grantee. C. Except as provided below, no Grantee may sell or otherwise transfer ownership in a Franchise and/or Cable System, without the prior consent of the Council which consent shall not be unreasonable denied or delayed and shall be denied only upon a good faith finding by the Town that the proposed transferee lacks the legal technical or financial qualifications to perform its obligations under the Franchise Agreement following either the acquisition or initial construction of said System by Grantee. In the case of a sale of multiple Systems, if the terms of the sale require the buyer to subsequently transfer ownership of one or more such Systems to one or more third parties, such transfer shall be considered a part of the initial transaction. No consent from the Town shall be required for the following: 1. Any transfer of ownership interest in any Franchise and/or Cable System which is not subject to federal income tax liability; 2. Any sale required by operation of any law or any act of any agency, any state or political subdivision or the Town; or 3. Any sale, assignment, or transfer, to one or more purchasers, assignees, or transferees controlled by, controlling, or under common control with, the seller, assignor, or transferor. D. In the case of any sale or transfer of ownership of any Franchise and/or Cable System following acquisition of such System, the Town shall have one hundred twenty (120) days to act upon any request for approval of such sale or transfer that contains or is accompanied by such information as is required in accordance with Federal Communications Commission Regulations, the requirements of this article and such other reasonable information as the Town, in its sole discretion, may request. If the Town fails to render a final decision on the request within one hundred twenty (120) days from receipt by the Town of all required information, such request shall be deemed granted unless the requesting party and the Town agree to an extension of time. E. Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale of all or a substantial part of the Franchise property of the Grantee or upon the termination of any lease or interest covering all or a substantial part of said Franchise property. Such notification shall be considered by Grantor as notice that a change in control of ownership of the Franchise has taken place and the provisions under this Section governing the consent of Grantor to such change in control of ownership shall apply. F. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, Grantor may inquire into the legal, financial, and technical qualifications of the prospective transferee or controlling party, and Grantee shall assist Grantor in any such inquiry. The transferee shall be required to establish that Marana Town Code 9-54 MARANA TOWN CODE rev. 2002 it possesses the legal, technical and financial qualifications to operate and maintain the System and comply with all Franchise requirements for the remainder of the term of the Franchise. If, after considering the legal, financial, and technical qualities of the applicant and determining that they are satisfactory, the Grantor finds that such transfer is acceptable, the Grantor shall transfer and assign the rights and obligations of such Franchise. The consent of the Grantor to such transfer shall not be unreasonably denied. G. Any financial institution having a pledge of the Grantee or its assets for the advancement of money for the construction and/or operation of the Franchise shall have the right to notify the Grantor that it or its designee satisfactory to the Grantor shall take control of and operate the Cable Television System, in the event of a Grantee default in its financial obligations. Further, said financial institution shall also submit a plan for such operation within thirty (30) days of assuming such control that will insure continued service and compliance with all Franchise requirements during the term the financial institution exercises control over the System. The financial institution shall not exercise control over the System for a period exceeding one (1) year unless extended by the Grantor in its discretion and during said period of time it shall have the right to petition the Grantor to transfer the Franchise to another Grantee. Section 9-8-9 Purchase by Town Upon Expiration or Revocation A. If, subject to the provisions of the Cable Act, a renewal of a Franchise is denied, the Town may purchase to the extent permitted by Federal law and upon payment to the Grantee of the Cable Systems' fair market value as a going concern, exclusive of any value allocated to the Franchise itself, that portion of Grantee's Cable System serving the Town of Marana. B. Subject to the Cable Act, if a Franchise is revoked for cause, the Town may, to the extent permitted by Federal law, acquire that portion of the Cable System serving the Town of Marana upon payment of an equitable price. Section 9-8-10 Geographical Coverage A. Grantee shall design, construct and maintain the Cable Television System to have the capability to pass every dwelling unit in the Service Area, subject to any line extension requirements of the Franchise Agreement. B. After service has been established by activating trunk and/or distribution cables for any part of the Service Area, Grantee shall provide Cable Service to any requesting Subscriber within that Service Area within thirty (30) days from the date of request, provided that the Grantee is able to secure all rights-of-way necessary to extend service to such Subscriber within such thirty (30) day period on reasonable terms and conditions. Marana Town Code 9-55 MARANA TOWN CODE rev. 2002 Section 9-8-11 Nonexclusive Franchise Any Franchise granted shall be nonexclusive. The Grantor specifically reserves the right to grant, at any time, such additional Franchises for a Cable Television System or any component thereof, as it deems appropriate, subject to applicable state and federal law, provided, however, that no Franchise shall be granted on terms materially less burdensome or more favorable than any other Franchise granted hereunder. Section 9-8-12 Multiple Franchises A. Grantor may grant one or more Franchises for a Service Area. Grantor may, in its sole discretion, limit the number of Franchises granted, based upon, but not necessarily limited to, the requirements of applicable law and specific local considerations; such as: 1. The capacity of the public rights-of-way to accommodate multiple coaxial cables in addition to the cables, conduits and pipes of the utility Systems, such as electrical power, telephone, gas and sewerage. 2. The impact on the community of having multiple Franchises. 3. The disadvantages that may result from Cable System competition, such as the requirement for multiple pedestals on residents' property, and the disruption arising from numerous excavations of the rights-of-way. 4. The financial capabilities of the applicant and its guaranteed commitment to make necessary investment to erect, maintain and operate the proposed System for the duration of the Franchise term. B. Each Grantee awarded a Franchise to serve the entire Town shall offer service to all residences in the Town, in accordance with construction and service schedules mutually agreed upon between Grantor and Grantee, and consistent with applicable law. C. Developers of new residential housing with underground utilities shall provide conduit to accommodate cables for at least two (2) Cable Systems in accordance with the provisions of Section 9-8-19(0). D. Grantor may require that any new Grantee be responsible for its own underground trenching and the costs associated therewith, if, in Grantor's opinion, the rights-of- way in any particular area cannot feasibly and reasonably accommodate additional cables. E. Any additional Franchise granted by the Town to provide Cable Service in a part of the Town in which a Franchise has already been granted and where an existing Grantee is providing service shall require the new Grantee to provide service throughout its Service Area within a reasonable time and in a sequence which does not discriminate against lower income residents. Marana Town Code 9-56 MARANA TOWN CODE rev. 2002 Section 9-8-13 Initial Franchise Applications Any Person desiring an initial Franchise for a Cable Television System shall file an application with the Town. A reasonable nonrefundable application fee established by the Town shall accompany the application. Such application fee shall not be deemed to be "Franchise Fees" within the meaning of Section 622 of the Cable Act (47 U.S.C. 9542), and such payments shall not be deemed to be (i) "payments in kind" or any involuntary payments chargeable against the compensation to be paid to the Town by Grantee pursuant to Section 9-8-18 hereof and applicable provisions of a Franchise Agreement, or (ii) part of the compensation to be paid to the Town by Grantee pursuant to Section 9-8-18 hereof and applicable provisions of a Franchise Agreement. An application for an initial Franchise for a Cable Television System shall contain, where applicable: A. A Statement as to the proposed Franchise and Service Area. B. Resume of prior history of applicant, including the legal, technical and financial expertise of applicant in the cable television field. C. List of the partners, general and limited, of the applicant, if a partnership, or the percentage of stock owned or controlled by each shareholder, if a corporation. D. List of officers, directors and managing employees of applicant, together with a description of the background of each such Person. E. The names and addresses of any parent or subsidiary of applicant or any other business entity owning or controlling applicant in whole or in part, or owned or controlled in whole or in part by applicant. F. A current financial Statement of applicant verified by a CPA audit or otherwise certified to be true, complete and correct to the reasonable satisfaction of the Town. G. Proposed construction and service schedule. H. Any additional information that the Town deems applicable. Section 9-8-14 Consideration of Initial Applications A. Upon receipt of any application for an initial Franchise, the Town Manager shall prepare a report and make his recommendations respecting such application to the Town Council. B. A public hearing shall be set prior to any initial Franchise grant, at a time and date approved by the Council. Within thirty (30) days after the close of the hearing, the Council shall make a decision based upon the evidence received at the hearing as to whether or not the Franchise(s) should be granted, and, if granted, subject to what conditions. The Council may grant one (1) or more initial Franchises, or may decline to grant any Franchise. Marana Town Code 9-57 MARANA TOWN CODE rev. 2002 Section 9-8-15 Franchise Renewal Franchise renewals shall be in accordance with applicable law including, but not necessarily limited to the Cable Communications Policy Act of 1984, as amended. Grantor and Grantee, by mutual consent, may enter into renewal negotiations at any time during the term of the Franchise. Section 9-8-16 Consumer Protection and Service Standards A. Except as otherwise provided in the Franchise Agreement, Grantee shall maintain a local office or offices to provide the necessary facilities, equipment and personnel to comply with the following consumer protection standards under Normal Operating Conditions: 1. Cable System office hours and telephone availability: i. Grantee will maintain a local, toll-free or collect call telephone access line which will be available to its Subscribers twenty-four (24) hours a day, seven (7) days a week. (1) Trained Grantee representatives will be available to respond to customer telephone inquiries during Normal Business Hours. (2) After Normal Business Hours, the access line may be answered by a service or an automated response System, including an answering machine. Inquiries received after Normal Business Hours must be responded to by a trained Grantee representative on the next business day. ii. Under Normal Operating Conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less then ninety percent (90%) of the time under Normal Operating Conditions, measured on a quarterly basis. iii. The Grantee will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply. iv. Under Normal Operating Conditions, the customer will receive a busy signal less than three percent (3%) of the time. v. Customer service center and bill payment locations will be open at least during Normal Business Hours and will be conveniently located. Marana Town Code 9-58 MARANA TOWN CODE rev. 2002 2. Installations, outages and service calls. Under Normal Operating Conditions, each of the following four standards will be met no less than ninety-five percent (95%) of the time measured on a quarterly basis: i. Standard Installations will be performed within seven (7) business days after an order has been placed. "Standard" Installations are those that are located up to one hundred twenty-five (125) feet from the existing distribution System. ii. Excluding conditions beyond the control of Grantee, Grantee will begin working on "Service Interruptions" promptly and in no event later than 24 hours after the interruption becomes known. The Grantee must begin actions to correct other service problems the next business day after notification of the service problem. iii. At the subscriber's request, the "appointment window" alternatives for Installations, service calls, and other Installation activities will be within a two to four hour time block during Normal Business Hours. (The Grantee may schedule service calls and other Installation activities outside of Normal Business Hours for the express convenience of the customer.) iv. Grantee may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment. v. If Grantee's representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time that is convenient for the customer. 3. Communications between Grantee and cable Subscribers: i. Notifications to Subscribers: (1) The Grantee shall provide written information on each of the following areas at the time of Installation of service, at least annually to all Subscribers, and at any time upon request: (a) Products and services offered; (b) Prices and options for programming services and conditions of subscription to programming and other services; (c) Installation and service maintenance policies; (d) Instructions on how to use the Cable Service; Marana Town Code 9-59 MARANA TOWN CODE rev. 2002 (e) Channel positions for programming carried on the System; and (f) Billing and complaint procedures, including the address and telephone number of the Town's cable office. (2) Customers will be notified of any changes in rates, programming services or Channel positions as soon as possible through announcements on the Cable System and in writing. Notice must be given to Subscribers a minimum of thirty (30) days in advance of such changes if the change is within the control of the Grantee. In addition, the Grantee shall notify Subscribers thirty (30) days in advance of any significant changes in the other information required by the preceding paragraph. ii. Billing: (1) Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits. (2) In case of a billing dispute, the Grantee must respond to a written complaint from a Subscriber within thirty (30) days. iii. Refunds: Refund checks will be issued promptly, but no later than either: (1) The customer's next billing cycle following resolution of the request or thirty (30) days, whichever is earlier, or (2) The return of the equipment supplied by the Grantee if service is terminated. iv. Credits: Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted. Section 9-8-17 Rate Regulation A. The Town reserves the right to regulate rates for Basic Cable Service and any other services offered over the Cable System, to the extent permitted by federal or state law. The Grantee shall be subject to the rate regulation provisions provided for herein, and those of the FCC at 47 C.F.R., Part 76.900, Subpart N. The Town shall follow the rules relating to cable rate regulation promulgated by the FCC at 47 C.F.R., Part 76.900, Subpart N. Marana Town Code 9-60 MARANA TOWN CODE rev. 2002 B. Except to the extent otherwise expressly permitted by applicable law, Grantee shall provide Cable Service to each resident within the Service Area at a uniform rate. Section 9-8-18 Franchise Fee A. Following the issuance and acceptance of a Franchise, the Grantee shall pay to the Grantor a Franchise Fee in the amount set forth in the Franchise Agreement. B. The Grantor, on an annual basis, shall be furnished a Statement within sixty (60) days of the close of the calendar year, certified by an officer of the Grantee or audited by a Certified Public Accountant, reflecting the total amounts of gross annual revenues and all payments, and computations for the previous calendar year. Upon ten (10) days prior written notice, Grantor shall have the right to conduct an independent audit of Grantee's records, in accordance with generally accepted accounting principles and if such audit indicates a Franchise Fee underpayment of ten percent (10%) or more, the Grantee shall assume all reasonable costs of such an audit. C. Except as otherwise provided by law, no acceptance of any payment by the Grantor shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have for further or additional sums payable as a Franchise Fee under this article or any Franchise Agreement or for the performance of any other obligation of the Grantee. D. In the event that any Franchise Fee payment or recomputed amount is not made on or before the dates specified in the Franchise Agreement, Grantee shall pay as additional compensation an interest charge, computed from such due date, at an annual rate eq ual to the prime lending rate plus one and one-half percent (1-1/2%) during the period for which payment was due. E. Franchise Fee payments shall be made in accordance with the schedule indicated in the Franchise Agreement. Section 9-8-19 Design and Construction Requirements A. Grantee shall not construct any Cable System facilities until Grantee has secured, at its own expense, all necessary permits, licenses or other forms of approval or authorization from Grantor and other cognizant public agencies. B. In those areas of the Town where transmission or distribution facilities of all the public utilities providing telephone and electric power service are underground, the Grantee likewise shall construct, operate and maintain its transmission and distribution facilities therein underground. C. In those areas of the Town where Grantee's cables are located on the above- ground transmission or distribution facilities of the public utility providing telephone or electric power service, and in the event that the facilities of both such public utilities subsequently are placed underground, then the Grantee likewise shall construct, operate and maintain its transmission and distribution facilities underground, at Grantee's cost. Certain of Grantee's equipment, such as pedestals, Marana Town Code 9-61 MARANA TOWN CODE rev. 2002 amplifiers and power supplies, which normally are placed above ground, may continue to remain in above-ground closures. D. In new residential developments in which all the electric power and telephone utilities are underground, the following procedure shall apply with respect to access to and utilization of underground easements: 1. The developer shall be responsible for contacting and surveying all Franchised cable operators to ascertain which operators desire (or, pursuant to the terms and provisions of this article and any Franchise Agreement, may be required) to provide Cable Service to that development. The developer may establish a reasonable deadline to receive cable operator responses. The final development map shall indicate the cable operators that have agreed to serve the development. 2. If one (1) or two (2) cable operators wish to provide service, they shall be accommodated in the joint utilities trench on a nondiscriminatory shared basis. If fewer than two (2) operators indicate interest, the developer shall provide conduit to accommodate two (2) sets of cable television cables and dedicate to the Town any initially unoccupied conduit. The developer shall be entitled to recover from Grantor the cost of such initially unoccupied conduit in the event that Grantor subsequently leases or sells occupancy or use rights to any Grantee. 3. The developer shall provide at least ten (10) working days notice of the date that utility trenches will be open to the cable operators that have agreed to serve the development. When the trenches are open, cable operators shall have two (2) working days to begin the Installation of their cables, and five (5) working days after beginning Installation to complete Installation. 4. The final development map shall not be approved until the developer submits evidence that: i. It has notified each Grantee that underground utility trenches are to open as of an estimated date, and that each Grantee will be allowed access to such trenches, including trenches from proposed Streets to individual homes or home sites, on specified nondiscriminatory terms and conditions; and ii. It has received a written notification from each Grantee that the Grantee intends to install its facilities during the open trench period on the specified terms and conditions, or such other terms and conditions as are mutually agreeable to the developer and Grantee, or has received no reply from a Grantee within ten (10) days after its notification to such Grantee, in which case the Grantee will be deemed to have waived its opportunity to install its facilities during the open trench period. 5. Sharing the joint utilities trench shall be subject to compliance with state regulatory agency and utility standards. If such compliance is not possible, Marana Town Code 9-62 MARAN A TOWN CODE rev. 2002 the developer shall provide a separate trench for the cable television cables, with the entire cost shared among the participating cable operators. With the concurrence of the developer, the affected utilities and the cable operators, alternative Installation procedures, such as the use of deeper trenches, may be utilized, subject to applicable law. 6. Any cable operator wishing to serve an area where the trenches have been closed shall be responsible for its own trenching and associated costs and shall repair all property to the condition which existed prior to such trenching. E. Grantee shall remove, replace or modify at its own expense the installation of any of its facilities within any Street when required to do so by the Town to allow the Town to change, maintain, repair, improve or eliminate a Street. Nothing in this section shall prevent Grantee from seeking and obtaining reimbursement from sources other than the Town. F. At the request of any person holding a valid building moving permit and upon sufficient notice, Grantee shall temporarily raise or lower its wires as necessary to facilitate such move upon not less than seventy-two (72) hours advance notice. The direct expense of such temporary changes, including standby time, shall be paid by the holder of the moving permit and Grantee may require payment in advance. Section 9-8-20 Technical Standards A. The Grantee shall construct, install, operate and maintain its System in a manner consistent with all applicable laws, ordinances, construction standards, governmental requirements, Federal Communications Commission technical standards, and any standards set forth in its Franchise Agreement. In addition, the Grantee shall provide to the Grantor, upon request, a written report of the results of the Grantee's periodic proof of performance tests conducted pursuant to Federal Communications Commission standards and guidelines. B. Repeated and verified failure to maintain specified technical standards shall constitute a material Franchise violation. C. All construction practices shall be in accordance with all applicable Sections of the Occupational Safety and Health Act of 1970, as amended, as well as all other applicable local, state and federal laws and regulations. D. All Installation of electronic equipment shall be installed in accordance with the provisions of the National Electrical and Safety Code and National Electrical Code, as amended, and as may from time to time be amended. E. Antennae and their supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable local, state and federal laws and regulations. F. All of Grantee's plant and equipment, including, but not limited to, the antenna site, headend and distribution system, towers, house connections, structures, poles, Marana Town Code 9-63 MARANA TOWN CODE rev. 2002 wire, coaxial cable, fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced maintenance and construction personnel so as not to endanger or interfere with improvements that the Town may deem appropriate to make, or to interfere in any manner with the rights or reasonable convenience of any property owner, or to unnecessarily hinder or obstruct public use of the Streets or pedestrian or vehicular traffic. G. Grantee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices preventing failures and accidents which are likely to cause damage, injury or nuisance to the public. Section 9-8-21 Trimming of Trees Grantee shall have the authority to trim trees, in accordance with all applicable utility restrictions, ordinance and easement restrictions, upon and hanging over Streets, alleys, sidewalks, and public places of the Town so as to prevent the branches of such trees from coming in contact with the wires and cables of Grantee. Town representatives shall have authority to supervise and approve all trimming of trees conducted by Grantee. Section 9-8-22 Use of Grantee Facilities The Town shall have the right to install and maintain, free of charge, upon the poles and within the underground pipes and unused conduits, any wires and fixtures desired by the Town to the extent that such Installation and maintenance does not interfere with existing operations and future use of Grantee. Section 9-8-23 Hold Harmless A. Grantee, under any Franchise operated pursuant to this article, shall agree to indemnify, hold harmless, release and defend the Town, its officers, boards, commissions, agents and employees from and against any and all lawsuits, claims, causes of action, actions, liability, demands, damages, disability, losses, expenses, including reasonable attorneys' fees and costs or liabilities of any nature that may be asserted by any Person resulting or in any manner arising from the action or inaction of the Grantee in constructing, operating, maintaining, repairing or removing the System, in carrying on Grantee's business or operations in the Town or in exercising or failing to exercise any right or privilege granted by the Franchise. This indemnity shall apply, without limitation, to any action or cause of action for invasion of privacy, defamation, antitrust, errors and omissions, theft, fire, violation or infringement of any copyright, trademark, trade names, service mark or patent, or any other right of any Person, firm or corporation, whether or not any act or omission complained of is authorized, allowed or prohibited by this article or any Franchise Agreement, but shall not include any claim or action arising out of the actions or omissions of Town officers, employees or agents or related to any Town programming or other access programming for which the Grantee is not legally responsible. Marana Town Code 9-64 MARANA TOWN CODE rev. 2002 B. The Town shall promptly notify Grantee of any claims subject to indemnification by Grantee and shall cooperate with all reasonable requests by Grantee for information, documents, testimony or other assistance appropriate to a resolution of such claims. Grantee shall have full responsibility for and control of any action or undertaking directed at the resolution of such claims. Section 9-8-24 Insurance Grantee shall provide insurance as specified in the Franchise Agreement. Section 9-8-25 Records Required and Grantor's Right to Inspect A. Grantee shall at all times maintain: 1. A full and complete set of plans, records and "as-built" maps showing the location of the Cable Television System installed or in use in the Town, exclusive of Subscriber service drops and equipment provided in Subscribers' homes. 2. If requested by Grantor, a summary of service calls, identifying the number, general nature and disposition of such calls, on a monthly basis. A summary of such service calls shall be submitted to the Grantor within thirty (30) days following its request in a form reasonably acceptable to the Grantor. B. Upon forty-eight (48) hours written notice, and during Normal Business Hours, Grantee shall permit examination by any duly authorized representative of the Grantor, of all Franchise property and facilities, together with any appurtenant property and facilities of Grantee situated within the Town, and all records relating to the Franchise, provided they are necessary to enable the Grantor to carry out its regulatory responsibilities under local, state and federal law, this article and the Franchise Agreement. Such records include all books, records, maps, plans, financial Statements, service complaint logs, performance test results, records of request for service, and other like materials of Grantee. Grantee shall have the right to be present at any such examination. C. If any of the records described in the previous subsection are proprietary in nature or must be kept confidential by state, federal or local law, upon proper request by Grantee, such information obtained during such an inspection shall be treated as confidential. To the extent that any state or federal law requires Grantor to disclose any such records, the Grantor shall be entitled to disclose those records. D. Copies of all petitions, applications, communications and reports submitted by Grantee, or on behalf of or relating to Grantee, to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction with respect to any matters affecting the Cable System authorized pursuant to this article and any Franchise shall be made available to the Town upon request. Copies of responses from the regulatory agencies to Grantee shall likewise be furnished to the Town upon req uest. Marana Town Code 9-65 MARANA TOWN CODE rev. 2002 Section 9-8-26 Annual Reports A. Grantee shall submit a written end of the year report to Grantor with respect to the preceding calendar year containing the following information 1. A Summary of the previous year's (or in the case of the initial reporting year, the initial year's) activities in development of the Cable System, including but not limited to, services begun or discontinued during the reporting year. 2. A list of Grantee's officers, members of its board of directors, and other principals of Grantee. 3. A list of stockholders or other equity investors holding five percent (5%) or more of the voting interest in Grantee. 4. Information as to the number of Subscribers and the number of basic and pay service Subscribers. 5. The Town, including its agents and representatives, shall have the authority, during Normal Business Hours, to arrange for and conduct an inspection of Annual Reports required pursuant to this article or a Franchise Agreement. The Town shall give the Grantee seventy-two (72) hours written notice of the inspection request. 6. If the requested information is proprietary in nature or must be kept confidential by state, federal or local law, upon proper request by Grantee, such information obtained during such an inspection shall be treated as confidential. To the extent that any state or federal law requires Grantor to disclose any such records, the Grantor shall be entitled to disclose those records. ,.....'.""'''''' B. All reports and records required under this article shall be furnished at the sole expense of Grantee, except as otherwise provided in this article or the Franchise Agreement. Section 9-8-27 Franchise Violation If Grantee fails to perform in a timely manner any material obligation required by this article or a Franchise granted hereunder, following notice from the Grantor and an opportunity to cure such nonperformance, Grantor may act to remedy such violation in accordance with the following procedures: A. Grantor shall notify Grantee of any alleged material violation in writing by personal delivery or registered or certified mail, and demand correction within a reasonable time, which shall not be less than ten (10) business days in the case of the failure of the Grantee to pay any sum or other amount due the Grantor under this article or the Grantee's Franchise and thirty (30) days in all other cases. B. If Grantee fails either to correct the violation within the time prescribed or to commence correction of the violation within the time prescribed and thereafter after Marana Town Code 9-66 MARANA TOWN CODE rev. 2002 diligently pursue correction of such violation, the Grantor shall then give written notice of not less than twenty (20) business days of a public hearing to be held before the Council. Said notice shall specify the violations alleged to have occurred. C. At the public hearing, the Council shall hear and consider relevant evidence and thereafter render findings and its decision. In the event that the Council finds that a material violation exists and that Grantee has not corrected the same in a satisfactory manner or has not diligently commenced correction of such violation after notice thereof from Grantor and is not diligently proceeding to fully remedy such violation, the Council may revoke the Franchise or impose another penalty permitted by the Franchise agreement. D. The Grantor shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth with specificity the exact nature of the noncompliance. The Grantee shall have sixty (60) days from the receipt of the notice to object in writing and to state its reasons for such objection. In the event the Grantor has not received a satisfactory response from the Grantee, it may then seek termination of the Franchise at a public hearing. The Grantor shall cause to be served upon the Grantee, at least ten (10) days prior to the public hearing, a written notice specifying the time and place of the hearing and stating its intent to request termination of the Franchise. E. At the hearing, the Grantor shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the Franchise shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The decision of the Grantor shall be in writing and shall be delivered to the Grantee. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the Grantor and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within sixty (60) days of the issuance of the determination of the Grantor. Section 9.8.28 Force Majeure: Grantee's Inability to Perform In the event Grantee's performance of any of the terms, conditions or obligations required by this article or a Franchise grant hereunder is prevented by a cause or event not within Grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof. For the purpose of this Section, causes or events not within the control of Grantee shall include without limitation acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, failure or loss of utilities, explosion, acts of public enemies, and natural disasters such as floods, earthquakes, landslides, and fires. Marana Town Code 9-67 MARANA TOWN CODE rev. 2002 Section 9-8-29 Abandonment or Removal of Franchise Property A. In the event that the use of any property of Grantee within the Franchise Area or a portion thereof is discontinued for a continuous period of twelve (12) months, Grantee shall be deemed to have abandoned that Franchise property. B. Grantor, upon such terms as Grantor may impose, may give Grantee permission to abandon, without removing, any System facility or equipment laid, directly constructed, operated or maintained under the Franchise. Unless such permission is granted or unless otherwise provided in this article, the Grantee shall remove all abandoned above-ground facilities and equipment upon receipt of written notice from Grantor and shall restore any affected Street to its former state at the time such facilities and equipment were installed, so as not to impair its usefulness. In removing its plant, structures and equipment, Grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles or attachments. Grantor shall have the right to inspect and approve the condition of the public ways, public places, cables, wires, attachments and poles prior to and after removal. The liability, indemnity and insurance provisions of this article and any security fund provided in the Franchise shall continue in full force and effect during the period of removal and until full compliance by Grantee with the terms and conditions of this Section. C. Upon abandonment of any Franchise property in place, the Grantee, if required by the Grantor, shall submit to Grantor an instrument, satisfactory in form to the Grantor, transferring to the Grantor the ownership of the Franchise property abandoned. D. At the expiration of the term for which the Franchise is granted, or upon its revocation or earlier expiration, as provided for herein, in any such case without renewal, extension or transfer, the Grantor shall have the right to require Grantee to remove, at its own expense, all above-ground portions of the Cable Television System from all Streets and public ways within the Town within a reasonable period of time, which shall not be less than one hundred eighty (180) days. E. Notwithstanding anything to the contrary set forth in this article, the Grantee may abandon any underground Franchise property in place so long as it does not materially interfere with the use of the Street or public rights-of-way in which such property is located or with the use thereof by any public utility or other cable Grantee. Section 9-8-30 Extended Operation and Continuity of Services Upon either expiration or revocation of the Franchise, the Grantor shall have discretion to permit and/or require Grantee to continue to operate the Cable Television System for an extended period of time not to exceed six (6) months from the date of such expiration or revocation. Grantee shall continue to operate the System under the terms and conditions of this article and the Franchise and to provide the regular Subscriber service and any and all of the services that may be provided at that time. Marana Town Code 9-68 MARANA TOWN CODE rev. 2002 Section 9-8-31 Receivership and Foreclosure A. A Franchise granted hereunder shall, at the option of Grantor, cease and terminate one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees, to take over and conduct the business of Grantee, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless: 1. Such receivers or trustees shall have, within one hundred twenty (120) days after their election or appointment, fully complied with all the terms and provisions of this article and the Franchise granted pursuant hereto, and the receivership or trustees within said one hundred twenty (120) days shall have remedied all the faults under the Franchise or provided a plan for the remedy of such faults which is satisfactory to the Grantor; and 2. Such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the Franchise granted. B. In the case of a foreclosure or other judicial sale of the Franchise property, or any material part thereof, Grantor may serve notice of termination upon Grantee and the successful bidder at such sale, in which event the Franchise granted and all rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days after service of such notice, unless: 1. Grantor shall have approved the transfer of the Franchise, as and in the manner that this article provides; and 2. Such successful bidder shall have covenanted and agreed with Grantor to assume and be bound by all terms and conditions of the Franchise. Section 9-8-32 Rights Reserved to Grantor A. In addition to any rights specifically reserved to the Grantor by this article, the Grantor reserves to itself every right and power which is required to be reserved by a provision of any ordinance or under the Franchise. B. The Grantor shall have the right to waive any provision of the Franchise, except those required by federal or state regulation, if the Grantor determines (1) that it is in the public interest to do so, and (2) that the enforcement of such provision will impose an undue hardship on the Grantee orthe Subscribers. To be effective, such waiver shall be evidenced by a Statement in writing signed by a duly authorized representative of the Grantor. Waiver of any provision in one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of the Franchise unless the Statement so recites. Marana Town Code 9-69 MARANA TOWN CODE rev. 2002 Section 9-8-33 Rights of Individuals A. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers, Channel users, or general citizens on the basis of race, color, religion, national origin, age, disability, gender or sexual preference. Nor shall Grantee fail to extend service to any part of the Town within its licensed Service Area on the basis of the income of the residents. Grantee shall comply at all times with all other applicable federal, state and local laws and regulations, relating to nond iscrimi nation. B. Grantee shall adhere to the applicable equal employment opportunity requirements of federal, state and local regulations. C. Neither Grantee, nor any Person, agency, or entity shall, without the Subscriber's consent, tap or arrange for the tapping, of any cable, line, signal input device, or Subscriber outlet or receiver for any purpose except routine maintenance of the System, detection of unauthorized service, polling with audience participating, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified. D. In the conduct of providing its services or in pursuit of any collateral commercial enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the invasion of a Subscriber's or general citizen's right of privacy or other personal rights through the use of the System as such rights are delineated or defined by applicable law. Grantee shall not, without lawful court order or other applicable valid legal authority, utilize the System's interactive two-way equipment or capability for unauthorized personal surveillance of any Subscriber or general citizen. E. No cable line, wire amplifier, converter, or other piece of equipment owned by Grantee shall be installed by Grantee in the Subscriber's premises, other than in appropriate easements, without first securing any required consent. If a Subscriber requests service, permission to install upon Subscriber's property shall be presumed. Where a property owner or his predecessor has granted an easement including a public utility easement or a servitude to another and the servitude by its terms contemplates a use such as Grantee's intended use, Grantee shall not be required to obtain the written permission of the owner for the Installation of cable television equipment. Section 9-8-34 Conflicts In the event of a conflict between any provision of this article and a Franchise Agreement entered pursuant to it, the provisions of this article shall control, except as may be specifically otherwise provided in the Franchise Agreement. Section 9-8-35 Severability If any provision of this article is held by any court or by any federal or state agency of competent jurisdiction to be invalid as conflicting with any federal or state law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, such Marana Town Code 9-70 MARANA TOWN CODE rev. 2002 provision shall be considered a separate, distinct, and independent part of this article, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof which had been held invalid or modified is no longer in conflict with such law, rule or regulation, said provision shall thereupon return to full force and effect and shall thereafter be binding on Grantor and Grantee, provided that Grantor shall give Grantee thirty (30) days written notice of such change before requiring compliance with said provision or such longer period of time as may be reasonably required for Grantee to comply with such provision. [Adopted by Ord. No. 2000.06; revised by Ord. No. 2000.10; revised by Res. No. 2002-144 and Ord No. 2002.29] Article 9-9 SURFACE MINING AND LAND RECLAMATION Section 9-9-1 Purpose and Intent It is the purpose and intent of this article to establish an effective and comprehensive surface mining and reclamation policy including regulation of surface mining operations so as to assure that: A. Adverse environmental effects are prevented or minimized and that mined lands are reclaimed in a timely manner, to a usable condition which is readily adapted for alternative land use. B. The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range and forage, and aesthetic enjoyment. C. Residual hazards to public health and safety are eliminated. Section 9-9-2 Definitions For the purposes of this article the following definitions shall apply: A. "Financial assurance amount" means that amount of money necessary to conduct a complete reclamation on the mined lands in accordance with the approved reclamation plan, plus a reasonable estimate of the administrative costs and expenses which would be incurred by the Town of Marana. B. "Financial assurance" means a bond, instrument, fund or other form of financial assurance acceptable to the Town. C. "Government mine" means any surface mine owned and operated by federal, state or local governmental entity. D. "Idle" means to curtail for a period of one year or more surface mining operations by more than 90 percent of the operation's previous maximum annual mineral production, with the intent to resume those surface mining operations at a future date. Marana Town Code 9-71 MARANA TOWN CODE rev. 2002