An ordinance granting to Aquila, Inc., d/b/a Aquila Networks, a Delaware corporation, hereinafter called the “Company”, the right to use certain streets, avenues, alleys, bridges and public places of the City of Stockton, Kansas, hereinafter called the “City”, for the purpose of erecting, constructing, installing, maintaining and operating poles, wires, conduits, tunnels and other fixtures in, upon, across and along such streets, avenues, alleys, bridges and public places of said City, for the purpose of maintaining and operating an electric transmission line through and beyond said City, and prescribing certain terms and conditions therefore.
Be it ordained by the governing body of the City of Stockton, Kansas, as follows:
AUTHORITY GRANTED
The City of Stockton, Kansas, hereby grants to Aquila, Inc., a Corporation duly incorporated under the laws of the State of Delaware, its successors and/or assigns, the right, privilege and authority to erect, construct, install, maintain and operate electric transmission lines within the limits of said City, and for that purpose, there is hereby granted to said Company, the right, privilege and authority during said period, to erect, construct, install, maintain and operate in, upon, over, across and along the several streets, avenues, alleys, bridges and public places of said City as laid out and approximately located on the attached map of the City, marked Exhibit “A”, all poles, wires, conduits, tunnels, cables, fixtures and appliances necessary or proper to carry on the business of constructing and maintaining transmission lines for the transmission of electric energy through the City, and beyond the limits of said City (the “Facilities”).
TERM
The rights and privileges granted by this Ordinance shall remain in effect for a period of five (5) years from the effective date thereof and for three consecutive five (5) year terms thereafter unless City, through its Clerk, shall notify Company in writing at least one hundred and eighty (180) days before the expiration of the initial and subsequent terms, that the City, for good cause relating to default of any material obligations hereunder, desires not to renew the franchise, and such notice shall specify City’s reasons.
COMPENSATION
As compensation to the City for the granting of this Ordinance, Company will provide space on its poles for the City’s electric circuits under-build, within the City on Public-Right-of-Way. The City shall pay the Company for upgrades to Company facilities to accommodate the City owned attachments, when the Company is required to upgrade Company facilities to be in compliance with the National Electric Safety Code, IEEE, and/or ANSI standards. The City shall notify the Company at least thirty (30) days in advance of any changes to City attachments that may cause the Company to be in non-compliance with National Electric Safety Code, IEEE, and/or ANSI standards.
MAINTENANCE
The Company agrees that for the term of this Ordinance, it will use its best efforts to install and maintain the Facilities so as to provide the least interference with the traffic over the streets, avenues, alleys and public places of said City. The Facilities as they now exist through said City are shown with their approximate location on the attached Exhibit “A”. The original location and relocation of the Facilities shall be by mutual agreement and fixed under the supervision of the governing body of said City, or its authorized representative, but said supervision shall be such as is reasonable and commensurate with the proper installation, operation and maintenance of said Facilities. The Company is hereby given the right within the limits of the streets and alleys where the Facilities are now located or may be located in the future to trim and cut such trees and foliage as may be reasonably necessary for the safe and efficient maintenance and operation of its transmission lines.
The Company, upon receipt of forty-eight (48) hours written notice shall raise or lower or otherwise alter its circuits to permit the passage of buildings, structures or equipment being lawfully used upon or moved along or across or into any street, avenue, alley or public place within the Corporate limits of said City. The person, firm or corporation moving or removing such building, structure or equipment shall pay the expense incurred by the Company for obtaining the clearance necessary for the passage of these obstructions under or across its circuits.
RELOCATION OF FACILITIES
If the City elects to change the grade of or otherwise alter any street, alley, avenue, bridge, public right-of-way or other public place for a public purpose, or if any buildings or other structures are to be constructed for a public purpose, the Company, upon reasonable notice from the City, shall remove and relocate any of the Facilities in the public rights-of-way, if such removal is necessary to prevent interference and not merely for the convenience of the City, at the cost and expense of the Company. If the City orders or requests that the Company relocate the Facilities primarily for non-public purposes or for the primary benefit of a commercial or private project, or as a result of the initial request of a commercial or private developer or other non-public entity, and such removal is necessary to prevent interference and not merely for the convenience of the City or other right-of-way user, the Company shall receive payment for the cost of such relocation as a precondition to relocating the Facilities. The City shall consider reasonable alternatives in designing its public works projects so as not to arbitrarily cause the Company unreasonable additional expense in exercising its authority under this section. The City shall also provide a reasonable alternative location for the Company’s Facilities.
If the City orders or requests that the Company relocate Facilities located in private easements purchased by the Company, the Company shall receive payment for the cost of such relocation as a precondition to relocating the Facilities.
POLE ATTACHMENTS
The Company will provide pole attachment space for CATV/Communications Licensees in accordance with federal and state statutes. Such attachments will be subject to a contractual agreement between the Company and the Attaching entity and will include attachment fees as well as make-ready costs, when applicable.
OWNERSHIP, COSTS, INSURANCE AND FACILITY EXPENSES
At all times, Company shall own and retain title to its facilities and City shall own and retain title to its under build facilities. Each party shall be responsible for the risk of loss of their respective facilities, and shall be responsible for the expenses associated with any operation, repair or rebuild of the facilities that is deemed prudent, reasonable and necessary. Each party shall be responsible for insuring their interests in the respective facilities.
GOVERNING RULES AND REGULATIONS
The Company shall have the right to make such reasonable rules and regulations for the protection of its property and the conduct of its business as shall be determined by the Company and approved by the Kansas Corporation Commission, or other regulatory body having jurisdiction thereof.
HOLD HARMLESS
The Company shall use all reasonable and proper precaution to avoid damage or injury to persons or property from the maintenance and operation of its transmission lines and shall hold and save harmless the City from any and all damage, injury, expense or litigation caused directly or indirectly by the operation of said lines of the Company from any cause whatsoever, except the negligence of the City, its servants, agents or employees, and it shall be the duty of the Company to defend any or all litigation that may arise by reason of the operation and maintenance of said lines and to promptly pay and satisfy any and all judgments or expenses of litigation arising there from. The City shall use all reasonable and proper precaution to avoid damage or injury to persons or property from the maintenance and operation of its electrical circuit (under build) and shall hold and save harmless the Company from any and all damage, injury, expense or litigation caused directly or indirectly by the operation of said lines of the City from any cause whatsoever, except the negligence of the Company, its servants, agents or employees, and it shall be the duty of the City to defend any or all litigation that may arise by reason of the operation and maintenance of said lines and to promptly pay and satisfy any and all judgments or expenses of litigation arising there from.
LIMITATION ON DISTRIBUTION
The rights herein granted shall continue so long as the Company shall at no time during the term of this Ordinance engage in the business of distributing electricity in the City, unless the consent of the City to do so has been first obtained in writing. Any future attempt on the part of the Company to engage in such distribution business within the City without the written consent of the City shall automatically terminate this Ordinance.
CONFIDENTIAL INFORMATION
The City acknowledges that certain information it might request pursuant to this Ordinance may be of a proprietary and confidential nature. If the Company requests that any information provided by the Company to the City be kept confidential due to such proprietary or commercial value, the City and its employees, agents, and representatives shall maintain the confidentiality of that information, to the extent allowed by the Kansas Open Records Act. If the City is requested or required by legal or administrative process to disclose any such confidential information, the City shall promptly notify the Company of such request or requirement so that the Company may seek an appropriate protective order or other relief. The City shall use all reasonable efforts to ensure that the confidentiality of the Company’s confidential information is maintained.
FORCE MAJEURE
It shall not be a breach or default under this Ordinance if either party fails to perform its obligations hereunder due to Force Majeure. Force Majeure shall include, but not be limited to, the following: 1) physical events such as acts of God, landslides, lightning, earthquakes, fires, freezing, storms, floods, washouts, explosions, breakage or accident or necessity of repairs to machinery, equipment or distribution or transmission lines; 2) acts of others such as strikes, work-force stoppages, riots, sabotage, insurrections or wars; 3) governmental actions such as necessity for compliance with any court order, law, statute, ordinance, executive order, or regulation promulgated by a governmental authority having jurisdiction; and any other causes, whether of the kind herein enumerated or otherwise not reasonably within the control of the affected party to prevent or overcome. Each party shall make reasonable efforts to avoid Force Majeure and to resolve such event as promptly as reasonably possible once it occurs in order to resume performance; provided, however, that this provision shall not obligate a party to settle any labor strike.
SUCCESSORS AND ASSIGNS
The Company reserves the right to transfer or assign any interest in this Ordinance, in accordance with the rules and regulations of the Kansas Corporation Commission. All rights, privileges and authority hereby granted to the Company shall inure to the benefit of its successors and assigns, subject to all of the terms, provisions and conditions herein contained, and all obligations hereby imposed upon the Company shall be binding upon its successors and assigns.
SEVERABILITY
If any clause, sentence or section of this Ordinance is deemed invalid by any judicial, regulatory or legislative body having proper jurisdiction, the remaining provisions shall not be affected.
NON WAIVER
Any waiver of any obligation or default under this Ordinance shall not be construed as a waiver of any future defaults, whether of like or different character.
REPEAL CONFLICTING ORDINANCES
This Ordinance, when accepted by the Company as provided below, shall constitute the entire agreement between the City and the Company relating to this Ordinance and the same shall supersede all prior ordinances pertaining to this agreement, and any terms and conditions of such prior ordinances or parts of ordinances in conflict herewith are hereby repealed.
EFFECT AND INTERPRETATION OF ORDINANCE
The captions which precede each section of this ordinance are for convenience in reference only and shall not be taken into consideration in the interpretation of any of the provisions of this ordinance.
EFFECTIVE DATE AND ACCEPTANCE
This Ordinance shall become effective and be a binding contract between the City and the Company, upon its final passage and publication by the City, in accordance with applicable laws and regulations, and upon the Company delivering its acceptance, by written instrument, to the City within sixty (60) days of passage of the Ordinance by the Governing Body of the City. Upon final passage and approval of the Ordinance by the City, the Company shall file its written acceptance with the City Clerk of the City of Stockton, Kansas. The City Clerk shall sign and affix the community seal to acknowledge receipt of such acceptance and return one copy to the Company. When written acceptance has been received by the City from the Company, the effective date of the ordinance shall be the date on which the Ordinance was first published in accordance with applicable laws and regulations. If the Company does not, within sixty (60) days following passage of this Ordinance in its entirety, the Company shall be deemed to have accepted this Ordinance and all of its terms and conditions.
NOTICES
Any notices required to be given hereunder shall be sent to the following:
If to Grantee: Community Relations Manager
Aquila Networks
110 E. 9th St.
Lawrence, KS 66044
If to Grantor: City Clerk
PO Box 512
City of Stockton
Stockton, KS 67669
(11-19-2002)