AN ORDINANCE, granting to Kansas Gas and Electric Company, a Kansas Corporation, doing business as Westar Energy, Inc., its successors and assigns, an electric franchise, prescribing the terms thereof and relating thereto, and repealing all ordinances or parts of ordinances inconsistent with or in conflict with the terms hereof.
BE IT ORDAINED BY THE GOVERNING BODY OF: Cherryvale, Kansas
SECTION 1 - DEFINITIONS.
For the purpose of this Franchise Ordinance the following terms, phrases, words and their derivations shall have the meaning given below:
(A) “KCC” is the Kansas Corporation Commission.
(B) “WESTAR” is Kansas Gas and Electric Company, a Kansas Corporation, doing business as Westar Energy, Inc.
(C) “City” is the City of Cherryvale, 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 for the purpose of providing, selling, and distributing 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 of electrical energy within the corporate boundaries of the City through WESTAR’s EEDS. Gross cash receipts shall exclude revenue from delayed payment charges, connection fees, disconnection fees, reconnection fees, collection fees, returned check charges or other revenues not related to the sale of electrical energy.
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 WESTAR. WESTAR is hereby granted the non-exclusive right to acquire, construct, reconstruct, operate and maintain an EEDS on, through, along, under and over the streets, highways, easements, rights-of-way, and other public places of the City. This franchise acknowledges the right of WESTAR to erect any necessary poles and facilities 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 WESTAR’s lines and appurtenances. The City reserves the right of reasonable regulation of the erection, construction or installation of any facilities by WESTAR and to reasonably designate where such facilities are to be placed within the public ways and places. All transmission and distribution structures, lines and equipment erected by WESTAR in the City shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places. Upon the City providing necessary road rights of way, WESTAR agrees that it will, at its expense or in accord with policies established by WESTAR and/or the KCC, 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 accord with policies established by WESTAR and/or the KCC.
SECTION 3 - CONSTRUCTION STANDARDS.
All work performed in the construction, 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, ordinances, local laws and regulations and the National Electric Safety Code. Any property damaged or destroyed by WESTAR shall be repaired or replaced by WESTAR 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 WESTAR 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 WESTAR’s expense to an equal or better condition than existed prior to the damage, such work to be accomplished in as expeditious and safe a manner as possible. WESTAR shall not place poles or other fixtures 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 the City’s streets, alleys and public ways. WESTAR shall have the authority to trim trees upon and overhanging all streets, alleys, easements, sidewalks and other public places so as to prevent the branches of such trees from coming into contact with its facilities.
SECTION 4 - INDEMNIFICATION AND INSURANCE.
WESTAR shall at all times defend, indemnify and hold harmless the City and the individual members of the City’s Governing Body from any and all actions, suits, damages, costs, charges or expenses resulting from the construction, reconstruction, location, maintenance or operation of its EEDS in the City. WESTAR acknowledges that it is self-insured and that it will maintain sufficient reserves to cover exposures.
SECTION 5 - FRANCHISE FEE.
In lieu of any City occupation, license, or revenue taxes, each month WESTAR shall remit five percent (5%) of its monthly gross 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. Notwithstanding anything to the contrary in this Franchise Ordinance, the fee provided for in this Section shall not become effective within any area annexed by the City after the effective date of this Ordinance until 30 days after the City provides the Company with a certified copy of the annexation ordinance and a map of the City demonstrating the annexed area.
SECTION 6 - SERVICE PROCEDURES.
WESTAR 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 7 - ABANDONMENT OF SERVICE.
If this franchise is abandoned for any reason and WESTAR has failed to remove any of its property from public streets or ways within one year, the City may take title to the same, and may use, remove or dispose of the same unless a subsequent agreement for removal is made between WESTAR and the City.
SECTION 8 - BOOKS AND RECORDS.
WESTAR 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 copy of rules, regulations, terms and conditions adopted by WESTAR that affect the City or WESTAR’s customers in the City. A copy of WESTAR’s current schedule of rates and service charges applicable to the customers in the City.
SECTION 9 - RESERVATION OF RIGHTS.
The City reserves the right to adopt, in addition to the provisions contained in this Franchise Ordinance and existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of its police power; provided, however, that such regulations shall be reasonable and not materially in conflict with the rights and privileges granted in the agreement or with any applicable provision of federal law or regulation.
SECTION 10 - TERM.
This agreement shall be for a period of ten (10) years from and after the effective date as specified below. Renewal of the franchise authority provided by this agreement shall be subject to renegotiation of the parties and shall be governed by applicable state laws and federal regulations. In the event WESTAR’s customers served within the area covered by this Agreement are granted the right to purchase electricity from a provider other than WESTAR, either the City or WESTAR may, upon thirty (30) days’ written notice to the other party, request that the franchise fee provisions of this agreement be renegotiated to maintain the intent of this agreement and that of any applicable law which might be adopted. The parties agree that, upon the giving and receipt of such notice, they will meet and negotiate in good faith on an amendment that incorporates any necessary changes to this Agreement. However, if the parties are unable to reach an agreement within ninety (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 repealing this Ordinance.
SECTION 11 - 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 12 - SEVERABILITY.
If any section, subsection, sentence, clause, phrase, or portion of this Franchise Ordinance is 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 Ordinance.
SECTION 13 - PRIOR ORDINANCE.
All ordinances and parts of ordinances in conflict herewith are hereby repealed as of the effective date of this Ordinance.
SECTION 14 - EFFECTIVE DATE.
This ordinance shall take effect and be in force sixty (60) days after its final passage by the City Council, its publication in the official paper of said City and upon receipt of written unconditional acceptance of the terms of the ordinance by WESTAR, which acceptance shall be filed with the City Clerk of Cherryvale, Kansas within sixty (60) days of approval of this ordinance by the Governing Body of the City.
SECTION 15 - SUCCESSORS AND ASSIGNS.
All provisions of this ordinance shall be binding upon the City and WESTAR and upon their successors, lessees and assigns. The rights, benefits and privileges as well as the obligations, duties and liabilities created by this ordinance shall pass to such successors, lessees and assigns and be binding upon them.
SECTION 16 - ENTIRE AGREEMENT
This ordinance, when accepted by WESTAR, shall constitute the entire agreement between the City and WESTAR relating to this franchise and shall supersede and cancel any prior understandings, agreements, or representations regarding the subject matter hereof, in involved in negotiations pertaining thereto, whether oral or written.
SECTION 17 - FILING OF AGREEMENT
WESTAR shall file this ordinance with the KCC. Should the KCC take any action with respect to this Franchise Ordinance, which would preclude WESTAR from recovering from its customers any cost provided for hereunder, the parties hereto shall renegotiate this ordinance in accordance with the KCC ruling.
PASSED AND APPROVED by the Governing Body of the City of Cherryvale, Kansas, the 5th day of January, 2009.
(2009-01-05)