Ridgecrest Municipal Code § 7-3 Franchises required

This chapter sets forth how franchises are granted by the city and describes the required terms and conditions of certain types of franchises.

(Code 1980, § 3-5.101)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Customer means a person who receives service from a franchisee.

Franchise means an entitlement issued by the city under this chapter.

Franchisee or grantee means a person, firm or corporation which has been granted a franchise under this chapter.

Gross annual receipts or gross revenue means any and all compensation and other consideration in any form whatsoever and any contributing grant or subsidy received directly or indirectly by the franchisee from customers or users in payment for the franchisee's service, provided taxes on the franchisee by any city, state or federal government unit and collected by franchisee for such governmental unit shall not be a part of gross revenue.

(Code 1980, § 3-5.102)

No person shall maintain or operate a taxi service, utility service, cable television service or trash collection service with the city except pursuant to a franchise issued by the city under this chapter.

(Code 1980, § 3-4.103; Ord. No. 89-19, § 1)

(a) Any person who desires to obtain a franchise under this chapter shall make application to the city manager. The application shall contain the information required by the director to determine whether the franchisee will comply with this chapter including the following:

(1) Name, address and telephone number;

(2) Type of franchise;

(3) Proposed service area;

(4) Plan for providing service;

(5) Evidence that the franchisee is capable of implementing the plan for services;

(6) Applicant's agreement to comply with the terms of this chapter.

(b) The director shall prepare a report and make a recommendation on the application.

(Code 1980, § 3-5.104)

(a) The council shall consider the report and recommendation of the city manager at a duly noticed public hearing conducted within 30 days after the date of the report. The hearing shall be preceded by ten days' prior mailed notice to the applicant and by notice published at least once, at least ten days before the hearing. The council shall receive the testimony of all interested persons at the hearing. The hearing may be continued from time-to-time.

(b) The council shall render its decision on the application at the conclusion of the hearing. The council's decision shall be set forth in an ordinance and shall be final when the ordinance is adopted and effective.

(c) The franchise shall be accepted in writing after the first reading of the ordinance and before adoption of the ordinance.

(Code 1980, § 3-5.105)

The term of the franchise shall not exceed 30 years from the date of acceptance. The franchise may be renewed in the same manner as the original franchise.

(Code 1980, § 3-5.106)

(a) A franchise may not be transferred by operation of law. A franchise may be transferred with the approval of the council upon showing that the transferee would be eligible to obtain a franchise on the first instance.

(b) A franchisee who desires to transfer a franchise shall make application to the director of public works. The application shall include the written agreement of the transferee to be bound by the terms and conditions of the franchise. The director shall prepare a report and recommendation on the application. The council shall review the director's report and recommendation.

(c) The council shall set forth its decision on the application in a resolution. The council's decision shall be final when the resolution is adopted and effective.

(Code 1980, § 3-5.106)

(a) A franchise is terminated when it expires by its terms; the franchise voluntarily abandons the franchise; or the franchisee violates the terms and conditions of the franchise.

(b) The director of public works shall provide the franchisee at least ten days' prior written notice of his intent to terminate the franchise. The notice shall state the reasons for terminating the franchise.

(c) Except when the franchise has terminated by its terms, the franchisee may contest the director's determination by filing a written appeal with the director within ten days of the date of the notice. When the franchise has terminated by its terms, the franchisee may request renewal of the franchise by filing an application for a franchise. The director shall file a report and recommendation with the council concerning each proposed termination for which a request for hearing has been filed. If no request for hearing is filed, the director's decision is final.

(d) The council shall consider the director's report and recommendation at a duly noticed public hearing if written appeal has been filed with the director. The hearing shall be preceded by at least ten days' prior written notice to the franchisee and notice published once ten days before the hearing. The council shall render its decision at the conclusion of the hearing. The council's decision shall be set forth in an ordinance and shall be final when the ordinance is adopted and effective.

(Code 1980, § 3-5.108)

(a) Except as provided in section 7-382, any franchise granted pursuant to the provisions of this chapter shall be nonexclusive.

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

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

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

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

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

(g) The grantee shall be subject to all city laws, rules, regulations, and specifications heretofore or hereafter enacted or established.

(h) No person, firm, or corporation in the existing service area of the grantee shall be arbitrarily refused service; provided, however, the grantee shall not be required to provide service to any customer who does not pay the applicable fee or monthly service charge.

(i) The council shall impose additional terms and conditions for the granting of a franchise as are necessary to implement the provisions of this chapter, including, but not limited to, provisions concerning the facilities of the grantee and operational standards. These additional terms and conditions shall be set forth in the ordinance granting the franchise operations of any grantee or from any provision of this chapter.

(Code 1980, § 3-5.109; Ord. No. 11-04, § 2)

(a) Nothing contained in this chapter shall be deemed or construed to impair and affect in any way, to any extent, the right of the city to acquire the property of the grantee, either by purchase or through the exercise of the right of eminent domain. The measure of damages if the grantor exercises the power of eminent domain shall be in accordance with laws as determined by a court of competent jurisdiction. Nothing contained in this chapter shall in any way modify or abridge the city's right of eminent domain.

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

(c) Except as provided in section 7-382, neither the granting of any franchise nor any of the provisions contained in this chapter shall be construed to prevent the city from granting any identical or similar franchise to any other person, firm, or corporation within all or any portion of the city.

(d) Neither the granting of any franchise nor any provision of this chapter shall constitute a waiver or bar to the exercise of any governmental right or power of the city.

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

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

(Code 1980, § 3-5.110; Ord. No. 96-01, § 3; Ord. No. 11-04, § 3)

(a) Franchise fees shall be as set forth in subsequent articles but shall be calculated and paid as set forth herein.

(b) The grantee shall file with the city, within 30 days after the expiration of any calendar year, or portion thereof, during which such franchise is in force, a financial statement prepared by a certified public accountant, or person otherwise satisfactory to the council, showing in detail the gross annual receipts of the grantee during the preceding calendar year, or portion thereof. It shall be the duty of the grantee to pay to the city, within 15 days after the time for filing such statements, the sum set forth in this section, or any unpaid balance hereof, for the calendar year, or portion thereof, covered by such statements.

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

(d) In the event of any holding over after the expiration or other termination of any franchise without the consent of the city, the grantee shall pay to the city reasonable compensation and damages of not less than 100 percent of the grantee's total gross profits during such period.

(Code 1980, § 3-5.111)

The city council may authorize the issuance of a temporary operating permit to a person who has applied for a franchise after the council has tentatively approved the issuance of a franchise but before the franchise has been granted. In no event shall a permit issued pursuant to this section be renewed or extended for more than 60 days.

(Code 1980, § 3-5.112; Ord. No. 95-02, § 2)

(a) Notwithstanding sections 7-4 and 7-5, the city council may award an interim franchise by resolution to prevent disruption of service to the public upon the conditions set forth in this section. The city council shall not be required to hold a hearing pursuant to section 7-5 prior to issuing an interim franchise under this section.

(b) Before it can award an interim franchise, the city council must find the award is necessary to prevent the interruption of public services, such that the award is necessary to protect the public health, safety, and welfare of the city.

(c) An interim franchise shall include conditions necessary to protect the public health, safety and welfare, including at least the following:

(1) The interim franchise service may be on the same terms and conditions of the preceding franchise.

(2) The maximum term of the interim franchise shall be 120 days.

(3) The interim franchisee shall be permitted to propose to provide permanent franchise services, but shall not be given a more favorable evaluation merely because interim franchise services have been provided.

(4) The franchise shall not confer any privilege or exemption except as specifically prescribed in this chapter.

(Code 1980, § 3-5.113; Ord. No. 11-01, § 2)