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Legislation #: 100466 Introduction Date: 5/27/2010
Type: Ordinance Effective Date: 6/13/2010
Sponsor: None
Title: Granting KCP_L Greater Missouri Operations Company (“Company”) (formerly known as Aquila, Inc. and Utilicorp United, Inc.) a franchise and authorization to construct, operate and maintain all appropriate facilities for carrying on a light, heat and power business, granting the right to use certain streets of the city within the present or future certificated service territory of Company therefore, and prescribing the terms and conditions of such authorization.

Legislation History
DateMinutesDescription
5/27/2010 Filed by the Clerk's office
5/27/2010 Referred to Transportation and Infrastructure Committee
6/3/2010 Advance and Do Pass, Debate
6/3/2010 Passed

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100466.pdf Authenticated 541K AUTHENTICATED
fact sheet.xls Advertise Notice 76K fact sheet

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ORDINANCE NO. 100466

 

Granting KCP&L Greater Missouri Operations Company (“Company”) (formerly known as Aquila, Inc. and Utilicorp United, Inc.) a franchise and authorization to construct, operate and maintain all appropriate facilities for carrying on a light, heat and power business, granting the right to use certain streets of the city within the present or future certificated service territory of Company therefore, and prescribing the terms and conditions of such authorization.

 

WHEREAS, the City of Kansas City, Missouri (“City”) granted a franchise to UtiliCorp United, Inc. d/b/a Missouri Public Service through December 31, 2006 by Ordinance 60167, as amended, passed October 30, 1986 and extended by Ordinance 061395 and Ordinance 071211 through December 31, 2008, which has been continued by operation of law; and

WHEREAS, Company is a corporation organized and duly incorporated under the laws of the State of Delaware for the purpose of carrying on a light, heat and power business, and is presently engaged in generation, transmission, distribution and sale of electric power and energy; and

WHEREAS, City and Company desire that the Company furnish power and energy to consumers thereof located within those portions of the present and future corporate limits of the City as may then be located within the certificated service territory of the Company; NOW, THEREFORE,

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

Section 1. Grant of Franchise. In consideration of the benefits to be derived by the City and the inhabitants thereof from the acquisition, construction, operation and maintenance of an electric system and the supplying of electric power and energy to the public, there is hereby granted to the Company and to its successors and assigns, for a term of twenty (20) years from the effective date hereof, a non-exclusive franchise and authority to acquire, construct, operate and maintain within the existing and any future extended corporate limits of the City, as may then be located within the certificated service territory of the Company, all appropriate facilities and plants for carrying on a light, heat and power business and all other operations connected therewith or incident thereto for the purpose of supplying electric or other power and energy in such forms as may be reasonably required for domestic, commercial, industrial, municipal and other purposes within the City and other areas within the Company’s then certificated service territory to produce and supply such power and energy by manufacture, generation, purchase or otherwise, and to transmit and distribute same by means of underground or overhead lines or otherwise and for any and all said purposes it is authorized to

(i) Construct conduits or other underground facilities for the installation and protection of its underground wires, pipes and cables, and place poles, lamp posts, guys, anchors, and other facilities in, and locate its overhead and underground wires, pipes, cables and street lights in, on, over, under, along and across all public streets, alleys, boulevards, avenues, public ways, bridges, parks, parking and other existing and any future public places, including dedicated easements, however, Company shall request the approval of the Board of Parks and Recreation Commissioners before extending Company facilities along, over, under or across any park, parkway or boulevard dedicated for that purpose. The Board of Parks and Recreation Commissioners shall not unreasonably withhold consent or impose a requirement upon Company which exceed what is required by the rules and regulations applicable to electric utilities promulgated by the Missouri Public Service Commission or the Federal Energy Regulatory Commission; and (ii) Construct, erect and maintain all buildings, machinery and attachments of any and every kind for any and all of said purposes, and

(ii) Enter upon any and all of said public places within the corporate limits of the City as they now exist or may hereafter be opened, widened, extended, laid out and established, including any other territory hereafter added thereto or coming under the City’s jurisdiction, and

(iii) Trim trees upon and overhanging such public places and make such excavations thereon, all as may be appropriate for the construction, operation, maintenance, repair, replacement and removal of the Company’s facilities and plants in accordance with applicable laws, rules, regulations and, with respect to property dedicated to park purposes and boulevards, resolutions of the Kansas City, Missouri Board of Parks and Recreation Commissioners (collectively, all rights, duties and authorities identified in Section 1 hereof are the “Franchise”).

This Franchise serves as the consent authorized by Section 393.010 RSMo insofar as the Company is authorized to set its facilities along, across or under public roads and streets in such manner as not to incommode the public in the use of such roads or streets.

Nothing herein precludes City from opposing the issuance of any State or federal permit necessary for the construction of any plant within the limits of the City.

Section 2. Municipal Regulation. Nothing in this Franchise shall serve as a limitation beyond those limitations imposed by Article VI, Section 19(a) of the Missouri Constitution on the proper exercise of the municipal police powers which may be exercised by the City in the management of its property, including the rights of ways, boulevards, parkways, trafficways and similar streets.

Section 3. Compatibility with Tariffs, Rules and Regulations. The City and Company recognize that the lawful provisions of any applicable (1) rules and regulations of the Missouri Public Service Commission and Federal Energy Regulatory Commission (“FERC”) and (2) schedules and tariffs of the Company approved by and in effect with the Missouri Public Service Commission and FERC, may be controlling over any inconsistent provision in this Franchise dealing with the same subject matter. If the Missouri Public Service Commission or FERC prescribes final rules or requirements which preempt local regulations so that the Company may not reasonably comply with both the provisions of this Franchise and the rule or requirement of the Missouri Public Service Commission or FERC, the Company shall comply with such rule or requirement instead of such provision of this Franchise. Neither City nor Company will seek authority from the Missouri Public Service Commission or a statutory change from the Missouri General Assembly that applies only to the City, as opposed to the Company’s entire service territory, to act contrary to the terms of this franchise without first seeking an amendment to this Franchise from the other party.

Section 4. Fees and Taxes. The Company acknowledges its duty to pay properly assessed taxes and fees, including permit fees, and the occupational license fees imposed on electric companies, as they now exist or as they may be amended or enacted in the future.

Section 5. Cooperation between the Parties. The City and the Company agree that over the term of this Franchise conditions may change necessitating close cooperation between the parties to insure this Franchise serves as a useful tool outlining the major elements of the parties’ relationship. Based on the belief that cooperative dialogue is superior to more formal means of dispute resolution, at least in the first instance, the parties agree to meet within five working days of the request of one of the parties to discuss any matter related to this Franchise, regulations, or other business issues. This informal dispute resolution will precede any request by a party for mediation or arbitration of any dispute.

Only in the event of the need for immediate resolution, such as may be provided by a temporary restraining order, will action be appropriate without first engaging in this first step of informal dispute resolution. This obligation also does not apply to enforcement of the City’s tax ordinances or regulatory ordinances.

Section 6. Delivery of Service. The Company shall at all times during the term of this Franchise supply to consumers of electric power and energy residing within the existing and all future extended corporate limits of the City, as may then be located within the certificated service territory of the Company, such electric power and energy as they may require, and shall extend and construct its lines and services in accordance with legal requirements, and on terms and conditions prescribed by rates, rules and regulations filed from time to time with the Public Service Commission of the State of Missouri. Nothing contained herein shall be construed as a guarantee by the Company to furnish uninterrupted service. Interruptions due to acts of God, delivery delays, breakdowns or damage to facilities, fire, civil or military authority, strikes or other labor disturbances, orders of courts or regulatory agencies, voltage drops and other causes reasonably beyond the Company’s control shall not result in a default by the Company hereunder.

Section 7. Construction and Maintenance of Facilities. All facilities of the Company installed hereunder shall be

(i) constructed in accordance with the current National Electrical Safety Code and other laws which may apply;

(ii) installed, operated and maintained in accordance with the applicable safety rules and regulations of the Missouri Public Service Commission and other laws which may apply;

(iii) located and placed in public right of way pursuant to permits to be issued by the appropriate City authority, in such manner as to interfere with and obstruct as little as reasonably practical in the ordinary use of the public places which may be used by the Company; and

(iv) installed, operated and maintained so as to not unreasonably interfere with any other utility’s facilities, including but not limited to commodities and services such as natural gas, water, sewer, telephone, broadband, cable television, or Internet protocol television, laid out or constructed upon or under such public places.

Section 8. Indemnification - Personal and Property Damage. In the construction, installation, repairing, operation and maintenance of all transmission lines, poles, conductors, wires, conduits, substations, apparatus and appliances and other facilities for the distribution of electrical energy and power, the Company shall use reasonable and proper precautions to avoid damage or injury to persons or property and shall at all times and under all circumstances hold and save harmless the City from each and all such damage, injury, loss, cost or expense caused or occasioned by reason of any negligent act, or negligent failure to act, of the Company, its officers, agents, servants and employees in the connection, installation, repairing, maintaining of any of its facilities, for the sale or distribution of electrical power and energy in the City or making excavation in the public streets and highways or public grounds of the City and the paving, repaving or repairing of any of the public streets, highways or public property of the City.

The Company agrees with the City that if a demand for damages is made against the City, or the City is sued in any court by any person, firm, association, company or corporation to recover damages for injuries to person or property alleged to have resulted from the sole negligence of the Company, its officers, agents, servants and employees in the installation, operation, maintenance or repairs of the Company’s distribution lines, transmission lines, poles, conductors, wires, conduits, substations, apparatus and appliances or any part thereof or any of its facilities in the City, the Company, its successors and assigns, shall answer all claims or defend all such suits and pay the claims, when appropriate, and the final judgments, if any, resulting therefrom, and shall at the option of the City or Company be made a party of any such court proceeding.

The City shall have the right at all times to take part by its City Attorney in any such suit or action instituted by or against the Company in which any judgment or decree can be rendered, or foreclosing any lien on any of the Company’s property, situated in the City, or affecting the rights, powers or duties of the Company to do or not to do anything which by this ordinance it may be required to do or not to do, and also to take such steps in any such proceeding that may be deemed essential to protect the interest of the City or the public interest. This paragraph shall not be construed to confer standing on the City to join in any such suit or action.

Section 9. Relocation

A. Relocation of Facilities - Relocation Obligation on Public Ways and Places or Other City Property. The Company shall temporarily or permanently remove, relocate, change or alter the position of any Company facility in public ways and places or other City property, whenever the Franchise Administrator shall determine that such removal, relocation, change or alteration is necessary for the completion of any public purpose. Company shall have the option of relocating in public right of way or securing private easements. Nothing in this paragraph shall obligate Company to move any facilities without compensation when the facilities are service facilities serving City facilities or any department or agency deriving its authority as a political subdivision of the City or its Charter as a customer, or where the facilities are otherwise sited by right under tariff or pursuant to Company’s legitimate private property interest.

An improvement is for a public purpose if:

(i) the primary purpose of the improvement project is public rather than private, that is, there is an identifiable public necessity or public convenience implicated by the project; and

(ii) the City Council declares by resolution or ordinance the primary purpose of the project is public.

Nothing herein is intended to amend or modify the common law of Missouri with respect to utility relocation or to amend or modify any remedy available to the City or the Company to enforce the rights enjoyed by each.

B. Relocation from Private Rights of Ways. The City may, in writing, request the adjustment, relocation and/or replacement of the Company’s facilities located within private rights of ways whenever reasonably necessary for the widening, change of grade, relocation or other public purpose by the City. The Company shall not unreasonably refuse the request if City is willing to pay the direct and indirect costs of the relocation including the cost of acquiring another private easement or relocating in the public right-of-way. Within forty-five (45) days of receipt of the City’s written request, the Company shall provide the Franchise Administrator with an estimate of the cost of the relocation. Indirect costs are comprised of supervision, engineering, transportation, material handling, and administrative cost functions that support actual construction or such costs as otherwise authorized by the Missouri Public Service Commission. The amount of the allocation of indirect costs is derived by application of unit costs or allocation percentages, determined from historical experience. The Company will, upon request, explain the detail behind its determination of costs. Within ninety (90) days of the City’s written acceptance or approval of the Company’s estimate of the cost of relocation, the Company shall solicit bids for the relocation, evaluate the costs and proposed plans of the bids received, and provide feasible bids to the Franchise Administrator.

C. Planning and Payment of Relocation from Private Rights of Ways. When the City requires the Company to relocate Company facilities from private easements, the Company shall, to the extent feasible, follow the City’s major street plan, and the City shall pay the relocation costs required by this Franchise. The relocation costs referenced herein shall include applicable material and labor costs including allocation of indirect costs. If the Company relocates its facilities from private easements into public ways or places in accordance with this Section, the City shall pay the Company for the amortized and unamortized fair market value of the private easement and the costs of subsequent relocations from the public ways or places if required for a future public purpose. It is intended that the City shall pay such amount one time only.

D. Unrecovered Costs in Rates. The City shall not object if the Company seeks to recover in rates costs which the Company has not recovered from the City pursuant to Section 9.B, however, the City reserves the right to object to the structure of the rates in which such costs would be recovered.

E. Relocation Performance. The relocations set forth in this Franchise shall be completed within a reasonable time from the date on which the Franchise Administrator requests, in writing, that the relocation commence and gives Company adequate assurance any required relocation cost shall be paid. Should the City and Company disagree on the question of which party must pay for a relocation from public property, they will promptly exchange with the other in writing the basis for their positions. Such exchange will occur within five business days of the statement by the City or the Company that a disagreement exists. The parties will then attempt to promptly resolve the issue through mediation or arbitration if both parties agree or through any other remedy available to either party. The parties will use their best efforts to minimize the cost of mediation, arbitration, litigation or other process to resolve the dispute through stipulations, cooperative review of records, and other similar approaches to the resolution of the issue. The Company shall be entitled to an extension of time to complete a relocation where the Company’s performance was delayed due to a cause that could not be reasonably anticipated by the Company or is beyond its reasonable control after exercise of good faith efforts to perform including, without limitation, fire, strike, war, riots, acts of governmental authority, acts of God, judicial action, unavailability or shortages of labor, materials or equipment, delays caused by other parties with facilities in the right-of-way, failure or delays in delivery of materials and unwilling or unavailable landowners when a private easement is necessary. Company will promptly notify the Franchise Administrator in writing (which may include email or fax) of any such delay. Upon request of the Company, the Franchise Administrator shall also grant the Company reasonable extensions of time for good cause shown and the Franchise Administrator shall not unreasonably withhold any such extension.

F. Underground or Overhead Relocation. Whether facilities are located underground or overhead shall be determined by the Company consistent with the Municipal Underground Cost Recovery Rider and General Rules And Regulations Applying To Electric Service as promulgated by the Missouri Public Service Commission. Should the City require underground facilities in accordance with the Municipal Underground Cost Recovery Rider and General Rules and Regulations Applying to Electric Service as promulgated by the Missouri Public Service Commission Company, City will agree to the payment provisions provided in the Rider, and Company will comply with such request.

G. Proposed Alternatives or Modifications. Upon receipt of written notice of a required relocation, the Company may promptly propose an alternative to or modification of the relocation in an effort to mitigate or avoid the impact of the required relocation on Company facilities, particularly transmission facilities. The City shall in good faith review the proposed alternative or modification and shall not unreasonably withhold acceptance of the proposed alternative or modification.

Section 10. Regulatory Filings. The Company will provide copies to the City of all tariffs that will address or alter how the Company will operate, insofar as the tariffs relate to matters addressed by this franchise, when the tariffs are submitted to the Public Service Commission for the Commission’s consideration and approval. Copies will be provided to the following official:

City Attorney

28th Floor, City Hall, 414 East 12th Street

Kansas City, Missouri 64106-2702

 

Upon notice to the Company the official to receive such copies may be redesignated by the City.

Section 11. Independent Contractors. The Company shall cooperate with the City by informing the commissioner of revenue, or other official designated by the City, of the names, addresses, and federal identification numbers of its independent contractors and subcontractors utilized in the building, upgrading, operation or maintenance of the Company’s facilities. However, the Company shall not be obligated to make a study of the projects on which the contractor has worked within the City provided that the Company allows the City access to pertinent information relating to such contractors within the Company’s possession.

The Company shall inform its independent contractors and subcontractors of their obligation to follow all applicable laws, including the payment of the City’s earnings tax or net profits tax.

Section 12. Severability. If any provision of this franchise or its application to any circumstances is held invalid, such invalidity shall not affect other provisions or applications of this franchise, and to this end the provisions hereof are declared to be severable.

Section 13. Execution. The Company shall signify its acceptance of this franchise by its execution hereof. The City shall concurrently execute this franchise and the officials of the City are hereby authorized and directed to sign this franchise. The City Clerk is hereby authorized to attest to the same under seal of the City.

_______________________________________________________________

KCP&L Greater Missouri Operations

 

____________________________________ _________________________, 2010

 

 

ATTEST:

 

 

____________________________________ _________________________, 2010

Secretary

 

City of Kansas City, Missouri

 

 

______________________________________ _________________________, 2010

Stanley J. Harris

Director, Public Works

 

 

ATTEST

 

 

_____________________________________ _________________________, 2010

Vickie Thompson

City Clerk

 

Approved as to form and legality:

 

 

_____________________________________ _________________________, 2010

William D. Geary

Assistant City Attorney

 

_____________________________________

 

Approved as to form and legality:

 

 

_____________________________

William D. Geary

Assistant City Attorney