AN ORDINANCE OF THE CITY OF HESSTON, KANSAS GRANTING TO EVERGY KANSAS SOUTH, INC., A KANSAS CORPORATION, AN ELECTRIC FRANCHISE, PRESCRIBING THE TERMS THEREOF AND RELATING THERETO, AND REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES INCONSISTENT WITH OR IN CONFLICT WITH THE TERMS HEREOF.
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF HESSTON, HARVEY COUNTY, KANSAS:
SECTION 1. That in consideration of the benefits to be derived by the City of Hesston, Kansas (the “City”), and its inhabitants, there is hereby granted to Evergy Kansas South, Inc., a Kansas Corporation (hereinafter sometimes designated as “Company”), said Company being a corporation engaged in the business of selling and furnishing electric power throughout the State of Kansas and to the inhabitants of the City, the right, privilege, and authority for a period of ten (10) years from the effective date of this ordinance, to occupy and use the several streets, avenues, alleys, bridges, parks, parkings, and public places of said City, for the placing and maintaining of equipment and property necessary to carry on the business of selling and distributing electricity for all purposes to the City, and its inhabitants, and through said City and beyond the limits thereof; to obtain said electricity from any source available; and to do all things necessary or proper to carry on said business in the City. 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 party to acquire rights to occupy the right-of-way under this franchise without the prior written consent of the City; 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 2. As further consideration for the granting of this franchise, and in lieu of any city occupation, license, or franchise fees, the Company shall pay to the City during the term of this franchise five percent (5%) of its gross receipts from the sale of electric energy for use within the corporate limits of said City, such payment to be made monthly for the preceding monthly period. Gross receipts shall not include other operating revenues received by the Company, which are not related to the “sale of electric energy.” Other operating revenues include, but are not limited to, delayed payment charges, connection fees, disconnection and reconnection fees, collection fees and return check charges. Company will use commercially reasonable efforts to ensure the accuracy of its records and of the determination of the amount of gross cash receipts subject to the fee provided for in this Section 2. At the option of either the City or the Company and upon written notice given by one to the other sent at least (90) days before the fifth anniversary of this franchise, the rate of compensation hereunder may be renegotiated. Any new rate of compensation that results from such renegotiation shall be effective on and after the fifth anniversary of this franchise. Notwithstanding anything to the contrary in this franchise, the fee provided for in this Section 2 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. 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 2. In the event and to the extent the City finds the accounting rendered to the City by the Company to be incorrect due to Company’s failure to use commercially reasonable efforts as provided herein, then the Company will pay any retroactive adjustments in full within thirty (30) days of written notice and substantiation of such inaccuracy. The Company agrees that all of its books, records, documents, contracts and agreements as may be reasonably necessary for an effective compliance review of this ordinance shall upon reasonable notice and at all reasonable times be opened to the inspection and examination of the officers of the City and its duly authorized agents, auditor, and employees for the purpose of verifying said accounting.
SECTION 3. Subject in all respects to compliance with the Kansas Open Records Act, each party may have access to confidential information, including personal information that may be subject to protection under state data security laws and other federal laws, rules and regulations, of the other during the term of this Ordinance and accordingly agree to disclose such information only to its personnel who have a need to know such information in connection with the performance of services outlined in this Ordinance and who are subject to non-disclosure requirements at least as restrictive as those contained in this Ordinance. Each party will use confidential information of the other only in connection with the performance of services under this Ordinance, and will store and transmit such information in a secure location and manner. In addition, each party must provide the same care (and in no event less than reasonable care) to avoid disclosure or unauthorized use as it provides to protect its own confidential information. Expiration or termination of the Ordinance does not relieve any party from its obligations to protect confidential information received during the term of the Ordinance. The terms and existence of this Ordinance is each party’s confidential information.
SECTION 4. That Company, in the construction, maintenance, and operation of its electric transmission, distribution and street lighting system, shall use all reasonable and proper precaution to avoid damage or injury to persons and property, and shall hold and save harmless the City (and all of its officers, employees, agents, and authorized contractors), from any and all damage, injury and expense caused by the negligence of said Company, its successors and assigns, or its or their agents or servants.
SECTION 5.
A. The use of the right-of-way under this franchise by the Company shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power relating to use, placement, location, or management of utilities located in the City’s right-of-way. In addition, the Company shall be subject to all laws, rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power relating to permits, fees, sidewalk and pavement cuts, utility location, construction coordination, screening, and other requirements on the use of the right-of-way; provided, however, that nothing contained herein shall constitute a waiver of or be construed as waiving the right of the Company to oppose, challenge, or seek judicial review of, in such manner as is now or may hereafter be provided by law, any such rules, regulation, policy, resolution, or ordinance proposed, adopted, or promulgated by the City.
B. The Company’s use of the right-of-way shall in all matters be subordinate to the City’s use of the right-of-way for any public purpose. The Company shall coordinate the installation of its facilities in the right-of-way in a manner which minimizes adverse impact on public improvements, as reasonably determined by the City. Where installation is not otherwise regulated, the facilities shall be placed with adequate clearance from such public improvements so as not to conflict with such public improvements.
C. All earth, materials, sidewalks, paving, crossings, utilities, public improvements, or improvements of any kind located within the right-of-way damaged, displaced, or removed by the Company in its activities under this franchise shall be fully repaired or replaced to its prior condition or to existing municipal standards as are then in existence within 30 days of commencing such activity by the Company without cost to the City; however, when such activity is a joint project of utilities or franchise holders, the Company shall make commercially reasonable efforts to ensure expenses thereof are prorated among the participants, and to the reasonable satisfaction of the City in accordance with the ordinances and regulations of the City pertaining thereto. Nothing in this franchise shall require the Company to repair or replace any trees, flowers, shrubs, or landscaping that interfere with the Company’s access to any of its facilities located in a utility easement.
D. Except in the event of an emergency, as reasonably determined by the Company, the Company shall comply with all laws, rules, regulations, policies, resolutions, or ordinances now or hereinafter adopted or promulgated by the City relating to any construction, reconstruction, repair, or relocation of facilities which would require any street closure which reduces traffic flow. Notwithstanding the foregoing exception all work, including emergency work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected.
E. The Company shall cooperate 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 communicated in writing to the City without cost to the City, its employees, agents, or authorized contractors. The Company shall have no obligations to the City for location and identification efforts performed by the City or its authorized agents for a public project. The Company shall designate and maintain an agent, familiar with the facilities, who is responsible for providing timely information needed by the City for the design and replacement of facilities in the right-of-way during and for the design of public improvements. At the request of the Company, the City may include design for facilities in the design of public projects. The Company shall not be required to perform any work on the facilities or for the public project at issue until the City includes the requested designs. 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 facilities and/or relocate its facilities.
F. The Company shall make reasonable and timely efforts to locate, remove, relocate, or adjust any facilities located in the right-of-way if reasonably necessary and requested by the City for a public project. Such location removal, relocation, or adjustment for a particular public project shall be performed by the Company without expense to the City, its employees, agents, or authorized contractors, and shall be specifically subject to rules and regulations of the City pertaining to such. If additional location, removal, relocation, or adjustment is the result of the inaccurate or mistaken information of the Company, the Company shall be responsible for costs associated with such without expense to the City. Likewise, if additional location, removal, relocations or adjustment is the result of inaccurate or mistaken information of the City, the City shall reimburse the Company for any additional expense necessarily incurred by the Company directly due to such inaccurate or mistaken information. The Company shall only be responsible for removal, relocation, or adjustment of facilities located in the right-of-way at the Company’s sole cost once each five (5) years for that particular facility. The City shall reimburse the Company for the removal, relocation, or adjustment of the Company’s facilities located in the right-of-way if required before the expiration of five (5) years from the date of the last relocation, removal, or adjustment of that particular facility.
G. The Company shall not be responsible for the expenses of relocation to accommodate any new public project for private development initiated after the effective date of this Ordinance. The expenses attributable to such a project shall be the responsibility of the third party upon the Company’s request, which shall include the Company’s documentation of the requested expenses. Before such expenses may be billed to the third party, the Company shall be required to make reasonable efforts to coordinate with the third 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 shall continue to provide a location in the right-of-way for the Company’s facilities as part of a public project, assuming the space is available and practical for use, provided that the Company has cooperated promptly and fully with the City in the design of its facilities as part of the public project.
I. At least ten (10) business days before the beginning of any installation, removal or relocation of its facilities in the right-of-way greater in length than 660 feet the Company shall submit detailed plans of the proposed action to the City Administrator. The City Administrator shall, within ten (10) business days of receipt of such plans, either approve the plans or inform the Company of the reasons for disapproval. In the event the City Administrator does not approve the plans submitted by the Company, the City Administrator, or an employee or agent of the City, shall make commercially reasonable efforts to assist the Company in revising its plans for approval. The Company shall designate a responsible contact person with whom representatives of the City Administrator can communicate on all matters relating to facilities installation and maintenance.
J. 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 within a reasonable time as requested by the City, it shall have no claim for costs or damages against the City. Unless caused by a force majeure event, the Company shall be responsible to the City and its agents, representatives, and authorized contractors for all actual 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. Force majeure events include, but are not limited to, acts of God or of the public enemy, riots, wars or hostilities, fires, floods, storms, tornadoes, earthquakes, epidemics, or pandemics. The Company shall not be liable to the City for indirect, incidental or consequential damages. The above general provisions notwithstanding, the City and its authorized contractors shall take reasonable precautionary measures including calling for utility locations through Kansas One Call and exercising due caution when working near the Company’s facilities. If the City fails to take reasonable precautionary measures, including those listed herein, prior to and during work near the Company’s facilities, the City shall have no claim for costs or damages against the Company.
K. 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 Agreement may be additional to or stricter than such minimum standards.
L. The City encourages the conservation of the right-of-way by the sharing of space by all utilities. Notwithstanding provisions of this franchise prohibiting third 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.
M. Permission is hereby granted to the Company to trim trees and other vegetation upon and overhanging the right-of-way and utility easements. The Company shall perform line clearance work in accordance with regulations established under OSHA 29 CFR 1910.269. All pruning operations shall be performed by personnel qualified to perform the work and in accordance with the latest versions of ANSI A300 (Part 7) (Integrated Vegetation Management practices on Utility Rights-of-way) as well as the companion publications: (1) Best Management Practices – Integrated Vegetation Management and (2) Best Management Practices – Utility Pruning of Trees. For routine trimming operations, customers shall be contacted at least one (1) week in advance by either personal contact or by informational door hanger.
N. The design, location, and nature of all facilities to be placed in the right-of-way shall be subject to the reasonable review and approval of the City Administrator. In the event the City Administrator does not approve the plans submitted by the Company, the City Administrator, or an employee or agent of the City, shall make commercially reasonable efforts to assist the Company in revising its plans for approval. Anything placed onto the facilities is subject to reasonable review and approval of the City Administrator. This is a means to properly manage and control all right-of-way usage in the City, and to protect the public aesthetics, health, safety, and welfare. The review and approval is to ensure efficient coordination relating to right-of-way use relating to public and private utilities and to evaluate the configuration and size of facilities that may be located in the right-of-way.
O. 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 law and regulation, including but not limited to the most recent standards of the Kansas Corporation Commission and the Kansas Department of Transportation, or such substantive equivalents as may be hereafter adopted or promulgated. The standards established in this paragraph are minimum standards and the requirements established or referenced in this franchise may be in addition to or stricter than such minimum standards.
P. The City reserves the right to lay, and permit to be laid, storm sewer, gas, water, wastewater and other pipe lines, cables, and conduits, and to do and permit to be done any underground or overhead work that may be necessary or proper in, across, along, over, or under the right-of-way occupied by the Company. The City also reserves the right to change, in any manner, any curb, sidewalk, highway, alley, public way or street. In permitting such work to be done, the City shall meet all applicable codes. The City shall be responsible to Company for actual damage to the facilities of the Company caused by the City’s own negligence. The City shall not be liable to the Company for indirect, incidental or consequential damages.
Q. For facilities installed in any new subdivision within the City, the Company shall follow any applicable City Ordinance regarding installation of above-ground or underground facilities.
SECTION 6. The Company shall maintain throughout the term of this franchise insurance in the minimum amounts of:
(i) $1,000,000 for bodily injury or death to a person, $3,000,000 for injury or death resulting from any one accident;
(ii) $500,000 for property damage resulting from any one accident;
(iii) $1,000,000 for all other types of liability.
Should Company elect to self-insure for this purpose, the Company shall provide a certificate or affidavit evidencing self-insurance at coverage amounts at least equal to those set forth in this Section 5.
SECTION 7. After the approval of this ordinance by the City, Company shall file with the City Clerk, the Company’s unconditional written acceptance of this ordinance. Said ordinance shall become effective and be in force and shall be and become a binding contract between the parties hereto, their successors and assigns, from and after the first day of the first month after such acceptance is provided by said Company to the City after its final passage, approval and publication as required by law, and acceptance by said Company.
SECTION 8. That this ordinance, when accepted as above provided, shall constitute the entire agreement between the City and Company relating to this franchise and the same shall supersede and cancel any prior understandings, agreements, or representations regarding the subject matter hereof, or involved in negotiations pertaining thereto, whether oral or written.
SECTION 9. This franchise is granted pursuant to the provisions of K.S.A. 12-2001.
SECTION 10. That any and all ordinances or parts of ordinances in conflict with the terms hereof are hereby repealed.
SECTION 11. In accordance with statute, Company shall be responsible for payment of all actual costs and expense of publishing this franchise and any amendments thereof.
SECTION 12. The Company will file this ordinance with the State Corporation Commission of Kansas. Should the State Corporation Commission take any action with respect to this franchise ordinance, which would or may preclude Evergy Kansas South, Inc., a Kansas Corporation, from recovering from its customers any cost provided for hereunder, the parties hereto shall renegotiate this ordinance in accordance with the State Corporation Commission’s ruling.
SECTION 13. If any clause, sentence, or section of this Ordinance shall be held to be invalid, it shall not affect the remaining provisions of this Ordinance.
SECTION 14. A 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. In the event of any assignment of this franchise, Company shall be released from all obligations which are assumed in writing by its assignee upon the signing by such assignee of an assumption of the franchise being assigned.
(12-17-2020)