HomeMy Public PortalAboutOrd 652 Evergy Franchise AgreementORDINANCE NO. 652
AN ORDINANCE, GRANTING TO EVERGY KANSAS SOUTH, INC., A KANSAS
CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE
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 BEL AIRE, KANSAS AND PROVIDING A MONTHLY FRANCHISE
FEE PAYMENT TO BE MADE TO THE CITY.
THEREFORE BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY
OF BEL AIRE, KANSAS:
Section 1. Definitions.
For purposes of this Franchise, the following words and phrases shall
have the meanings given herein:
City as the Grantor— shall mean the City of Bel Aire, Kansas.
Company as the Grantee — shall mean Evergy Kansas South, Inc., a
Kansas Corporation.
Distributed or Distribution — shall mean 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.
Facilities — shall mean all electric distribution lines, substations, works,
and plants together with all necessary appurtenances thereto.
Gross receipts — shall mean any and all compensation and other
consideration derived directly or indirectly by the Company from any Distribution
of electric energy to a consumer for any use within the City, including domestic,
commercial and industrial purposes, through charges as provided in tariffs filed
and approved, and including without limitation interruptible sales and single
sales; except that such term shall not include revenues from any operation or use
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of any or all of the Facilities in the Right -of -Way by others nor shall such term
include revenue from certain miscellaneous charges and accounts, including but
not limited to delayed or late payment charges, connection and disconnection
fees, reconnection fees, customer project contributions, returned check charges,
and temporary service charges.
Public Improvement — shall mean any existing or contemplated public
facility, building, or capital improvement project, financed by the City, including
without limitation, streets, alleys, sidewalks, sewer, water, drainage, Right -of -
Way improvement, and Public Projects.
Public Project— shall mean any project planned or undertaken and
financed 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 paid for with public funds.
Public Project for Private Development — shall mean a Public Project, or
that portion thereof, that primarily benefits a third (3rd) party.
Right -of -Way— shall mean present and future streets, alleys, rights -of -
way, and public easements, including easements dedicated to the City in plats of
the City for streets and alleys but not including any Utility Easement.
Street Right -of -Way — shall mean the entire width between property lines
of land, property, or an interest therein of every way publicly maintained where
any part thereof is open to the use of the public for purposes of vehicular traffic,
including street, avenue, boulevard, highway, expressway, alley, or any other
public way for vehicular travel by whatever name.
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Utility Easement — shall mean 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 hereby granted to 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 the inhabitants thereof for the full term of this Franchise;
subject, however, to the terms and conditions herein set forth. Nothing in this
grant shall 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 shall prevent
Company from allowing the use of its Facilities by others when such use is
compensated to the City under the provisions of a franchise granted by the City
to any such third party.
Section 3. Term.
a. The term of this Franchise shall be twenty (20) years from the
effective date of this Ordinance. Absent a written request by either the Company
or the City for negotiation of a new agreement received prior to January 2030 this
agreement shall be effective until January 2040.
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Section 4. Compensation to the City.
a. In consideration of and as compensation for the franchise hereby
granted to the Company by the City, the Company shall make an accounting on
a monthly basis to the City of all electric energy that has been distributed within
the City. The Company shall pay the City:
A sum equal to five percent (5%) of the total Gross Receipts
received from such sale and distribution of electric energy to all
customers within the corporate limits of the City; and the above
sum shall be adjusted for uncollectible receivables and for
receivables which are later collected.
b. Payment of the compensation above shall be effective on the first
day of the first month after final passage and approval by the City and
acceptance by the Company. Prior to that date, payments shall continue to be
calculated and be paid in the manner previously provided in Ordinance 489.
Such payments shall 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 such accounting shall apply.
c. Notwithstanding anything to the contrary in this Franchise, the fee
provided for in this Section 4 shall 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
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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 due to
Company's failure to use commercially reasonable efforts as provided herein,
then payment shall be made on the corrected amount, it being agreed that the
City may accept any amount offered by the Company, but the acceptance thereof
by the City shall not be deemed a settlement of such item if the amount is in
dispute or later found to be incorrect. The Company agrees that all of its books,
records, documents, contracts and agreements as may be reasonably necessary
for an effective compliance review of this Ordinance shall 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 shall have the right to require the reasonable protection of proprietary
information of the Company.
e. The City may by ordinance independently modify the franchise fee
without approval of the company, by providing the Company 30 days written
notice of approval of the company and in accordance with State law. Such
ordinance shall take affect no earlier than 90 days after publication and no later
than 120 days after publication.
Section 5. Payment and Charges.
The payments and compensation herein provided shall be in lieu of all
other licenses, taxes, charges, and fees, except that the usual general property
taxes and special ad valorem property assessments, sales and excise taxes, or
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charges made for privileges which are not connected with the electric energy
business, 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
shall be subject to all rules, regulations, policies, resolutions, and ordinances now
or hereafter adopted or promulgated by the City in the reasonable exercise of its
police power 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 reasonable exercise of its police power
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 shall constitute a
waiver of or be construed as waiving the right of the Company to oppose,
challenge, or seek judicial review of, in such manner as is now or may hereafter
be provided by law, any such rules, regulation, policy, resolution, or ordinance
proposed, adopted, or promulgated by the City. Further, the Company shall
comply with the following:
b. The Company's use of the Right -of -Way shall in all matters be
subordinate to the City's use of the Right -of -Way for any public purpose. 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 reasonably
determined by the City. Where installation is not otherwise regulated, the
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Facilities shall be placed 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 shall 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 that interfere with 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 which would 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
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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 reasonably necessary and requested 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
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be responsible for removal, relocation, or adjustment of Facilities located in the
Right -of -Way at the Company's sole cost once each five (5) years for that
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 may continue to provide a location in the Right -of -Way for
the Company's Facilities as part of a Public Project, provided that the Company
has cooperated promptly and fully with the City in the design of its Facilities as
part of the Public Project.
i It shall 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
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shall have no claim for costs or damages against the City. The Company shall
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 CaII and exercising due caution
when working near the Company's Facilities.
j. 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.
k. 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 any and all Facilities
constructed or erected by the Company.
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The City may attach community interest banners on all Company poles
located within the City right of way, as approved solely by the City Manager and
or Mayor, only with the prior written consent of the Company. The City shall be
responsible for all damages associated with such use of the Company poles.
Permission is hereby 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.
The Company shall comply with the applicable provisions of the Street
Tree Code, and amendments thereto, in care, pruning and removing of trees
located in or on the City right -of- way.
m. Where underground construction is made, the equipment and any
necessary trenching shall be installed and maintained or provided by the
Company in accordance with the ordinances of the City without expenses to the
City. Maps showing the location of underground equipment and facilities shall be
filed in the office of the City Engineer.
Section 7. Indemnity and Hold Harmless.
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The Company shall indemnify and hold and save the City, its 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.
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 Acceptance of Terms by Company.
Within thirty (30) days after the final passage and approval of this
Ordinance, 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
shall constitute a non-exclusive contract between the City and the Company.
Section 10. 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 of the orders, rules,
and regulations now or hereafter adopted by governmental bodies now or
hereafter having jurisdiction.
Section 11. Invalidity of Ordinance.
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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 12. Effective Date of Ordinance.
This Ordinance shall take effect and be in force on the first day of the first
month after its passage, approval and required publication by the City,
acceptance by the Company, and publication in the official city newspaper.
Section 13. Repeal of Conflicting Ordinances.
Ordinance No. 489 which heretofore granted a non-exclusive franchise to
the Company, and which became a contract between the City and the Company
in accordance with its terms, and all other ordinances and resolutions or parts
thereof inconsistent or in conflict with the terms hereof, are hereby canceled,
annulled, repealed, and set aside.
PASSED and APPROVED by the Governing Body on the 19th day of
November, 2019.
ATTEST:
-===J CITY OF
THE FUTURE
WITH RESPECT FOR
ITS PAST
t ct n1
Melissa Krehbiel, City Clerk
DavicVAustin, Mayor
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