AN ORDINANCE GRANTING THE WHEATLAND ELECTRIC COOPERATIVE, INC., ITS SUCCESSORS AND ASSIGNS, THE FRANCHISE AND RIGHT TO CONSTRUCT, OPERATE AND MAINTAIN ELECTRIC TRANSMISSION AND DISTRIBUTION LINES, FACILITIES OR SYSTEMS WITHIN THE CORPORATE LIMITS OF THE CITY OF DEERFIELD, STATE OF KANSAS, TO TRANSMIT, DISTRIBUTE AND SELL ELECTRIC ENERGY TO THE CITY OF DEERFIELD, KANSAS, AND ITS INHABITANTS, AND TO TRANSMIT ELECTRIC ENERGY THROUGH THE CITY OF DEERFIELD, KANSAS, FOR DISTRIBUTION AND SALE TO RESIDENTS OUTSIDE THE CITY OF DEERFIELD, KANSAS. BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF DEERFIELD, STATE OF KANSAS:
The Wheatland Electric Cooperative, Inc., a corporation organized and existing under and by virtue of the laws of the State of Kansas (hereinafter called the “Cooperative”), its successors, lessees or assigns, the Cooperative being a cooperation, operating a system for the transmission of electric current between two or more incorporated cities in the State of Kansas, into and through which it has built transmission lines, is hereby granted the franchise, privilege and right for five (5) years, to construct, operate and maintain electric transmission and distribution lines or systems within the limits of the City of Deerfield, State of Kansas, (hereinafter called the “City”) as said limits are presently constructed or may in the future be extended, to transmit, distribute and sell electric energy to the City or its inhabitants, and for sale to residents outside the City. The franchise granted by this ordinance shall be renewed and extended for two (2) additional five (5) year terms, unless the Cooperative or the City gives written notice of intent to terminate the franchise not less than two (2) years prior to the end of the initial term, or any extension term of the franchise. If written notice of intent to terminate is timely given, the franchise shall terminate at the end of the then existing term.
The grant herein made includes the further right and privilege to construct, operate, maintain and repair, relocate and extend said electric lines or systems including all poles, wires, cables, conductors, conduits, anchors, guys, transformers, transformer stations, and all fixtures and facilities necessary for the convenience of the Cooperative's business along, upon, over, under, through and across the streets, alleys, and public grounds, within the City (as said streets, alleys, and public grounds are presently laid out or as they may be laid in the future.) This grant includes the right to enter upon such lands as necessary to carry out the privileges and obligations granted hereunder.
Electric lines or systems, poles , wires, cables, conductors, conduits, anchors, guys, transformers, transformer station, and all fixtures and facilities necessary for the operation of the Cooperative's business, shall be constructed, operated, maintained, repaired or relocated in such places and manner as will be consistent with necessity, and cause the least inconvenience with other public uses of such streets, alleys or public grounds. When the Cooperative shall do any work of construction, repair or maintenance of said system in the course of which any pavements, curbing or gutter upon any street, alley, bridge or public place shall be excavated, the Cooperative shall properly protect excavations and shall promptly restore such street, alley, bridge or public place as far as practicable to as good condition as before such work was done. The Cooperative will hold the City harmless from any liability arising from the sole negligent act or omissions of said grantee. The Cooperative shall provide and keep in force public liability insurance with limit of One Million Dollars ($1,000,000.00) for bodily injury and property damage and a Five Million Dollars ($5,000,000.00) Umbrella policy, such policies naming both the Cooperative and the City as insured parties. The Cooperative shall maintain on file at the Office of the City Clerk of the City a current Certificate of Insurance verifying such public liability coverage.
As consideration for the granting of this franchise, the Cooperative shall:
(a) Operate and maintain the existing standard street lighting system for the City and in the event of growth
of the City or reasonable need for change, modification or improvement of the street lighting system as the Cooperative and the City may agree upon, and upon terms that are fair, reasonable and just to the Cooperative and the City and, if applicable, in accordance with the latest legally adopted rates, rules and regulations.
(b) For the cost of operation and maintenance of the street lighting system, the City agrees to pay the Cooperative in accordance with the Cooperative's latest public street lighting rate schedule or succeeding rate schedule
(c) The Cooperative agrees to sell and deliver unto the City during the period of this franchise such energy as may be required by the City for heat, power and other end uses the Governing Body of the City shall direct, all in accordance with its current municipal power service rate schedule or any succeeding legally adopted rate schedule.
(d) The Cooperative, its successors and assigns, shall locate its electric lines or system in the streets, avenues, alleys and other public places in such a manner as to cause the least interference with the use of streets, avenues, alleys and public places. At times when the City causes public improvements to be made to any streets, avenues, alleys or other public places within the City that are occupied by the Cooperative's electrical facilities or system, the Cooperative shall, at the request of the City, relocate its electrical facilities or system at the Cooperative's expense to conform to the City's planned improvement. If the Cooperative is required to move, alter or rebuild any of its electrical facilities or system not located on public right-of-way, the cost of moving altering or rebuilding the facilities or system not located on public right-of-way, shall be borne by the requesting party. In the event the City vacates or otherwise abandons the City right-of-way on which the Cooperative facilities or systems are located, or planned to be located, the ordinance and contract selling, vacating or abandoning such City right-of-way shall provide a City-granted easement to the Cooperative.
(e) The Cooperative's rights and obligations under the franchise agreement may be terminated by the Cooperative if the City, or an entity owned, operated, controlled or affiliated with the City, begins to provide electric service to customers within the City's boundaries or within three (3) miles thereof. If the Cooperative elects to cease exercising any of its rights or obligations under this franchise pursuant to this provision, the Cooperative shall give the City one hundred eighty (180) days written notice prior to such termination.
In consideration of the premises, the Cooperative agrees to pay to the City, and the City agrees to accept as adequate compensation and consideration for the franchise hereby granted and in lieu of occupation, license, privilege and all other taxes and fees, three percent (3%) of the total of the gross receipts for electric energy sold by the Cooperative to all consumers located within the City's boundaries during the term of this franchise. Any consideration hereunder shall be reported and paid to the City by the Cooperative on a semiannual basis on each March 31 and September 30 for the years in which the franchise remains in effect, reflecting such electric energy sold to customers within the City's boundaries for the six months' period ending at the last meter reading preceding each February 28 and August 31 , respectively. Such payments shall be rendered in cash to the City. The term “gross receipts”, as used in this Section shall not include receipts for electric energy sold to any organization from whom the Cooperative is unable to collect such franchise fee as a result of any legal prohibitions or impediments. The City reserves the right to renegotiate the amount of this payment at the end of the first five (5) year period and at the end of the second five (5) year period, to determine the percentage that will be effective during the second five (5) year period and the third five (5) year period, respectively.
The City shall have access to and the right to examine, at all reasonable times, all books, receipts, files, records and documents of the Cooperative necessary to verify the correctness of said payments.
The Cooperative, it's successors and assigns, in the construction, maintenance and operation of its electric system, under the rights and privileges herein granted, shall exercise all reasonable and proper precaution to avoid damage or injury to persons or property, and shall hold and save harmless the City from any and all damage, injury and expense caused by the sole negligence of the Cooperative, its successors and assigns, or its or their agents or employees.
The Cooperative is hereby granted the privilege of trimming such trees located within the City's boundaries as may interfere with the safe and proper construction and operation of the electric system.
No assignment of the Cooperative's rights granted by this franchise shall be effective without the prior written consent of the City.
Within sixty (60) days from and after the passage and approval of this franchise, the Cooperative shall file with the City Clerk of the City, its unconditional acceptance of this franchise.
Any and all ordinances in conflict with the terms hereof are hereby repealed, including Ordinance No. 2005-03.
This franchise shall become effective and be in force and shall be a binding contract between the parties hereto, their successors and assigns, from and after its passage and approval, publication as is required by law and acceptance by the Cooperative. The Cooperative shall pay all expenses of publishing this Ordinance.
This franchise is granted pursuant to the provisions of K.S.A. 12-2001.