HomeMy Public PortalAboutOrd 486 Right-of-Way KG&E ORDINANCE NO. 48R
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 Kansas Gas and Ellectric Company, a
Kansas Corporation, doiing business as WWestar Energy..
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 alit necessary appurtenances thereto.
Gross receipts shall! mean any and alll compensation and other consideration
derived directly 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 andl single sales; except that such term shall not include
revenues from any operation or use 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
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disconnection fees, reconnection fees, customer project contributions, returned check
charges, and temporary service charges.
Public improvement shall rn,ean any existing or contemplated public facility,
building, or capital improvement project, financed by the City, including without
limitatiion, streets., alleys, sidewaliks, 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 facilitiies 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 plaits of the City for
streets and alleys but not including any Utility Easement..
Street Right-of-Way shall mean the entire width between property limes of land,.
property, or an interest thereiin of every way publicly maintained where any part thereof
is open to the use of the public for purposes of vehicular tra ffic, including street, avenue,
boulevard, highway, expressway, alley, or any other public way for vehicular travel by
whatever name.
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..
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Section 2. Gent.
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 fulfil 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 ten (10) years from the e ffective date
of this. Ordinance.
b.. Upon 60 days advance written notice by the City, the franchise fee
percentage rate may be changed on the fifth anniversary of the effective date of this
Ordinance.
c.. Upon written request of either the City or the Company, the franchise shall
be reopened and renegotiated at anytime 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,
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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 obligatio -ns of either the City or
Company,. including but not limited to the scope of the grant to the Company or
the compensation to be received by the City; or
3. 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..
d. Amendments under this section, if any, shall be made by ordinance as
prescribed by statute. The franchise shalt remain in effect according to its terms
pendiing completion of any review or renegotiation pursuant to subsection (c)..
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 shad) 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 °la) of the Gross Receipts received fro
such Distribution of electriic energy; and the above sum shall be adjusted
for uncollectibile 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 5. Such payments shall be made to the
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City under procedures, which are mutually agreed to by the Company and the City
within thirty (30) days of the Past 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 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 pays ent. 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 miination of the officers of the City and its duly authorized agents„ auditor;, and
e. ployees 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_
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Section 5. Payment and Charges.
The payments and compensation herein provided shall be in (lieu of all other
Incenses,, taxes, charges, and fees, except that the usual general property taxes and
special ad valorem property assessments, sales and excise taxes, or 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, pllacement, location, or management of utilities located in the
City's Right -of -way. Iln addition, the Company shall be subject to alt 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 cuffs, 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 waiiver 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 liaw, 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 s.ubotrdi;nate
to the City's use of the Right -of -Way for any public purpose. The Company shall
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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 Facillities shall be placed with
adequate clearance from such. Public Improvements so as not to conflict with such
Public improvement.
c
Alt 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 shalt 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. Nothiing
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, polities,
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.
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e. The Company shalt' 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 commiunicated in writing to the City without cost to the City, its-
employees, agents, or authorized contractors. The Company shall designate and
maintain an agent, famifiar 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 Cornpany 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 locatiion, 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
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inaccurate or mistaken information.. The Company shall only 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 Ilast relocation, removal, or adjustment of that particular facility..
g. The Company shall not be responsible for the expenses of relocation to
acco modate 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 appro: :private
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.
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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 shall have no claim for
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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 calliing for utility locations through Kansas One Call 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
strider than such minimum standards.
k. The City encourages the conservation of the Right -of -Way by the sharing
of space by all utillities, including joint trenching where appropriate. 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.
li.
Permission is hereby granted to the Franchisee to trim trees upon and
overhanging the right-of-way and utility easements. Franchisee shall perform line
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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
Requiirements 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 informationail door
hanger.
Section 7. Indemnity and Hold Harmless.
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. Iln 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 S. 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.
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Section 9. Acceptance of Terms by Company.
Within thirty (30) days after the final passage and approvals 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 herea fter adopted by governmental bodies now or hereafter having: jurisdiction..
Section 11. Invalidity of Ordinance.
if any clause, sentence, or section of this Ordinance shall) be held to be invalid, it
shahs 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 and approval by the City, acceptance by the Company, and publication
in the official city newspaper.
Section 13. Repeal of Conflicting Ordinances.
Ordinance No. 5, which heretofore granted a non- exclusive franchiise 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
inco.nsistert or in conflict with the terms hereof, are hereby canceled„ annulled,
repealed, and set aside.
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PASSED and APPROVED by the Governing Body on the 17 day of November,
2009.
J._
‘A 2, 'f
WOOF
ATTEST:
7/
City Clerk
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