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Article 2 Franchises

Section 10-201 Control by Charter Provisions.

Every franchise hereafter granted shall be expressly subject to all the provisions of the foregoing sections and the power of control and regulation as authorized by such sections cannot be limited, divested or granted away. Subject to the initiative and referendum such power of control and regulation shall be exercised by the Council and may be exercised by the Council through its agents. [May 3, 1913, new sec. 65; rev. 1914, sec. 159; 1928 pub., sec. 159; 1942 recod., sec. 10-201.]

Section 10-202 Property Nature of Franchises.

Every franchise granted under this Charter shall be taken and deemed as property and shall be subject to taxation as property. [Ch. 1903, sec. 100; am. May 3, 1913, sec. 67; rev. 1914, sec. 166; 1928 pub., sec. 166; 1942 recod., sec. 10-202.]

Section 10-203 Authorization of Industrial Tracks.

The Council shall have power on application or assent in writing of the owners of a majority part in extent of the lots or tracts of land fronting on each side of that portion of any street or part of a street on which it is desired to construct railroad tracks for spurs, sidings or switches, other than those for street railways, to grant revocable permits for the use of streets for that purpose, subject to sections 10-108 and 10-206 of this Charter. [Ch. 1903, sec. 102; am. May 3, 1913, new sec. 68; rev. 1914, sec. 167; 1928 pub., sec. 167; 1942 recod., sec. 10-203.]

Section 10-204 Agreements with Railroads.

The Council shall have power and authority by ordinance duly passed to agree with any corporation, firm or person constructing a commercial railroad and desiring to enter the City, upon the extent, terms and conditions upon which the streets, alleys, or public grounds of the City may be appropriated, used or occupied by such railroad and upon the manner, terms and conditions under which the cars and locomotives of such railroad may be run over and upon such streets, alleys and public grounds; such agreement shall be subject to the provisions and requirements of sections 10-101 to 10-103, 10-105 to 10-108, 10-201 to 10-209, 10-212 and (e) and (f) of Section 10-210 of this Charter.

No exclusive right for the aforesaid purposes shall be granted to any corporation, firm or person and the use of all such rights shall at all times be subject to regulation by the Council.

In addition to the other requirements of this Charter every ordinance granting such right shall be upon the condition that such grantee shall allow any other railroad company to use in common with it the same track or tracks throughout their entire length between the extreme limits for which the franchise is granted including any private rights of way which may intervene upon obtaining the consent of the Council expressed by ordinance prescribing the regulations for such use, and the compensation therefor, each paying an equitable and proper proportion of the construction, maintenance and repair of the tracks and appurtenances and any private right of way used by such railroad companies jointly, such proportion to be fixed by the Council. [Ch. 1903; sec. 103; am. May 3, 1913, secs. 69 and 70; rev. 1914, secs. 168 and 169; 1928 pub., secs. 168 and 169; 1942 recod., sec. 10-204.]

Section 10-205 Limited Time.

Franchises may be granted for a limited time in and upon the streets, highways and public places and property of the City of Portland, in the manner and subject to the conditions hereinafter contained. [May 3, 1913, new sec. 71; rev. 1914, sec. 170; 1928 pub., sec. 170; 1942 recod., sec. 10-205.]

Section 10-206 Nonexclusiveness.

No exclusive franchise shall be granted nor shall any franchise, lease or rights be granted for a longer period than twenty-five (25) years. [May 3, 1913, new sec. 72; rev. 1914, sec. 171; 1928 pub., sec. 171; 1942 recod., sec. 10-206.]

Section 10-207 Method of Granting.

Every franchise shall be embodied in an ordinance, which shall contain all the terms and conditions of the proposed grant, and shall be filed with the Auditor. Thereupon such proposed ordinance shall be published in full, once in the City official newspaper. There shall also be published, in a conspicuous place in such daily newspaper of the City having a circulation in excess of fifteen thousand (15,000), as the Council may direct, a notice prepared by the Auditor, that an application has been made for a franchise, giving the name of the applicant, the character and location of the proposed grant, and requesting any person having any objections to such proposed franchise or any provisions thereof to file the same in writing with the Auditor within twenty (20) days from the first publication of such notice. If the request is made therefor, the Council shall fix a time for a hearing upon such objections and give reasonable notice of the time thereof and not less than five (5) days. All of such publications and notices shall be at the expense of the applicants for such franchises.

Such ordinances shall not come up for first reading until after the expiration of the said twenty (20) days.

If such ordinance shall be amended, it shall be republished in the City official newspaper in full as amended.

No such ordinance granting a franchise shall be put on final passage within thirty (30) days after the first reading nor within twenty (20) days after any amendment thereto, and the affirmative vote of four (4) Commissioners shall be required to pass the same. [May 3, 1913, new sec. 73; rev. 1914, sec. 172; 1928 pub., sec. 172; 1942 recod., sec. 10-207.]

Section 10-208 Effective Date.

No franchise shall take effect until sixty (60) days after its passage unless it shall receive a majority of the votes cast thereon at a referendum election held for that purpose within a less time. The filing of a petition for referendum shall defer the taking effect of a franchise until after the election. A petition signed by two thousand (2,000) registered voters shall be sufficient to call a referendum upon any franchise ordinance. [May 3, 1913, new sec. 74; rev. 1914, sec. 173; 1928 pub., sec. 173; 1942 recod., sec. 10-208.]

Section 10-209 Specific Conditions.

Every franchise granted by the City of Portland shall contain full and explicit statements of its conditions in the following particulars:

(a) In case of railroads and street railways it shall specify plainly the streets or other public places or parts thereof to which they apply. Any other franchises shall state the boundary of the district or districts within which they shall be exercised.

(b) The amount and manner of payment of the compensation to be paid by the grantee for the right. The Council shall make an estimate of the cash value of any franchise upon the filing of the application, or an estimate for what it may consider fair compensation to the City for such franchise, and the same shall be entered upon the minutes of the proceedings of the Council and published with the published copy of the franchise. In lieu of a money valuation the Council may at its option declare what will be a reasonable reduction of fares, rates or charges, either at the beginning or progressively from time to time, to be made by the grantee in compensation for the grant.

(c) The time of beginning the construction or other work thereunder, the estimated total cost of such work, the monthly or yearly sums of money to be expended thereon, and in case of franchises to transportation companies or other franchises covering certain streets or portion of streets, the time within which the work under such franchise shall be completed upon such streets or portions of streets, respectively.

(d) Every grant of a franchise which provides for or permits the changing of rates, fares or charges shall contain a provision fixing the maximum that the holder can collect for services rendered by virtue of said franchise and the operation of the plant or property thereunder; subject, however, to the power of regulation prescribed in Section 10-108 of this Charter.

Rates, however, shall always be uniform to all persons of like classes, under similar circumstances and conditions.

[May 3, 1913, new sec. 75; rev. 1914, sec. 174; 1928 pub., sec. 174; 1942 recod., sec. 10-209.]

Section 10-210 Conditions and Restrictions.

Every franchise granted by the City shall be subject to the conditions and restrictions hereinafter provided, to wit:

(a) That the City may in lawful manner and upon the payment of a fair valuation lawfully ascertained, purchase, condemn, acquire, take over and hold the property and plant of the grantee in whole or in part; if such purchase or taking over be at the expiration of the term of the franchise such valuation shall not include any sum for the value of the franchise or grant under which such plant and property is being operated.

(b) That upon payment by the City of Portland of a fair valuation, as above stated, the plant and property so acquired shall become the property of the City without formal execution of any instrument of conveyance; provided, however, the City may at its option compel the execution to it of an instrument of transfer and conveyance.

(c) That upon the acquisition of any such plant or property the right of the holder of any such franchise pursuant to which such plant or property was operated shall cease and determine, and the acquisition by the City of any such property or plant shall operate to divest the holder of any such franchise of all right, title and interest therein.

(d) No franchise shall be granted without fair compensation to the City therefor, either by way of direct payment or by reduction of rates, fares or charges, and in addition to the other forms of compensation to be therein provided, the grantee may be required to pay annually to the City such part of its gross receipts as may be fixed in the grant of said franchise. This provision shall not exempt the holder of the franchise from any lawful taxation upon its property nor from any license, charge or imposition not levied on account of such use.

(e) Every franchise and all things constructed thereunder or used in connection therewith, other than rolling stock and power, shall be subject to common use by any person or corporation, including the City, operating a similar public utility whenever it shall be advantageous to the public upon payment or tender of fair compensation for such use. The compensation for the franchise itself shall be payable only to the City and not to the holder of the original franchise.

The Council shall have power to determine what is a fair compensation and to regulate the manner of such use subject to judicial review, but no judicial proceedings shall suspend or postpone such use if the person or corporation desiring such common use shall deposit in the court such sum as the court on a preliminary hearing may determine.

Such compensation shall not include any remuneration for the franchise or rights conferred by the City, except that the new user may be required to pay a ratable part of any tax or public charge imposed upon the original grantee by reason of said franchise, in addition to such other payment to the City as the Council may deem equitable.

(f) The holder for the time being of any franchise to construct or operate railways in the streets or public places shall keep those portions of streets or other places occupied by such holder in good order, as required by the Council, and shall pave, improve, or repair and maintain from time to time in the manner and within the time directed by the Council, that portion of the street occupied by it lying between the rails of any track and extending one foot outside of such rail and portion of the streets lying between the tracks.

In addition any franchise granted to any street or other railroad, for the operation thereof, may provide that the holder thereof for the time being shall pave, repave and keep in repair at the time and in the manner required by the Council any street or part thereof used pursuant to such franchise for the whole or any part of the entire width of the street.

Failure or neglect upon the part of any holder of a franchise to do the work in the manner and within the time required by the Council, shall constitute an offense punishable by a fine of not less than ten dollars ($10) nor more than one hundred dollars ($100) for each and every day such refusal or neglect shall continue.

[May 3, 1913, new sec. 78; rev. 1914, sec. 177; 1928 pub., sec. 177; 1942 recod., sec. 10-210.]

Section 10-211 Additional Conditions.

The enumeration and specification of particular matters which must be included in every franchise granted shall not be construed to impair the right of the City to insert in such franchise such other and further conditions and restrictions as the Council may deem proper for the public welfare. [May 3, 1913, new sec. 77; rev. 1914, sec. 176; 1928 pub., sec. 176; 1942 recod., sec. 10-211.]

Section 10-212 Written Acceptance.

Every grantee of any franchise, right or privilege shall within thirty (30) days after the ordinance granting the same shall be enforced, file with the City Recorder a written acceptance of the same, and a failure on the part of the grantee to file such written acceptance within the time specified shall be deemed an abandonment and rejection of the rights and privileges conferred, and the ordinance granting the same shall thereupon be null and void; such acceptance shall be unqualified and shall be construed to be an acceptance of all the terms, conditions and restrictions contained in the ordinance granting the same. [May 3, 1913, new sec. 76; rev. 1914, sec. 175; 1928 pub., sec. 175; 1942 recod., sec. 10-212; am. May 20, 1986.]

Section 10-213 Statements.

Within ninety (90) days after this Charter shall take effect, the holder of any franchise shall file with the Auditor a full and correct statement of the franchise, rights and privileges owned or claimed to be owned, and shall designate the same by the numbers and titles of the ordinances by which such franchises were granted, and any holder of any franchise, on failure so to do, shall be guilty of an offense punishable by a fine of not less than ten dollars ($10) and not more than one hundred dollars ($100) per day while such refusal or neglect continue. The holder of every franchise, and the grantees of every franchise hereafter granted, on sale, transfer, mortgage or lease being made of such franchise, shall within sixty (60) days thereafter file with the Auditor a copy of the deed, agreement, mortgage, lease, or other written instrument evidencing such sale, transfer or lease, certified and sworn to as correct by the grantee, in person, if an individual, or by the president or secretary or authorized agent, if a corporation.

Every sale, transfer, mortgage or lease of such franchise, whether voluntary or involuntary, shall be deemed void and of no effect unless the grantee shall, within sixty (60) days after the same shall have been made, file such certified copy as required by this Section and consented to as provided in Section 10-216 of this Charter, also unless the Council agrees to such sale by an ordinance expressly passed for that purpose, as provided by Section 10-216.

The Auditor shall file all such documents and shall make and keep an index of the same in a book to be kept by the Auditor for that purpose, which book shall be a part of the public records of the City. [May 3, 1913, new sec. 80; rev. 1914, sec. 179; 1928 pub., sec. 179; 1942 recod., sec. 10-213.]

Section 10-214 Records.

The City officer responsible for accounting shall keep a separate record for each grantee of a franchise from the City rendering service to be paid for wholly or in part by users of such service, which record shall show in the case of each such grantee:

1. The true and entire cost of construction, of equipment, of maintenance and of the administration and operation thereof; the amount of stock issued, if any; the amount of cash paid in, the number and par value of shares, the amount and character of indebtedness, if any; the rate of taxes, the dividends declared; the character and amount of all fixed charges; the allowance, if any, for interest, for wear and tear or depreciation; all amounts and sources of income.

2. The amount collected annually from the City treasury and the character and extent of the service rendered therefor to the City.

3. The amount collected annually from other users of the service and the character and extent of the service rendered therefor to them. Such books of record shall be open to public examination at any time during City business hours. Such information, in addition to any further data which may be required by the City, under this Charter, shall be furnished by the grantees or holders of such franchises upon request, and at such grantee's own cost and expense.

4. In case any grantee or holder of a franchise fails or refuses to furnish such information when requested so to do on petition being presented on behalf of the City to the circuit court, such court shall have jurisdiction to compel such grantee or owner to furnish such information and tax the costs of such application against the defendant in such proceedings and in addition may impose a fine of not less than twenty-five dollars ($25) nor more than five hundred dollars ($500) for every such offense. All fines collected under this Section shall be paid into the General Fund. The procedure on such application shall be as far as possible analogous to that on mandamus.

[May 3, 1913, new sec. 81; rev. 1914, sec. 180; 1928 pub., sec. 180; 1942 recod., sec. 10-214; am. May 20, 1986.]

Section 10-215 Nonabandonment.

No abandonment, nonuser or failure to comply with the terms of the franchise shall release the holder from any of the obligations thereof without the consent of the City expressed by ordinance which shall be subject to the referendum. Notwithstanding such abandonment the provisions of the franchise may be enforced, but upon abandonment, nonuser, or failure to comply with any of the terms of the franchises, the City may by ordinance declare a forfeiture, whereupon all rights of the holders of the franchise shall immediately be divested without a further act upon the part of the City, and in case of a franchise for occupancy of streets, the holder shall be required notwithstanding such forfeiture, to remove its structures or property from the streets and restore the streets to such condition as the Council may require or as may be stipulated in the grant; and upon failure to do so the City may perform the work and collect the cost thereof from the holder of the franchise. The cost thereof shall be a lien upon all the plant and property of the holder of the franchise, prior to any other lien except that of City assessments or general tax, and the City may collect the same as a City assessment or in any other lawful manner. [May 3, 1913, new sec. 83; rev. 1914, sec. 182; 1928 pub., sec. 182; 1942 recod., sec. 10-215.]

Section 10-216 Assignments.

No franchise shall be sublet or assigned, nor shall any of the rights or privileges thereby granted or authorized be leased, assigned, sold or transferred without the consent of the City expressed by ordinance which shall be subject as other ordinances to the referendum. [May 3, 1913, new sec. 79; rev. 1914, sec. 178; 1928 pub., sec. 178; 1942 recod., sec. 10-216.]

Section 10-217 Forfeiture.

All franchises or privileges heretofore granted by the City which are not in actual use or enjoyment or which the grantee thereof has not in good faith commenced to exercise within the time required by the terms thereof are hereby declared forfeited and of no validity. This Charter shall in no wise validate any contract, privilege or franchise not heretofore a legal and valid obligation of the City. [May 3, 1913, sec. 82; rev. 1914, sec. 181; 1928 pub., sec. 181; 1942 recod., sec. 10-217.]

Section 10-218 Common Transportation Terminal.

It shall be the policy of the City of Portland to create a common transportation terminal, both land and water, embracing both sides of the harbor for its full extent in the City, which shall be subject to entry and use throughout its full extent by all common carriers on equal terms, as far as the property, rights and jurisdictions of the City may apply to secure same; and all such property, rights and jurisdictions of the City within one thousand (1,000) feet of meander line specified in Section 1-104 of this Charter shall be subject to use and demands for such common terminal purposes and needed connecting roadways, tracks and appurtenant facilities; provided that the public docks may be furnished with warehouses subject to lease.

All proposed franchises, grants, privileges, and public improvements and other improvements as far as the jurisdiction of the City may extend, affecting such territory must be considered in relation to said common terminal and adapted thereto in a systematic way, and shall to that end be submitted to the City Engineer and the official or officials in charge of the public docks for approval. Without the approval of these, it shall require a four-fifths vote of the Council to pass such measure. If the Council pass such measure without the approval aforesaid, the Mayor shall have the measure placed upon the ballot at the next ensuing regular election for approval or rejection by the people.

No grant or franchise affecting this territory shall confer any superior right that may operate to defeat the purpose of this act to protect the common access on equal terms in said territory and any provision in any grant or franchise contrary to said purpose shall be null and void.

The purpose of this act is to provide connections for and means of interchange of traffic upon the lines or tracks of all common carriers, public or private, with the greatest facility and economy and the least obstruction, inconvenience and cost possible. The City Engineer and the official or officials in charge of the public docks shall at once draw up such plan and elaborate and extend it from time to time to meet the purpose of this act as public needs develop.

In pursuance of the policy established by this amendment, the Mayor shall cause to be made an inventory of all public properties and rights within the one thousand (1,000) foot limit defined herein, and to have said properties defined and recorded, especially between meander and harbor lines, and utilize the same to the fullest possible extent in the development of the terminal plan herein provided for. And where, in such development, the City may lack jurisdiction for control, the Mayor and Council are required to use, under wise discretion, their best efforts to secure the jurisdiction and control necessary.

All acts and parts of acts in conflict with this act are hereby repealed. [June 2, 1913, new sec. 93-1/2; rev. 1914, sec. 183; 1928 pub., sec. 183; 1942 recod., sec. 10-218.]