AN ORDINANCE GRANTING TO SEDGWICK COUNTY ELECTRIC COOPERATIVE ASSOCIATION, INC., ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE INCLUDING THE RIGHT TO CONSTRUCT, OPERATE AND MAINTAIN ELECTRIC TRANSMISSION, DISTRIBUTION AND STREET LIGHTING FACILITIES WITHIN THE CORPORATE LIMITS OF THE CITY OF MAIZE, KANSAS.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF MAIZE, KANSAS:
SECTION 1. DEFINITIONS
For purposes of this Franchise, the following words and phrases shall have the meanings given herein:
City as the Grantor means the City of Maize, Kansas.
City limits means physical boundaries of the City.
Company as the Grantee means Sedgwick County Electric Cooperative Association, Inc., organized under the Electric Cooperative Act, Chapter 17, Article 46, Kansas Statutes Annotated.
Distributed or Distribution means all sales, distribution, or transportation by the Company or by others through the Facilities of the Company in the Right-of-Way to any consumer for use within the City.
Electric Utility Service means (i) all sales of electricity to all customers within the corporate limits of the City, and (ii) revenues from transportation and distribution of electricity when sold separately by third parties to any end user located within the City Limits of the City.
Electric Utility System or System means an electric power system installed and operated in the City, which shall include, but is not limited to, generation, transmission and distribution Facilities, equipment and administrative services necessary to provide electric service for any use in the City, and such extensions, additions or reductions as may hereafter be made.
Facilities means all electric distribution lines, substations, works, and plants together with all necessary appurtenances.
Franchise means this Ordinance No. 1008.
Gross Receipts means all compensation and other consideration derived by the Company from any Distribution of Electric Utility Service to a consumer for any use within the City, including, but not limited to, domestic, commercial, and industrial purposes; except that the term Gross Receipts does not include revenues from delayed or late payment charges, connection and disconnection fees, reconnection fees, customer project contributions, returned check charges, and temporary service charges.
Public Improvement means any existing or contemplated public facility, building, or capital improvement project, including without limitation streets, alleys, sidewalks, sewer, water, drainage, Right-of-Way improvement, and Public Projects.
Public Project means any project planned or undertaken by the City or any governmental entity for construction, reconstruction, maintenance, or repair of public facilities or improvements, or any other purpose of a public nature.
Public Project for Private Development means a Public Project, or that portion thereof, that will primarily benefit a third (3rd) party and will consist of infrastructure that will not be owned and operated by the City.
Right-of-Way means present and future streets and alleys, and in addition means other present and future public easements owned by the City, which by the easement language gives the City the authority to install public utilities in the public easement.
Street Right-of-Way means the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for the purpose of vehicular traffic.
Utility Easement means an easement owned by or dedicated to the City for the purpose of providing the Company and other utilities access to customers and users of any utility service.
SECTION 2. GRANT.
There is granted to the Company, the non-exclusive right, privilege, and franchise to construct, maintain, extend, and operate its Facilities in, through and along the Right-of-Way of the City for the purpose of supplying electric energy to the City and its inhabitants for the full term of this Franchise, subject to the terms and conditions set forth in this Ordinance. Nothing in this grant will be construed to franchise or authorize the use of the Company’s Facilities or the Right-of-Way by the Company or others, for any purpose not related to the provision of electric energy. The Company may not allow a subsidiary, affiliate, or a third (3rd) party to acquire rights to occupy the Rights-of-Way under this Franchise; provided, that nothing in this section prevents the Company from allowing the use of its Facilities by third parties when the use is compensated to the City under the provisions of a franchise granted by the City to a third party.
SECTION 3. TERM.
a. The term of this Franchise shall be 10 years from the effective date of this Ordinance.
b. Upon not less than 120 days advance written notice, by the City or the Company, before the fifth anniversary date of this Ordinance, the terms of this Franchise granted in this Ordinance may be changed to end on the fifth anniversary date of this Ordinance.
c. If the rate of compensation is changed by City ordinance, the City will notify the Company with written notice. The rate of compensation, if changed by City ordinance, is not a negotiable item; however, any increase in compensation/fee will be done in compliance with the public notification procedures set forth in K.S.A. 12-2001.
d. Upon written request of either the City or the Company, the Franchise shall be reopened at any time upon any of the following events:
1. Change in federal, state, or local law, regulation, or order which materially affects any rights or obligations of either the City or the Company, including but not limited to the scope of the grant to the Company or the compensation to be received by the City; or
2. Change in the structure or operation of the electrical energy industry which materially affects any rights or obligations of either the City or the Company, including but not limited to the scope of the grant to the Company or the compensation to be received by the City;
3. [Reserved.]
4. Any other material and unintended change or shift in the economic benefit to the City or a change the Company did not anticipate upon accepting the grant of this Franchise; or
5. Any other mutually agreed upon reason.
e. Amendments under subsection 3.d and, if any, will be made by ordinance as prescribed by Kansas statutes. The Franchise will remain in effect according to its terms pending completion of any review pursuant to subsection 3.d.
SECTION 4. COMPENSATION TO THE CITY.
a. In consideration of and as compensation for the Franchise granted to the Company by the City, the Company shall make an accounting on a monthly basis of all Gross Receipts it has earned within City Limits during the preceding month. The Company shall pay the City a monthly sum equal to five percent (5%) of the Gross Receipts received for the preceding month; and the above sum will be adjusted for uncollectible receivables and for receivables which are later collected.
b. Payment of the compensation above will be effective on the first day of the first month after final passage and approval by the City. Prior to that date, payments will continue to be calculated and be paid in the manner previously provided in Ordinance No. 575. Payments will be made to the City under procedures, which are mutually agreed to by the Company and the City within thirty (30) days of the last day of the month to which the accounting applies. Any change in compensation pursuant to Section 3.c. will be effective the first day of the first month after notice is received from the City of a change in compensation pursuant to Section 3.c.
c. The fee provided for in this Section 4 will not become effective within any area annexed by the City until 30 days after the City provides the Company with a certified copy of the annexation ordinance, proof of publication as required by law and a map of the city detailing the annexed area.
d. Company will use commercially reasonable efforts to ensure the accuracy of its records and of the determination of the amount of Gross Receipts subject to the fee provided for in this Section 4. In the event and to the extent the accounting rendered to the City by the Company is found to be incorrect, then payment shall be made on the corrected amount within 30 days of discovery of the mistake, it being agreed that the City may accept any amount offered by the Company, but the acceptance thereof by the City will not be deemed a settlement of an item if the amount is in dispute or later found to be incorrect. The Company agrees that all its books, records, documents, contracts, and agreements as may be reasonably necessary for an effective compliance review of this Ordinance will upon reasonable notice and at all reasonable times be opened to the inspection and examination of the officers of the City and its duly authorized agents, auditor, and employees for the purpose of verifying said accounting. Notwithstanding the obligation herein, the Company will have the right to require the reasonable protection of proprietary information of the Company.
SECTION 5. PAYMENT AND CHARGES.
The payments and compensation herein provided are in lieu of all other licenses, permits, taxes, charges, and fees, except that the usual property taxes and special ad valorem property assessments, sales and excise taxes, or charges made for privileges, will be imposed on the Company, and are not covered by the payments herein.
SECTION 6. USE OF RIGHT-OF-WAY.
a. The use of the Right-of-Way under this Franchise by the Company is subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City in the exercise of its power, as a municipal corporation operating under the laws of the state of Kansas, relating to use, placement, location, or management of utilities located in the City’s Right-of-way. In addition, the Company shall be subject to all laws, rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City in the exercise of its powers, as a municipal corporation relating to permits, fees, sidewalk and pavement cuts, utility location, construction coordination, screening, and other requirements on the use of the Right-of-Way; provided, however, that nothing contained herein constitutes a waiver of or be construed as waiving the right of the Company to oppose, challenge, or seek judicial review of any laws, rules, regulations and policies. Further, the Company shall comply with the following:
b. The Company’s use of the Right-of-Way will in all matters be subordinate to the City’s use of the Right-of-Way. The Company shall coordinate the installation of its Facilities in the Right-of-Way in a manner which minimizes adverse impact on Public Improvements, as determined by the City. Where installation is not otherwise regulated, the Facilities shall be places with adequate clearance from such Public Improvements so as not to conflict with such Public Improvement.
c. All earth, materials, sidewalks, paving, crossings, utilities, Public Improvements, or improvements of any kind located within the Right-of-Way damaged or removed by the Company in its activities under this Franchise shall be fully repaired or replaced promptly by the Company without cost to the City, however, when such activity is a joint project of utilities or franchise holders, the expenses thereof will be prorated among the participants, and to the reasonable satisfaction of the City in accordance with the ordinances and regulations of the City pertaining thereto. Nothing in this Franchise shall require the Company to repair or replace any materials, trees, flowers, shrubs, landscaping or structures, except fences, that prevents the Company’s access to any of its Facilities located in a Utility Easement.
d. Except in the event of an emergency, as reasonably determined by the Company, the Company shall comply with all laws, rules, regulations, policies, resolutions, or ordinances now or hereinafter adopted or promulgated by the City relating to any construction, reconstruction, repair, or relocation of Facilities that require any street closure which reduces traffic flow.
Notwithstanding the foregoing exception all work, including emergency work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected.
e. The Company shall cooperate promptly and fully with the City and take all reasonable measures necessary to provide accurate and complete information regarding the location of its Facilities located within the Right-of-Way when requested by the City or its authorized agents for a Public Project. Such location and identification shall be promptly communicated in writing to the City without cost to the City, its employees, agents, or authorized contractors. The Company shall designate and maintain an agent, familiar with the Facilities, who is responsible for providing timely information needed by the City for the design and replacement of Facilities in the Right-of-Way during and for the design of Public Improvements. At the request of the Company, the City may include design for Facilities in the design of Public Projects. Also, at the request of the Company, the City and/or its contractor(s) or agent(s) shall provide accurate and timely field locations of proposed Public Projects in the event the Company is required to install new and/or relocate its Facilities.
f. The Company shall promptly locate, remove, relocate, or adjust any Facilities located in the Right-of-Way if notified by the City for a Public Project. Such location removal, relocation, or adjustment for a particular Public Project shall be performed by the Company without expense to the City, its employees, agents, or authorized contractors, and shall be specifically subject to rules and regulations of the City pertaining to such. If additional location, removal, relocation, or adjustment is the result of the inaccurate or mistaken information of the Company, the Company shall be responsible for costs associated with such without expense to the City. Likewise, if additional location, removal, relocations or adjustment is the result of inaccurate or mistaken information of the City, the City shall reimburse the Company for any additional expense necessarily incurred by the Company directly due to such inaccurate or mistaken information. The Company shall only be responsible for removal, relocation, or adjustment of Company Facilities located in the Right-of-Way at the Company’s sole cost once each five (5) years for a particular Facility. The City shall reimburse the Company for the removal, relocation, or adjustment of the Company’s Facilities located in the Right-of-Way if required before the expiration of five (5) years from the date of the last relocation, removal, or adjustment of that particular facility.
g. The Company shall not be responsible for the expenses of relocation to accommodate any new Public Project for Private Development initiated after the effective date of this Ordinance. The expenses attributable to such a project shall be the responsibility of the third (3rd) party upon the request and appropriate documentation of the Company. Before such expenses may be billed to the third (3rd) party, the Company shall be required to coordinate with the third (3rd) party and the City on the design and construction to ensure that the work required is necessary and done in a cost effective manner. The Company may require payment in advance of estimated costs or relocation prior to undertaking any work required to accommodate any new Public Project for Private Development initiated after the effective date of this Ordinance.
h. The City shall continue to provide a location in the Right-of-Way for the Company’s Facilities as part of a Public Project, assuming the space is available and practical for use, provided that the Company has cooperated promptly and fully with the City in the design of its Facilities as part of the Public Project. If space is not available or practical for use, City shall use good faith efforts to provide a location in an alternate Right-of-Way for the Company’s Facilities.
i. Prior to the Company’s installation of Facilities in the Right-of-Way and after it provides the City with its proposed plans for the Facilities, the City may in its reasonable discretion designate certain locations or Facilities in the Right-of-Way to be excluded from use by Company for its Facilities, if in the reasonable judgment of the City Engineer the Facility or location is incompatible with the proposed Facilities or would be rendered unsafe or unstable by the installation. The City Engineer may further exclude certain other Facilities that have been designated or planned for use by the Company due to engineering, technological, proprietary, aesthetics, or legal limitations or restrictions as may be reasonably determined by the City. The City shall provide a written explanation for any denial for a particular location and shall work with the Company to identify suitable alternatives.
Except in cases of emergency, at least ten (10) business days before the beginning of any installation, removal or relocation of its Facilities greater in length than 660 feet the Company shall submit detailed plans of the proposed action to the City Engineer. The City Engineer shall, within ten (10) business days of receipt of such plans, either approve the plans or inform the Company of the reasons for disapproval. The Company shall designate a responsible contact person with whom representatives of the City Engineer can communicate on all matters relating to Facilities installation and maintenance.
j. It will be the responsibility of the Company to take adequate measures to protect and defend its Facilities in the Right-of-Way from harm or damage. If the Company fails to accurately locate Facilities when requested, it will have no claim for costs or damages against the City. The Company will be responsible to the City and its agents, representatives, and authorized contractors for all damages including, but not limited to, delay damages, repair costs, down time, construction delays, penalties or other expenses of any kind arising out of the failure of the Company to perform any of its obligations under this Ordinance. The above general provisions notwithstanding, the City and its authorized contractors shall take reasonable precautionary measures including calling for utility locations through Kansas One Call and exercising due caution when working near the Company’s Facilities.
k. All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the Facilities in the Right-of-Way shall be in accordance with applicable present and future federal, state, and City laws and regulations, including but not limited to the most recent standards of the Kansas Corporation Commission and U.S. Department of Transportation. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this Franchise may be additional to or stricter. than such minimum standards.
l. The City encourages the conservation of the Right-of-Way by the sharing of space by all utilities. Notwithstanding provisions of this Franchise prohibiting third (3rd) party use, to the extent required by federal or state law, the Company will permit any other franchised entity by an appropriate grant, or a contract, or agreement negotiated by the parties, to use all Facilities constructed or erected by the Company.
m. Permission is granted to the Company to trim trees upon and overhanging the right-of-way and utility easements. The Company shall perform line clearance work in accordance with regulations established under OSHA 29 CFR 1910.269. All pruning operations shall be performed by personnel qualified to perform the work and in accordance with the latest versions of ANSI Z133.1 (Safety Requirements for Pruning, Repairing, Maintaining and Removing Trees, and Cutting Brush) and ANSI A300 (Part 1) (Standard Practices for Tree, Shrub, and Other Woody Plant Maintenance). For routine trimming operations, customers shall be contacted at least one (1) week in advance by either personal contact or by informational door hanger.
n. The design, location, and nature of all Facilities to be placed in the Right-of-Way shall be subject to the reasonable review and approval of the City Engineer. Anything placed onto the Facilities is subject to reasonable review and approval of the City Engineer. This is a means to properly manage and control all Right-of-Way usage in the City, and to protect the public aesthetics, health, safety, and welfare. The review and approval are to ensure efficient coordination relating to Right-of-Way use relating to public and private utilities and to evaluate the configuration and size of Facilities that may be in the Right-of-Way.
o. [Reserved].
p. If the Company, in its sole discretion, determines that it has spare ducts in its underground conduits, or spare pins, crossarms, or space on any of its poles not then necessary for the provision of Electric Utility Service, and not needed for future anticipated load growth or emergencies, the Company may permit the City to use one such duct in each conduit, or reasonable spaces on poles, or both, for the City’s police and fire alarm wires, traffic control wires or cable, fiber-optic lines connecting City facilities, or other similar, appropriate noncommercial uses, provided that such use by the City is in compliance with the National Electric Safety Code and at the expense of the City. If the Company constructs or extends additional conduits or erects additional poles, the City, at the City’s sole expense, may require the Company to provide one such duct in each conduit, or reasonable space on poles, or both, for the City’s own use as aforesaid.
q. The City reserves the right to lay, and permit to be laid, storm sewer, gas, water, wastewater and other pipelines, cables, and conduits, and to do and permit to be done any underground or overhead work that may be necessary or proper in, across, along, over, or under the Right-of-Way occupied by the Company. The City also reserves the right to change, in any manner, any curb, sidewalk, highway, alley, public way or street. In permitting such work to be done, the City shall meet all applicable codes. The City will not be liable to the Company for any damage so occasioned, but nothing herein relieves any other Person from responsibility for damages to the Facilities of the Company due to negligence.
r. For Facilities installed in any new subdivision within the City, Company shall follow any applicable City Ordinance regarding installation of above ground or underground Facilities.
s. Nothing in this Franchise is to be construed as a surrender by the City of its right and power to use and relocate the use of the Right-of-Way
SECTION 7. INDEMNITY AND HOLD HARMLESS.
a. The Company shall indemnify and hold and save the City, its governing body, officers, employees, agents, and authorized contractors, harmless from and against all claims, damages, expense, liability, and costs including reasonable attorney fees, to the extent occasioned in any manner by the Company’s occupancy of the Right-of-Way. In the event a claim shall be made, or an action shall be instituted against the City growing out of such occupancy of the Right-of-Way by Facilities of the Company, then upon notice by the City to the Company, the Company shall assume responsibility for the defense of such actions at the cost of the Company, subject to the option of the City to appear and defend.
b. The Company shall maintain throughout the term of this Franchise insurance insuring the City and the Company regarding all damages set forth in paragraph (a) of this section, in the minimum amounts of:
1. $1,000,000 per occurrence for bodily injury or death to a person; $1,000,000 per occurrence for property damage resulting from any one incident;
2. $1,000,000 for all other types of liability.
Should Company elect to self-insure for this purpose, the Company will provide a certificate of authority from the Kansas Insurance Commissioner.
SECTION 8. RIGHT OF ASSIGNMENT.
This Franchise shall be assignable only in accordance with the laws of the State of Kansas, as the same may exist at the time when any assignment is made.
SECTION 9. [RESERVED]
SECTION 10. TERMINATION AND FORFEITURE OF FRANCHISE.
The City reserves the right to terminate this Franchise and all rights and privileges of the Company hereunder, in the event of a material breach of this Ordinance. In such event, the Company, its successors and assigns, shall forfeit all rights and privileges granted by this Ordinance and all rights hereunder shall cease, terminate and become null and void, provided that forfeitures will not take effect until the City shall carry out the following proceedings:
a. Before the City terminates this Franchise, it must first serve a written notice upon the Company that identifies the material breach(es) of this ordinance by mailing notice to the Company in accordance with Section 14 of this Franchise.
b. The Company shall have sixty (60) calendar days thereafter to correct any material breach(es) that the Company was notified of.
c. If, at the end of such sixty-day period, the identified material breach(es) have not been corrected by the Company, then this Franchise is subject to termination by reason thereof and the City shall enact an ordinance setting out the grounds upon which the Franchise is to be terminated.
d. If within thirty (30) calendar days after the effective date of ordinance described in Section 10(c) the Company has not instituted an action, either in the District Court of Sedgwick County, Kansas, or some other court of competent jurisdiction to determine whether or not the Company has violated the terms of this Franchise and that the Franchise is subject to termination by reason thereof, this Franchise shall be terminated at the end of such thirty-day period.
e. If within the thirty day period described in Section 10(d) the Company does institute an action to determine whether or not Company has violated the terms of this Franchise and that the Franchise is subject to termination by reason thereof and prosecutes such action to final judgment with due diligence, then, in that event, in case the court finds that the Franchise is subject to termination by reason of the violation of its terms, this Franchise will terminate thirty (30) calendar days after such final judgment is rendered.
In the event of a final adjudication of bankruptcy of the Company under Title 11 of the United States Code, the City will have full power and authority to terminate, revoke, and cancel all rights granted under this Franchise.
SECTION 11. ACCEPTANCE OF TERMS BY COMPANY.
Within thirty (30) days after the final passage and approval of this Ordinance by the City, the Company shall file with the City Clerk of the City its acceptance in writing of the provisions, terms and conditions of this Ordinance. This Ordinance constitutes a non-exclusive contract between the City and the Company.
SECTION 12. CONDITIONS OF FRANCHISE.
This non-exclusive franchise, grant, and privilege is granted under and subject to all applicable laws and under and subject to all the orders, rules, and regulations now or hereafter adopted by governmental bodies now or hereafter having jurisdiction.
SECTION 13. [RESERVED]
SECTION 14. NOTICES.
Except in emergencies, all notices from one party to the other under this Franchise must be in writing at the email address shown below. Notice will be deemed received when the party who received the email acknowledges receipt of the email to the sender. If there is no acknowledgment of receipt of the email notice within 24 hours of the time the email was sent, or if the sender receives notice such email was undeliverable, the sender of the email shall give notice by depositing the notice in the United States mail, certified mail, return receipt requested, to the address shown below.
Notice to the City shall be addressed to the City as follows:
City Clerk
P.O. Box 245
Maize, KS 67101
Telephone: 316-722-7561
Email: cityclerk@cityofmaize.org
Notice to the Company shall be addressed to the Company as follows:
Name: ___________________________________
Sedgwick County Electric Cooperative Association, Inc.
Address: 1355 S 383rd Street
Cheney, KS 67025
Telephone: 316-542-3131
jleuhrs@sedwickcountyelectric.coop
Notice must be provided to above-identified address unless directed otherwise by the City or the Company in writing. Emergency notice will be provided by telephone followed by written notice as provided above.
SECTION 15. NON-WAIVER PROVISION.
The failure of either party to insist in any one or more instances upon the strict performance of any one or more of the terms or provisions of this Ordinance shall not be construed as a waiver or relinquishment for the future of any such term or provision, and the same shall continue in full force and effect. No waiver or relinquishment shall be deemed to have been made by either party unless said waiver or relinquishment is in writing and signed by the parties.
SECTION 16. INVALIDITY OF ORDINANCE.
If any clause, sentence, or section of this Ordinance shall be held to be invalid, it shall not affect the remaining provisions of this Ordinance.
SECTION 17. GOVERNING LAW; VENUE.
The obligations and undertakings of the City and Company will be primarily performed at Maize, Sedgwick County, Kansas. Any legal proceeding arising from this Franchise will be brought in a court of law located in Sedgwick County, Kansas.
(05-16-2022)