APPENDIX A – CHARTER ORDINANCESAPPENDIX A – CHARTER ORDINANCES\CHARTER ORDINANCE NO. 48

A CHARTER ORDINANCE OF THE CITY OF NEWTON, KANSAS, AMENDING SECTION 2 OF CHARTER ORDINANCE NO. 6 WHICH EXEMPTED THE CITY FROM THE PROVISIONS OF K.S.A. 13-1017 RELATING TO GENERAL IMPROVEMENTS AND THE ISSUANCE OF BONDS THEREFOR, AND WHICH PROVIDED SUBSTITUTE AND ADDITIONAL PROVISIONS RELATING THERETO.

WHEREAS, Article 12, Section 5 of the Constitution of the State of Kansas (the "Act"), provides that cities may exercise certain home rule powers, including passing charter ordinances which exempt such cities from the acts of the Kansas Legislature; and

WHEREAS, the City of Newton, Kansas (the "City") is a City, as defined in the Act, duly created and organized, under the laws of the State of Kansas; and

WHEREAS, K.S.A. 13-1017 is part of an enactment of the Kansas Legislature (K.S.A. 13 1017, et seq.) relating to general improvements and the issuance of bonds for such purposes, which enactment is applicable to the City, but is not uniformly applicable to all cities within the State of Kansas; and

WHEREAS, the governing body of the City has heretofore passed Charter Ordinance No. 6 which exempts the City from the provisions of K.S.A. 13-1017, and provides substitute and additional provisions therefor; and

WHEREAS, the governing body of the City desires, by charter ordinance, to amend Section 2 of Charter Ordinance No. 6;

NOW THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF NEWTON, KANSAS:

SECTION 1.  Amendment.  The City, by the power vested in it by the Act, hereby elects to amend Section 2 of Charter Ordinance No. 6, which said Section 2 provided substitute and additional provisions in the place of the provisions of K.S.A. 13-1017, from which the City was exempted by virtue of the provisions of Section 1 of Charter Ordinance No. 6, with said Section 2 thereof being hereby amended to read as follows:

Section 2.  Except as otherwise provided below, before the construction or re-construction of any sidewalk, curb, gutter, bridge, pavement, sewer or any other public improvement in any street, highway or public grounds, or of any public building or facility, or any other kind of public improvement which is to be financed by the issuance of bonds shall be commenced or ordered by the governing body, or under its authority, a detailed estimate of the cost of such improvements shall be made by the City Engineer (or some other competent person appointed for such purpose by the governing body) and submitted to the governing body for its approval.  The governing body shall determine whether the work can best be accomplished by city forces or by contract.  If the work is to be done by other than city forces, invitation for sealed proposals for the building, public improvement or construction thereof shall be mailed by the City Clerk to at least three (3) responsible bidders.  When received, the sealed proposals shall be publicly opened and read and the governing body shall let all such work by contract to the lowest responsible bidder if there be any such whose bid does not exceed the estimate.  The provisions herein shall not apply under the following circumstances:

(a)   Improvements which are constructed on or to real estate owned in whole or in part by the City and leased to a tenant industry may be made by the tenant industry under the provisions of a lease agreement between the City and such tenant industry.  In such situations, the tenant industry may contract for such improvements, provided that such is done in full conformance with the provisions of the lease agreement, and with all applicable city codes and regulations, and provided, further, that before the commencement of any such construction work the tenant industry shall provide instrument(s) of surety or a letter of credit in an amount to be approved by the City guaranteeing the full and faithful completion of construction of such improvements, and provided, further, that no funds derived from tax levies shall be employed in such construction.

(b)   Public improvements which are to be constructed on or to real estate owned in whole or in part by the City, and which are part of an overall development project with one or more private developers, may be constructed pursuant to the terms of a development agreement between the City and such developer(s), provided that such is done in full conformance with the provisions of the development agreement, and with all applicable city codes and regulations.  If such public improvements are to be constructed by any such developer(s), then before commencement of any such construction work the developer(s) shall provide instrument(s) of surety or a letter of credit or other acceptable security in an amount to be approved by the City guaranteeing the full and faithful completion of construction of such improvements.  The provisions of this subsection may be utilized only if the governing body of the City has, prior to the commencement of the construction of such public improvements, conducted a public hearing to consider whether to implement the provisions of this subsection and adopted a resolution approving the same which resolution shall be approved by at least a two-thirds majority of the members of the governing body.  Notice of such public hearing shall be published once in the official city newspaper at least ten (10) days prior to the date of such hearing.

(c)   Public improvements may be constructed pursuant to a design-build contract which sets forth a lump-sum, fixed price for work to be provided. Design-build projects shall be awarded on the basis of the consideration of the following factors: (i) the lowest lump-sum, fixed price; (ii) design concepts; (iii) the experience of company or consortium of companies submitting proposals; and (iv) other pertinent criteria that shall be set by the governing body prior to the acceptance of proposals. Contracts for design-build projects do not have to be awarded solely upon the basis of lowest lump-sum, fixed price submitted. However, contracts shall be awarded to the lowest lump-sum, fixed price if each of the other criteria is equal or nearly equal. The governing body shall reserve the right to reject all proposals submitted.

SECTION 2. Severability.  Any provision or section of this Charter Ordinance is deemed or rule unconstitutional or otherwise illegal or invalid by any court of competent jurisdiction, such illegality or invalidity shall not affect any other provision of this Charter Ordinance.  In such instance, this Charter Ordinance shall be construed and enforced as if such illegal or invalid provision had not been contained herein.

SECTION 3.         Repealer.  Section 2 of Charter Ordinance No. 6 of the City is hereby repealed as of the effective date of this Charter Ordinance.

(03-25-2008)