ORDINANCE NO. 20-11048
AN ORDINANCE, GRANTING TO KANSAS GAS SERVICE, A DIVISION OF ONE GAS, INC., AND ITS SUCCESSORS AND ASSIGNS, A NATURAL GAS 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.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF SALINA, KANSAS:
SECTION 1. DEFINITIONS.
For purposes of this Ordinance the following words and phrases shall have the meanings given herein. When not inconsistent within the context, words used in the present tense include the future tense and words in the single number include the plural number. The word “shall” is always mandatory, and not merely directory.
“City” shall mean the City of Salina, Kansas.
“Company” shall mean Kansas Gas Service, a division of ONE Gas, Inc.
“Consumer” shall mean a Sales Consumer, a Transportation Consumer, and any other Entity located within the municipal corporate limits of the City and serviced by the Company through any use of the Public Ways.
“Distribution” or “Distributed” shall mean all sales, distribution, or transportation of natural gas to any Consumer within the City by the Company or by others through the Distribution Facilities of Company in a Public Way.
“Distribution System” or “Distribution Facilities” shall mean a pipeline or system of pipelines, including without limitation, mains, pipes, boxes, reducing and regulating stations, laterals, conduits and services extensions, together with all necessary appurtenances thereto, or any part thereof located within any Public Way, for the purpose of Distribution or supplying natural gas for light, heat, power and all other purposes.
“Effective Date” shall mean the date the Company files its written acceptance with the City following the final passage and approval of this Ordinance by the City.
“Entity” shall mean any individual person(s), governmental entity, business, corporation, partnership, firm, limited liability corporation, limited liability partnership, unincorporated association, joint venture or trust and shall include all forms of business enterprise not specifically listed herein.
“Facility” or “Facilities” refers to the Company’s Distribution System or Distribution Facilities.
“Franchise” shall mean the grant of authority by the City to transport, distribute or sell natural gas to the inhabitants of the City and to operate a Distribution System or Distribution Facilities.
“Franchise Fee” shall refer to the charges as prescribed in Section 3 of this Franchise Ordinance.
“Franchise Ordinance” shall mean this Ordinance granting a natural gas franchise to the Company.
“Gross Receipts” shall mean any and all compensation and other consideration received or derived by the Company from any Distribution of natural gas to Consumers, and including without limitation interruptible sales and single sales; and shall include revenues from any operation or use of any or all Facilities by the Company or others including charges as provided in tariffs filed and approved by the Kansas Corporation Commission, but such term shall not include revenues received by Company from Consumers as franchise fee reimbursement, customer project contributions, revenue from certain miscellaneous charges and accounts as set forth in the Terms and Conditions of Gas Service on file and approved by the Kansas Corporation Commission, including but not limited to connection fees, disconnection and reconnection fees, temporary service charges, delayed or late payment charges, collection fees, bad debts, meter test fees, and returned check charges. Additionally, Gross receipts shall not include credit extended pursuant to the Cold Weather Rule (or substitute rule) of the Kansas Corporation Commission for natural gas sold within the corporate limits of the City, nor Volumetric Rate Fees collected by Company and remitted to City in accordance with Section 3 of this ordinance.
“MCF” shall mean a measurement of natural gas equal to one thousand cubic feet. It is assumed for purposes of this Franchise Ordinance that one MCF equals one million British Thermal Units.
“Public Improvements” means any existing or contemplated public facilities, buildings, or capital improvements, including, without limitation, streets, alleys, sidewalks, sewer, water, drainage, right-of-way improvements, and other Public Projects.
“Public Project” means any project planned or undertaken by the City or any governmental entity for construction, reconstruction, maintenance, or repair of public facilities or improvements, or any other purpose of a public nature paid for with public funds.
“Public Way” or “Public Ways” shall mean the area on, below or above the present and future public streets, avenues, alleys, bridges, boulevards, roads, highways, public utility easements, and easements dedicated to or acquired by the City in plats of the city for streets and alleys. The term does not include easements obtained by private entities providing utilities services or private easements in platted subdivisions or tracts.
“Sales Consumer” shall mean, without limitation, any Entity that purchases natural gas within the Corporate City limits from Company for delivery to such consumer within the City through Facilities.
“Settlement Prices” shall mean the settlement prices for natural gas futures contracts traded on the New York Mercantile Exchange (NYMEX) on the fifteenth day of each month as published in nationally recognized publications such as the CME Group (CME) or S&P Global Platts (Platts) on the following business day (or the next day in which a Settlement Price is published).
“Transport Gas” shall mean all natural gas transported by Company or by others pursuant to a Transportation Tariff Arrangement or by other agreement, but not sold by the Company, though Company’s Distribution Facilities to any Consumer or user located within the municipal corporate limits of the City.
“Transportation Consumer” shall mean without limitation, any Entity that transports Transport Gas pursuant to a Transportation Tariff or by other agreement, within the City’s municipal corporate limits through Company’s Distribution Facilities for consumption within the city’s corporate limits.
“Volumetric Rate” is the rate applicable to each Mcf of Transport Gas distributed to Transportation Consumers. The Volumetric Rate shall be based on a twelve month average of Settlement Prices as calculated from July through June. Initially, the Settlement Price shall mean $0.1425 per MCF for Transport Gas distributed to Transportation Consumers within the City as represented in “Attachment A,” which is incorporated herein and attached hereto. There shall be an annual recalculation of the Volumetric Rate which shall be effective each January 1. The recalculation shall be based on Settlement Prices for the previous twelve-month period. The average Settlement Prices for each of the twelve months shall be summed and divided by twelve and multiplied by 6% (six percent) to obtain the Volumetric Rate to be effective January 1 of the next succeeding year. The Company shall calculate the Volumetric Rates in accordance with the procedures set out herein and file notice of the Volumetric Rate with the City Clerk by July 31 of each year for those rates to be effective on January 1 of the following year.
SECTION 2. GRANT OF NON-EXCLUSIVE FRANCHISE.
A. In consideration of the benefits to be derived by the City and its inhabitants, there is hereby granted to the Company (said Company operating a Distribution System in the State of Kansas), a non-exclusive franchise for a period of twenty (20) years from the Effective Date, to construct, maintain, extend and operate Facilities along, across, upon or under the Public Way for the purpose of selling and distributing natural gas for all purposes to the City, and its inhabitants, and through said City and beyond the limits thereof; to obtain said natural gas from any source available; and to do all things necessary or proper to carry on said business, subject to the terms and conditions herein. Nothing in this grant shall be construed to franchise or authorize the use of Facilities or the Public Way, by the Company or others, for any purpose other than the provision of natural gas. The Company will not allow a subsidiary, affiliate, or a third party to acquire rights to occupy the Public Way under this Franchise; provided, that nothing in this section shall prevent Company from allowing the use of Facilities by others when such use is compensated to the City under the provisions of this Franchise.
B. The grant of this franchise by the City shall not convey title, equitable or legal, in a Public Way and shall give only the right to occupy the Public Way for the purposes and for the period stated in this Franchise Ordinance. This Franchise Ordinance does not:
(1) Grant the right to use facilities or any other property, natural gas-related or otherwise, owned or controlled by the City or a third party without the consent of such party;
(2) Grant the authority to construct, maintain or operate any Facility or related appurtenance on property owned by the City outside of a Public Way;
(3) Excuse the Company from obtaining appropriate access or attachment agreements before locating Facilities on property owned or controlled by the City (other than a Public Way) or a third party; or
(4) Excuse the Company from obtaining and being responsible for any necessary permit, license, certification, grant, registration or any other authorization required by any appropriate governmental entity, including, but not limited to, the City or the Kansas Corporation Commission.
SECTION 3. FRANCHISE FEE.
A. In consideration of, and as compensation for the Franchise hereby granted to the Company by the City, and in lieu of city occupation, license or permit fees, or revenue taxes, except as expressly provided herein, the Company shall pay to the City during the term of this Franchise, a Franchise Fee of: (i) six percent (6%) of the Gross Receipts collected by the Company from the Distribution of natural gas ; and (ii) a sum equal to the Volumetric Rate multiplied by the number of MCF of Transport Gas, all such payments to be made monthly, and within thirty (30) days of the last day of the preceding monthly period.
B. The Company’s obligation for payments of the Franchise Fee shall commence with the first cycle of the monthly billing cycle beginning after the passage, adoption, acceptance and publication of this Franchise Ordinance, as provided in Section 16 below. Prior to that date, payments shall continue to be calculated and be paid in the manner previously provided in Ordinance No. 05-10289, and amendments thereto.
C. In the event a Consumer of Company does not pay a monthly bill from Company in full, Company shall prorate its payments of remissions to the City for sums due on that particular bill so that the amount actually paid by the Consumer to Company on the bill is distributed to Company and to the City for sums due on the bill in proportion to the percentage of the total bill actually paid by the Consumer. In the event Company actually collects any outstanding amounts due on a past due, unpaid or partially paid monthly customer bill, then Company shall pay City its proportionate share of sums due to the City on such bill.
D. Upon written request by the City (but no more than once per quarter), the Company shall submit to the City a certified statement showing the manner in which the Franchise Fee was calculated. The City shall have the right to examine within the corporate limits of the City and during regular business hours, upon reasonable advance written notice to the Company, all books, papers and records kept by the Company in the ordinary course of business and pertaining to its business carried on by it in or through the City, necessary to verify the correctness of the Franchise Fees paid by Company.
E. No acceptance by the City of any Franchise Fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any Franchise Fee payment be construed as a release of any claim of the City. Following 30 days from the date of notice from the City or alternatively discovery by Company that the compensation provided for by this Franchise remains unpaid after the same becomes due and payable to the City, there shall be added to such payment, as a late charge, a sum equivalent to the statutory rate for interest on the unpaid amount. Such late charge shall be applicable to sums that are delinquent, including any sums determined to be due and delinquent as the result of an audit or review of the Company's records. Nothing in this Section shall limit the amount of time for the City to collect for any incorrect calculations on behalf of the Company.
F. The Franchise Fee required herein shall be in lieu of all taxes assessments, licenses, fees and impositions otherwise applicable that are or may be imposed by the City under K.S.A. 12-2001, and amendments thereto; provided, however, that the usual general property taxes and special ad valorem property assessments, sales and excise taxes, or charges made for privileges which are not connected with the natural gas business, and the fees and charges set forth in Section 4(J) of this Franchise Ordinance, will be imposed on the Company and are not covered by the Franchise Fee. Further, from and after the date hereof, the permit fees required of the Company by any ordinance (presently in effect or hereafter adopted) for a permit to excavate in or adjacent to any Public Way shall be deemed a part of the compensation paid pursuant to this Franchise Ordinance and shall not be separately assessed or collected by the City; in no event, however, shall this provision be interpreted to waive the requirement of notice to the City and the procedural requirements of such ordinance, including any permitting requirements. The Company remains subject to the terms and requirements of the Salina Municipal Code, unless otherwise specified herein. The Franchise Fee is compensation for use of the Public Way.
SECTION 4. USE OF PUBLIC RIGHT-OF-WAY.
A. Except as provided herein or as regulated by state or federal law, the use of any Public Way under this franchise by the Company shall be subject to all laws, statutes, regulations and/or city rules, regulations, policies, resolutions, and ordinances (including, but not limited to those relating to the construction and use of the Public Way or other public property) now or hereafter adopted or promulgated. In addition, except as provided herein the Company shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City relating to permits, sidewalk and pavement cuts, utility location, construction coordination, screening, and other requirements on the use of a Public 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 and, further provided other than the items enumerated in this Section 4 herein, that such rules, regulations or policies shall not require the payment of additional fees or additional costs for the use of a Public Way.
B. 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 hereafter 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. Except in the event of an emergency, the Company is required to obtain individual permitting approval from the City Engineer prior to engaging in actual construction of specific Facilities within the Public Way. 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 in conformance with the latest edition of the Manual of Uniform Traffic Control Devices, unless otherwise agreed to by the City.
C. The Company’s use of any Public Way shall always be subject and subordinate to the City’s use of the Public Way for any public purpose. All Facilities which shall be laid or installed under this grant shall be so located and laid so as to provide adequate clearance from, and not to obstruct, conflict, or interfere with, any Public Improvements, or other structures already installed. The Company shall coordinate the installation of Facilities in the Public Way in a manner which minimizes adverse impact on Public Improvements, as reasonably determined by the City. Facilities shall be so constructed and maintained as not to obstruct or hinder the usual travel or public safety on such public ways or unreasonably obstruct the legal use by other utilities.
D. Prior to beginning work, the Company will inspect existing pavement within and/or adjacent to the work area and will report any existing damage or concerns. All earth, materials, sidewalks, paving, crossings, utilities, Public Improvements, or improvements of any kind located within the Public Way that are damaged, displaced, or removed by the Company shall be fully repaired or replaced promptly to their prior condition or to existing municipal standards as are then in existence, and in a manner satisfactory to the duly authorized representatives of the City, after completing such activity as is permitted under this Franchise Ordinance and without cost to the City.
E. The City reserves the right to lay or permit to be laid cables, electric conduits, water, sewer, gas or other pipelines and to do or permit to be done any underground or overhead work deemed necessary and proper by the City, along, across, over or under any Public Way, including any Public 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. The City shall not be liable to the Company for any damage so occasioned, but nothing herein shall relieve the City or any other Person from responsibility for damages to Facilities due to negligence.
F. Upon request by the City, the Company shall promptly locate, remove, relocate, or adjust any Facilities located in a Public Way if reasonably necessary for a Public Project. Such location, removal, relocation, or adjustment for a particular Public Project shall be performed by the Company once 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 work; provided, that if the Company demonstrates to the satisfaction of the City that the Facility was originally established in a private easement that thereafter became part of the Public Way for which no compensation was paid to the Company by the City, the removal, relocation, or adjustment shall be without expense to the Company unless such private easement had been acquired by the City from the Company. If additional location, removal, relocation, or adjustment becomes necessary as a result of inaccurate or mistaken information provided by the Company or City, the party which provided such inaccurate or mistaken information shall be responsible for costs associated with such additional location, removal, relocation, or adjustment without expense to the other party. The City shall continue to use its best efforts to provide a location in the Public Way for the existing Facilities as part of a Public Project, provided that the Company has cooperated promptly and fully with the City in the design of Facilities as part of the Public Project.
G. If the City shall require the Company to adapt or conform Facilities or in any way to alter, relocate or change Facilities for the primary purpose of enabling any other person, firm, corporation or entity (whether public or private), other than the City, to use the Public Way, the Company shall be reimbursed by the person, firm, corporation or entity desiring or occasioning such change for any and all loss, cost or expense occasioned thereby. “Person,” “firm,” “corporation,” and “entity” as used in this paragraph shall not include regular departments of the City, or any trust, instrumentality, or authority formed by or for the benefit of City for public purposes, but shall include any urban renewal authority, or any other agency or authority, which as a part of its program clears whole tracts of land within the municipal corporate limits and relocates citizens for the purpose of urban development or similar aims.
H. The Company shall cooperate promptly and fully with the City and take all reasonable measures necessary to provide accurate and complete information regarding the location of Facilities located within a Public Way when requested by the City or its authorized agents for a Public Project. Such location and identification shall be promptly communicated in writing to the City without cost to the City, its employees, agents or authorized contractors, or shall be identified through physical markings of the location without cost to the City, its employees, agents, or authorized contractors. 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 a Public Way during and for the design of Public Improvements.
I. It shall be the responsibility of the Company to take adequate measures to protect and defend Facilities in the Public Way from harm or damage. If the Company fails to accurately locate Facilities when requested, it shall have no claim for costs or damages against the City or its authorized agents, representatives, and contractors. The Company shall be responsible to the City and its agents, representatives, and authorized contractors for all 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 Franchise Ordinance. 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 any Facilities. Subject to the Company’s responsibilities above, the Company shall have the right to collection for damages to Facilities resulting from negligence or intentional misconduct by the City and its duly authorized agents, representatives, and contractors.
J. The Company shall be subject to the following fees and costs in connection with its use and occupancy of any Public Way: (i) in the event that the repairs or replacements required to be made by the Company under this Franchise Ordinance have not been timely completed by Company, the City may charge an excavation fee for each street or pavement cut to recover the costs associated with construction and repair activity; (ii) inspection fees to recover all reasonable costs associated with City inspection of the work of the Company in the Public Way when Facilities are of such a scope and magnitude so as to require the City to incur such inspection costs by an outside party; and (iii) the repair and restoration costs associated with repairing and restoring the Public Way because of damage caused by the Company, its assigns, contractors, and/or subcontractors in the Public Way.
K. All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of Facilities in the Public Way shall be in accordance with applicable present and future federal and state laws and regulations, including but not limited to the most recent standards of the Kansas Corporation Commission and U.S. Department of Transportation, and further, to the extent they are not inconsistent with federal or state laws, City of Salina standard technical qualifications as may be amended from time to time, or such substantive equivalents as may hereinafter be adopted or promulgated. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this Franchise Ordinance may be additional to or stricter than such minimum standards.
SECTION 5. INDEMNITY AND HOLD HARMLESS.
The Company shall indemnify and hold and save the City, its officers, employees, agents, and authorized contractors, harmless from and against all claims, damages, expense, liability, and costs, including but not limited to, reasonable attorney fees, to the extent occasioned in any manner by the Company’s occupancy of Public Way, except to the extent that such were caused by the negligence or intentional conduct of the City, its officers, employees, agents, or authorized contractors. In the event a claim shall be made or an action shall be instituted against the City growing out of such occupancy of the Public Way by Facilities, then upon notice by the City to the Company, the Company will assume responsibility for the defense of such actions at the cost of the Company, subject to the option of the City to appear and defend, at its own cost, any such case; provided, that the Company shall have no duty to defend any such action to the extent that such action has resulted from the negligence or intentional conduct of the City, its officers, employees, agents, or authorized contractors.
SECTION 6. RULES AND REGULATIONS.
The Company shall have the right to make and enforce such reasonable rules and regulations as it may deem necessary for the extension of Facilities, the sale of its gas, and the prudent conduct of its business, provided that such rules and regulations shall neither be in conflict with the laws of the State of Kansas, with the orders, rules or regulations of the Kansas Corporation Commission or other regulatory authority having jurisdiction, nor with this Franchise Ordinance or any other ordinances and regulations of the City.
SECTION 7. INSURANCE REQUIREMENTS.
- General Requirements.
- During the term of this Franchise Ordinance, the Company agrees to obtain insurance coverage as specified in this Section and shall not make any material modification or change from these specifications without the prior approval of the City.In the event the Company hires any subcontractors, independent contractors or agents (“Secondary Parties”) to locate, place, attach, install, operate, use, control, replace, repair or maintain Facilities, the Company shall require the Secondary Parties to obtain and maintain insurance commensurate to the work such Secondary Parties perform. Failure of the Company or its Secondary Parties to comply with these requirements shall not be construed as a waiver of these requirements or provisions and shall not relieve the Company of liability.
- All insurance policies shall be issued by insurance companies rated no less than A- VII in the most recent “Bests” insurance guide, and admitted in the State of Kansas.Except as otherwise specified in Section 7(B), all such policies shall be in such form and contain such provisions as are generally considered standard for the type of insurance involved.
- The Company shall furnish the City with certificates of insurance required by this
Section 7.The certificates for each insurance policy are to be signed
by a person, either manually or electronically, authorized by that
insurer to bind coverage on its behalf.All certificates are to be
received and approved by the City before any operations commence under
this Franchise Ordinance.
- With the exception of the workers’ compensation policy to
be obtained by the Company hereunder, all policies shall name the City,
its agents, representatives, officers, officials, and employees as
additional insured(s).Insurance for the additional insured shall extend
to Products/Completed Operations and be as broad as the insurance for
the named insured, including defense expense coverage, and, with respect
to the commercial general liability policy required hereunder, shall be
endorsed to apply as primary and non-contributory insurance before any
other insurance or self-insurance, including any deductible, maintained
by, or provided to, the additional insured(s).
- Where allowed by law, all policies will include a waiver
of subrogation in favor of the City, its agents, representatives,
officers, officials, and employees.
- If coverage is written on a claims-made basis for any of
the policies required by this Franchise Ordinance, the Contractor must
maintain the coverage for a minimum of two (2) years from the date of
final completion of all operations under this Franchise Ordinance.
- The Company shall be
responsible for all premiums and retention or deductible expense for any
and all policies required by this Franchise Ordinance.
- Specific Coverage Requirements.
- The Company shall maintain Commercial General Liability coverage written on ISO Occurrence form CG00 01 or an industry equivalent, which shall cover liability arising from Personal Injury, Bodily Injury, Property Damage, Premises and Operations, Products and Completed Operations, Contractual Liability, Independent Contractors and Advertising Injury.The policy limits shall not be less than the following:
- Each occurrence $1,000,000
- General aggregate$2,000,000
- Personal and Advertising Liability $1,000,000
The policy shall contain an endorsement that modifies the general aggregate to apply separately to operations under this Franchise Ordinance. The Company shall maintain the Products and Completed Operations liability coverage for a period of at least two (2) years after completion of all operations under this Franchise Ordinance.
- The Company shall maintain Business Automobile Liability coverage written on ISO form CA 00 01 or an industry equivalent.Coverage shall be applicable to all autos and other vehicles subject to compulsory auto liability laws that are owned, hired, rented or used by the Company and include automobiles not owned by but used on behalf of the Company.The policy limits shall not be less than $1,000,000 combined single limit.
- The Company shall maintain workers’ compensation and employer’s liability coverage with policy limits not less than the following:
Employer’s Liability (Coverage Part B)
$100,000 each accident
$500,000 disease – policy limit
$100,000 disease – each employee
SECTION 8. REVOCATION AND TERMINATION.
In case of failure on the part of the Company to comply with any of the provisions of this Franchise Ordinance, or if the Company should do or cause to be done any act or thing prohibited by or in violation of the terms of this Franchise Ordinance, the Company may be subject to forfeiture of all rights, privileges and franchise granted herein, and all such rights, privileges and franchise hereunder be deemed ceased, terminated and null and void, and this Franchise Ordinance may be deemed revoked or terminated, provided that said revocation or termination shall not take effect until the City has completed the following procedures: Before the City proceeds to revoke and terminate this Franchise Ordinance, it shall first serve a written notice upon Company, setting forth in detail the neglect or failure complained of, and the Company shall have sixty days thereafter in which to comply with the conditions and requirements of this Franchise Ordinance. If at the end of such sixty-day period the City determines that the neglect or failure complained of has not been cured, the City shall take action to revoke and terminate this Franchise Ordinance by an affirmative vote of the governing body present at a public meeting and voting, setting out the grounds upon which this Franchise Ordinance is to be revoked and terminated; provided, to afford the Company due process, the Company shall first be provided reasonable notice of the date, time and location of the governing body’s consideration and shall have the right to address the governing body regarding such matter; and further provided, if the nature of the default is such that it cannot be reasonably cured within the above said sixty-day period, and the governing body believes the Company has in good faith timely commenced its cure and is diligently pursuing the completion of the same, the Company may, in the City’s sole discretion, be given a reasonable additional period of time to complete its cure. Nothing herein shall prevent either party from invoking any other remedy that may otherwise exist at law. Upon any determination by the governing body to revoke and terminate this Franchise Ordinance, the Company shall have thirty days to appeal such decision to the District Court of Saline County, Kansas. This Ordinance shall be deemed revoked and terminated at the end of this thirty-day period, unless the Company has instituted such an appeal. If the Company does timely institute such an appeal, such revocation and termination shall remain pending and subject to the court’s final judgment. Provided, however, that the failure of the Company to comply with any of the provisions of this Franchise Ordinance or the doing or causing to be done by the Company of anything prohibited by or in violation of the terms of this Franchise Ordinance shall not be a ground for the revocation or termination thereof when such act or omission on the part of the Company is due to any cause or delay beyond the control of the Company or to bona fide legal proceedings.
SECTION 9. RESERVATION OF RIGHTS.
In granting its consent hereunder, the City does not in any manner waive its regulatory or other rights and powers under and by virtue of the laws of the State of Kansas as the same may be amended, applicable Federal laws or regulations as the same may be amended, its home rule powers under the Constitution of the State of Kansas, nor any of its rights and powers under or by virtue of present or future ordinances of the City.
In adopting and passing this Franchise Ordinance, neither the City’s nor the Company’s present or future legal rights, positions, claims, assertions or arguments before any administrative agency or court of law are in any way prejudiced or waived. By the City’s adopting and passing this Franchise Ordinance and the Company’s acceptance hereof as provided in Section 16, neither the City nor the Company waive any rights, but instead expressly reserve any and all rights, remedies, and arguments the City or the Company may have at law or equity, without limitation, to argue, assert, and/or take any position as to the legality or appropriateness of any present or future laws, non-franchise ordinances and/or rulings.
SECTION 10. ENTIRE AGREEMENT.
This franchise Ordinance, when accepted as provided above, (i) shall constitute the entire agreement between the City and the 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, (ii) shall be binding upon the parties, including their successors and assigns, and (iii) shall not be amended or further obligations imposed without mutual consent of the parties hereto.
SECTION 11. REOPENER PROVISION.
Upon written request of either the City or the Company, the Franchise shall be reopened and renegotiated at any time upon a change in federal, state, or local law, regulation, or order which materially affects any rights or obligations of either the City or the Company, including, but not limited to, the scope of the grant to the Company or the compensation to be paid to the City.
The compensation provision of this Franchise Ordinance shall be reopened and renegotiated if energy consumers within the City have access to alternative natural gas suppliers or other suppliers of energy through pipleines who use the Public Way and/or easements granted on publicly owned property and do not pay a franchise fee or other payment substantially equivalent to this Franchise, which results in a material and unfair disadvantage to the Company. The use of Public Way provisions of this Franchise Ordinance shall be reopened and renegotiated if energy consumers within the City have access to alternative natural gas suppliers or other suppliers of energy through pipelines who use the Public Way and do not have requirements on the use of Public Way substantially equivalent to the requirements of this Franchise Ordinance, which results in a material and unfair disadvantage to the Company. Upon any such event, the City shall have up to one hundred twenty (120) days after written request of the Company in which to restore competitive neutrality, provided that any adjustment in compensation resulting from renegotiations under this paragraph shall be effective no later than one hundred twenty (120) days after such notice.
SECTION 12. NOTICE OF ANNEXATION.
The City shall promptly notify the Company in writing (to include a map) of areas newly annexed into or deannexed from the corporate limits of the City, and the Company shall update its records for the purpose of payment of Franchise Fees as soon as reasonably practicable after receiving such notice. Notwithstanding anything to the contrary in this Franchise Ordinance, the fees provided for in Section 3 above shall not become effective within any area annexed by the City until the beginning of the monthly billing cycle which begins no more than sixty days after the date that 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.
SECTION 13. TRANSFER AND ASSIGNMENT.
Company shall not have the right to assign, sell, lease, or otherwise transfer in any manner whatsoever to any third party not affiliated with Company the rights and privileges granted under this Franchise Ordinance except as hereinafter provided. Any assignment, sale, lease, or other transfer by the Company of the Franchise granted herein to any third party not affiliated with Company shall be ineffective and void unless:
(1) The proposed assignment, sale, lease or transfer shall be in writing:
(2) The prospective assignee, buyer, lessee or other transferee shall agree in writing to accept and become responsible for full performance of all conditions, covenants, obligations, and liabilities contained in this Franchise Ordinance; and
(3) Such writing shall be submitted to the City Clerk of the City.
SECTION 14. POINT OF CONTACT AND NOTICES.
Company shall at all times maintain with the City a local point of contact who shall be available at all times to act on behalf of Company in the event of an emergency. Company shall provide the City with said local contact’s name, address, telephone number, fax number and e-mail address. Emergency notice by either party to the other may be made by telephone to the City’s designee as listed below. All other notices between the parties shall be in writing and shall be made by personal delivery, depositing such notice in the U.S. Mail, Certified Mail (return receipt requested). Any notice served by U.S. Mail or Certified Mail (return receipt requested) shall be deemed delivered upon actual receipt unless otherwise provided. Other than emergencies, notices to the parties shall be to the following:
The City of Salina
Attn: City Clerk
PO Box 736
Salina, Kansas 67402-0736
Phone: (785) 309-5735
Fax: (785) 309-5738
Kansas Gas Service, a Div. of ONE Gas, Inc.
Attn: Legal Department
7421 W. 129th Street
Overland Park, KS 66213-2713
Phone: (913) 319-8618
Emergency Contact Information:
Emergency Designee: Streets Superintendent
Natural Gas Emergency No: 888-492-4950
Emergency Contact No.: (785) 309-5725
Local Contact No.:Robert Baker
Emergency Email: email@example.com
Local Contact Email: firstname.lastname@example.org
(or to replacement addresses that may be later designated in writing).
SECTION 15. REPEAL OF CONFLICTING ORDINANCE.
Ordinance No. 05-10289, which heretofore granted a non-exclusive franchise to the Company, and which became a contract between the City and the Company in accordance with its terms is hereby repealed or considered as having no effect as of the first cycle of the monthly billing cycle as referenced in Section 3 of this ordinance.
SECTION 16. ACCEPTANCE; EFFECTIVE DATE
A. The Company shall have thirty (30) days after the final passage and approval of this Franchise Ordinance to file with the City Clerk its acceptance, in writing, of the provisions, terms and conditions of this Franchise Ordinance; and when so accepted, this Franchise Ordinance and acceptance shall constitute a contract between the City and the Company subject to the provisions of the laws of the state of Kansas, and such contract shall be deemed effective on the date of publication pursuant to Subsection 15(B) below.
B. Upon receipt of the Company’s written acceptance of this Franchise Ordinance, the City Clerk is directed to publish a summary of this Franchise Ordinance in the Salina Journal in the following format:
Ordinance No. 20-11048 Summary
On December 28, 2020, the City of Salina, Kansas, passed Ordinance No. 20-11048. The ordinance grants to Kansas Gas Service, a Division of ONE Gas, Inc., and its successors and assigns, a natural gas franchise, prescribes a franchise fee, prescribes the terms and conditions for use of the public right-of-way, and prescribes various other terms and conditions of the franchise. A complete copy of the ordinance is available at www.salina-ks.gov or in the office of the city clerk, 300 W. Ash Street, free of charge. This summary is certified by the city attorney.
C. This Franchise Ordinance shall take effect and be in full force from and after its passage by the governing body, receipt of the Company’s written acceptance of terms, and publication of a summary thereof in the official newspaper of the City.
Introduced: December 21, 2020
Passed: December 28, 2020
CITY OF SALINA, KANSAS
Michael L. Hoppock, Mayor
Cheryl Mermis, Deputy City Clerk
The publication summary set forth above is certified this ___ day of December, 2020.
Greg A. Bengtson, City Attorney