FRANCHISES

SECTION 61. (1) The rights of the city in and to its streets, avenues, parks, bridges, and all other public places are hereby declared to be inalienable, except as hereinafter otherwise provided.

(2)   No person, firm or corporation shall ever exercise any franchise or privilege mentioned herein except in so far as he or it may be entitled to do so by direct authority of the constitution of Idaho or the constitution or laws of the United States, in, upon, over, under and along any street, alley, highway or other public place in such city, unless he or it shall have obtained a grant therefor in accordance with the provisions hereof.

(3)   Every franchise or privilege to construct or operate street, suburban or interurban railroads along, upon, over or under any street, highway, or other public place, or to lay pipes or conduits or to erect poles or wires or other structures in, upon, over, under or along any street, alley, highway or other public places in the city for the transmission of gas or electricity, or for any purpose whatever, shall be granted upon the conditions herein provided, and where not provided herein then as provided by general law.

(4)   An applicant for a franchisee or privilege shall file with the council an application therefor, and thereupon the council shall, if it propose to grant the same, advertise the fact of said application, together with a statement that it is proposed to grant the same, in the official newspaper of the city. The publication of such advertisement must be made in at least one issue of the official newspaper before any further action can be taken on such application.

(5)   The advertisement must state the character of the franchise or privilege it is proposed to grant, and, if it be a street, suburban or interurban railroad, the route to be traversed; that sealed bids therefor will be opened at a stated time and place, and that the franchise will be awarded to the bidder offering to pay to the city during the life of the franchise the highest percentage of the gross annual receipts received from the use, operation or possession of the franchise; provided, that such percentage be not less than 1 percent of the said gross annual receipts during the first 10 years, not less than 2 percent during the second 10 years, not less than 3 percent during the third 10 years, not less than 4 percent for the rest of the life of the franchise.

(6)   At the time of opening the sealed bids, any responsible person, firm or corporation, present in person, or represented, may bid for such franchise or privilege not less than one-fourth of 1 percent of the gross annual receipts above the highest sealed bid therefor, and such bid so made may be raised not less than one-fourth of 1 percent of the gross annual receipts by any other responsible bidder, and such bidding may continue until finally such franchise shall be struck off, sold and awarded by the council to the person, firm or corporation offering the highest percentage of the gross annual receipts arising from the use, operation or possession of such franchise: Provided, that if, in the judgment of the council, no adequate or responsible bid has been made, the council may withdraw such franchise from sale or advertise for a new bid.

(7)   Every application and bid for franchises hereunder shall be accompanied by a cash deposit of $2000, or a certified check therefor as a guarantee of good faith of the applicant or bidder, and as a fund out of which to pay all expenses connected with such application and the granting of such franchise.

Upon the franchise being awarded, all deposits made by unsuccessful bidders shall be returned. The deposit of the successful bidder shall be retained until the filing and approval of the surety bond hereinafter provided for, whereupon the remainder of such deposit, after the payment therefrom of all expenses incurred by the city in connection with the advertising and awarding of such franchise, shall be returned.

(8)   No clause or condition of any kind shall be inserted in any franchise or grant, offered or sold under the terms hereof, which shall directly or indirectly restrict free and open competition in bidding therefor, and no clause or provision shall be inserted in any franchise offered for sale which shall in any wise favor one person, firm or corporation as against another in bidding for the purchase thereof.

(9)   The successful bidder for any franchise or privilege awarded hereunder shall file a bond running to the city to be approved by the council in the penal sum by it to be prescribed and set forth in the advertisement for bids, conditioned that such bidder shall well and truly observe and faithfully perform each and every term and condition of such franchise and that in case of any breach of condition of such bond the whole amount of the penal sum therein named shall be taken and be deemed to be liquidated damages and shall be recoverable from the principal and surety upon such bond.

Such bond shall be filed with the council within five days after such franchise is awarded, and within 30 days after the filing and approval of such bond, said franchise shall by the council be granted by ordinance to the person, firm or corporation to whom it shall have been struck off, sold or awarded, and in case such bond shall not be so filed, the award of such franchise shall be set aside and any money deposited in connection with the awarding of the franchise shall be forfeited, and the franchise shall, in the discretion of the council, be readvertised and again offered for sale in the same manner, and under the same restrictions as hereinbefore provided.

(10)   The maximum length of time for which a franchise or privilege to use the streets, alleys, highways, waters or other public places of the city may be granted to any person, firm or corporation, except for steam railroads, shall be 30 years.

(11)   Work under any franchise granted in accordance with the terms hereof shall be commenced in good faith within not more than four months from the date of the final passage of the ordinance granting such franchise, and if not so commenced within said time, said franchise shall be forfeited. Work under any franchise so granted shall be completed within the time fixed for such completion in the ordinance granting such franchise, and if not so commenced within said time, said franchise shall be forfeited. Work under any franchise so granted shall be completed within the time fixed for such completion in the ordinance granting such franchise, which time shall be not more than three years from the date of the final passage of the ordinance granting such franchise, and if not so completed with in said time, said franchise shall be forfeited: Provided, that if good cause be shown, the council may, by resolution, extend the time for completion thereof, not exceeding three months.

(12)   The grant of every franchise or privilege shall be subject to the right of the city, whether reserved or not, to make all regulations which shall be necessary to secure, in the most ample manner, the safety, welfare and accommodations of the public, including among other things, the right to pass and enforce ordinances to protect the public from danger and inconvenience in the operation of any work or business authorized by the grant of the franchise, and the right to make and enforce all such regulations as shall be reasonably necessary to secure adequate, sufficient and proper service and accommodations for the people and insure their comfort and convenience.

(13)   The grant of every franchise or privilege shall be subject to the right of the state, whether reserved or not, to prescribe and regulate the rates, fares, rentals or charges made for the service rendered under such franchise. The grant of every franchise for a street, suburban or interurban railroad or transportation system shall provide that all policemen and firemen of the city shall, at all times, while in the actual discharge of their duties, be allowed to ride on the cars of such railroad or transportation system within the boundaries of the city without paying therefor and with all rights of other passengers.

(14)   Every ordinance granting any franchise shall provide that, at the expiration of the period for which the franchise was granted, or at any time before, as stated in the ordinance, the city, at its election and upon the payment of a fair valuation to be made in the manner provided in the ordinance making the grant, may purchase and take over to itself the property and plant of the grantee in its entirety, but in no case shall the value of the franchise of the grantee be considered or taken into account in fixing such valuation. Or it may be provided in the ordinance granting any franchise that the property and plant of the grantee shall, at the expiration of the period for which the franchise is granted, become the property of the city without any compensation to the grantee.

(15)   Every ordinance granting any franchise shall further provide that, upon the payment by the city of a fair valuation in the manner provided in the ordinance, the plant and property of the grantee shall become the property of the city by virtue of the grant in payment thereunder, and without the execution of any instrument or conveyance. Or, in case it is provided in the ordinance granting any franchise that the property and plant of the grantee shall, at the expiration of the period for which it was granted, become the property of the city without any compensation to the grantee, the property and plant of the grantee shall then become the property of the city by virtue of the grant and without the execution of any instrument or conveyance.

(16)   Any franchise granted by the city shall not be leased, assigned or otherwise alienated without the express consent of the city, and no dealings with a lessee or assignee on the part of the city to require the performance of any act or payment of any compensation by the lessee or assignee shall be deemed to operate as such consent: Provided, that nothing herein shall be construed to prevent the grantees of such franchise from including it in a mortgage or trust deed executed for the purpose of obtaining money for corporate objects.

(17)   Every grant of any franchise or privilege in, over, under or along any of the streets, highways or public places in the city for railway purposes shall be subject to the conditions that the person, firm or corporation exercising or enjoying the same shall sprinkle, clean, keep in repair and pave and repave so much of said street, highway or other public place as may be occupied by said railway as lies between the rails of each railway track, and between the lines of double track, and for a space of two feet outside of said track.

(18)   Such city, by its councilmen, auditor, deputy auditor or accountants authorized by the council, shall have the right at all reasonable times to examine all the books, vouchers and records of any person, firm or corporation exercising or enjoying any franchise or privilege granted by the city for the purpose of verifying any of the statements of gross receipts provided for, and for any other purpose whatsoever connected with the duties or privileges of the city or of such person, firm or corporation arising hereunder, or from the ordinance granting the franchise, and may audit the same at the end of each year.

(19)   Every person, firm or corporation operating any business under a franchise granted hereunder shall file annually with the city clerk, on such date as shall be fixed by the council, a report for the preceding year.

Such report shall be in writing, verified by the affidavit of such person or persons, or officer of the corporation, as the council shall direct, and shall contain a statement, in such form and detail as shall from time to time be prescribed by the council, of all the gross receipts arising from all the business done by said person, firm or corporation within such city for the year immediately preceding such report. Such report shall contain such further statements as may be required by the council concerning the character and amount of business done and the amount of receipts and expenses connected therewith, and also the amount expended for new construction, repairs and betterments during such year.

(20)   A stipulated percentage of gross receipts shall be paid annually at the time of filing the annual report. Failure to pay such percentage shall work a forfeiture of the franchise. The provisions as to payment of gross receipts shall apply to every person, firm or corporation using or operating the works constructed under such franchise.

(21)   Every ordinance granting any franchise or privilege shall provide for the termination or forfeiture thereof upon breach or failure to comply with any of the terms, limitations or conditions thereof, and in all such cases the council shall have power to declare the termination and forfeiture of any such franchise or privilege the same as though in each instance such power was expressly reserved.

(22)   All franchises and privileges heretofore granted by such city, which are not in actual use or enjoyment, or which the grantees thereof have not in good faith commenced to exercise, shall be declared forfeited and invalid, unless such grantees or their assigns shall, within six months after this Act takes effect, in good faith, commence the exercise and enjoyment of such privilege or franchise.

(23)   Ordinances granting franchises shall contain provisions prohibiting any corporation holding any franchise from issuing any capital stock on account of a franchise or the value thereof.

(24)   No sale or lease of any franchise granted by the city shall be effective until the assignee, or lessee, shall have filed in the office of the clerk an instrument, duly executed, reciting the fact of the sale or lease, accepting the terms of the franchise affected, and agreeing to perform all the conditions required of the grantee thereunder. The assignee or lessee, also shall file a bond in such amount and with such conditions as the council may require, which bond shall run to the city as of a deed, with sureties satisfactory to the council, and shall obligate the grantee or lessee, to discharge all obligations and liabilities imposed upon the grantee by the franchise.

(25)   The enumeration and specification of particular matter which must be included in every franchise granted, shall not be construed to impair or limit the right and power of the city to insert in such franchises all such other and further conditions and restrictions as the council may deem proper to protect the city's interests.

   Ch. 1, Local and Special Laws 1927.

   Ch. 279 S.L. 1951.