AN ORDINANCE GRANTING A FRANCHISE TO FLINT HILLS RURAL ELECTRIC COOPERATIVE ASSOCIATION, INC., IT’S SUCCESSORS AND ASSIGNS, TO CONSTRUCT, OPERATE AND MAINTAIN AN ELECTRIC UTILITY WITHIN CERTAIN AREAS ANNEXED WITHIN THE CITY OF MARION, KANSAS, AND AUTHORIZING IT TO SELL, DISTRIBUTE AND FURNISH ELECTRIC ENERGY TO THE CITY AND TO THE INHABITANTS THEREOF, FOR A PERIOD OF TWENTY (20) YEARS UPON THE EXPIRATION OF THE EXISTING FRANCHISE WHICH ENDS ON JULY 26, 2013.
Section 1. DEFINITIONS: For the purpose of this Ordinance, the following terms shall have the meaning herein given.
(a) “City” shall mean the City of Marion, Kansas.
(b) “Company” shall mean Flint Hills Rural Electric Cooperative Association, Inc., the grantee of the rights under this Ordinance.
(c) “Franchise Area” shall mean all property within the City limits of the City of Marion, Kansas and any property which may hereinafter be annexed into the City of Marion, Kansas and which is located within the certificated service territory of the Company, except the following described tract:
The North Half of the Northwest quarter of the Northeast quarter of Section 32, Township 19 South, Range 4 East of the 61h P.M. in Marion County, Kansas, except the North 170 feet of this said section.
Section 2. GRANT OF AUTHORITY: It is hereby granted by the City to the Company, the right, privilege and franchise to engage in the business of operating an electric utility in the City, for the purpose of selling, distributing and furnishing electric energy to the City and the inhabitants thereof; and, for that purpose the right to erect, replace, reconstruct, operate, maintain and retain in, on, over, under, upon, across and along any public easement, public street, public way and public place in the Franchise Area such poles, wires, cables, conductors, transmission lines, sub-stations, buildings, conduits and other equipment that may be necessary and appurtenant to the electric power and energy system.
Section 3. SUBJECT TO CERTIFICATE OF CONVENIENCE AND NECESSITY: This franchise is subject to the certificate of convenience and necessity issued to the Company by the Kansas Corporation Commission.
Section 4. TERM OF FRANCHISE: The current franchise ends on July 26, 2013 and the franchise rights herein granted shall continue in force and effect for a term of twenty (20) years after July 26, 2013.
Section 5. SAFETY REQUIREMENTS:
(a) The Company shall at all times, exercise ordinary care and shall install, maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.
(b) All structures and all lines, equipment in, over, under and upon the streets, alleys and public ways or places of the Franchise Area, shall at all times be kept and maintained in a safe, suitable condition and in good order and repair.
Section 6. TEMPORARY WIRE CHANGES: The Company shall, on the request of any person holding a building moving permit issued by the City, temporarily remove, raise or lower its wires to permit the moving of buildings, The expense of such temporary removal, and of raising or lowering of wires, shall be paid by the person requesting the same and the Company shall have the authority to require such payment in advance, The Company shall be given no less than 48 hours advance notice to arrange for such temporary wire changes,
Section 7. TREE TRIMMING: The Company shall have authority to trim trees upon any overhanging public easements, streets, alleys, sidewalks, and public places of the City so as to prevent the branches of such trees from contacting wires and supporting structures.
Section 8. FIRST OPPORTUNITY TO NEGOTIATE RENEWAL: As an inducement to the Company to improve its systems and services offered during the franchise period, the City hereby grants to the Company the first opportunity to negotiate a renewal of this franchise agreement. Assuming Company’s operation under this franchise agreement has been satisfactory, the Governing Body shall give favorable consideration to renewal of this franchise agreement if the Company provides evidence that it can and will provide facilities and services at least equal to other prospective franchisees.
Section 9. FORCE MAJEURE: The Company shall not be required to perform any covenant or obligation in this ordinance, or be liable in damages to the City, so long as the performance or nonperformance of the covenant or obligation is delayed, caused or prevented by an Act of God, force majeure or by the City. An “Act of God” or “force majeure” is defined for the purposes of this ordinance as strikes, lockouts, sit-downs, material or labor restrictions by any governmental authority, unusual transportation delays, riots, floods, washouts, explosions, earthquakes, fire, storms, weather (Including wet grounds or inclement weather which prevents construction), acts of the public enemy, wars, terrorism , insurrections, and/or any other cause not reasonably within the control of Company or which by the exercise of due diligence Company is unable wholly or in part, to prevent or overcome.
Section 10. SYSTEM CONSTRUCTION AND EXTENSION: In the event additional adjacent territory is incorporated within the City limits, by annexation or otherwise, Company’s rights and duties under this Ordinance shall be deemed to extend to and include such additional~ territory;· provided, however, such territory must be located within the Company’s certificated electric service territory as certified by the Kansas Corporation Commission,
Section 11. OPERATIONAL RULES AND RATES: The Company shall operate and maintain its electric utility system in full compliance with the rules, regulations and rates set forth by the Company’s Board of Trustees,
Section 12, FRANCHISE PAYMENTS: The Company shall pay to the City, an annual sum equal to three (3) percent of the annual gross revenue paid for electric energy by consumers within the corporate limits of said City. Such sum shall be payable at six (6) month intervals or in the months of January and July for the preceding six (6) months.
Section 13. NO GUARANTEE OF ELECTRIC SUPPLY: The Company shall construct, operate and maintain, during the term of this franchise, such transmission lines, poles, wires and other equipment as may be necessary to furnish reasonably efficient and sufficient electric service to said City and the inhabitants thereof, provided, however, this agreement does not guarantee a constant or uninterrupted supply of electric current or energy and the Company shall not be liable to the City or any inhabitant thereof for any interruption in service.
Section 14. INDEMNIFICATION OF THE CITY: The Company shall at all times use reasonable and proper precaution to avoid damage or injury to the property of the City or the inhabitants thereof, and shall protect the City from all damages arising from the negligence or mismanagement by the Company in the construction, maintenance, or operation of the electric energy and power system .
Section 15. COMPLIANCE WITH APPLICABLE LAWS AND ORDINANCES: The Company shall at all times during the life of this franchise, be subject to all lawful exercise of the police power by the City. The City reserves the right to adopt, from time to time, in addition to the provisions contained herein, such Ordinances as may be necessary to exercise its policy power. Such regulation shall be reasonable and not destructive to the rights herein granted and shall not conflict with the laws of the state or the rules and regulations imposed upon the Company.
Section 16. REPEAL: That Ordinance Number 1350 of the City of Marion, Kansas, and all other ordinances or parts of ordinances in conflict herewith are hereby repealed.
Section 17. EFFECTIVE DATE: This Ordinance shall take effect and be in force after its passage by the City, approval and publication according to law, and after the expiration of sixty (60) days from the date of its final passage. PASSED AND APPROVED BY THE GOVERNING BODY OF MARION, KANSAS THIS 21st DAYOFJANUARY, 2013.