AN ORDINANCE GRANTING TO WESTAR ENERGY, INC. 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 BONNER SPRINGS, KANSAS, AND REPEALING ORDINANCES 1362, 2063 and 2074.
Section 1. Definitions. For the purpose of this Franchise Ordinance, the following words and phrases and their derivations shall have the following meaning:
“City” means City of Bonner Springs, Kansas, a municipal corporation, and if applicable, the territorial boundaries of the City of Bonner Springs as now constituted or as shall hereafter exist.
“Facilities” means all appropriate facilities and plants for carrying on a power and light business and all other operations connected therewith or incident thereto for the purpose of selling and distributing within the City electric energy in such forms as may be reasonably required for domestic, residential, commercial, industrial, municipal and other purposes.
“Franchise Ordinance” means this ordinance passed to grant the franchise to Franchisee. This ordinance shall operate as a grant of permission by the City for Franchisee to utilize the City’s public rights-of-way and to operate its facilities in the City as defined herein. Such grant shall at all times be subject to the laws of the State.
“Franchisee” means Westar Energy, Inc., and its successors, transferees, or assigns.
‘“Franchise Fee” means the fee imposed by the City on Franchisee solely because of its status in accordance with Article 12, Section 5 of the State constitution and K.S.A. 12‑2001. It shall not include: (a) any tax, fee, or assessment of general applicability including any which are imposed on Franchisee: (b) requirements or charges incidental to the awarding or enforcing the Franchise Ordinance, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages, (c) any permit fee or other fee imposed under any valid right‑of‑way ordinance, or (d) any other fee imposed by federal, State or local law.
“Gross Receipts” means those receipts, less un‑collectibles, derived from the sale of electricity for domestic, residential, commercial or industrial purposes used within the City’s corporate limits as they now exist and may be extended during the term of the franchise granted by this Franchise Ordinance.
“KCC” means the Kansas Corporation Commission.
“Person” means any natural, governmental or corporate person, business association or business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.
“Right‑of‑way” means any area on, below or above the present and future streets, alleys, avenues, roads, sidewalks, highways, parkways, boulevards or areas that are dedicated as right‑of‑way.
“Service” means the provision of electricity to the public and provided through Franchisee’s Facilities.
“State” means the State of Kansas.
“Subscriber” means any person who receives Service from Franchisee.
“Utility Easement” means, for the purposes of this Franchise Ordinance, an easement owned by or dedicated to the City for the purpose of providing Franchisee and other utilities access to customers and users of any utility service.
Section 2. Grant. Franchisee is hereby granted the right, privilege and franchise to provide Service to the residents of the City, and in connection therewith, to construct, operate, and maintain its Facilities in, through and along the City’s Right‑of‑Way and Utility Easements on a nonexclusive basis within the City, subject, however, to the terms and conditions herein set forth within this Franchise Ordinance. As a condition of this grant, Franchisee shall be required to obtain and shall be responsible for any necessary permit, license, certification, grant, registration or any other authorization required by an appropriate governmental entity, including, but not limited to, the City, the State or the KCC, subject to Franchisee’s right to challenge in good faith such authorization as established by the State, KCC or other City ordinance.
Section 3. Use of Public Right‑of‑Way and Utility Easements. Franchisee’s Facilities may be located in the right‑of‑way and Utility Easement as now constructed and as further authorized by the City in accordance with all applicable laws, statutes and/or ordinances. Placement, changes, additions, replacements, maintenance and repairs for the Facilities shall be conducted in compliance with any applicable ordinance and/or permit requirements. Franchisee and its contractors and agents shall be responsible for obtaining all necessary permits as required by the City for work performed in the right‑of‑way and Utility Easements, as well as paying any associated permit fee. In its use of the right‑of‑way and Utility Easements within the City, Franchisee shall be subject to all applicable rules, regulations, policies, laws, orders, resolutions, and ordinances now or hereafter adopted or promulgated by any; appropriate governmental entity now or hereafter having jurisdiction, including, but not limited to the City in the reasonable exercise of its police powers. Such police powers specifically, but not exclusively, referred to are as follows:
(a) Franchisee’s use of right‑of‑way shall in all matters be subordinate to the City’s use of the right‑of‑way. Franchisee shall coordinate with the City or its designee the placement of its Facilities in a manner that minimizes adverse impact on public improvements and maximizes public safety, as reasonably determined by the City. Such placement, as it relates to City parking lot, area lighting and street lighting shall include, but not be limited to, the installation, removal and/or the relocation of power and light wires and poles in the City, whether or not they are in use or usable in the Franchisee’s Facilities.
(b) All earth, materials, trees, flowers, shrubs, landscaping, sidewalks, paving, crossings, pavement markings, utilities, public improvements or improvements of any kind damaged or removed by Franchisee in its activities under this franchise shall be fully repaired or replaced promptly by Franchisee at its sole expense and to the reasonable satisfaction of the City. However, nothing in this Franchise Ordinance shall require Franchisee to repair or replace any materials, trees, flowers, shrubs, landscaping or structures that interfere with Franchisee’s access to any of its Facilities located in a Utility Easement.
(c) All utility lines shall be placed underground within designated easements in all residential subdivisions, commercial and industrial developments, including infill development on existing lots of record, as required by City ordinances, regulations or plans within the City of Bonner Springs that are approved after the effective date of this franchise. The subdivider, developer or owner of the property being developed shall make the necessary arrangements with the Franchisee for the installation of underground electric lines. Upon reasonable request of the City, Franchisee shall provide maps, records and drawings showing the accurate location of its Facilities.
The provisions of this Subsection shall not apply to any of the following:
(1) Existing poles, overhead wires, and associated overhead structures, when part of a continuous line, or service to individual properties from existing overhead lines that are within a subdivision previously approved in conformance with this requirement.
(2) Electric distribution or transmission lines with capabilities of three thousand (3,000) kVA or more.
(3) Electric substations and the accompanying equipment and apparatus necessary to provide adequate electric service.
(4) Transformers, transformer pads, junction cabinets, or other above‑ground facilities normally used with and as a part of an underground distribution system.
(5) Underground installation of wiring or electrical power equipment shall not be required in flood plain areas, drainage easements, or other drainage ways.
(d) Franchisee shall keep and maintain accurate maps, records and as‑build drawings showing the location of all electric facilities installed in the streets, alleys, and other public right of ways and places within the City. Annually, Franchisee shall provide to the City a current set of plans / maps showing Franchisee’s equipment and Facilities used in the transmission and distribution of electric energy within the right‑of‑way or easements of the City in a commonly agreed upon industry standard format including showing all street light locations with pole numbers. Franchisee shall designate a knowledgeable person familiar with the Facilities who is responsible for timely response to information requests of the City and other users of the right‑of‑way. Such person or such person’s designee shall be available on a scheduled and as needed basis in the City to talk to City officials and citizens, including regular City scheduled utility coordinating and development review team and staff meetings, as well as attend other such meetings as are necessary for the coordination of electric services within the City.
(e) Except in the case of an emergency, not less than three (3) working days prior to construction or relocation of any Facilities in the right of way, Franchisee shall obtain a Right of Way permit from the City in accordance with City ordinances and regulations.
(f) Franchisee shall relocate or adjust any Facilities in the right‑of‑way for any public improvement which causes a need for Franchisee to relocate or adjust any facilities. Such relocation or adjustment shall be performed by Franchisee at its sole expense without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to rules and regulations of the City. In the case any public improvement causes a need for Franchisee to relocate or adjust any Facilities. Franchisee shall be allowed to relocate or adjust the Franchisee’s Facilities within the existing right‑of‑way, or any newly acquired right‑of‑way, unless such relocation or adjustment within the said right‑of‑way is deemed impractical by the City. In the event of such determination by the City, Franchisee may relocate or adjust its facilities to lie within other existing right‑of‑way, or may obtain private easement, all at the Franchisee’s cost. Franchisee shall not be required to relocate or adjust any Facilities more often than once in any five (5) year period without being reimbursed for the costs of such relocation by the City. Such relocation or adjustment shall be completed as soon as reasonably possible and within the time deadline set forth in any request by the City for such relocation or adjustment. Said time deadline will be mutually agreed upon by the City and Franchisee. Any damages suffered by the City, or its contractors as a result of Franchisee’s failure to timely relocate or adjust its Facilities shall be borne by Franchisee.
(g) It shall be the sole responsibility of the Franchisee to take reasonable measures to protect and defend its Facilities in the right‑of‑way from harm or damage. All issues relative to the locating and identification of Franchisee’s Facilities shall be governed by the applicable provisions of K.S.A. 66‑1801, et seq. (the “Kansas Underground, Utility Damage Prevention Act”). Franchisee shall be responsible to the City and its 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 Franchisee to perform its obligations under this Franchise ordinance except to the extent the damaged party is responsible for the harm or damage resulting from its negligence or intentionally caused harm.
(h) Franchisee shall notify the City not less than three (3) working days in advance of any construction, reconstruction, repair or relocation of Facilities which would require any street closure which reduces traffic flow to less than two (2) lanes of moving traffic. Except in the event of any emergency, as reasonably determined by Franchisee, no such closure shall take place without such notice and prior authorization from the City. The City shall follow its policies in the grant or denial of such authority, which shall not be unreasonably delayed. In addition, all work performed in the traveled way or which in any manner impacts vehicular or pedestrian traffic shall be properly signed, barricaded and otherwise protected at Franchisee’s expense. Such signing shall be in conformance with the latest edition of the Federal Highway Administration’s Standards and Guidelines for Work Zone Traffic Control, unless otherwise agreed to by the City.
(i) 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 the applicable present and future federal, State and City laws and regulations, including but not limited to, the most recent editions of the National Electric Code, the National Electrical Safety Code, or such substantive equivalents as may hereafter be adopted or promulgated.
(j) Franchisee will, upon a request properly submitted in accordance with K.S.A. 17‑1914, et seq., furnish competent workmen or linemen to remove, raise or cut such wires, cables or other aerial equipment as will be necessary to facilitate moving of any house, building, derrick or other structure, the height of which when loaded for movement equals or exceeds sixteen (16) feet from the surface of the roadway. The estimated necessary expense which is anticipated to be incurred by or on behalf of Franchisee for cutting, raising, removing or otherwise facilitating such moving operations person requesting such work to be performed shall be paid to Franchisee by the party requesting that such work be performed before Franchisee performs any such work. Additionally, Franchisee may require the requesting party to furnish Franchisee with appropriate bond or other surety agreement insuring the payment of all expenses incurred as a result of such moving operations.
(k) Permission is hereby granted to the Franchisee to trim trees upon and overhanging the right‑of‑way and utility easements. Franchisee shall perform line clearance work in accordance with regulations established under OSHA 29 CFR 1910.269. All pruning operations shall be performed by personnel certified to perform the work and in accordance with ANSI Z‑133.1.1994 and ANSI 300 (Standard Practices for Trees Shrubs 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. Franchisee or its contractor will obtain a ROW permit to do the work. During large storm restoration efforts, Franchisee will use reasonable efforts to keep the City informed concerning the status of its repair operations.
(l) Street Lighting System Repairs: Within thirty (30) days of notification of the need for any repairs or replacement of any light fixture, installation or item in that part of the Facilities which serves as a part of the City’s street, parking or area lighting system, Franchisee shall initiate such necessary repairs or replacements. Such time frame shall commence upon the receipt by Franchisee of written notice from the City that repairs are required. All Franchisee initiated repairs shall be completed within a reasonable period of time. In the event the Franchisee fails to adhere to such time frame, subject to KCC Tariff requirements and limitations, the Franchisee shall credit or rebate to the City the equivalent value of the daily cost to the City, if any, from the date of notification by the City, of the unrepaired lighting system fixture or installation.
(m) Installation of New Street Lighting:
(1) The Franchisee shall promptly, upon written notice from the Developer, provide street lighting fixtures and service to newly platted subdivisions, in conformance with the City’s policies on placement / location of street lights, and in accordance with Franchisee’s KCC‑approved Street Lighting Rate Schedule.
(2) The Franchisee shall promptly, upon written notice from the City, re‑locate and or add street lighting, when necessary or requested by the City, so long as these changes are necessary to comply with City regulations or policies and for the safety of the public, and in accordance with Franchisee’s KCC‑approved Street Lighting Rate Schedule.
(n) Power Outage Repairs: the Franchisee shall adhere to the Electric Reliability Requirements established by the KCC, including, but not limited to:
(1) The Franchisee shall make reasonable efforts to avoid and prevent interruptions of service.
(2) When interruptions occur, the Franchisee shall first eliminate any conditions that are hazardous to public safety. The Franchisee shall then restore service within the shortest time practicable, consistent with safety.
(3) When addressing multiple service interruptions, once free from known hazards, the Franchisee shall give priority to restoring service to critical public service facilities without an operable alternative power supply and restoring the greatest number of customers in the shortest time.
(4) The Franchisee shall carry on an effective preventive maintenance program and shall be capable of emergency repair work on a scale that is appropriate to its scope of operations and to the physical condition of its system.
Section 4. Franchise Fee.
(a) Effective for billings by Franchisee for Service from the first day of March 2005 through December 31, 2005, Franchisee shall pay to the City an amount which will be equal to five and nine‑tenths percent (5.9%) of its Gross Receipts. Thereafter, for the remaining term of this franchise or until changed by the City, Franchisee shall pay to the City an amount which will be equal to five percent (5%) of its Gross Receipts. The payments herein provided shall be in addition to, not in lieu of, all other taxes, charges, assessments, fees and impositions of general applicability that are or may be imposed by the City, with the exception of any annual occupation license. Such fee shall be payable on or before the last day of each month without invoice or reminder from the City, and shall be based on the Gross Receipts of the previous month.
(b) The percentage of Gross Receipts payable to the City as provided herein shall be subject to revision at the option of the City on March 1, 2015. Notwithstanding the revision authority contained herein, the percentage of Gross Receipts payable to the City shall not exceed any applicable statutory maximum rate.
Section 5. City’s Right to Audit and Access to Records. Franchisee shall annually file with the Finance Director of the City of Bonner Springs a Gross Receipts Report regarding all applicable monthly revenues. The City agrees that such information is confidential and proprietary and agrees that such information shall remain the sole property of Franchisee and agrees that pursuant to K.S.A. 45‑221(18), as amended, such information does not constitute public records subject to K.S.A. 45‑218., as amended. In the event the City is required by law to disclose such information, the City will provide Franchisee seven (7) days advance notice of its intent to disclose such information and will take such action as may be reasonably required to cooperate with the Franchisee to safeguard such information. The City shall also have access to and the right to examine, within two (2) years of and payment of fees hereunder, at all reasonable times, all relevant books, receipts, files, records and documents, of the Franchisee necessary to verify the correctness of such statement and to correct the same, if found to be erroneous. If such statement of Gross Receipts is incorrect, then such payment shall be made upon such corrected statement, including interest on said amount at the annual statutory rate then in effect. Further, if the City’s acceptance of any payment as determined herein, is found to be deficient, said payment shall not be construed as a release of liability from the City or an accord or satisfaction of any claim that the City may have for additional sums owed by Franchisee. In addition, upon request to access the records of Franchisee for audits, Franchisee shall provide reasonable access for records necessary to verify compliance with the terms of this Franchise Ordinance.
Section 6. Term. This Franchise ordinance shall be effective upon its passage by the Governing Body of the City, acceptance by the Franchisee, and its publication in the official City newspaper and continue to be in effect until March 1, 2015. Thereafter, this Franchise ordinance will renew automatically for ten (10) one (1) year terms, unless either party notifies the other party of its intent to terminate the franchise prior to ninety (90) days before the termination of the then current term.
Section 7. Franchisee Information. Franchisee shall, at its own expense, annually submit to the City the following reformation:
(a) Bonner Springs Gross Receipts Report (as referenced by Section 5 herein);
(b) A summary of the previous year’s development of Facilities, including but not limited to the location of Facilities during the year and Franchisee’s plan of development of Facilities for the next year. This requirement may be met by a meeting in person between Franchisee’s designated representative and the City’s Public Works Director, Utility Director and Plans and Codes Department to discuss these issues: and
(c) Information as to the number and address of subscribers in the City in digital format. Note: this requirement does not include giving the identification of the subscribers.
Section 8. Subscriber Rates. Franchisee’s charges to subscribers shall comply with all applicable federal and State statutes and regulations in effect on the date of the execution of this Franchise Ordinance. Upon request, Franchisee shall file with the City Clerk a schedule of current rates in effect when such rates are not on file and publicly available from the KCC. If authorized by State or federal law, the City may at any time fix a reasonable schedule of maximum rates to be charged to the City and its residents.
Section 9. Transfer of Franchise. Upon written approval of the KCC, the Franchisee shall have the right to assign this franchise, and the rights and privileges herein granted, to any Person, and any such assignee, by accepting such assignment, shall be bound by the terms and provisions hereof. 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. Provided, however, assignment of this franchise is subject to the prior written consent of the City, which consent shall not be unreasonably withheld.
Section 10. Other Service Providers. Franchisee shall not interfere with any agreement between the City and another service provider. Additionally, if and when the City requires or negotiates to have another service provider cease to use such service provider’s existing poles and to relocate its services underground, all other service providers using the same poles, including Franchisee when applicable, shall also relocate their Facilities underground at that time; provided, however, that such placement is economically reasonable. The City will not unreasonably enter into such an agreement with another service provider, and notice of any intent to enter into such an agreement will be timely provided to Franchisee.
Section 11. Notification Procedure. Any required or permitted notice under this Franchise Ordinance shall be in writing. Notice to the City shall be delivered to the City Clerk by first class United States mail or by personal delivery. Notice to the Franchisee shall be delivered by first class United States mail or by personal delivery to: Westar Energy Inc., Director of Operations, 2720 2nd Avenue, Leavenworth, KS 66048
Any notice concerning a change in the above shall be in writing delivered by first class United States mail or by personal delivery to the City. City Clerk, City of Bonner Springs, P.O. Box 38, Bonner Springs, KS 66012
Section 12. Indemnification. Upon notice by the City, Franchisee shall fully indemnify, defend and hold harmless the City, its officers, employees, agents and authorized contractors from and against any and all claims, demands, suits, proceedings, and actions, liability and judgments by other Persons for damages, losses, costs, and expenses, including attorney fees or otherwise, to the extent caused by Franchisee’s actions or operations rendered or offered in accordance with this ordinance, the City agrees to immediately notify Franchisee of any such claim, demand, suit, proceeding, and/or action, by providing written notice via certified mail to Franchisee. Nothing herein shall be deemed to prevent the City or any Person from participating in the defense of any litigation by their own counsel at their own expense. Such participation shall not under any circumstances relieve Franchisee from its duty to defend against liability or its duty to pay any judgment entered against the City or its officers, employee, agents and authorized contractors.
Section 13. Liability Insurance Requirement. Franchisee is self‑insured and will provide the City proof reasonably acceptable to the City regarding its ability to self‑insure.
Section 14. Performance Bond Requirement. Franchisee shall at all times when it does not qualify to be self‑insured maintain in full force and effect a corporate surety bond in a form approved by the City Attorney, and filed with the City Clerk in an amount of fifty thousand dollars ($50,000) for a term consistent with the term of this Franchise Ordinance plus one additional year, conditioned upon Franchisee’s faithful performance of the provisions, terms and conditions conferred herein. An annual bond automatically renewed yearly during this period or evidence of self insurance as required by Section 13, hereof shall satisfy this requirement.
Section 15. Reservation of Rights. In addition to any rights specifically reserved to the City by this Franchise Ordinance, the City reserves to itself every right and power available to it under the constitutions of the United States and the State, and other right or power, including, but not limited to all police powers and authority to regulate and legislate to protect and promote the public health, safety and welfare. Nothing in this Franchise Ordinance shall limit or govern the right of the City to exercise its municipal authority to the fullest extent allowed by law. The City shall have the right to waive any provision of the franchise, except those required by federal or State law, if the City determines: (a) that it is in the public interest to do so, and (b) that the enforcement of such provision will not impose undue hardship on Franchisee or its subscribers. To be effective, such waiver shall be evidenced by a statement in writing signed by a duly authorized representative of the City. The waiver of any provision in any one instance shall not be deemed a waiver of such provision subsequent to such instance nor be deemed a waiver of any other provision of this Franchise Ordinance unless the statement so recites. Further, the City hereby reserves to itself the right to intervene in any suit, action or proceeding involving the provisions herein.
Section 16. Forfeiture of Franchise. In case of a material failure of Franchisee to comply with any of the provisions of this Franchise Ordinance, or if Franchisee should do or cause to be done any act or thing prohibited by or in violation of the terms of this Franchise Ordinance, Franchisee shall forfeit all rights and privileges granted by this Franchise and all rights hereunder shall cease, terminate and become null and void, provided that said forfeiture shall not take effect until the City shall carry out the following proceedings:
(a) For violations concerning the use of the right‑of‑way and/or Utility Easements as described in Section 3 of this Franchise Ordinance and deemed by the City to be a public nuisance and/or emergency, the following procedure shall apply. The City shall provide written notice by certified mail to Franchisee of any such violation, setting forth in detail the conditions of neglect, default or failure complained of. Franchisee shall have fourteen (14) days subsequent to receipt of such notice to inform the City in writing of the action Franchisee is taking to correct the violation. Such corrective action shall be completed within thirty (30) days subsequent to receipt of notice unless otherwise agreed to by the City. If at the end of such period the City deems that the conditions of such franchise have not been complied with by Franchisee and that such Franchise is subject to cancellation by reason thereof, the City shall enact an ordinance setting out the grounds upon which such Franchise is to be cancelled and terminated. If Franchisee fails to take corrective action within the 30‑day period set forth above, nothing herein shall preclude the City from maintaining an action against Franchisee to recover damages as a result of such failure to take corrective action including, but not limited to, reasonable attorney fees and the costs of corrective action incurred by the City.
(b) For all other violations of the Franchise Ordinance, the following procedure shall apply. The City shall provide written notice by certified mail to Franchisee of any such violation, setting forth in detail the conditions of neglect, default or failure complained of. Franchisee shall have ninety (90) days after the mailing of such notice in which to comply with the conditions of this Franchise. If at the end of such period the City deems that the conditions of such Franchise have not been complied with by Franchisee and that such Franchise is subject to cancellation by reason thereof, the City shall enact an ordinance setting out the ground upon which such Franchise is to be cancelled and terminated. If Franchisee fails to take corrective action within the 90‑day period set forth above, nothing contained herein shall preclude the City from maintaining an action against Franchisee to recover damages as a result of such failure to take corrective action including, but not limited to, reasonable attorney fees and the costs of corrective action incurred by the City.
(c) If within thirty (30) days after the effective date of an ordinance to terminate the franchise in accordance with Section 16(a) or 16(b) herein, the Franchisee shall not have instituted an action in the District Court of Wyandotte County, Kansas to determine whether or not the Franchisee has violated the terms of such Franchise and that the Franchise is subject to cancellation by reason thereof, such Franchise shall be cancelled and terminated at the end of such 30‑day period. If within such thirty (30) day period the Franchisee does institute an action, as above provided, and prosecutes such action to final judgment with due diligence, then, if the court finds that such Franchise is subject to cancellation by reason of the violation of its terms, such Franchise shall immediately terminate after such final judgment is rendered and all available appeals exhausted.
In addition to any other remedy available herein or and at law or equity, the City shall have the authority to maintain civil suits or actions in any court of competent jurisdiction for the purpose of enforcing the provisions of such Franchise Ordinance and/or to abate nuisances maintained in violation thereof.
Section 17. Revocation of Franchise. In addition to all other revocation rights and powers herein or otherwise enjoyed by the City, the City shall have the additional and separate right to revoke this Franchise and all rights and privileges of the Franchisee as a result of and in response to any of the following events or reasons.
(a) Any provision of this Franchise Ordinance is adjudged by a Court of competent jurisdiction to be invalid or unenforceable and said judicial act and declaration is deemed by the Governing Body to constitute such a material consideration for the granting of this Franchise as to cause the same to become null and void: or
(b) Franchisee commits an act of fraud or deceit against the City in obtaining the grant of this Franchise herein conferred, or after or upon being granted, Franchisee commits such an act against the City.
To revoke this Franchise in accordance with the provisions of this Section regarding Revocation of Franchise, the following procedure shall apply. The City shall enact an ordinance setting out the grounds upon which such Franchise is to be cancelled and terminated. Prior to the enactment of such ordinance, Franchisee shall be provided with timely written notice by certified mail, and Franchisee shall be allowed to address the Governing Body before final consideration of such ordinance. If within thirty (30) days after the effective date of such ordinance to terminate such Franchise, the Franchisee shall not have instituted an action in the District Court of Wyandotte County, Kansas to determine whether or not the Franchise was appropriately terminated in accordance with the provisions of this Section and is subject to cancellation by reason thereof, such Franchise shall be cancelled and terminated at the end of such thirty‑day period. If within such thirty (30) day period the Franchisee does institute an action, as above provided, and prosecutes such action to final judgment with due diligence, then if the court finds that such Franchise is subject to cancellation by the reason addressed by this Section, such Franchise shall immediately terminate after such final judgment is rendered and all available appeals exhausted.
Section 18. Miscellaneous Provisions.
(a) Nonexclusive Clause. The privilege to construct, erect, operate and maintain Facilities and to provide service within the City is nonexclusive. The City expressly reserves the right to grant other Franchises to other Persons. However, no such additional Franchise shall in any way affect the right or obligations of Franchisee.
(b) Franchisee is Without Remedy Against the City. Franchisee shall have no remedy or recourse whatsoever against the City for any loss, cost, expense, or damage arising from the enactment of the provisions or requirements of this Franchise Ordinance, or for the failure of the City to have the authority to grant all, or any part of the Franchise Ordinance granted. In the event Franchisee accepts the provisions of this ordinance in writing, the Franchisee:
(1) Expressly acknowledges that it accepts the Franchise Ordinance granted in reliance on its independent and personal investigation and understanding of the power and authority of the City to grant the Franchise conferred upon Franchisee,
(2) Expressly acknowledges by its acceptance of this Franchise Ordinance that it has not been induced to enter into this Franchise upon an understanding, or promise, whether given verbally or in writing by or on behalf of the City, or by any other person concerning any term or condition of this Franchise Ordinance not expressed herein, and (iii) expressly acknowledges by the acceptance of this Franchise that it has carefully read the provisions, terms, and conditions of this Franchise Ordinance and is willing to and does accept, all of the risk directly or indirectly attendant to its provisions, terms, and conditions.
(c) Federal, State and City Jurisdiction. This Franchise Ordinance shall be construed in a manner consistent with all applicable federal, State and local laws. Notwithstanding any other provisions of this Franchise Ordinance to the contrary, the construction, operation and maintenance of the Facilities by Franchisee or its agents shall be in accordance with all laws and regulations of the United States, the State and any political subdivision thereof or any administrative agency thereof, having jurisdiction and in effect on March 1, 2005. In addition, Franchisee shall meet or exceed the most stringent technical standards set by regulatory bodies, including, but not limited to the City, now or hereafter having jurisdiction. Franchisee’s rights are subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety, and welfare of the public. Franchisee shall comply with all applicable general laws and ordinances enacted by the City pursuant to that power. Unless authorized in writing by the KCC and the City, Franchisee shall not adopt or utilize a rate structure for City parking lots and area lighting that differs from the rate structure adopted or utilized for the City’s street lighting. Finally, Franchisee acknowledges that its failure to comply with any law or regulation governing the operation of the Facilities could result in a forfeiture of the Franchise in accordance with the provisions of this Franchise Ordinance.
(d) Special Lighting Agreements. Franchisee shall promptly, upon written notice from the City, negotiate the establishment of special lighting districts within the City’s boundaries which may require, among other things, painted light or power poles, special and/or additional power receptacles and lighting fixtures for special occasions. All such agreements shall provide for the reasonably agreed upon Franchisee’s additional expense, if any, to be incorporated in and paid for by the City by a modification in the City’s street lighting rate structure unless forbidden by ruling from the KCC.
(e) Attachment to Poles. Nothing in this Franchise Ordinance shall be construed to require or permit any telephone, television cable, electric light or power wire attachments by either the City or Franchisee on the poles of the other. If such attachments are desired by either party, then a separate non‑contingent agreement shall be prerequisite to such attachments. However, notwithstanding any provision in this Franchise and subject to Franchisee approval that the proposed City activity does not violate the National Electric Code, the National Electrical Safety Code, or such substantive equivalents as may hereafter be adopted or promulgated. Franchisee authorizes the City to affix, at the City’s cost, but with no charge assessed by the Franchisee to the City, signs, flags, bunting, decorations, cables and all necessary paraphernalia on Franchisee’s light or power poles which give notice to or are, in the City’s sole opinion, appropriate for City sponsored or authorized events, such as seasonal decorations or for general decorative or informational purposes. In the event the City utilizes the authority granted hereto, it will give Franchisee seven (7) days notice of its intent to do so, describing the paraphernalia in general terms along with its locations and time period in which they will remain on the poles.
(f) Failure to Enforce. The failure of either party to enforce and remedy any noncompliance of the terms and conditions of this Franchise shall not constitute a waiver of rights nor a waiver of the other party’s obligations as provided hereto.
(g) Force Majeure. Each and every provision hereof shall be subject to acts of God, fires, strikes, riots, floods war and other disasters beyond Franchisee’s or the City’s control.
(h) Severability. If any section, subsection, sentence, clause, phrase, or portion of this Franchise Ordinance is for any reason held invalid or unconstitutional by any court or administrative agency or 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 hereof.
Section 19. Repeal of Other Ordinances. Ordinance Nos. 1362, 2063 and 2074 are hereby repealed, and set aside; provided, that this Franchise Ordinance shall not take effect or become in force until the requirements for adopting a Franchise Ordinance under Kansas Statutes have occurred.
Section 20. Effectiveness. This Franchise Ordinance shall take effect upon its final passage by the Governing Body and its publication in the official City newspaper.
Section 21. Acceptance. In the event the Franchise granted by this Franchise Ordinance becomes effective as provided in Section 20 herein, and the Franchisee accepts its terms in writing within sixty (60) days after its effective date, this Franchise shall become a contract between the City and the Franchisee. In the event this Franchise is not timely accepted in writing by the Franchisee, the Franchisee shall be bound by its requirements for as long (during its Term) as the Franchisee provides its Services to the residents of the City.
(2‑14‑2005)