An Ordinance granting Aquila, Inc., d/b/a Aquila Networks, a Delaware corporation, its lessees, successors and assigns, a natural gas franchise and the authority to construct, operate, maintain and extend a natural gas distribution plant and system, and granting the right to use the streets, alleys, and other public places within the present or future corporate limits of the City of Plains, Kansas

Be it ordained by the Governing Body of the City of Plains, Kansas, as follows:

SECTION 1. The word Grantee as employed and used in this ordinance, shall denote Aquila, Inc., d/b/a Aquila Networks, its lessees, successors and assigns, and the word “Grantor” or “the City” shall denote the City of Plains, Kansas, and the word “customer” shall denote any person, firm corporation, municipality or other public corporation located in the City of Plains, to be served by the Grantee.

SECTION 2. There is hereby granted to Aquila, Inc., d/b/a Aquila Networks, its lessees, successors and assigns, the right, privilege and franchise to construct, operate, maintain and extend a gas distribution system, together with any and all necessary appurtenances through and along the streets, alleys, public easements and public places of the city for the purpose of supplying and/or transporting natural gas for light, heat, and power, to customers of Grantee for the full term of this franchise, and for the additional purpose of transmitting, transporting and conveying such gas into, through or beyond the immediate limits of the City to other towns, cities and customers, subject, however, to the following terms and conditions.

SECTION 3. All mains and works constructed under this grant shall be constructed in a safe and workmanlike manner. Grantee shall hold the City harmless from any and all claims and actions, litigation or damage, arising out of the passage of this Ordinance or the construction, erection, installation, maintenance and operation of Grantee’s properties within the corporate limits of the City or the negligence of Grantee’s employees in the operation thereof, including court costs, expenses advanced and reasonable attorney’s fees in making defense against such claims and furthermore, Grantee shall have the duty to defend the City in the name of the City and to employ counsel for such purpose at its sole and separate expense with respect to all such matters. Any process that might be served upon the City with respect to these matters shall be delivered by the City to the Grantee by certified mail, return receipt requested, as soon as reasonably possible following the City’s receipt of such service. Notwithstanding any of the foregoing it is understood and agreed that the Grantee shall not be obligated to hold the City harmless from claims and actions, litigation or damage arising out of the negligence of the City, its employees or agents.

SECTION 4. Any excavations by Grantee in any of the streets, alleys, avenues, roads, public easements or public grounds within the corporate limits of the Grantor shall be done in accordance with such reasonable rules and requirements, resolutions and ordinances as now exist or may hereafter be enacted by the governing body of Grantor. When required by Grantor, Grantee, its successors and assigns, shall remove or relocate any mains and works located in the streets, alleys, public easements and public grounds of Grantor to make way for public improvements or other works of public nature. Such removal or relocation will be at the expense of Grantee, its successors and assigns and without expense to Grantor.

SECTION 5. All earth, materials, sidewalks, paving crossing, or improvements of any kind injured or removed by Grantee shall be fully repaired and replaced promptly by Grantee. In the event Grantee neglects or refuses to make such repairs or neglects or refuses to replace such earth, materials, sidewalks, paving crossing or improvements within a reasonable time, Grantee shall reimburse Grantor for any reasonable expenses Grantor may incur in making such repairs or replacing such earth, materials, sidewalks, paving crossing or improvements. Grantee shall limit all excavations of streets, alleys, public easements or public places to the necessities of Grantee’s efficient operation. Grantee shall not at any time obstruct or open more of any highway or public place than shall reasonably be necessary to enable Grantee to lay, replace or repair mains or pipes. Grantee shall not permit such excavations to remain open longer than reasonably necessary.

SECTION 6. This Ordinance is granted subject to all conditions, limitations and immunities now provided for and applicable to the operations of a public utility by the laws of the State of Kansas. The rates to be charged for natural gas service within the City and the rules and regulations regarding character, quality and standards of service to be furnished by Grantee shall be under the jurisdiction and control of such regulatory body as may, from time to time, be vested by law with authority and jurisdiction of the rates, regulations and quality and standards of service to be supplied by Grantee.

SECTION 7. In consideration of and as compensation for the franchise hereby granted, and in lieu of all occupation and license taxes, Grantee shall file a monthly statement of accounting with Grantor concerning its earnings and receipts and shall monthly pay Grantor, by electronic transfer, five (5%) percent of the gross receipts of Grantee collected during the preceding month from the sale or transportation of gas to customers of Grantee located within the City. Grantee agrees that Grantor shall have the right to examine, at reasonable times, all books, records and documents necessary to verify the correctness of the monthly statement and to correct the same if it is found to be erroneous.

SECTION 8. If Grantee shall be in default in the performance of any of the terms and conditions of this Ordinance and shall continue in default for more than thirty (30) days after receiving notice from Grantor of such default, Grantor may, by ordinance duly passed and adopted, terminate all rights granted under this Ordinance. Notice shall be in writing and served in the manner provided by the laws of the State of Kansas for the service of original notices in civil actions.

SECTION 9. Upon the expiration of this franchise, whether by lapse of time, by agreement between Grantee and Grantor, or otherwise, Grantee shall have the right, but not the obligation, to remove any and all of its mains and pipes, laterals, appurtenances and equipment used in its business. Should Grantee choose to remove any pipes, laterals and other equipment, it shall be the duty of Grantee, immediately upon such removal, to restore the streets, avenues, alleys, parks and other public ways and grounds from which the pipes, laterals and other equipment are removed to as good condition as the same were before removal.

SECTION 10. The right and authority herein granted shall be nonexclusive and shall continue for a period often (10) years from and after the effective date of this ordinance. Grantor may cancel this franchise on the 2nd, 4th, 6th or 8th anniversary, respectively, of this agreement by notifying Grantee, in writing, of its desire to do so, said notification to be given not less than 120 days before the anniversary date. If Grantee is not notified of the cancellation by the 2nd, 4th, 6th or 8th anniversary, then this franchise shall continue without cancellation until the 100 year as provided herein. The anniversary date shall be the date this franchise is accepted by Grantee or otherwise effective by operation of law.

SECTION 11. This ordinance shall be effective sixty (60) days following its passage and upon its acceptance by Grantee. If Grantee does not, within sixty (60) days following passage of this ordinance express in writing its objections to any terms or provisions contained therein, or reject this ordinance in its entirety, Grantee shall be deemed to have accepted this ordinance and all of its terms and conditions.

SECTION 12. 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 13. Any notices required to be given hereunder shall be sent to the following:

 

If to Grantee:

External Affairs Manager

Aquila Networks

11 0 E. 9th St.

Lawrence, KS 66044

 

If to Grantor:

City Clerk

City of Plains

PO Box 366

Plains, KS 67869

 

(11-07-2005)