RESOLUTION NO. 7253

A RESOLUTION OF THE CITY OF LAWRENCE, KANSAS, APPROVING THE TRANSFER AND ASSIGNMENT BY KAW VALLEY ELECTRIC COOPERATIVE, INC., A KANSAS CORPORATION, OF ITS RIGHTS AND OBLIGATIONS UNDER THE NONEXCLUSIVE FRANCHISE GRANTED TO IT IN ORDINANCE NO. 7147 TO FREESTATE ELECTRIC COOPERATIVE, INC., A KANSAS CORPORATION.

WHEREAS, on September 28, 1999, the City of Lawrence, Kansas (“City”), passed Ordinance No. 7147, whereby it granted to Kaw Valley Electric Cooperative, Inc. (“Kaw Valley”), a nonexclusive contract franchise (“Franchise”) to construct, operate, and maintain electric facilities and provide electric services in the City’s rights of way;

WHEREAS, on March 6, 2007, through Ordinance No. 8080, the City, adjusted thereunder the amount of the franchise fee;

WHEREAS, on October 6, 2016, Articles of Consolidation were filed between Kaw Valley and Leavenworth-Jefferson Electric Cooperative, Inc., with the Kansas Secretary of State with the name of the merged company to be called FreeState Electric Cooperative, Inc. (“FreeState”);

WHEREAS, on February 23, 2016, the merger between Kaw Valley and Leavenworth-Jefferson Electric Cooperative, Inc, was approved by the Kansas Corporation Commission;

WHEREAS, as of January 1, 2017, Kaw Valley and Leavenworth-Jefferson Electric Cooperative, Inc, ceased to exist and all existing rights and obligation were transferred to FreeState;

WHEREAS, on March 22, 2018, pursuant to Section 11 of the Franchise, as amended, FreeState filed with the City Clerk a written request to assign to FreeState, the Kaw Valley franchise with the City along all rights and obligations under the Franchise, as amended;

WHEREAS, Section 11 of the Franchise, as amended, required Kaw Valley to obtain the City’s consent prior to any transfer or assignment of its rights and obligations under the Franchise, as amended;

WHEREAS, FreeState has the financial, technical, and legal wherewithal to fulfill the obligations of the Franchise, as amended;

WHEREAS, the Governing Body hereby finds that transfer and assignment of the Franchise, as amended, from Kaw Valley to FreeState will serve the public interest; and

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WHEREAS, the City hereby consents to the transfer and assignment from Kaw Valley to FreeState of all rights and obligations under the Franchise, as amended, subject to FreeState’s compliance with the terms and conditions of this Resolution.

NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF CITY OF LAWRENCE, KANSAS:

SECTION 1. The City hereby confirms that the Franchise, as amended, is valid, binding, and in full force and effect, that FreeState is the present holder of that franchise, and that, to the best of the City’s knowledge, FreeState is in compliance -- in all material respects -- with the terms and conditions of the Franchise, as amended.

SECTION 2. The City hereby consents to the transfer and assignment from Kaw Valley to FreeState of all rights and obligations under the Franchise, as amended, subject to the following conditions:

(a)        FreeState shall acknowledge its responsibility to the City for any and all defaults, noncompliance, or liabilities, if any, under the existing Franchise, as amended, which may exist, which responsibility shall be continuing and ongoing, by executing a written Transfer Acceptance and Assumption of Electric Franchise, a copy of which is affixed hereto as Exhibit A and is incorporated herein by reference;

(b)       FreeState agrees to negotiate in good faith with the City and to enter, within a reasonable time hereafter, into a new nonexclusive electric franchise contract with the City, the terms of which shall be substantially similar to the existing Franchise, as amended and will replace the existing Franchise, as amended.

SECTION 3. By consenting to the transfer and assignment from Kaw Valley to FreeState of the Franchise, as amended, the City expressly reserves all rights it has regarding the Franchise, as amended, including any existing or future rights relating to default or compliance. FreeState shall be liable for any default or noncompliance under the Franchise, as amended, and shall be responsible for any default or noncompliance under the Franchise, as amended, following the transfer and assignment.

SECTION 4. This Resolution shall be binding upon the City and FreeState, and their respective successors and assigns.

ADOPTED by the Governing Body of the City of Lawrence, Kansas, this _____ day of June, 2018.

APPROVED:

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Stuart Boley

                                                                                    Mayor

ATTEST:

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Sherri Riedemann

City Clerk

APPROVED AS TO FORM:

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Toni R. Wheeler

City Attorney