AN ORDINANCE GRANTING TO KANSAS CITY POWER & LIGHT COMPANY (“KCP&L”) 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 1724 AND 1726.
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 the 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.
“Customer” means any person, partnership, association, firm, public or private corporation or governmental agency applying for or using electric service supplied by KCP&L.
“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 of Kansas.
“Franchisee” means KCP&L, 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 uncollectibles, 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 not including sales for resale or Franchise Fees paid to the City pursuant to this Section.
“KCC” means the Kansas Corporation Commission.
“KCP&L” means Kansas City Power & Light Company.
“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.
“Utility Easement” means, for the purpose of this Franchise Ordinance, an easement in favor of 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, except in an emergency when necessary, to preserve life, property or to restore electrical service. In the case of emergency work, Franchisee shall use all reasonable attempts as soon as practical to come into full compliance with this requirement following resolution of the emergency. 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 regarding 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 lots, 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 new 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. The difference in cost between placing electric facilities underground and placing electric facilities aboveground shall be borne by the party requesting underground placement of electric facilities or, in the case of a request made by the City, pursuant to the provisions outlined in Franchisee’s tariffs.
(d) The provisions of Subsection (c) 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 aboveground 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.
(e) 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. Upon request, or in the event of any significant modification to Franchisee’s facilities, Franchisee shall provide to the City maps of Franchisee’s distribution system within the corporate limits of the City, subject to the Homeland Security Act and other confidentiality protections under State and federal law, provided Grantee is satisfied that the City will use the maps solely for planning purposes. With respect to such distribution maps provided to the City, the City hereby acknowledges and agrees that: (i) the maps are only current as of their posted revision date; (ii) the City will use the maps exclusively for planning purposes; (iii) the maps are subject to the Homeland Security Act and other confidentiality protections under State or federal law; (iv) the City, its employees, agents and representatives will ensure the confidentiality of the maps is maintained; (v) the City, it employees, agents, and representatives, will not use the maps to circumvent the use of the Kansas One‑Call System; and (vi) the City will not provide the maps to any third party. Franchisee shall designate a knowledgeable person(s) 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 an as needed basis to talk to City officials, as well as attend such meetings as are necessary for the coordination of electric services within the City.
(f) Any pavements, sidewalks or curbing taken up or any and all excavations made shall be done under the supervision and direction of the Bonner Springs Codes Administration Department pursuant to nationally recognized construction codes and local ordinances adopted by the City, under all necessary permits issued for the work, and shall be made and done in such manner as to give the least inconvenience to the inhabitants of the City and the public generally, and pavements, sidewalks, curbing and excavations shall be replaced and repaired in as good condition as before with all convenient speed, all at the expense of the Company.
(g) Franchisee shall relocate or adjust any Facilities in the Right‑of‑Way for any public improvement project paid for with public funds 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 the City’s Right‑of‑Way Usage Code, Adopted by Ordinance No. 2199. In the case of any public improvements which cause 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. Franchisee will consult with the City on its new proposed location.
For any public improvements initiated by the City, the City bears responsibility to provide a place for Franchisee to relocate its Facilities, either within the City’s existing Right‑of‑Way or a City‑acquired Utility Easement, in order for Franchisee to be able to continue to maintain Facilities in conjunction with public improvement projects. Franchisee shall not be required to relocate or adjust any Facilities which are not solely for public use and paid for with public funds and may require the entity or individual requesting the relocation to bear the costs of relocation of facilities. 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 to be mutually agreed upon by the City and Franchisee. Any unavoidable 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 the Franchisee except due to circumstances beyond the control of Franchisee, including due to an emergency situation at another location that requires Franchisee to reallocate personnel and/or resources to address the emergency. All underground facilities relocated or adjusted shall remain underground following the relocation or adjustment of such facilities. All aboveground facilities relocated or adjusted shall remain aboveground following the relocation or adjustment of such facilities. The difference in cost between placing electric facilities underground and placing electric facilities aboveground shall be borne by the party requesting underground placement of electric facilities, or in the case of a request by the City pursuant to the provisions outlined in Franchisee’s tariffs.
(h) 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”). All claims for damages arising out of the Franchisee’s alleged violation of the provisions of K.S.A. 66‑1801, et seq. shall be resolved in accordance with K.S.A. 66‑1811 and Franchisee’s applicable Kansas tariff regarding Franchisee’s liability for damages.
(i) Franchisee shall notify the City not less than three (3) working days in advance of any construction, reconstruction, repair or relocation of Facilities that would require any street closure that 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 or withheld. In addition, all work performed in the travel 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.
(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 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 Safety Code, or such substantive equivalents as may hereafter be adopted or promulgated.
(k) Any request for the moving of buildings or structures on streets, alleys, roads and highways having transmission lines and aerial facilities shall be made in accordance with the provisions of K.S.A. 17‑1914, et seq. 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. 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.
(l) 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‑133.1‑2006 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. During large storm restoration efforts, Franchisee will use reasonable efforts to keep the City informed concerning the status of its repair operations.
(m) Street Lighting System Repairs: All Street Lighting System repairs shall be conducted in accordance with the Franchisee’s then applicable tariffs on file with the KCC. The City shall notify Franchisee of the need for any repairs or replacement of any light fixture, installation or item in that part of the Facilities which serve as a part of the City’s street, parking or area lighting system, Franchisee shall initiate such necessary repairs or replacements. All Franchisee initiated repairs shall be completed within a reasonable time, but not to exceed thirty (30) days, except in the event of an emergency situation where federal or State regulation require providing priority to other entities.
(n) Installation of New Street Lighting:
(1) The Franchisee shall promptly, upon written notice from the Developer, provide street lighting fixtures and services 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. In accordance with Franchisee’s approved Kansas tariffs, Franchisee’s Street Lighting System, as that term is defined in the tariff, now in existence and together with all additions, changes, and removals, shall be owned by Franchisee.
(2) The Franchisee shall promptly, upon written notice from the City, relocate and/or add street lighting, when 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.
(o) Power Outage Repairs: the Franchisee shall adhere to the Electric Reliability Requirements established by the KCC in Docket No. 02‑GIME‑365‑GIE for the scope of the Franchisee’s entire Electrical System Operations, 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 preventative maintenance program and shall be capable of emergency repair work on a scale that is appropriate to its entire scope of operations and to the physical condition of its entire system.
Section 4. Franchise Fee.
(a) Effective for billings by Franchisee for Service from the first day of February 2010 through January 31, 2011, Franchisee shall pay to the City an amount which will be equal to six percent (6%) 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 from the previous month. The payments herein provided shall be in lieu of all other taxes, charges, assessments, fees and impositions of general applicability.
(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 February 1, 2020. Notwithstanding the revision authority contained herein, the percentage of Gross Receipts payable to the City shall not exceed any applicable statutory maximum rate.
(c) The City shall provide copies of annexation ordinances to Franchisee on a timely basis to ensure appropriate Gross Receipts collection from customers within the City’s corporate limits. Franchisee’s obligation to collect and pay Gross Receipts from customers within an annexed area shall not commence until the later: (i) of sixty (60) days after Franchisee’s receipt of the annexation ordinance pertaining to such area, or (ii) such time as is reasonably necessary for Franchisee to identify the customers in the annexed area obligated to pay Gross Receipts.
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 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 payments 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 February 1, 2020. 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. Franchise Information. Franchisee shall, at its own expense, annually submit to the City information as to the number of Customers in the City in digital format. However, it is understood and agreed that Franchisee will not be required to provide the identification of the customers.
Section 8. Customer Rates. Franchisee’s charges to customers shall comply with all applicable federal and State statutes, regulations, and KCC tariffs in effect on the date of the execution of this Franchise Ordinance or as may be changed by an Order of the KCC. 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 a third party, 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 or delayed.
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 Procedures. 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:
Kansas City Power & Light Company
Community Business Manager
P.O. Box 418679
Kansas City, MO 64141-9679
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. In providing electric service and in the construction, installation, repair, operation and maintenance of its facilities, Franchisee shall use every reasonable and proper precaution to avoid damage or injury to persons or property. 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, losses, costs, and expenses, including reasonable costs of litigation and attorney fees, to the extent caused by Franchisee’s actions or operations rendered or offered in accordance with this ordinance. Provided, however, that (a) Franchisee shall have no obligation to indemnify the City in cases where (i) a court of competent jurisdiction determines both that the Franchisee is free of causal fault and that the City is causally at fault, or (ii) a claim asserted against both the Franchisee and the City is fully and finally settled with the City, but not the Franchisee, making payment on account of such claim, and (b) Franchisee’s obligations under this Section shall be limited to the proportion of Franchisee’s fault (including negligence) for such damage, injury, cost or expense. The City agrees to immediately notify Franchisee via certified mail of any claim, demand, suit, proceeding, and/or action.
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. 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 waiver 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 or 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. 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 to 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. Further, the City hereby reserves to itself the right to intervene in any suit, action or proceeding involving the provisions herein. 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 duties to defend against liability or pay any judgment entered against the City or its officers, employee, agents and authorized contractors.
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. The City’s ordinance to terminate this franchise shall be final and binding against Franchisee unless Franchisee files an action in the Wyandotte County District Court, Wyandotte County, Kansas within thirty (30) days after passage of the Ordinance to determine whether the ordinance is effective to terminate the franchise. If the Franchisee does file such an action, then the court’s final determination on the action shall determine the Ordinance’s effective date for termination. 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 a 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.
In addition to any other remedy available herein or and at law or equity, Franchisee and 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 adjusted 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 provision 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.
Section 18. Miscellaneous Provisions.
(a) Nonexclusive Clause. The privilege to construct, erect, operate and maintain Facilities and to provide services 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 rights or obligations of Franchisee.
(b) 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 the effective date the Franchise Ordinance. 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. 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.
(c) Special Lighting Agreements. Franchisee shall promptly, upon written notice from the City, negotiate the establishment of special lighting agreements 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 additional expense, if any, to be paid for by the City.
(d) 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.
(e) Force Majeure. No provision within this Franchise Ordinance shall be construed as a guarantee on the part of Franchisee to furnish uninterrupted service, and interruptions due to acts of God, fire, strikes, civil or military authority, orders of court and other causes reasonably beyond the control of Franchisee shall not be deemed a waiver or forfeiture of the rights and obligations of the parties hereto.
(f) Severability. If any section, subsection, sustenance, clause, phrase, or portion of this Franchise Ordinance is for any reason held invalid or unconstitutional by any court or administrative 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 hereof.
Section 19. Repeal of Other Ordinances. Ordinance Nos. 1724 and 1726 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. Effective Date and Acceptance. This Ordinance is made under and in conformity with the laws of the State of Kansas, and shall take effect and be in force as of the first day of the first month after written acceptance by the Company.
(01‑10 2010)