AN ORDINANCE GRANTING TO SEDGWICK COUNTY ELECTRIC COOPERATIVE ASSOCIATION, INC., A KANSAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC ENERGY FRANCHISE, PRESCRIBING THE TERMS AND CONDITIONS THEREOF AND RELATING THERETO.
Section 1. Definitions. For the purpose of this franchise ordinance the following terms, phrases, words and their derivations shall have the meaning given herein below:
(a) KCC is the Kansas Corporation Commission.
(b) Sedgwick County Coop is Sedgwick County Electric Cooperative Association, Inc., a Kansas Corporation.
(c) City is the City of Maize, Kansas, a municipal corporation operating under the laws of the State of Kansas.
(d) Person is any person, firm, partnership, association, corporation, company or organization of any kind.
(e) Electrical Energy Distribution System or EEDS shall mean all of the lines, poles, meters, transformers, substations, street lights, control systems, and any other physical or operational element used and/or owned by Sedgwick County Coop for the purpose of providing electrical energy to residential, business, industrial or any other consumer within the boundaries of the city.
(f) Gross Receipts shall mean gross cash receipts derived from the sale or distribution of electrical energy within the corporate boundaries of the city through Sedgwick County Coop’s EEDS. Gross cash receipts shall exclude revenue from delayed payment charges, connection fees, disconnection fees, reconnection fees, collection fees, returned check charges and other revenues not related to the sale of electrical energy.
(g) Rights-of-Way shall mean the streets, alleys, rights-of-way and public easements, including easements dedicated in plats of the city and that are within the service area assigned to the Sedgwick County Electric Cooperative by the KCC.
When not inconsistent with the context, 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. The word shall is always mandatory and not merely directory.
Section 2. Grant of Non-Exclusive Franchise to Sedgwick County Coop. Sedgwick County Coop is hereby granted the non-exclusive right to construct, reconstruct, operate and maintain an electrical energy distribution system, through, along, under, and over rights-of-way. This franchise acknowledges the right of Sedgwick County Coop to erect within rights-of-way, an electrical energy distribution system for its own exclusive use and its right to make such contracts as it deems necessary and proper for its operations under this franchise, including its right to negotiate with those public utilities and service corporations already holding franchises from the city for permission to use existing utility poles and facilities for its electrical energy distribution system erected by Sedgwick County Coop in the city’s rights-of-way shall be so located as to cause minimum interference with the proper use of rights-of-way, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the rights-of-way. Upon the city providing necessary road rights-of-way, Sedgwick County Coop agrees that it will, at its expense or in accordance with policies established by the KCC as they apply to Sedgwick County Rural Electric Cooperative, remove and/or relocate poles, wires, and other fixtures which are or may be located on, over, or under public road right-of-way when such removal or relocation is required to serve the transportation needs of the public. Other relocations over public lands will be made and the cost allocated in accordance with policies established by the KCC as they apply to Sedgwick County Electric Cooperative and/or the city. The city, subject to conditions set forth in Section 10 herein, reserves the right of reasonable regulation of the erection, construction, installation, operation and maintenance of the electrical energy distribution system and to reasonably designate where the electrical energy distribution systems are to be placed within the rights-of-way.
Section 3. Construction Standards. All work performed in the construction, reconstruction, operation, maintenance and repair of the EEDS shall be performed in a safe, thorough and reliable manner using proper procedures and materials of good, durable quality, all according to standard of the industry. All construction, including installation, shall conform to all applicable federal and state laws and regulations, city ordinances and regulations, and the National Electric Safety Code. Any property damaged or destroyed by Sedgwick County Coop shall be repaired or replaced by Sedgwick County Coop and reasonably restored to an equal or better condition than existed prior to the damage. Any pavements, sidewalks, or curbing taken up or any and all excavations made by Sedgwick County Coop shall be done in such manner as to give the least inconvenience to the inhabitants of the city and shall be replaced and repaired at Sedgwick County Coop’s expense to an equal or better condition that existed prior to the damage, such work to be accomplished in as expeditious and safe a manner as possible. Sedgwick County Coop shall not place EEDS facilities where the same will interfere with any gas, cable or telephone fixtures, water hydrants or mains nor where they might interfere with safe and convenient travel on, over and across rights-of-way.
Section 4. Trimming of Trees. Permission is hereby granted by the city to Sedgwick County Coop to trim trees that are upon or that overhang rights-of-way and that interfere with Sedgwick County Coop’s ability to provide electrical energy to city inhabitants, subject to the city public works director’s review and approval of Sedgwick County Coop’s plans and details for such trimming. In preparing plans and details in trimming of trees, care shall be taken by Sedgwick County Coop to protect the health and aesthetic value of such trees, and when required by the public works director, such trimming shall be done under the supervision of the city. No trimming shall occur without at least 24 hours advance notice (weekends and city holidays shall not be included in calculating the 24 hour notice) being given to the city public works director and to any adjacent landowner, provided, however, Sedgwick County Coop shall not be required to provide such notice or obtain prior approval to trim if the trimming is done under emergency conditions that require immediate trimming for safety reason or to maintain service to Sedgwick County Coop customers.
Section 5. Indemnification and Insurance. Sedgwick County Coop shall at all times, defend, indemnify and hold harmless the city and the individual members of the city’s governing body, its officers, employees and agents from any and all claims, demands, actions, suits, damages, costs, charges or expenses resulting from the construction, reconstruction, maintenance or operation of its EEDS in the city. Upon timely written notice from the city, Sedgwick County shall defend the city in any action or proceeding brought herein, except to the extent that such was caused by negligent or intentional conduct of the city, its officers, employees or agents. Sedgwick County Coop acknowledges that it carries insurance to cover exposures under this indemnification.
Section 6. Franchise Fee. That in consideration of the franchise and privilege hereby granted and in lieu of all occupation and license taxes, Sedgwick County Coop each month shall remit five percent of its gross monthly receipts, as defined in Section 1(F) hereof, derived from its operations in the city. The aforesaid payments shall be made to the city, without demand, no later than the last day of the month following the month in which the receipts upon which the franchise fee is based are received.
Section 7. Service Procedures. Sedgwick County Coop shall provide timely service for the purposes of responding to service outages, emergencies and service requests as well as for providing maintenance of the system.
Section 8. Abandonment of Service. If this franchise is abandoned for any reason and Sedgwick County Coop has failed to remove any of its property from rights-of-way within one year, the city may take title to the same, and may use, remove or dispose of the same unless a subsequent arrangement for removal is made between Sedgwick County Coop and the city.
Section 9. Books and Records. The company shall provide the city or city audit representatives with reasonable access to company records and information documenting the total gross receipts from sales within the city. In addition, the following records and reports shall be provided to the city upon request. (a) A copy of rules, regulations, terms and conditions adopted by Sedgwick County Coop that affect the city or Sedgwick County Coop’s customers in the city. (b) A copy of Sedgwick County Coop’s current schedule of rates and service charges applicable to the customers in the city.
Section 10. Reservation of Rights. The city, as to Sedgwick County Coop’s use of rights-of-way under this franchise ordinance, reserves the right to adopt, in addition to the provisions contained herein and in existing applicable ordinances, such additional ordinances and/or regulations as it shall find necessary in the exercise of its police power, provided, however, such ordinances and/or regulations shall be reasonable and not materially in conflict with the rights and privileges granted in this ordinance or with any applicable provisions of the federal or state law or regulation.
Section 11. Term. This agreement shall be for a period of 10 years from and after the effective date as specified below. Upon written request of either the city or Sedgwick County Coop, the franchise shall be reopened and renegotiated at any time upon any of the following events:(a) Change in federal, state or local laws, regulations or order, which materially affects any right or obligation of either the city or Sedgwick County Coop, including but not limited to the scope of the grant to Sedgwick County Coop or the compensation to be received by the city. (b) The electrical consumers of the city have access to alternative electric suppliers that use the right-of-way to distribute such electricity and do not pay a franchise or other payment substantially equivalent to this franchise, which results in a material unfair advantage to Sedgwick County Coop and/or the city. Upon 30 days’ written notice to the other party, notifying that the franchise shall be reopened and renegotiated pursuant to the occurrence of one or more of the above events, the parties agree that, upon receipt of such notice, they will meet and negotiate in good faith on amendments that incorporate any necessary change to this agreement. If the parties are unable to reach an agreement within 90 days after the receipt of notice by the receiving party, the city, at its option, has the right to terminate the franchise by action of the governing body by repealing this ordinance.
Section 12. Governing Law. This franchise is granted pursuant to the provisions of K.S.A. 12-2001 et seq. And shall be governed by the laws of the State of Kansas.
Section 13. Separability. If any section, subsection, sentence, clause, phrase, or portion of this franchise agreements for any reason held invalid by any court or agency of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of the franchise agreement.
Section 14. Right to Assign. This franchise shall be assignable only in accordance with the laws of the State of Kansas, and the applicable rules and regulations of the KCC as they apply to Sedgwick County Electric Cooperative, as the same may exist at the time when any assignment is made.
Section 15. Acceptance of Terms By Grantee. Within 60 days after the final passage and approval of this ordinance, Sedgwick County Coop shall file with the city clerk of the city, its acceptance in writing of the provisions, terms and conditions of this ordinance, which acceptance shall be duly acknowledged before some officer authorized by law to administer oaths; and when so accepted, this ordinance in acceptance shall constitute a contract between grantor and grantee subject to the provisions of the laws of the State of Kansas.
Section 16. Condition of Franchise. This franchise is granted and accepted under and subject to all applicable laws and to all orders, rules and regulations now and hereafter adopted by governmental bodies now or hereafter having jurisdiction, including ordinances and regulations hereafter adopted by the city in conformance with Section 10 herein. Each and every provision hereof shall be subject to acts of God, fires, strikes, riots, floods, and other causes beyond Sedgwick County Coop’s control. This franchise shall not be exclusive.
Section 17. Effective Date. This ordinance shall take effect and be in force after 60 days after the date of this final passage and its publication during said period as provided by law.
Section 18. Successors and Assigns. All provisions of this ordinance shall be binding upon the city and Sedgwick County Coop and upon their successors, lessees and assigns. The rights, benefits and privileges as well as the obligations, duties and liability created by this ordinance shall pass to such successors, lessees and assigns and be binding upon them.
Section 19. Notice. Any notice required to be given hereunder shall be in writing by hand delivery, certified or registered letter sent to the following if to grantee: Alan Henning, General Manager, Sedgwick County Electric Cooperative Association, Inc., 125 North Main, P.O. Box 220, Cheney, Kansas 67025. If to grantor: City Clerk, Maize City Hall, 123 Khedive, Maize, Kansas 67101.
(10-22-2001)