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chapter-16•Chapter 16 — Contracts and Promises
Unofficial online text published by the Kansas Office of Revisor of Statutes; the printed volumes of the Kansas Statutes Annotated are the authoritative version. Current through the 2025 session laws.
All contracts which by the common law are joint only, shall be construed to be joint and several.
History: G.S. 1868, ch. 21, § 1; October 31; R.S. 1923, 16-101.
In case of the death of one or more of the joint obligors or promisors, the joint debt or contract shall and may survive against the heirs, executors and administrators of the deceased obligor or promisor, as well as against the survivors.
History: G.S. 1868, ch. 21, § 2; October 31; R.S. 1923, 16-102.
When all the obligors or promisors shall die, the debt or contract shall survive against the heirs, executors and administrators of all the deceased joint obligors and promisors.
History: G.S. 1868, ch. 21, § 3; October 31; R.S. 1923, 16-103.
In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable.
History: G.S. 1868, ch. 21; § 4; October 31; R.S. 1923, 16-104.
Any person jointly or severally liable with others for the payment of any debt or demand may be released from such liability by the creditor, and such release shall not discharge the other debtors or obligors beyond the proper proportion of the debt or demand for which the person released was liable.
History: G.S. 1868, ch. 21, § 5; October 31; R.S. 1923, 16-105.
The use of private seals in written contracts (except the seals of corporations) is abolished, and the addition of a private seal to an instrument of writing shall not affect its character in any respect.
History: G.S. 1868, ch. 21, § 6; October 31; R.S. 1923, 16-106.
All contracts in writing, signed by the party bound thereby, or his authorized agent or attorney, shall import a consideration.
History: G.S. 1868, ch. 21, § 7; October 31; R.S. 1923, 16-107.
The want or failure in the whole or in part, of the consideration of a written contract, may be shown as a defense, total or partial, as the case may be, in an action on such contract, brought by one who is not an innocent holder in good faith.
History: G.S. 1868, ch. 21, § 8; October 31; R.S. 1923, 16-108.
All contracts, promises, assumptions or undertakings, either written or verbal, made in good faith, and without fraud, collusion or circumvention, for the sale or purchase of improvements made on the lands owned by the government of the United States, shall be deemed valid, and may be sued upon as other contracts.
History: G.S. 1868, ch. 21, § 9; October 31; R.S. 1923, 16-109.
Deeds of quitclaim and other conveyances of improvements upon public lands shall be as binding, and effectual between the parties, for conveying the title of the grantor in and to the same, as in cases where the grantor has the fee simple to the premises conveyed.
History: G.S. 1868, ch. 21, § 10; October 31; R.S. 1923, 16-110.
That from and after the passage of this act, all obligations of debt, judgments, or executions, stated in terms of dollars, and to be paid in money, if not dischargeable in United States legal-tender notes, shall be payable in either the standard silver or gold coins authorized by the congress of the United States, all stipulations in the contract to the contrary notwithstanding.
History: L. 1893, ch. 99, § 1; April 5; R.S. 1923, 16-111.
A person, firm, corporation or association of persons doing business in this state shall not make it a condition of the sale of goods, wares or merchandise that the purchaser shall not sell or deal in the goods, wares or merchandise of any other person, firm, corporation, or association of persons, but the provisions of this section shall not prohibit the appointment of agents or sole agents for the sale of, nor the making of contracts for the exclusive sale of, goods, wares, or merchandise. Whoever, as principal or agent, violates the provisions of this section shall be punished for the first offense by a fine of not less than fifty nor more than one hundred dollars; and for each succeeding offense by a fine of not less than one hundred nor more than five hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment.
History: L. 1907, ch. 139, § 1; March 6; R.S. 1923, 16-112.
(a) Whenever the state or any political subdivision of the state, or any agency or instrumentality thereof, enters into a contract with any person who is not a resident of this state for the construction of any public improvement to be paid for by public funds, such person shall appoint in writing, as such person's agent, a resident of Kansas, except, no appointment under this section is required if the person is a foreign corporation, foreign limited partnership, or foreign limited liability company qualified to do business and in good standing in Kansas.
(b) Process for such person may be served on such agent in any civil action which arises out of the contract and in which the state, political subdivision, agency or instrumentality is a plaintiff. The appointment of such agent shall be filed with the secretary of state as provided in K.S.A. 60-306, and amendments thereto. No person required to appoint such an agent shall receive public moneys pursuant to such person's contract until the appointment has been made and filed as required by this section.
(c) As used in this section, "person" means any individual, partnership or unincorporated association.
History: L. 1913, ch. 299, § 1; L. 1980, ch. 73, § 1; L. 1993, ch. 179, § 1; July 1.
Any person or corporation which shall violate any of the provisions of this act shall be guilty of a misdemeanor and upon conviction shall be fined in any sum not more than one thousand dollars.
History: L. 1913, ch. 299, § 2; March 5; R.S. 1923, 16-114.
Whenever used in this act, the following words and phrases shall have the meanings respectively ascribed to them herein, unless the context otherwise requires:
(a) "Property" means real or personal property, or both, and any interest therein; and
(b) "person" means any person, firm, partnership, association or corporation.
History: L. 1969, ch. 304, § 1; July 1.
(a) Any two (2) or more persons who own or intend to own, jointly or as tenants in common, any property that is used or is to be used, in whole or in part, for the generation, transmission or distribution of electricity, or for the production, gathering, storage, processing, transmission or distribution of manufactured or natural gas, may enter into an agreement waiving their respective rights with respect to the partition of such property, or otherwise restricting the alienation thereof, for a period of time ending not later than the abandonment of such use. Without limiting the general application of the foregoing, the rule of law commonly known as the rule against perpetuities and the rule of law commonly known as the rule prohibiting unreasonable restraints on alienation of property shall not be applied to invalidate, render unenforceable or otherwise affect any such agreement.
(b) The provisions of this act shall apply to any such agreement entered into either prior or subsequent to the effective date of this act.
History: L. 1969, ch. 304, § 2; July 1.
As used in this act:
(a) "Credit agreement" means an agreement by a financial institution to lend or delay repayment of money, goods or things in action, to otherwise extend credit or to make any other financial accommodation. For purposes of this act the term "credit agreement" does not include the following agreements: Open-end or closed-end promissory notes, real estate mortgages, security agreements, guaranty agreements, letters of credit, deposit account agreements, agreements in connection with deposit accounts for the payment of overdrafts, agreements in connection with student loans insured or guaranteed pursuant to the federal higher education act of 1965, and acts amendatory thereof and supplementary thereto, and agreements in connection with "lender credit cards" as defined in the uniform consumer credit code;
(b) "creditor" means a financial institution which extends credit or extends a financial accommodation under a credit agreement with a debtor;
(c) "debtor" means a person who obtains credit or receives a financial accommodation under a credit agreement with a financial institution; and
(d) "financial institution" means a bank, savings and loan association, savings bank or credit union.
History: L. 1988, ch. 55, § 1; L. 1989, ch. 70, § 1; L. 1998, ch. 56, § 1; July 1.
(a) A debtor or a creditor may not maintain an action for legal or equitable relief or a defense, based in either case upon a failure to perform on an alleged credit agreement, unless the material terms and conditions of the agreement are in writing and signed by the creditor and the debtor.
(b) All credit agreements shall contain a clear, conspicuous and printed notice to the debtor that states that the written credit agreement is a final expression of the credit agreement between the creditor and debtor and such written credit agreement may not be contradicted by evidence of any prior oral credit agreement or of a contemporaneous oral credit agreement between the creditor and debtor. A written credit agreement shall contain a sufficient space for the placement of nonstandard terms, including the reduction to writing of a previous oral credit agreement and an affirmation, signed or initialed by the debtor and the creditor, that no unwritten oral credit agreement between the parties exists.
(c) Failure to comply with provisions of subsections (a) and (b) shall preclude an action or defense based on any of the following legal or equitable theories: (1) An implied agreement based on course of dealing or performance or on a fiduciary relationship; (2) promissory or equitable estoppel; (3) part performance; or (4) negligent representation.
History: L. 1988, ch. 55, § 2; L. 1989, ch. 70, § 2; L. 1998, ch. 56, § 2; July 1.
This act is a declaration of the meaning of chapter 55 of the laws of 1988, as originally adopted.
History: L. 1989, ch. 70, § 3; March 9.
(a) As used in this section:
(1) "Contract" has the meaning provided by K.S.A. 16-1302 or 16-1402, and amendments thereto.
(2) "Dealer" includes farm equipment dealers, as defined in K.S.A. 16-1202, and amendments thereto, or retailers, as defined in K.S.A. 16-1302 or 16-1402, and amendments thereto.
(3) "Dealership agreement" has the meaning provided by K.S.A. 16-1202, and amendments thereto.
(4) "Equipment" includes farm equipment, as defined in K.S.A. 16-1202, and amendments thereto, outdoor power equipment, as defined in K.S.A. 16-1302, and amendments thereto, or equipment, as defined in K.S.A. 16-1402, and amendments thereto.
(5) "Manufacturer" includes farm equipment manufacturers as defined in K.S.A. 16-1202, and amendments thereto, or suppliers, as defined in K.S.A. 16-1302 or 16-1402, and amendments thereto.
(b) With respect to any equipment sold on or after July 1, 2000, any warranty repair work performed for a consumer by a dealer under the provisions of a manufacturer's express warranty, shall require the manufacturer to reimburse the dealer at an hourly labor rate which is the same as the hourly labor rate the dealer currently charges consumers for nonwarranty repair work.
(c) Nothing in this act shall apply to, or operate or be construed to invalidate, impair or otherwise infringe upon the specific requirements of any contract or dealership agreement between a dealer and a manufacturer entered into prior to the effective date of this act, if such contract or dealership agreement is in effect on the effective date of this act.
(d) The provisions of this section shall not apply to a manufacturer who provides in a written dealer agreement for compensation to a dealer for warranty labor costs either as (1) a discount in the pricing of the equipment to the dealer or, (2) a lump sum payment to the dealer, provided such payment is not less than 5% of the suggested retail price of the equipment.
History: L. 2000, ch. 83, § 1; July 1.
(a) When used in this section:
(1) "Construction contract" means an agreement for the design, construction, alteration, renovation, repair or maintenance of a building, structure, highway, road, bridge, water line, sewer line, oil line, gas line, appurtenance or other improvement to real property, including any moving, demolition or excavation, except that no deed, lease, easement, license or other instrument granting an interest in or the right to possess property shall be deemed to be a construction contract even if the instrument includes the right to design, construct, alter, renovate, repair or maintain improvements on such real property. "Construction contract" shall not include any design, construction, alteration, renovation, repair or maintenance of:
(A) Dirt or gravel roads used to access oil and gas wells and associated facilities; or
(B) oil flow lines or gas gathering lines used in association with the transportation of production from oil and gas wells from the wellhead to oil storage facilities or gas transmission lines.
(2) "Contract" means any construction contract, motor carrier transportation contract, dealer agreement or franchise agreement.
(3) "Damages" means personal injury damages, property damages or economic loss.
(4) "Dealership agreement" means an oral or written agreement of definite or indefinite duration between an equipment manufacturer or service provider and an equipment or service dealer which provides for the rights and obligations of the parties with respect to the purchase or sale of such equipment or services.
(5) "Franchise agreement" means any contract or franchise or any other terminology used to describe the contractual relationship between manufacturers, distributors and dealers, by which:
(A) A right is granted one party to engage in the business of offering, selling or otherwise distributing goods or services under a marketing plan or system prescribed in substantial part by the other party, and in which there is a community of interest in the marketing of goods or services at wholesale or retail, by lease, agreement or otherwise; and
(B) the operation of the grantee's business pursuant to such agreement is substantially associated with the grantor's trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the grantor or an affiliate of the grantor.
(6) "Indemnification provision" means a covenant, promise, agreement, clause or understanding in connection with, contained in, or collateral to a contract that requires the promisor to hold harmless, indemnify or defend the promisee or others against liability for loss or damages.
(7) "Motor carrier transportation contract" means, with respect to a motor carrier as defined in 49 C.F.R. § 390.5, as in effect on July 1, 2017, or any later version as established in rules and regulations adopted by the state corporation commission, a contract, agreement or understanding covering:
(A) The transportation of property by a motor carrier;
(B) the entrance on property by the motor carrier for the purpose of loading, unloading or transporting property; or
(C) a service incidental to activity described in subparagraph (A) or (B) including, but not limited to, storage of property.
"Motor carrier transportation contract" shall not include the uniform intermodal interchange and facilities access agreement administered by the intermodal association of North America or other agreements providing for the interchange, use or possession of intermodal chassis, containers or other intermodal equipment.
(8) "Mutual indemnity obligation" means an indemnity obligation in a contract in which the parties agree to indemnify each other and each other's contractors and their employees against loss, liability or damages arising in connection with bodily injury, death and damage to property of the respective employees, contractors or their employees, and invitees of each party arising out of or resulting from the performance of the agreement.
(9) "Promisee" shall include an agent, employee or independent contractor who is directly responsible to the promisee.
(10) "Unilateral indemnity obligation" means an indemnity obligation in a contract in which one of the parties as promisor agrees to indemnify the other party as promisee with respect to claims for personal injury or death to the promisor's employees or agents or to the employees or agents of the promisor's contractors but in which the promisee does not make a reciprocal indemnity to the promisor.
(b) An indemnification provision in a contract which requires the promisor to indemnify the promisee for the promisee's negligence or intentional acts or omissions is against public policy and is void and unenforceable.
(c) A provision in a contract which requires a party to provide liability coverage to another party, as an additional insured, for such other party's own negligence or intentional acts or omissions is against public policy and is void and unenforceable.
(d) This act shall not be construed to affect or impair:
(1) The contractual obligation of a contractor or owner to provide railroad protective insurance or general liability insurance;
(2) an agreement under which an owner, a responsible party or a governmental entity agrees to indemnify a contractor directly or through another contractor with respect to strict liability under environmental laws;
(3) an indemnification agreement that is an integral part of an offer to compromise or a settlement of a disputed claim, if:
(A) The settlement is based on consideration;
(B) the dispute relates to an alleged event that is related to a construction contract and that occurred before the settlement is made; and
(C) the indemnification relates only to claims that have arisen or may arise from the past event;
(4) the validity of any insurance contract, construction bond or other agreement lawfully issued by an insurer or bonding company;
(5) a separately negotiated provision or provisions whereby the parties mutually agree to a reasonable allocation of risk, if each such provision is:
(A) Based on generally accepted industry loss experience; and
(B) supported by adequate consideration; and
(6) an agreement that provides for indemnity if the parties agree in writing that the indemnity obligation will be supported by liability insurance coverage to be furnished by the promisor subject to the following limitations:
(A) With respect to a mutual indemnity obligation, the indemnity obligation is limited to the extent of the coverage and dollar limits of insurance or qualified self-insurance each party as promisor has agreed to obtain for the benefit of the other party as promisee.
(B) With respect to a unilateral indemnity obligation, the indemnity obligation is limited to the extent of the coverage and dollar limits of insurance the promisor has agreed to obtain for the benefit of the other party as promisee. Such indemnity obligation shall be at the promisee's expense and shall be a separate liability insurance policy.
(e) Notwithstanding any contractual provision to the contrary, the laws of the state of Kansas shall apply to and govern every contract to be performed in this state. Any litigation, arbitration or other dispute resolution proceeding arising from such contract shall be conducted in this state. Any provision, covenant or clause in such contract that conflicts with the provisions of this subsection shall be void and unenforceable.
(f) This section applies only to indemnification provisions and additional insured provisions entered into after January 1, 2009.
History: L. 2004, ch. 70, § 1; L. 2008, ch. 132, § 1; L. 2017, ch. 18, § 3; July 1.
(a) Except as provided in subsection (b), creditors shall be allowed to receive interest at the rate of 10% per annum when no other rate of interest is agreed upon, for any money after it becomes due; for money lent or money due on settlement of account, from the day of liquidating the account and ascertaining the balance; for money received for the use of another and retained without the owner's knowledge of the receipt; for money due and withheld by an unreasonable and vexatious delay of payment or settlement of accounts; for all other money due and to become due for the forbearance of payment whereof an express promise to pay interest has been made; and for money due from corporations and individuals to their daily or monthly employees, from and after the end of each month, unless paid within 15 days thereafter.
(b) In all civil tort actions filed on or after July 1, 2023, under chapter 60 of the Kansas Statutes Annotated, and amendments thereto, in which the court determines that prejudgment interest shall be awarded, the judgment creditor shall be allowed to receive interest at the rate per annum of two percentage points below the rate per annum specified in K.S.A. 16-204(e)(1), and amendments thereto.
History: L. 1889, ch. 164, § 1; L. 1980, ch. 74, § 1; L. 2023, ch. 55, § 1; July 1.
History: L. 1889, ch. 164, § 2; R.S. 1923, 41-102; L. 1955, ch. 135, § 25; L. 1957, ch. 143, § 1; L. 1965, ch. 147, § 1; Repealed, L. 1969, ch. 112, § 57; July 1.
History: L. 1889, ch. 164, § 3; R.S. 1923, 41-103; L. 1955, ch. 135, § 26; L. 1969, ch. 112, § 43; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
Except as otherwise provided in accordance with law, and including any judgment rendered on or after July 1, 1973, against the state or any agency or political subdivision of the state:
(a) Any judgment rendered by a court of this state before July 1, 1980, shall bear interest as follows:
(1) On and after the day on which the judgment is rendered and before July 1, 1980, at the rate of 8% per annum;
(2) on and after July 1, 1980, and before July 1, 1982, at the rate of 12% per annum;
(3) on and after July 1, 1982, and before July 1, 1986, at the rate of 15% per annum; and
(4) on and after July 1, 1986, at the rate provided by subsection (e).
(b) Any judgment rendered by a court of this state on or after July 1, 1980, and before July 1, 1982, shall bear interest as follows:
(1) On and after the day on which the judgment is rendered and before July 1, 1982, at the rate of 12% per annum;
(2) on and after July 1, 1982, and before July 1, 1986, at the rate of 15% per annum; and
(3) on and after July 1, 1986, at the rate provided by subsection (e).
(c) Any judgment rendered by a court of this state on or after July 1, 1982, and before July 1, 1986, shall bear interest as follows:
(1) On and after the day on which the judgment is rendered and before July 1, 1986, at the rate of 15% per annum; and
(2) on and after July 1, 1986, at the rate provided by subsection (e).
(d) Any judgment rendered by a court of this state on or after July 1, 1986, shall bear interest on and after the day on which the judgment is rendered at the rate provided by subsection (e).
(e) (1) Except as otherwise provided in this subsection, on and after July 1, 1996, the rate of interest on judgments rendered by courts of this state pursuant to the code of civil procedure shall be at a rate per annum: (A) Which shall change effective July 1 of each year for both judgments rendered prior to such July 1 and judgments rendered during the twelve-month period beginning such July 1; and (B) which is equal to an amount that is four percentage points above the discount rate (the charge on loans to depository institutions by the New York federal reserve bank as reported in the money rates column of the Wall Street Journal) as of July 1 preceding the date the judgment was rendered. The secretary of state shall publish notice of the interest rate provided by this subsection (e) (1) not later than the second issue of the Kansas register published in July of each year.
(2) On and after the effective date of this act, the rate of interest on judgments rendered by courts of this state pursuant to the code of civil procedure for limited actions shall be 12% per annum.
(3) On and after July 1, 1996, it shall be presumed that applying interest at the rate of 10% per annum will result in the correct total of interest accrued on any judgments, regardless of when the judgments accrued, arising from a person's duty to support another person. The burden of proving that a different amount is the correct total shall lie with any person contesting the presumed amount.
History: L. 1889, ch. 164, § 4; R.S. 1923, 41-104; L. 1969, ch. 114, § 1; L. 1973, ch. 84, § 1; L. 1980, ch. 74, § 2; L. 1982, ch. 88, § 1; L. 1986, ch. 89, § 1; L. 1996, ch. 229, § 160; July 1.
(a) When a rate of interest or charges is specified in any contract, that rate shall continue until full payment is made, and any judgment rendered on any such contract shall bear the same rate of interest or charges mentioned in the contract, which rate shall be specified in the judgment; but in no case shall such rate or charges exceed the maximum rate or amount authorized by law, and any bond, note, bill, or other contract for the payment of money, which in effect provides that any interest or charges or any higher rate of interest or charges shall accrue as a penalty for any default, shall be void as to any such provision.
(b) Judgments taken in accordance with the provisions of subsection (a) shall be expressed as follows:
(1) Judgments upon interest-bearing contracts shall provide (i) the unpaid principal balance, (ii) the date to which interest is paid, (iii) the contract rate of interest and (iv) that the unpaid principal balance shall draw the contract rate of interest from the date to which interest is paid until payment in full.
(2) Judgments upon precomputed interest-bearing contracts shall provide: (i) The unpaid principal balance shall be ascertained by deducting from the remaining total of payments owed on the contract that portion of the precomputed finance charges that are unearned as of the date of acceleration of the maturity of the contract, as provided in K.S.A. 16a-2-510 for computing the unearned portion of precomputed finance charges in the event of prepayment in full. Any delinquency or deferral charges added to the unpaid balance subsequent to the date of acceleration shall be first deducted from the unpaid balance prior to any such acceleration. The contract shall be accelerated as of the date provided for in the provisions of the contract, or if the contract does not provide for the date on which the contract shall be accelerated, it shall be accelerated as of the actual date of any such acceleration; (ii) the date to which interest is paid, which date shall be the maturity date of the next installment due after the date of acceleration, except those contracts which are accelerated on an installment due date which shall be the date of acceleration; the date to which interest is paid for those contracts that have matured prior to judgment shall be calculated from maturity date of the contract; (iii) the contract rate of interest; and (iv) that the unpaid principal balance shall draw the contract rate of interest from the date to which interest is paid until payment in full.
(3) Judgments upon contracts where the finance charges are computed in dollars per hundred and added on to the original balance to be financed shall provide: (i) The unpaid principal balance shall be ascertained by deducting from the remaining total of payments owed on the contract that portion of the precomputed finance charges that are unearned as of the date of acceleration of the maturity of the contract as provided in K.S.A. 16a-2-510 for computing the unearned portion of precomputed finance charges in the event of prepayment in full. Any delinquency or deferral charges added to the unpaid balance subsequent to the date of acceleration shall be first deducted from the unpaid balance prior to any such acceleration. The contract shall be accelerated as of the date provided for in the provisions of the contract, or if the contract does not provide for the date on which the contract shall be accelerated, it shall be accelerated as of the actual date of any acceleration; (ii) the date to which interest is paid, which date shall be the maturity date of the next installment due after the date of acceleration, except those contracts which are accelerated on an installment due date which shall be the date of acceleration; the date to which interest is paid for those contracts that have matured prior to judgment shall be calculated from the maturity date of the contract; (iii) the contract rate of interest expressed as an annual percentage figure, which may be taken from the contract if it discloses the annual percentage rate, or it shall be ascertained in accordance with the constant ratio method which is mathematically expressed as follows:
2mc
R = where
p(n + 1)
R = rate of charge
m = number of payment periods in one year
n = number of payments to discharge the debt
c = charge in dollars
p = principal or cash advanced
and (iv) that the unpaid principal balance shall draw the contract rate of interest as determined herein from the date to which interest is paid until payment in full.
History: L. 1889, ch. 164, § 5; R.S. 1923, 41-105; L. 1955, ch. 135, § 27; L. 1974, ch. 90, § 1; L. 1976, ch. 96, § 1; July 1.
History: L. 1969, ch. 112, § 35; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
(a) Subject to the following provision, the parties to any bond, bill, promissory note or other instrument of writing for the payment or forbearance of money may stipulate therein for interest receivable upon the amount of such bond, bill, note or other instrument of writing, at a rate not to exceed 15% per annum unless otherwise specifically authorized by law.
(b) No penalty shall be assessed against any party for prepayment of any home loan evidenced by a note secured by a real estate mortgage where such prepayment is made more than six months after execution of such note.
(c) The lender may collect from the borrower:
(1) The actual fees paid a public official or agency of the state or federal government, for filing, recording or releasing any instrument relating to a loan subject to the provisions of this section; and
(2) reasonable expenses incurred by the lender in connection with the making, closing, disbursing, extending, readjusting or renewing of loans subject to the provisions of this section.
(d) Any person so contracting for a greater rate of interest than that authorized by this section shall forfeit all interest so contracted for in excess of the amount authorized under this section; and in addition thereto shall forfeit a sum of money, to be deducted from the amount due for principal and lawful interest, equal to the amount of interest contracted for in excess of the amount authorized by this section and such amounts may be set up as a defense or counterclaim in any action to enforce the collection of such obligation and the borrower shall also recover a reasonable attorney fee.
(e) Subsection (a) shall not apply to:
(1) A covered transaction subject to the usury provisions of the Kansas mortgage business act, K.S.A. 9-2201 et seq., and amendments thereto;
(2) a consumer credit transaction subject to the usury provisions of the uniform consumer credit code, K.S.A. 16a-1-101 et seq., and amendments thereto;
(3) loans made by a qualified plan, as defined by the internal revenue code, to an individual participant in such plan or to a member of the family of such individual participant;
(4) a note secured by a real estate mortgage or a contract for deed to real estate when the note or contract for deed permits adjustment of the interest rate, the term of the loan or the amortization schedule; or
(5) a business or agricultural transaction. For the purpose of this section, a "business or agricultural transaction" means a loan, including a note secured by a contract for deed to real estate or a credit sale, which is made primarily for purposes other than personal, family or household purposes.
(f) Subsections (b), (c) and (d) shall not apply to:
(1) A covered transaction under the Kansas mortgage business act, K.S.A. 9-2201 et seq., and amendments thereto; or
(2) a consumer credit transaction under the uniform consumer credit code, K.S.A. 16a-1-101 et seq., and amendments thereto.
History: L. 1969, ch. 112, § 36; L. 1973, ch. 85, § 132; L. 1975, ch. 125, § 1; L. 1978, ch. 72, § 1; L. 1980, ch. 75, § 1; L. 1980, ch. 76, § 2; L. 1981, ch. 88, § 1; L. 1982, ch. 89, § 1; L. 1983, ch. 74, § 1; L. 1999, ch. 107, § 5; L. 2013, ch. 103, § 1; L. 2024, ch. 6, § 26; January 1, 2025.
The provisions of section 501 (a) (1) of title V of public law 96-221 shall not apply with respect to loans, mortgages, credit sales and advances made in this state on and after the effective date of this act.
History: L. 1980, ch. 76, § 1; May 17.
The provisions of this act shall not apply to loans made under the provisions of article 52 of chapter 12 of the Kansas Statutes Annotated.
History: L. 1980, ch. 75, § 3; L. 1980, ch. 76, § 3; May 17.
History: L. 1980, ch. 75, § 2; L. 1980, ch. 76, § 4; Repealed, L. 1981, ch. 89, § 1; April 17.
The state bank commissioner and credit union administrator shall jointly adopt rules and regulations for the purpose of governing loans made primarily for personal, family or household purposes and made under the provisions of K.S.A. 16-207(e)(4), and amendments thereto. Such rules and regulations shall be published in only one place in the Kansas administrative regulations as directed by the state rules and regulations board.
History: L. 1982, ch. 94, § 2; L. 1983, ch. 75, § 1; L. 2024, ch. 6, § 27; January 1, 2025.
History: L. 1969, ch. 112, § 36; L. 1973, ch. 85, § 132; L. 1975, ch. 125, § 1; L. 1978, ch. 72, § 1; L. 1980, ch. 75, § 1; L. 1980, ch. 76, § 2; L. 1981, ch. 88, § 1; L. 1982, ch. 346, § 1; Repealed, L. 1983, ch. 74, § 2; March 31.
History: L. 1969, ch. 112, §§ 37–42; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
Whenever advances of money, repayable on demand, are made upon any securities, as defined in K.S.A. 84-8-102(1)(a), and amendments thereto, pledged as collateral for repayment of such advances and in which such advances are used by the borrower only for the purpose of the purchasing or the carrying of such securities, it shall be lawful for a broker-dealer, as defined by K.S.A. 17-12a102, and amendments thereto, to charge, receive or contract to receive and collect, as compensation for making such advances, a rate of interest not to exceed the higher of 10% per annum, or the rate of interest last obtained from a commercial lender by the broker-dealer plus an annual percentage rate of not to exceed 1 1/2%, which rate shall be established by written notification to the borrower. Any such advances shall not be subject to any of the provisions of articles 1 through 9, inclusive, of chapter 16a of the Kansas Statutes Annotated, and amendments thereto.
History: L. 1977, ch. 69, § 1; L. 2004, ch. 154, § 56; July 1, 2005.
Any agreement, contract or plan requiring the payment of money in a lump sum or installments which is made or entered into with any person, association, partnership, firm or corporation for the final disposition of a dead human body, or for funeral or burial services, or for the furnishing of personal property or funeral or burial merchandise, wherein the delivery of the personal property or the funeral or burial merchandise or the furnishing of services is not immediately required, is hereby declared to be against public policy and void, unless all money paid thereunder shall be deposited in a bank or savings and loan association which is authorized to do business in this state and insured by a federal agency, or invested in a credit union which is insured with an insurer or guarantee corporation as required under K.S.A. 17-2246, and amendments thereto, all as herein provided, and subject to the terms of an agreement for the benefit of the purchaser of the agreement, contract or plan. For the purposes of this act, personal property or funeral or burial merchandise shall include caskets, vaults and all other articles of merchandise incidental to a funeral service, but shall not include grave lots, grave spaces, grave memorials, tombstones, crypts, niches and mausoleums. This act shall not prohibit the funding of a prearranged funeral agreement with insurance proceeds derived from a policy issued by an insurance company authorized to conduct business in this state.
History: L. 1953, ch. 54, § 1; L. 1973, ch. 86, § 1; L. 1976, ch. 97, § 1; L. 1983, ch. 76, § 1; L. 1989, ch. 48, § 70; L. 1994, ch. 229, § 3; L. 2002, ch. 106, § 1; July 1.
(a) Except as authorized by K.S.A. 16-308, and amendments thereto, all funds received pursuant to any agreement, contract or plan governed by K.S.A. 16-301, and amendments thereto, shall be deposited in a bank, credit union or savings and loan association and shall be held by such bank, credit union or savings and loan association in a separate account in the name or names of the purchaser of the merchandise or services and the name of the seller, until released as herein provided.
(b) In addition to the requirements under subsection (a) and except as otherwise provided in subsection (c), a seller which accepts payment under any agreement, contract or plan governed by K.S.A. 16-301, and amendments thereto, shall:
(1) Require such payments to be made in the form of checks, cashier's checks or money orders payable only to the bank, credit union or savings and loan association where deposited; and
(2) deposit such payment in such bank, credit union or savings and loan association within seven business days after receipt.
(c) A seller of agreements, contracts or plans governed by K.S.A. 16-301, and amendments thereto, shall be exempt from the requirements of subsection (b) if the seller maintains commercial insurance providing minimum coverage of $100,000 against employee dishonesty. A seller of agreements, contracts or plans governed by K.S.A. 16-301, and amendments thereto, which is exempt from subsection (b) under this subsection and which accepts payment under any such agreement, contract or plan shall deposit such payment in a bank, credit union or savings and loan association within 30 days after receipt. Evidence of the commercial insurance maintained for compliance with this subsection shall be provided to the secretary of state within 10 days of a written request.
(d) Each funeral establishment which accepts payments from a purchaser under an agreement, contract or plan governed by K.S.A. 16-301, and amendments thereto, and is exempt from subsection (b) under the provisions of subsection (c), shall file with the state board of mortuary arts at the time of each funeral establishment license renewal required under K.S.A. 65-1729, and amendments thereto, evidence of the commercial insurance maintained for compliance with subsection (c). If such insurance lapses, is cancelled or otherwise ceases to be maintained by the funeral establishment, the insurance carrier shall notify immediately the state board of mortuary arts and the secretary of state of such occurrence.
History: L. 1953, ch. 54, § 2; L. 1973, ch. 86, § 2; L. 1976, ch. 97, § 2; L. 1983, ch. 76, § 2; L. 1989, ch. 48, § 71; L. 1991, ch. 68, § 1; L. 1992, ch. 127, § 1; July 1.
(a) Except as authorized by K.S.A. 16-308, and amendments thereto, all payments made under such agreement, contract or plan, and any earnings or interest thereon, shall remain with such bank, credit union or savings and loan association until the death of the person for whose service the funds were paid or, except as provided in subsection (c), until demand for payment is made by the purchaser of the merchandise or services to the bank, credit union or savings and loan association, and upon such payment to the purchaser, the contract shall terminate.
(b) At the option of a purchaser, any installment contract may provide for additional payments by the purchaser for the cost of group credit life insurance at such rate as is approved by the commissioner of insurance. In the event of the death of the purchaser, the proceeds shall be treated as funds in accordance with K.S.A. 16-304, and amendments thereto.
(c) At the option of the purchaser, such agreement, contract or plan may be made irrevocable as to the retail price of a casket, urn and outside burial container and on and after July 1, 2021, as to the first $10,000 of funds paid and set aside at the direction of the purchaser. On July 1, 2022, and each July 1 thereafter, such amount shall be increased in an amount equal to the average percentage increase in the consumer price index for all urban consumers in the midwest region as published by the bureau of labor statistics of the United States department of labor. Any interest and earnings accumulated under the agreement, contract or plan may also be irrevocable. Such option shall not prohibit the purchaser from designating a different funeral home at any time prior to death after written notice to the current funeral home, and, upon such notification, all documents and funds shall be transferred as necessary.
History: L. 1953, ch. 54, § 3; L. 1973, ch. 86, § 3; L. 1976, ch. 97, § 3; L. 1982, ch. 90, § 1; L. 1983, ch. 76, § 3; L. 1989, ch. 48, § 72; L. 1991, ch. 68, § 2; L. 1998, ch. 55, § 1; L. 2004, ch. 41, § 1; L. 2010, ch. 46, § 1; L. 2021, ch. 59, § 1; July 1.
(a) If any balance remains in the account upon the death of the person for whose services the funds were paid, the same shall not be paid by such bank, credit union or savings and loan association to the person, association, partnership, firm or corporation until a certified copy of the death certificate of such person, a verification of death form or other acceptable proof of death shall have been furnished to the bank, credit union or savings and loan association, together with a verified statement setting forth that all of the terms and conditions of such agreement have been fully performed by the person, association, partnership, firm or corporation.
(b) If any balance remains in the fund after disposition of the fund in accordance with the terms of the agreement, contract or plan such balance shall inure to the benefit of the estate of the purchaser of the agreement, contract or plan unless the purchaser was a person who received medical assistance from the Kansas department for children and families or a deceased surviving spouse of a recipient of medical assistance and the bank, credit union or savings and loan association has received written notice from the Kansas department for children and families, the funeral home or the recipient, stating that medical assistance has been expended on the recipient for which the Kansas department for children and families may have a claim. If such notice has been received, the balance shall be paid to the secretary for children and families or the secretary's designee to the extent of medical assistance expended on the deceased recipient.
(c) The bank, credit union or savings and loan association shall not be liable to the Kansas department for children and families for the balance in the fund if written notice has not been received and the balance of the fund has been paid to the estate of the purchaser of the agreement as provided above.
History: L. 1953, ch. 54, § 4; L. 1973, ch. 86, § 5; L. 1976, ch. 97, § 4; L. 1983, ch. 76, § 4; L. 1989, ch. 48, § 73; L. 1996, ch. 123, § 1; L. 2002, ch. 106, § 2; L. 2004, ch. 36, § 1; L. 2006, ch. 71, § 1; L. 2014, ch. 115, § 10; July 1.
Every person who violates any provision of this act: (a) Other than by misappropriating funds in violation of an agreement shall be guilty of a misdemeanor, and, upon conviction shall be fined not less than $100 nor more than $500, or shall be imprisoned for not less than 10 days nor more than 90 days, or both; and (b) by misappropriating funds in violation of an agreement in an amount:
(1) Of $25,000 or more shall be guilty of a severity level 7, nonperson felony;
(2) of at least $1,000 but less than $25,000 shall be guilty of a severity level 9, nonperson felony; or
(3) of less than $1,000 shall be guilty of a class A nonperson misdemeanor.
History: L. 1953, ch. 54, § 5, L. 1994, ch. 348, § 1; L. 2006, ch. 194, § 14; May 25.
In addition to other remedies, an action of injunction may be brought and maintained by the state of Kansas to enjoin the violation of this act.
History: L. 1953, ch. 54, § 6; June 30.
The provisions of this act shall be separable, and in case any provision or part thereof shall be held to be unconstitutional or invalid for any reason, the same shall not be held to affect any other paragraph, provision or part of this act.
History: L. 1953, ch. 54, § 7; June 30.
Any contract not providing for administration of payments thereunder in accordance with K.S.A. 16-302 and 16-303, and amendments thereto, shall provide for payment of all money received by the seller to a corporate trustee designated in a trust indenture or indentures referred to in such contract. All money so paid to and held by such corporate trustee, as well as all interest and earnings thereon, shall be held by such corporate trustee for the benefit of the purchaser in a separate account in the name of the purchaser, except that such trust indenture may provide that the funds in such account and in all other separate accounts covered by the same trust indenture may be invested collectively in a fund maintained by such corporate trustee in its capacity as such, if such fund is administered as required by the provisions of K.S.A. 58-1201 et seq., and amendments thereto; that all participations in the collective investment fund shall be on the basis of a proportionate interest in all of the assets in the fund; that not less frequently than once during each period of six months the corporate trustee shall determine the value of the assets in the fund; and the trust indenture may authorize the corporate trustee to charge the reasonable expenses of administering the trust against the income from the fund, including taxes imposed upon the fund or its income, the expenses of audits performed by independent public accountants and the reasonable expenses incurred in servicing mortgages held by the fund, but no compensation shall be paid for services performed for the corporate trustee by the seller or by anyone affiliated or connected with the seller which exceeds an annual fee of 1% of the current fair market value of the trust to be computed and distributed on either an annual, quarterly or monthly basis. Any seller who has presently established any trust for the purpose of complying with K.S.A. 16-301 to 16-307, inclusive, and amendments thereto, which does not comply with the applicable provisions of this act, is hereby given a period of one year after the effective date of this act within which to amend the trust indenture applicable thereto, to alter its portfolio of investments and to consummate any other changes necessary to comply with this act.
History: L. 1973, ch. 86, § 4; L. 1993, ch. 131, § 1; July 1.
Any person, association, partnership, firm or corporation shall be doing business in this state if they: Are in any way involved in or connected with the negotiation of any contract; enter into any contract as seller or are to perform any service or services covered by any such contract; receive, either as payee or as agent or as a bailment, any money paid by a purchaser on any contract; or solicit any resident of this state while such resident is in this state. If any nonresident person, association, partnership, firm or corporation is doing such business in this state, they shall be subject to the personal service of process outside this state as provided by K.S.A. 60-308.
History: L. 1973, ch. 86, § 6; July 1.
(a) The secretary of state, or the secretary's representative, shall audit in accordance with this subsection all accounts or trusts of each prearranged funeral agreement, plan or contract entered into pursuant to K.S.A. 16-301 et seq., and amendments thereto. Audits under this section shall be conducted on a random basis and not more than 25 audits shall be conducted during any one calendar year, except that the secretary of state may conduct an audit under this section at any time upon receipt of a complaint. For such purposes, the secretary of state or the secretary's representative is authorized to administer oaths and to examine under oath the directors, officers, employees and agents of any seller of personal property or funeral or burial merchandise. Such examination may be reduced to writing by the person taking it and the examiner may make findings as to the condition of each account or trust examined. Accounting records and information required by this section shall be maintained in a format approved by the secretary of state. For the purposes of such audits, the secretary of state may require any person or officer of a partnership, association, firm or corporation who sells such merchandise to furnish and submit the books, records, papers and instruments of such partnership, association, firm or corporation for examination.
(b) In the event the secretary of state determines that moneys have been improperly obtained from the account or trust by the seller of personal property or funeral or burial merchandise during the period covered by the audit, then the secretary of state may order the seller of personal property or funeral or burial merchandise to redeposit to the account or trust such moneys improperly withdrawn within 30 days.
(c) The attorney general, at the request of the secretary of state, may initiate an action to recover payments required to be redeposited to the account or trust under subsection (b), or to recover other moneys received or disbursed in violation of this act. In addition, the attorney general may seek to enjoin any violation of this act.
(d) In the absence of fraud, all funds held in an account or trust established pursuant to a prearranged funeral agreement, plan or contract shall not be subject to attachment, garnishment or other legal process, nor be seized, taken, appropriated or applied to pay any debt or liability of the seller of personal property or funeral or burial merchandise, buyer or beneficiary, by any legal or equitable process or by operation of law.
(e) No person, partnership, association, firm or corporation shall enter into any prearranged funeral agreement, plan or contract until such person, partnership, association, firm or corporation has filed with the secretary of state a notification of its intention to sell and engage in such prearranged agreements, plans or contracts. Such notice shall include the name of the person, partnership, association, firm or corporation, its principal place of business and the name and address of the bank or savings and loan association, trustee or trustees to be utilized under the provisions of this section.
(f) Whenever any person, partnership, association, firm or corporation refuses to submit the books, records, papers and instruments to the examination and inspection of the secretary of state, or of any of the secretary's representatives, or in any manner obstruct or interfere with the examination or audit authorized by this section, or refuse to be examined under oath concerning any of the affairs of its prearranged funeral agreements, plans or contracts, the secretary of state may request the attorney general to institute proceedings for the appointment of a receiver for such person, partnership, association, firm or corporation.
(g) Any person, partnership, association, firm or corporation which refuses or neglects to comply with the requirements of this act for a period of 90 days after demand to do so is made upon it by the secretary of state shall be subject to the penalties provided in K.S.A. 16-305, and amendments thereto. The attorney general, upon the request of the secretary of state, shall then begin an action for the appointment of a receiver for such person, partnership, association, firm or corporation and to dissolve the same.
(h) Whenever an audit is made pursuant to this section, the person, partnership, association, firm or corporation so audited shall pay to the secretary of state such expenses relating to the audit as assessed by the secretary of state pursuant to K.S.A. 75-442, and amendments thereto.
History: L. 1987, ch. 77, § 2; L. 1988, ch. 94, § 3; L. 1989, ch. 48, § 74; L. 1992, ch. 172, § 1; July 1.
(a) Whenever a person, who is or has been a recipient of medical assistance from the Kansas department for children and families, enters into a prearranged funeral agreement, contract or plan pursuant to K.S.A. 16-301, and amendments thereto, or a prearranged funeral agreement, contract or plan funded by insurance proceeds, such person shall inform the secretary for children and families or the secretary's designee of the existence of such an agreement, contract or plan and shall inform the funeral establishment that such person is or has been a recipient of medical assistance.
(b) If any balance remains after payment for the final disposition of a dead human body, or for funeral or burial services, or funeral or burial merchandise, and the purchaser of the agreement, contract, or plan is or has been a recipient of medical assistance or a deceased surviving spouse of a recipient of medical assistance, any remaining balance shall be paid according to K.S.A. 16-304, and amendments thereto, or if such agreement, contract or plan was funded by insurance, any remaining balance shall be paid by the insurance company or the person, association, partnership, firm or corporation providing the services or merchandise to the secretary for children and families or the secretary's designee, to the extent of medical assistance expended on the deceased recipient. The insurance company or the person, association, partnership, firm or corporation providing the services or merchandise shall not be liable to the Kansas department for children and families for the balance in the account if written notice has not been received stating that medical assistance has been expended on the recipient for which the Kansas department for children and families may have a claim, and the balance of the account has been paid to the estate of the deceased or in the case of insurance, the designated beneficiary.
(c) Payments to the secretary for children and families under subsection (b) and K.S.A. 16-304, and amendments thereto, shall be governed by K.S.A. 39-709, and amendments thereto.
History: L. 2002, ch. 106, § 3; L. 2004, ch. 36, § 2; L. 2014, ch. 115, § 11; L. 2015, ch. 42, § 3; July 1.
Any prearranged funeral agreement that involves the payment of money or the purchase or assignment of an insurance policy or annuity shall be in writing and shall include the following information:
(a) The name, address and phone number of the seller and the name and address of the purchaser of the contract and if the contract involves the payment of money but not the purchase or assignment of an insurance policy or annuity, the social security number of the purchaser of the contract;
(b) a statement of the funeral goods and funeral services purchased. This disclosure may be made by attaching a copy of the completed statement of funeral goods and services selected to the prearranged funeral agreement;
(c) a disclosure informing the purchaser whether the contract is either a guaranteed prearranged funeral agreement or a non-guaranteed prearranged funeral agreement. If the contract is guaranteed only in part, the disclosure shall specify the funeral goods or funeral services included in the guarantee;
(d) if the prearranged funeral agreement is a guaranteed contract, a disclosure that in exchange for all of the proceeds paid pursuant to such prearranged funeral agreement, the seller shall provide the funeral goods and funeral services set forth in such prearranged funeral agreement without regard to the actual cost of such funeral goods and funeral services prevailing at the time of performance under such prearranged funeral agreement;
(e) if the prearranged funeral agreement is a non-guaranteed contract, a disclosure that the proceeds of the trust, insurance policy, or annuity shall be applied to the retail prices in effect at the time of the funeral for the funeral goods and funeral services set forth in the prearranged funeral agreement and that in the event of an insufficiency of funds, the seller shall not be required to perform under such prearranged funeral agreement until payment arrangements satisfactory to the seller have been made;
(f) a disclosure that any excess funds remaining after the payment of funeral goods and services shall be paid to the estate of the purchaser or the beneficiary named in the life insurance policy if the prearranged funeral agreement is funded by a life insurance policy. If the deceased was a recipient of medical assistance, the balance of unused funds shall be paid to the Kansas department for children and families to the extent of medical assistance expended;
(g) if the prearranged funeral agreement is irrevocable, a disclosure that the purchaser does not have a right to revoke the contract; and
(h) a disclosure that the seller may substitute funeral goods or funeral services of equal quality, value, and workmanship if those specified in the prearranged funeral agreement are unavailable at the time of need.
History: L. 2010, ch. 47, § 1; L. 2014, ch. 115, § 12; July 1.
If a prearranged funeral agreement is funded by any means other than an insurance policy or annuity, such prearranged funeral agreement shall include all of the following information in addition to the information required to be included under K.S.A. 16-312, and amendments thereto:
(a) A disclosure identifying the name and address of the bank, credit union, savings and loan association, or the trustee of the funeral trust the funds are being deposited into; and
(b) a notice that reasonable fees and expenses may be deducted from the trust if a funeral trust established pursuant to K.S.A. 16-308, and amendments thereto, is being used.
History: L. 2010, ch. 47, § 2; January 1, 2011.
For the purposes of this act, the term "prearranged funeral agreement" shall mean any agreement, contract or plan authorized by K.S.A. 16-301, and amendments thereto.
History: L. 2010, ch. 47, § 3; January 1, 2011.
The following definitions shall apply to this act:
(a) "Preneed cemetery merchandise" means burial vaults, grave liners, grave boxes, urns, memorials, markers, vases, memorial vases, tombstones, undeveloped lawn crypts, niches and mausoleum spaces and any merchandise sold, used in, or delivered to cemeteries. Caskets, "burial spaces" as such term is defined in K.S.A. 17-1301c, and amendments thereto, and "preneed burial products or services" as such term is defined in subsection (f) shall not be deemed to be preneed cemetery merchandise.
(b) "Purchase price" means the gross amount, to be paid for preneed cemetery merchandise, preneed burial products or services under the provisions of a preneed merchandise contract. The purchase price does not include finance charges, sales tax, charges for real property interests or charges for credit life insurance or secretary of state contract fees.
(c) "Preneed merchandise contract" means any agreement for the sale of preneed cemetery merchandise or preneed burial products or services by a cemetery corporation which requires payment of the purchase price, in whole or in part, prior to delivery of the preneed cemetery merchandise or preneed burial products or services, which agreement is entered into from and after the effective date of this act.
(d) "Cemetery corporation" means any individual or entity required to maintain permanent maintenance funds under the provisions of K.S.A. 17-1312f, and amendments thereto.
(e) "Funding requirement" means that portion of the purchase price equal to 50% of the retail price f.o.b. to the cemetery corporation of preneed cemetery merchandise, as defined in subsection (a) of this section, described in the preneed merchandise contract, and 100% of the retail price of any preneed burial product or service, as defined in subsection (f) of this section, including distributable earnings.
(f) "Preneed burial products or services" means any casket or service incidental to the burial of a body or the placement of a memorial, marker, vase, or tombstone.
(g) "Cemetery merchandise trust fund" means a special purpose trust fund required to administer payments received from the sale of preneed cemetery merchandise, preneed burial products or services.
(h) "Distributable earnings" means income and capital gains, less any reasonable costs incurred in serving as trustee, including a reasonable fee for services and applicable taxes and costs. Distributable earnings shall be allocated as required by K.S.A. 16-321, and amendments thereto.
(i) "Trustee" means:
(1) A bank, savings and loan association, savings bank or credit union organized under the laws of this state with the authority to provide trust services;
(2) a federally chartered bank, savings and loan association, savings bank or credit union having a physical location within the state of Kansas and the authority to provide trust services; or
(3) a trust company organized under the laws of this state.
History: L. 1982, ch. 96, § 1; L. 1987, ch. 77, § 1; L. 2011, ch. 78, § 5; L. 2014, ch. 118, § 1; July 1.
(a) Any cemetery corporation entering into any preneed merchandise contract shall establish and maintain a cemetery merchandise trust fund under K.S.A. 16-322, and amendments thereto. The primary purpose of the cemetery merchandise trust fund is to maintain the corpus of the trust fund with the goal that the growth of the corpus will be at least equal to the wholesale costs of the preneed cemetery merchandise or preneed burial products or services, at the time of delivery or need.
(b) All preneed cemetery merchandise contracts shall be in writing.
(c) A cemetery corporation entering into a preneed merchandise contract that allows the purchaser to make installment payments shall be entitled to retain all purchaser payments until an amount equal to 25% of the purchase price of preneed cemetery merchandise is received, and thereafter, shall deposit 100% of each payment into the cemetery merchandise trust fund until the funding requirement has been deposited.
(d) If a cemetery corporation enters into an installment preneed merchandise contract that includes burial spaces, any payment received from the purchaser shall be allocated first to the permanent maintenance fund as required by K.S.A. 17-1301c and K.S.A. 17-1311, and amendments thereto. Once the burial spaces have been paid in full, then the preneed cemetery merchandise and preneed burial products or services shall be funded as required by subsection (c).
(e) Deposits to the cemetery merchandise trust fund shall be made within 30 days following the end of each calendar month after the moneys are received.
(f) Within 30 days following the end of each quarter, the cemetery corporation shall provide the trustee and the secretary of state a report detailing the transactions of the previous quarter. The report shall be in a form and manner approved by the secretary of state and shall include the following:
(1) All sales of preneed cemetery merchandise, preneed burial products and preneed services.
(2) All verified deliveries of preneed cemetery merchandise, preneed burial products and preneed services along with any request for distribution from the trustee.
(3) If no sales or deliveries transpired during the reporting quarter, the report shall be filed showing zero sales or zero deliveries.
(g) Within 30 days following the end of each quarter, the trustee shall provide the secretary of state a report of all deposits to and distributions from the cemetery merchandise trust fund. The report shall be in a form and manner approved by the secretary of state and shall include the total amount of the deposits, distributions and the name and contact information of the trust officer in charge of the account.
(h) At least annually, as of December 31, the trustee of the merchandise trust fund shall allocate the distributable earnings to all preneed cemetery merchandise, preneed burial products or services for which funds are then held in a cemetery merchandise trust fund. The trustee may, at the request of the cemetery, allocate the distributable earnings on a regular basis more often than annually and in which case the calculation of the distributable earnings shall be filed quarterly on December 31, March 31, June 30 and September 30 of each year in a form and manner approved by the secretary of state.
(i) The cemetery corporation shall provide the secretary of state a copy of all trust instruments. The cemetery corporation shall obtain prior written approval from the secretary of state before the trust instrument shall be terminated, transferred or amended. The cemetery corporation shall provide the secretary of state copies of any amendments to the trust instrument before the amendments shall become effective.
(j) Fees not to exceed $30 may be charged and collected by the secretary of state on each preneed merchandise contract for preneed cemetery merchandise, preneed burial products or services sold on or after January 1, 2011. Any such fees shall be forwarded on a quarterly basis to the secretary of state, in a form and manner approved by the secretary. The secretary of state shall promulgate rules and regulations fixing the fees to be charged and collected. On and after the effective date of this act any such fees collected shall be deposited in the cemetery maintenance and merchandise fee fund in the state treasury.
History: L. 1982, ch. 96, § 2; L. 2011, ch. 78, § 6; L. 2014, ch. 118, § 2; July 1.
(a) The cemetery merchandise trust fund must be maintained with a trustee as defined in K.S.A. 16-320, and amendments thereto. The trustee may appoint one or more agents to provide administrative or investment advisory services, provided the trustee shall not assign or delegate the liability and fiduciary responsibilities owed to the cemetery merchandise trust fund to another financial institution or agent. Nothing in this act shall prohibit a trustee, as defined in K.S.A. 16-320, and amendments thereto, from entering into a co-trustee relationship with another trustee, who would not independently satisfy the requirements of that section provided the co-trustee: (1) Is authorized to do business in Kansas; and (2) submits personally to the jurisdiction of the courts of this state. Under no circumstances shall any trustee assign or delegate their liability or fiduciary responsibilities under the cemetery merchandise trust act. Both trustees and co-trustees are jointly and severally liable for the actions of the trustee. All contractual agreements shall be subject to, governed by, and construed according to the laws of the state of Kansas. Deposits to such fund shall be carried in the name of the cemetery corporation and the amounts deposited therein may be commingled, provided that the accounting records establish a separate account for each item of preneed merchandise. Subject to the requirements of subsections (a) through (f) of K.S.A. 58-24a02, and amendments thereto, the trustee shall invest the trust funds. The trustee may recover from the earnings of the cemetery merchandise trust fund for all reasonable costs incurred in serving as trustee, including a reasonable fee for its services. The taxes and costs may be paid from earnings of the fund prior to the allocation of earnings to the preneed cemetery merchandise or preneed burial products or services.
(b) No part of the moneys required by K.S.A. 16-321, and amendments thereto, to be held under a preneed merchandise contract shall ever be used for any purpose other than investment until delivery of the merchandise is made. With respect to any cemetery merchandise which is not affixed to real property, delivery shall occur when physical possession is tendered to the purchaser, and a bill of sale, storage or similar instrument of title is delivered to the purchaser. With respect to cemetery merchandise which is affixed to realty, delivery shall occur when construction or permanent installation of the merchandise has been completed. Upon delivery of the preneed cemetery merchandise or preneed burial products or services, the cemetery corporation shall present the trustee with a verified statement, in a form and manner approved by the secretary of state under subsection (e) of K.S.A. 16-321, and amendments thereto, that delivery has been made. Upon such presentation the trustee shall pay the cemetery corporation an amount equal to the market value allocated to preneed cemetery merchandise or preneed burial products or services delivered.
(c) The trust instrument shall be effective upon written approval by the secretary of state and compliance with this section, unless it is determined by a court of law that the underlying trust instrument is in conflict with Kansas statutes, then that portion of the underlying trust instrument becomes null and void and shall be of no further force or effect. The trust instrument is in compliance with this section if the following is provided to the secretary of state:
(1) The names of the trustee and the cemetery corporation as trustor.
(2) The trustee shall submit a quarterly report to the secretary of state. The report shall be in a form and manner prescribed by the secretary of state and shall contain the following:
(A) Deposits;
(B) withdrawals;
(C) all interest, dividends, and income earned; and
(D) capital gains or capital losses.
(3) Within 60 days following December 31 of each year, the trustee shall report the allocation of distributable earnings to the secretary of state in a form and manner prescribed by the secretary of state.
(4) The trustee shall use deposit and withdrawal forms approved by the secretary of state.
(5) The trustee shall invest the trust funds subject to the requirements of subsections (a) through (f) of K.S.A. 58-24a02, and amendments thereto. Control of the trust funds by the trustor is prohibited.
(6) By accepting the trusteeship of the cemetery merchandise trust fund, the trustee submits personally to the jurisdiction of the courts of this state. All contractual agreements shall be subject to, governed by, and construed according to the laws of the state of Kansas.
(7) The trustee shall sign an affirmation under penalty of perjury, declaring the trustee has read, understands, and agrees to comply with the requirements of K.S.A. 16-320 et seq., and amendments thereto.
History: L. 1982, ch. 96, § 3; L. 1989, ch. 48, § 75; L. 1994, ch. 34, § 1; L. 2011, ch. 78, § 7; January 1, 2012.
(a) Misuse of the cemetery merchandise trust fund or any money belonging thereto is knowingly using, investing, lending or permitting another to use moneys in the fund in a manner not authorized by law.
(b) Misuse of the cemetery merchandise trust fund is a severity level 7, nonperson felony.
History: L. 1982, ch. 96, § 4; L. 2011, ch. 78, § 8; January 1, 2012.
History: L. 1982, ch. 96, § 5; L. 1989, ch. 48, § 76; L. 1994, ch. 34, § 2; L. 2001, ch. 75, § 5; Repealed, L. 2011, ch. 78, § 24; January 1, 2012.
(a) The secretary of state, or the secretary's representative, shall, while auditing each cemetery corporation, pursuant to K.S.A. 17-1312a, and amendments thereto, audit the cemetery merchandise trusts required by this act, and approve the trustee's determination of the distributable earnings period. For such purposes, the secretary of state or the secretary's representative, is authorized to administer oaths and to examine under oath the directors, officers, employees and agents of any cemetery corporation. Such examination may be reduced to writing by the person taking it and the examiner may make findings as to the condition of each trust fund examined. For the purposes of such audits, the secretary of state may also require the trustee to furnish and submit the books, records, papers and instruments of such cemetery corporation. The secretary of state shall be authorized to obtain trust accounting records from the trustee.
(b) The secretary of state shall promulgate rules and regulations for the purpose of oversight and audit of the cemetery merchandise trust fund.
History: L. 1982, ch. 96, § 6; L. 1988, ch. 94, § 4; L. 2011, ch. 78, § 9; January 1, 2012.
(a) In the event the secretary of state determines that moneys have been improperly paid by the trustee to the cemetery corporation during the period covered by the audit, then the secretary may order the cemetery corporation to redeposit to the trust such moneys improperly withdrawn within 60 days.
(b) The attorney general, at the request of the secretary of state, may initiate an action for an accounting of the cemetery merchandise trust fund by the trustee.
(c) If it is determined that the cemetery merchandise trust fund is underfunded due to inadequate deposits or unauthorized distributions, the cemetery corporation may propose and implement a plan for correcting the fund's deficiencies, subject to the approval of the secretary of state.
(d) In addition to other provisions and authority granted under law, the secretary of state shall have the authority to equitably resolve the results of an audit.
History: L. 1982, ch. 96, § 7; L. 2010, ch. 82, § 2; April 15.
The attorney general, at the request of the secretary of state may initiate an action to recover payments required to be redeposited to the trust under K.S.A. 16-326, or to recover other moneys received or disbursed in violation of this act. In addition, the attorney general may seek to enjoin any violation of the act.
History: L. 1982, ch. 96, § 8; January 1, 1983.
All funds held in a cemetery merchandise trust shall not be subject to attachment, garnishment or other legal process, nor be seized, taken, appropriated or applied to pay any debt or liability of the cemetery corporation, buyer or beneficiary, by any legal or equitable process or by operation of law.
History: L. 1982, ch. 96, § 9; L. 2011, ch. 78, § 10; January 1, 2012.
No cemetery corporation shall enter into any preneed merchandise contract until such corporation has filed with the secretary of state a notification of its intention to sell and engage in such preneed merchandise contracts. Such notice shall include the name of the cemetery corporation, its principal place of business and the name and address of the trustee or trustees to be utilized under the provisions of this act.
Accounting records and information required by this act shall be maintained in a form and manner approved by the secretary of state. A report of the merchandise trust fund shall be required as part of the corporation's quarterly report on a form provided or approved by the secretary of state.
History: L. 1982, ch. 96, § 10; L. 2011, ch. 78, § 11; L. 2014, ch. 118, § 3; July 1.
Whenever any officer of any cemetery corporation refuses to submit the books, records, papers and instruments of such cemetery corporation to the examination and inspection of the secretary of state, or of any of the secretary's assistants or examiners, or in any manner obstruct or interfere with the examination or audit of its cemetery merchandise trust fund or any audit made pursuant to subsection (d) of K.S.A. 16-321, or refuse to be examined on oath concerning any of the affairs of its cemetery merchandise trust fund, the secretary of state may request the attorney general to institute proceedings for the appointment of a receiver for such cemetery corporation.
History: L. 1982, ch. 96, § 11; January 1, 1983.
Any cemetery corporation which refuses or neglects to establish or maintain a cemetery merchandise trust fund, in accordance with the requirements of this act for a period of 60 days after written demand to do so is made upon it by the secretary of state, shall be deemed to have forfeited its cemetery corporation. The attorney general, upon the request of the secretary of state, shall then begin an action for the appointment of a receiver for such cemetery corporation and to dissolve the same.
History: L. 1982, ch. 96, § 12; L. 2011, ch. 78, § 12; January 1, 2012.
Any cemetery corporation entering into a preneed cemetery merchandise contract shall provide in such contract that:
(a) A purchaser, under a preneed cemetery merchandise contract covered in this act who permanently moves to another state in the United States, may direct that the merchandise, so long as the same is not a part of nor affixed to real estate, be delivered to a cemetery in the state of the purchaser's residence, except that the purchaser may be required to pay the additional transportation costs which exceed those the cemetery would have incurred to provide and deliver the merchandise to the seller cemetery; or
(b) a purchaser who has entered into a preneed cemetery merchandise contract covered by this act may, upon the purchaser permanently changing residence to a place more than 150 miles from the cemetery, cancel the contract upon written notice to the cemetery, which notice shall then be forwarded by the cemetery to the trustee of the cemetery merchandise trust fund. Upon receipt of such notice, the preneed cemetery merchandise contract shall be cancelled, and the trustee, after deducting that contract's share of applicable costs and taxes provided for in K.S.A. 16-322, and amendments thereto, shall pay to the purchaser not less than 85% of the funds held in trust for the contract pursuant to this act. The balance shall be paid to the cemetery corporation and the trustee shall be discharged from further obligation as to such contract.
History: L. 1982, ch. 96, § 13; L. 2011, ch. 78, § 13; January 1, 2012.
Sales of preneed cemetery merchandise contracts or preneed burial products or services subject to this act shall be exempt from the provisions of K.S.A. 16-301 through 16-309, inclusive, and amendments thereto.
History: L. 1982, ch. 96, § 14; L. 2011, ch. 78, § 14; January 1, 2012.
(a) Cemetery corporations subject to this act shall file, in the office of the secretary of state, a copy of the agreement or document which establishes the trust between the cemetery corporation and the trustee.
(b) The trust agreement shall acknowledge all contractual agreements and shall be subject to, governed by, and construed according to K.S.A. 16-320 et seq., and amendments thereto.
History: L. 1994, ch. 229, § 1; L. 2011, ch. 78, § 15; January 1, 2012.
(a) Except as provided by this section, all information that the secretary of state shall gather or record in making an investigation and examination of any cemetery corporation, or the reporting by the cemetery corporation or the trustee, shall be deemed to be confidential information and shall not be disclosed by the secretary of state or any assistant, examiner or employee thereof, except to:
(1) Officers and the members of the board of directors of the cemetery corporation being audited;
(2) the attorney general, when in the opinion of the secretary of state the same should be disclosed; and
(3) the appropriate official for the municipality in which the cemetery resides when in the opinion of the secretary of state the same should be disclosed.
(b) Upon request, the secretary of state may disclose to any person whether a cemetery corporation maintains a cemetery merchandise trust fund under K.S.A. 16-322, and amendments thereto, and whether such funds are maintained in compliance with the provisions of such laws.
(c) This section shall be a part of and supplemental to article 3 of chapter 16 of the Kansas Statutes Annotated, and amendments thereto.
History: L. 2011, ch. 78, § 1; L. 2016, ch. 82, § 4; L. 2021, ch. 82, § 5; July 1.
(a) There is hereby created the cemetery maintenance and merchandise fee fund in the state treasury. The secretary of state shall remit all moneys received from fees and charges under this section, and amendments thereto, to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the cemetery maintenance and merchandise fee fund.
(b) All expenditures from the cemetery maintenance and merchandise fee fund shall be in accordance with appropriations acts upon warrants of the director of accounts and reports issued pursuant to vouchers approved by the secretary of state or by a person or persons designated by the secretary.
History: L. 2011, ch. 78, § 4; January 1, 2012.
History: L. 1955, ch. 135, § 1; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 2; L. 1963, ch. 133, § 1; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 3; L. 1959, ch. 332, § 2; L. 1963, ch. 133, § 2; L. 1965, ch. 458, § 1; L. 1967, ch. 443, § 1; L. 1973, ch. 85, § 133; L. 1974, ch. 361, § 58; L. 1978, ch. 308, § 42; L. 1980, ch. 251, § 2; L. 1981, ch. 299, § 43; L. 1982, ch. 347, § 10; L. 1988, ch. 331, § 5; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1955, ch. 135, § 4; L. 1969, ch. 112, § 55; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 5; L. 1965, ch. 147, § 2; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 6; L. 1956, ch. 52, § 4; L. 1957, ch. 431, § 3; L. 1963, ch. 398, § 4; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, §§ 7–9; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 10; L. 1965, ch. 147, § 3; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 11; L. 1969, ch. 112, § 53; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 12; L. 1963, ch. 133, § 3; L. 1969, ch. 112, § 54; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 13; L. 1963, ch. 134, § 1; L. 1968, ch. 318, § 1; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 14; L. 1963, ch. 133, § 4; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, §§ 15–24; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 28; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1955, ch. 135, § 29; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, § 1 (Special Session); Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, § 2 (Special Session); L. 1969, ch. 112, § 50; L. 1969, ch. 113, § 3; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, § 3 (Special Session); L. 1963, ch. 398, § 5; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, §§ 4, 5 (Special Session); Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, § 6 (Special Session); L. 1965, ch. 148, § 1; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, § 7 (Special Session); L. 1969, ch. 112, § 51; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, § 8 (Special Session); L. 1969, ch. 112, § 52; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, § 9 (Special Session); L. 1965, ch. 148, § 2; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, §§ 10, 11 (Special Session); Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, § 12 (Special Session); L. 1961, ch. 116, § 1; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1958, ch. 9, §§ 13, 14 (Special Session); Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1961, ch. 117, § 2; L. 1981, ch. 90, § 1; L. 1982, ch. 91, § 1; L. 1983, ch. 77, § 1; L. 1987, ch. 78, § 1; L. 1992, ch. 88, § 1; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, § 2; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, § 12; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, § 15; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, §§ 3–11; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, §§ 13, 14; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, § 16; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, § 26; Repealed, L. 1992, ch. 88, § 6; April 23.
History: L. 1987, ch. 78, § 27; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, §§ 28, 29; L. 1992, ch. 88, §§ 2, 3; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 3; L. 1981, ch. 90, § 2; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, §§ 4–7; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 8; L. 1981, ch. 90, § 3; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 9; L. 1981, ch. 90, § 4; L. 1982, ch. 91, § 2; L. 1983, ch. 77, § 2; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 10; L. 1963, ch. 135, § 2; L. 1973, ch. 309, § 4; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, §§ 11–14; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 15; L. 1981, ch. 90, § 5; L. 1988, ch. 356, § 46; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 16; Repealed, L. 1986, ch. 318, § 146; July 1.
History: L. 1961, ch. 117, § 17; L. 1981, ch. 90, § 6; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 18; L. 1981, ch. 90, § 7; Repealed, L. 1986, ch. 318, § 146; July 1.
History: L. 1961, ch. 117, § 19; L. 1981, ch. 90, § 8; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 20; L. 1981, ch. 90, § 9; L. 1992, ch. 88, § 4; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, §§ 21, 22; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 23; L. 1981, ch. 90, § 10; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 24; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 25; L. 1981, ch. 90, § 11; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 26; L. 1981, ch. 90, § 12; L. 1986, ch. 318, § 19; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, §§ 27–29; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1961, ch. 117, § 30; L. 1981, ch. 90, § 13; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1963, ch. 135, § 1; L. 1981, ch. 90, § 14; L. 1982, ch. 91, § 3; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1981, ch. 90, § 15; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, § 20; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, §§ 17–19; L. 1994, ch. 291, §§ 10–12; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, §§ 21–24; L. 1993, ch. 291, §§ 8–11; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1987, ch. 78, § 25; L. 1994, ch. 291, § 13; Repealed, L. 1999, ch. 166, § 12; July 1.
History: L. 1981, ch. 87, §§ 1–9; Repealed, L. 1995, ch. 58, § 1; July 1.
History: L. 1981, ch. 87, § 10; L. 1992, ch. 88, § 5; Repealed, L. 1995, ch. 58, § 1; July 1.
History: L. 1981, ch. 87, § 11; Repealed, L. 1995, ch. 58, § 1; July 1.
History: L. 1981, ch. 87, § 12; L. 1986, ch. 318, § 20; Repealed, L. 1995, ch. 58, § 1; July 1.
History: L. 1981, ch. 87, §§ 13–20; Repealed, L. 1995, ch. 58, § 1; July 1.
History: L. 1967, ch. 118, §§ 1–5; Repealed, L. 1972, ch. 51, § 18; July 1.
As used in this act:
(a) (1) "Pawnbroker" means any person who loans money on deposit or pledge of personal property or other valuable thing, other than intangible personal property, or who deals in the purchase of personal property on the condition of selling the same back again at a stipulated price.
(2) "Pawnbroker" does not include any person operating under the supervision of the state banking commissioner, credit union administrator or the consumer credit commissioner of this state.
(b) "Person" means any individual, firm, company, partnership, corporation or association.
(c) "Precious metal" means gold, silver or platinum group metals or any used articles or other used personal property containing such metals, but shall not include coins purchased for their numismatic value rather than their metal content or ingots or other industrial residue or by-products composed of such metals purchased from manufacturing firms.
(d) "Precious metal dealer" means any person who engages in the business of purchasing precious metal for the purpose of reselling such metal in any form.
History: L. 1972, ch. 51, § 1; L. 1981, ch. 91, § 1; L. 1981, ch. 92, § 1; July 1.
(a) No person shall engage or continue in business as a pawnbroker or precious metal dealer without first obtaining a license therefor. If the person's place of business is inside the corporate limits of any city of the first or second class, the person shall obtain such license from the clerk of such city. If the person's place of business is outside the corporate limits of any such city, the person shall obtain such license from the county clerk of the county in which the person's place of business is located.
(b) Application for a license shall be in writing and shall state the full name and place of residence of the applicant. If the applicant is a partnership, the application shall contain the name and place of residence of each member thereof or, if a corporation or association, of each officer, shareholder or member thereof. The application shall include the address of the places where the business is to be conducted, the hours and days of the week during which the applicant proposes to engage in the business of pawnbroking or dealing in precious metals at each such place, and such other information as may be necessary to determine the applicant's qualifications for a license in accordance with the provisions of this act. Each applicant also shall submit with the application:
(1) A statement that the applicant is the holder of a valid registration certificate issued by the director of revenue pursuant to K.S.A. 79-3608 for each place of business for which application for a license is made; and
(2) a detailed inventory and description of all goods, wares, merchandise, precious metals or other property held in pledge or for sale at the time of the application at each place of business stated therein, indicating whether the same was received in pledge, purchased as secondhand merchandise or precious metal purchased for resale.
(c) The license application shall be in a form approved by the attorney general. Each application shall be accompanied by a fee of $25 which shall be paid annually upon renewal of the license. All such fees received by the city clerk shall be deposited in the city general fund, and all such fees received by the county clerk shall be deposited in the county general fund.
History: L. 1972, ch. 51, § 2; L. 1981, ch. 91, § 2; July 1.
No license or any renewal thereof shall be granted to: (a) Any person who is not a citizen of the United States;
(b) Any person who has not been an actual resident of the state of Kansas for at least two (2) years immediately preceding the date of his application;
(c) Any person who has been convicted of or has pleaded guilty to a felony under the laws of this state, or any other state, or of the United States, or shall have forfeited his bond to appear in court to answer charges for any such offense within the ten (10) years immediately prior to such person's application for a license;
(d) Any person who has had his license revoked for cause under the provisions of this act;
(e) Any person who is not at least twenty-one (21) years of age;
(f) Any person who at the time of application for renewal of any license issued hereunder would not be eligible for such license upon a first application;
(g) Any person who does not own the premises for which a license is sought, unless he has a written lease therefor for at least three-fourths of the period for which the license is to be issued;
(h) Any person whose spouse would be ineligible to receive a license hereunder for any reason other than the age, citizenship and residence requirements;
(i) Any partnership, unless all of the partners shall be eligible to receive a license as an individual; and
(j) A corporation, if any officer, manager, director or stockholder would be ineligible to receive a license as an individual.
History: L. 1972, ch. 51, § 3; July 1.
It shall be unlawful for any shareholder of a corporate licensee to transfer any stock in said corporation to any person who would be ineligible to receive a license as an individual, and any such transfer shall be null and void: Provided, That if any such stockholder of a corporate licensee shall become deceased, and his heirs or devisees to whom said stock descends by descent and distribution or by will shall be ineligible to receive a license hereunder, then the legal representatives of said deceased stockholder's estate, his heirs and devisees shall have fourteen (14) months from the date of the death of said stockholder within which to sell said stock to a person eligible to receive a license hereunder, with such sale to be made in accordance with the provisions of the probate code and any amendments thereto. If said legal representatives, heirs and devisees shall fail, refuse or neglect to so convey said stock within the time hereinbefore prescribed, then said stock shall revert to and become the property of the corporation, for which the corporation shall pay to said legal representatives, heirs or devisees the book value of such stock. If the stock in any corporation shall be the subject of any trust heretofore or hereafter created, the trustee or trustees and the beneficiaries of each trustee and beneficiary of said trust who is twenty-one (21) years of age or older must be a person who would be eligible to receive a license, or the trustee shall be and he is hereby authorized and required, within fourteen (14) months after the effective date of the trust, to sell said stock to a person eligible to receive a license under this act, and he shall hold and disburse the proceeds thereof in accordance with the terms of the trust, or the license of the corporation shall be forfeited.
During the fourteen-month periods hereinbefore mentioned, a corporation shall not be denied a license or have its license revoked if it meets all of the other requirements necessary to have a license as provided in this act.
History: L. 1972, ch. 51, § 4; July 1.
The document or other instrument evidencing the license of a pawnbroker or precious metal dealer shall state the address at which the business is to be conducted and shall state fully the name of the licensee. If the licensee is a partnership, the license shall state the names of the members thereof and, if a corporation, the date and place of its incorporation and the names of all shareholders thereof. Such license shall be kept conspicuously posted in the place of business of the licensee and shall not be transferable or assignable. Not more than one place of business shall be maintained under the same license, but more than one license may be issued to the same licensee upon compliance with all the provisions of this act governing the issuance of an initial license.
History: L. 1972, ch. 51, § 5; L. 1981, ch. 91, § 3; July 1.
Whenever a licensee shall change his place of business to another location within the same political subdivision by which he is licensed, he immediately shall give written notice thereof to the clerk of such subdivision who then shall issue a duplicate license which shall show, in addition to all of the information appearing on the old license, a record of the change of location and the date thereof, which new license shall be authority for the operation of such business under such license at such location. The licensee shall return the old license to the appropriate clerk as soon as the new license has been received and the change in location has taken place. No change in the place of business of a licensee to a location outside of the licensing subdivision shall be permitted under the same license.
History: L. 1972, ch. 51, § 6; July 1.
Each licensee shall keep and use in the licensee's business such books, accounts and records as will enable the city or county issuing the licensee's license to determine whether such licensee is complying with the provisions of this act. Any such city or county may examine or cause to be examined the books, accounts, records and files used by any licensee or by any other person engaged in the business of pawnbroking or dealing in precious metals, irrespective of whether such person acts or claims to act as principal, agent or broker, or under or without authority of this act. The duly designated representatives of the city or county shall have and be given free access to all such books, accounts, papers, records, files, safes and vaults.
History: L. 1972, ch. 51, § 7; L. 1973, ch. 87, § 1; L. 1981, ch. 91, § 4; July 1.
Any license issued under this act may be suspended or revoked, after due notice and public hearing, if the licensee:
(a) Has failed to pay the annual license fee;
(b) has violated any provision of this act; or
(c) has been convicted of or has pleaded guilty to a felony under the laws of this state, or any other state, or of the United States, or shall have forfeited his bond to appear in court to answer charges for any such offense, if such conviction or plea occurred subsequent to or within the ten (10) years immediately prior to the date of the licensee's application for the license.
Any license issued under this act shall be revoked, after due notice and hearing thereon, if it shall be proved at the hearing that the licensee sold any handgun to a minor.
Said hearing herein provided shall be held within thirty (30) days after notice thereof, and the alleged violation determined by written order of the city or county issuing the license within sixty (60) days after such hearing is concluded; but no revocation or suspension or surrender of any license shall impair or affect the obligation of any preexisting lawful contract between the licensee and any borrower.
History: L. 1972, ch. 51, § 8; July 1.
Every loan made by a pawnbroker for which goods are received in pledge as security shall be evidenced by a written contract, in ink, a copy of which shall be furnished to the borrower. The loan contract shall set forth the loan period, which shall be one (1) month, the date on which the loan is due and payable and the charges, and it shall clearly inform the borrower of his right to redeem the pledge during the redemption period of two (2) months after due date. Except as otherwise provided herein, the holder of any such contract shall be presumed to be the person entitled to redeem the pledge, and the pawnbroker shall deliver the pledge to the person presenting the contract, upon payment of the principal and charges.
Every pawnbroker shall retain in his possession, after the date on which the loan became due and payable, every article pledged to him for a redemption period of two (2) months. During such period, the borrower may redeem the pledged articles, upon payment of the principal and charges. It shall be unlawful for any pawnbroker to sell or transfer title or possession of any pledged property until the expiration of such period of redemption.
If any pledged article is not redeemed within such redemption period, the pawnbroker shall become vested with all right, title and interest of the pledgor, or his assigns, to such pledged article, to hold and dispose of as his own property. Any other provision of law relating to the foreclosure and sale of pledges shall not be applicable to any pledge, the title to which is transferred in accordance with this section.
History: L. 1972, ch. 51, § 9; July 1.
(a) On or before Tuesday of each week, or at more frequent intervals if required by city ordinance or county resolution, every pawnbroker or precious metal dealer shall report the description of all property received in pledge or purchased as a pawnbroker or precious metal dealer during the preceding calendar week, in whatever quantity received. Such report shall include all property purchased as secondhand merchandise at wholesale, secondhand merchandise taken in for sale or possessed on consignment for sale and secondhand merchandise taken in trade. No such report need be made concerning property or merchandise acquired from another pawnbroker or precious metal dealer licensed in this state in a transaction involving the purchase or other acquisition from the other pawnbroker or precious metal dealer of the other pawnbroker's or dealer's stock in trade, or a substantial part thereof in bulk, where the other pawnbroker has made the reports required by this section with respect to such property or merchandise.
(b) If a transaction required to be reported under this section takes place within the territorial limits of a city of the first or second class, the report shall be submitted to the chief of police of the city. If the transaction takes place outside the territorial limits of any such city, the report shall be submitted to the sheriff of the county in which the transaction takes place.
(c) All reports made pursuant to this section shall comply with and be submitted in accordance with the terms of any applicable city ordinances or county resolutions requiring such reporting.
(d) Every precious metal dealer shall retain in the dealer's possession for a period of 10 days all precious metal purchased as a precious metal dealer, and such metal shall remain in the condition in which it was purchased. The ten-day period shall commence on the date that the appropriate police chief or sheriff receives the report of its acquisition in compliance with this section. If the police chief or sheriff has probable cause to believe that any precious metal reported by a dealer has been stolen, the police chief or sheriff may give written notice to the dealer to retain such metal for an additional period of 15 days. Upon such notice, the dealer shall retain such metal in an unaltered condition for the additional fifteen-day period unless the police chief or sheriff notifies the dealer in writing that the waiting period is terminated at an earlier time.
(e) Reports made pursuant to this section shall be available for inspection only by law enforcement officers and county and district attorneys and their employees, for law enforcement purposes.
History: L. 1972, ch. 51, § 10; L. 1981, ch. 91, § 5; July 1.
(a) At the time of making a loan, a pawnbroker shall enter in a book kept for that purpose:
(1) The date, duration, amount and charges of every loan made by the pawnbroker;
(2) a full and accurate description of the property pledged; and
(3) the name, age, residence and driver's license or other personal identification number of the pledgor.
(b) At the time of purchasing precious metal, a precious metal dealer shall enter in a book kept for that purpose:
(1) The date of the purchase;
(2) a full and accurate description of each item purchased, including any identifying letters, numbers or marks on the item; and
(3) the name, age, residence and driver's license or other personal identification number of the seller.
(c) The record required by this section shall be maintained by the pawnbroker or precious metal dealer at the pawnbroker's or dealer's place of business for not less than one year following the date of the transaction.
History: L. 1972, ch. 51, § 11; L. 1981, ch. 91, § 6; July 1.
(a) No pawnbroker shall receive in pledge, or as security for any loan, transfer, service, undertaking or advantage, anything of value from any person under the age of 18 years.
(b) No precious metal dealer shall purchase any precious metal from any person under the age of 18 years.
History: L. 1972, ch. 51, § 12; L. 1981, ch. 91, § 7; July 1.
Law enforcement officers of a city or county shall have access during regular business hours to the place of business of any pawnbroker or precious metal dealer conducting business in the city or county. Access shall be for the purpose of periodically inspecting property pledged or purchased in the transaction of the business of the pawnbroker or precious metal dealer, and records relating to those transactions, to determine if the pawnbroker or dealer is complying with the provisions of this act.
History: L. 1972, ch. 51, § 13; L. 1981, ch. 91, § 8; L. 1982, ch. 92, § 1; April 8.
(a) No pawnbroker shall contract for, charge or receive directly or indirectly on or in connection with any pawnbroker transaction any charges, whether for interest, storage, insurance, service fee, handling, compensation, consideration or expense which in the aggregate are greater than the charges provided and authorized by this act. Any other provisions of law relating to interest, storage and such charges shall not be applicable to any pawnbroker transaction made in accordance with this act.
(b) Whenever any loan is made by a pawnbroker for which goods are received in pledge:
(1) A charge may be added in an amount not to exceed 10% per month or 120% per annum of the amount advanced to the borrower; and
(2) the amount of the loan shall not exceed $5,000.
(c) The term of any loan made under the provisions of this act shall be one month. Loans may be extended or renewed by the payment of the charges herein provided monthly. The charges authorized herein shall be deemed to be earned at the time the loan is made and shall not be subject to refund. On loans under this act, no insurance charges or any other charges of any nature whatsoever shall be permitted.
History: L. 1972, ch. 51, § 14; L. 1991, ch. 69, § 1; July 1.
(a) A precious metal dealer shall require of every person from whom the dealer purchases precious metal for resale:
(1) Proof of identification; and
(2) a signed statement saying that the seller is the legal owner of the precious metal or is an agent of the legal owner who is authorized to sell such metal and stating when, where and in what manner such metal was acquired by the seller.
(b) When converted or stolen property has been pawned or sold to a precious metal dealer and the pawnbroker or dealer refuses to redeliver such property to the rightful owner upon demand and presentation of a bill of sale or other proper evidence of ownership by the owner, and legal action by the rightful owner to recover the property becomes necessary, the court may assess the pawnbroker or dealer for reasonable attorneys' fees incurred by the rightful owner if the court finds that the pawnbroker or dealer wrongfully withheld the converted or stolen property.
History: L. 1972, ch. 51, § 15; L. 1981, ch. 91, § 9; July 1.
The violation of any provision of this act shall be a class B misdemeanor.
History: L. 1972, ch. 51, § 16; July 1.
Whenever he has reason to believe a violation of this act has occurred, the county attorney or any of his deputies shall prosecute every case to final judgment in the county wherein the alleged offense was committed.
History: L. 1972, ch. 51, § 17; July 1.
History: L. 1969, ch. 112, §§ 1–7; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1969, ch. 112, § 8; L. 1969, ch. 113, § 2; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1969, ch. 112, §§ 9–29; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1969, ch. 113, § 1; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
No credit card shall be issued, except in response to a request or application therefor. This prohibition does not apply to the issuance of a credit card in renewal of, or in substitution for, an accepted credit card.
History: L. 1972, ch. 209, § 1; July 1.
History:
L. 1972, ch. 209, § 2; L. 1983, ch. 78, § 1; Repealed, L. 2025, ch. 78, § 10; July 1.
History: 16-842.
Whoever, in a transaction affecting intrastate commerce, uses any counterfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit card to obtain goods or services, or both, having a retail value aggregating $5,000 or more, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
History: L. 1972, ch. 209, § 3; July 1.
As used in this act: (a) The term "adequate notice" means a printed notice to a cardholder which sets forth the pertinent facts clearly and conspicuously so that a person against whom it is to operate could reasonably be expected to have noticed it and understood its meaning. Such notice may be given to a cardholder by printing the notice on any credit card, or on each periodic statement of account, issued to the cardholder, or by any other means reasonably assuring the receipt thereof by the cardholder.
(b) The term "credit card" means any card, plate, coupon book or other credit device existing for the purpose of obtaining money, property, labor, or services on credit.
(c) The term "accepted credit card" means any credit card which the cardholder has requested and received or has signed or has used, or authorized another to use, for the purpose of obtaining money, property, or services on credit.
(d) The term "cardholder" means any person to whom a credit card is issued or any person who has agreed with the card issuer to pay obligations arising from the issuance of a credit card to another person.
(e) The term "card issuer" means any person who issues a credit card, or the agent of such person with respect to such card.
(f) The term "unauthorized use" means a use of a credit card by a person other than the cardholder who does not have actual, implied, or apparent authority for use and from which the cardholder receives no benefit.
History: L. 1972, ch. 209, § 4; July 1.
History: L. 1969, ch. 112, §§ 30–34; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
History: L. 1969, ch. 112, §§ 44–49; Repealed, L. 1973, ch. 85, § 158; January 1, 1974.
As used in this act:
(a) "Current model" means a model listed in the wholesaler's, manufacturer's or distributor's current sales manuals or any supplements thereto.
(b) "Current net price" means the price listed in the wholesaler's, manufacturer's or distributor's price list or catalogue in effect at the time the contract is cancelled or discontinued, less any applicable trade and cash discounts.
(c) "Net cost" means the price the retailer actually paid for the merchandise to the wholesaler, manufacturer or distributor, plus freight from the wholesaler's, manufacturer's or distributor's location to the retailer's location at carload (30,000 pounds) rates.
History: L. 1976, ch. 95, § 1; July 1.
(a) Whenever any person, firm or corporation engaged in the business of selling and retailing farm implements, machinery, attachments or repair parts therefor enters into a written or parol contract, sales agreement or security agreement evidenced by a franchise agreement whereby such retailer agrees to maintain a stock of parts or complete or whole implements, machines or attachments with any wholesaler, manufacturer or distributor of such implements, machinery, attachments or repair parts, and either such wholesaler, manufacturer or distributor or the retailer desires to cancel or discontinue the contract, such wholesaler, manufacturer or distributor shall pay to such retailer or credit to such retailer's account, if the retailer has outstanding any sums owing the wholesaler, manufacturer or distributor, unless the retailer should desire to keep such merchandise, a sum equal to 100% of the net cost of all new, unused, undamaged, complete farm implements, machinery and attachments and 95% of the current net prices on new, unused, undamaged repair parts, including superseded parts, which implements, machinery, attachments and parts had previously been purchased from such wholesaler, manufacturer, distributor or transferee of such wholesaler, manufacturer or distributor if the transferee acquired substantially all of the assets of such wholesaler, manufacturer or distributor, and held by such retailer on the date of the cancellation or discontinuance of such contract. The wholesaler, manufacturer or distributor shall also pay such retailer a sum equal to 5% of the current net price of all parts returned for the handling, packing and loading of such parts for return to the wholesaler, manufacturer or distributor, except that such 5% shall not be paid or credited to the retailer if the wholesaler, manufacturer or distributor elects to perform the handling, packing, loading and transportation of the parts itself. Upon the payment or allowance of credit to the retailer's account of the sum required by this section, the title to such farm implements, machinery, attachments and repair parts therefor shall pass to the manufacturer, wholesaler or distributor making such payment, and such manufacturer, wholesaler or distributor shall be entitled to the possession of such farm implements, machinery, attachments or repair parts. All payments or allowances of credit due retailers shall be paid or credited within 60 days after the return of implements, machinery, attachments or repair parts. After 60 days, all payments or allowances shall include interest at the rate prescribed by K.S.A. 16-204, and amendments thereto.
(b) The provisions of this section relating to a retailer's right to cancel or discontinue a contract and receive payment for implements, machines, attachments and parts returned shall apply to all contracts now in effect which have no expiration date and are a continuing contract, and all other contracts entered into or renewed after July 1, 1976. The provisions for a retailer to receive payment for implements, machines, attachments and parts returned shall apply only to implements, machines, attachments and parts purchased after the effective date of this act. Any contract in force and effect on July 1, 1976, which by its own terms will terminate on a date subsequent thereto shall be governed by the law as it existed prior to this act.
(c) The provisions of this section shall not be construed to affect in any way any security interest which the wholesaler, manufacturer or distributor may have in the inventory of the retailer, except that any repurchase hereunder shall not be subject to the provisions of the bulk sales law or to the claims of any secured or unsecured creditors of the wholesaler, manufacturer or distributor or any assignee of the wholesaler, manufacturer or distributor until such time the retailer has received payment in full subject to any offset the retailer may owe to the wholesaler, manufacturer or distributor.
History: L. 1976, ch. 95, § 2; L. 1987, ch. 79, § 1; L. 1989, ch. 71, § 1; L. 2000, ch. 84, § 1; July 1.
(a) The provisions of this act shall not require the repurchase from a retailer of:
(1) Any repair part which is in a broken or damaged package;
(2) any single repair part which is priced as a set of two or more items;
(3) any repair part which because of its condition is not resalable as a new part without repackaging or reconditioning;
(4) any farm implements, machinery, attachments or repair parts for which the retailer is unable to furnish evidence, satisfactory to the wholesaler, manufacturer or distributor, of clear title, free and clear of all claims, liens and encumbrances;
(5) any farm implements, machinery, attachments or repair parts which the retailer desires to keep, provided the retailer has a contractual right to do so;
(6) any farm implements, machinery and attachments which are not current models or which are not in new, unused, undamaged, complete condition;
(7) any repair parts which are not in new, unused, undamaged condition;
(8) any farm implements, machinery or attachments which were purchased prior to the beginning of the 24-month period immediately preceding the date of notification of termination;
(9) any farm implements, machinery, attachments or repair parts which were ordered by retailer on or after the date of notification of termination; or
(10) any farm implements, machinery, attachments or repair parts which were acquired by the retailer from any source other than the wholesaler, manufacturer, distributor or transferee of such wholesaler, manufacturer or distributor, unless such farm implements, machinery, attachments or repair parts were ordered from, invoiced to the retailer by or financed to the retailer by the wholesaler, manufacturer or distributor or transferee of such wholesaler, manufacturer or distributor.
(b) Any repair part which is not excluded from the repurchase obligations established under K.S.A. 16-1002 and 16-1005, and amendments thereto, by this section, as amended by this act, and the repurchase of which is in dispute on the effective date of this act shall be subject to the repurchase obligations established under K.S.A. 16-1002 and 16-1005, and amendments thereto.
History: L. 1976, ch. 95, § 3; L. 1987, ch. 79, § 2; L. 1989, ch. 72, § 1; L. 2002, ch. 67, § 1; July 1.
In the event that any manufacturer, wholesaler or distributor of farm implements, machinery, attachments or repair parts therefor, upon cancellation of a contract by either a retailer or a manufacturer, wholesaler or distributor, fails or refuses to make payment or allow credit to such retailer as required by K.S.A. 16-1002, and amendments thereto, such manufacturer, wholesaler or distributor shall be liable in a civil action to be brought by such retailer for the actual costs of the action, including attorney, paralegal and expert witness fees; for 100% of the net cost of such farm implements, machinery and attachments and 100% of the current net price of repair parts, plus 5% for handling, packing and loading plus freight charges which have been paid by the retailer.
History: L. 1976, ch. 95, § 4; L. 2000, ch. 84, § 2; July 1.
In the event of the death of the retail dealer or majority stockholder in a corporation operating a retail dealership in the business of selling and retailing farm implements, machinery, attachments or repair parts therefor, the wholesaler, distributor or manufacturer who supplied such merchandise shall repurchase from the heir or heirs of such retail dealer or majority stockholder such merchandise under the same terms and conditions as if the wholesaler, manufacturer or distributor had terminated the contract. Nothing in this act shall require the repurchase of any farm implements, machinery, attachments or repair parts therefor if the heir or heirs, and the wholesaler, manufacturer or distributor jointly agree to enter into a new contract to operate the retail dealership.
History: L. 1976, ch. 95, § 5; July 1.
If any section in this act or any part of any section shall be declared invalid or unconstitutional, such declaration of invalidity shall not affect the validity of the remaining portions thereof.
History: L. 1976, ch. 95, § 6; July 1.
(a) K.S.A. 16-1002, and amendments thereto, shall apply to the repurchase obligation of any wholesaler, manufacturer, distributor or transferee of any wholesaler, manufacturer or distributor who has filed on or files subsequent to the effective date of this act for protection from creditors pursuant to 11 United States Code 101 et seq.
(b) K.S.A. 16-1002, and amendments thereto, shall apply to the repurchase obligation of any wholesaler, manufacturer, distributor or transferee of any wholesaler, manufacturer or distributor who has a case pending on the effective date of this act for protection from creditors pursuant to 11 United States Code 101 et seq.
(c) This section shall be part of and supplemental to article 10 of chapter 16 of the Kansas Statutes Annotated.
History: L. 1989, ch. 71, § 2; April 20.
History: L. 1986, ch. 88, §§ 1–5; Repealed, L. 1989, ch. 73, § 9; July 1.
The purpose of this act is to prevent arbitrary or abusive conduct and to preserve and enhance the reasonable expectations for success in the business of distributing farm equipment.
History: L. 1986, ch. 2, § 1; July 1.
As used in this act:
(a) "Farm equipment" means equipment including, but not limited to, tractors, trailers, combines, tillage implements, bailers and other equipment, including attachments and repair parts therefor, used in planting, cultivating, irrigation, harvesting and marketing of agricultural products, excluding self-propelled machines designed primarily for the transportation of persons or property on a street or highway.
(b) "Farm equipment manufacturer" means any person, partnership, corporation, association or other form of business enterprise engaged in the manufacturing, assembly or wholesale distribution of farm equipment.
(c) "Farm equipment dealer" or "farm equipment dealership" means any person, partnership, corporation, association or other form of business enterprise engaged in the retail sale of farm equipment.
(d) "Dealership agreement" means an oral or written agreement of definite or indefinite duration between a farm equipment manufacturer and a farm equipment dealer which provides for the rights and obligations of the parties with respect to the purchase or sale of farm equipment.
History: L. 1986, ch. 2, § 2; July 1.
No farm equipment manufacturer, directly or through any officer, agent or employee may terminate, cancel, fail to renew or substantially change the competitive circumstances of a dealership agreement without good cause. For the purposes of this subsection, good cause means and includes the failure by a farm equipment dealer to substantially comply with essential and reasonable requirements imposed upon the dealer by the dealership agreement, provided such requirements are not different from those requirements imposed on other similarly situated dealers either by their terms or in the manner of their enforcement. In addition, good cause shall exist whenever:
(a) The farm equipment dealer has transferred an interest in the farm equipment dealership without the manufacturer's consent, or there has been a withdrawal from the dealership of an individual proprietor, partner, major shareholder, or the manager of the dealership, or there has been a substantial reduction in interest of a partner or major stockholder without the consent of the manufacturer;
(b) the farm equipment dealer has filed a voluntary petition in bankruptcy or has had an involuntary petition in bankruptcy filed against it which has not been discharged within 30 days after the filing, or there has been a closeout or sale of a substantial part of the dealer's assets related to the farm equipment business, or there has been a commencement of dissolution or liquidation of the dealer;
(c) there has been a change, without the prior written approval of the manufacturer, in the location of the dealer's principal place of business under the dealership agreement;
(d) the farm equipment dealer has defaulted under any chattel mortgage or other security agreement between the dealer and the farm equipment manufacturer, or there has been a revocation or discontinuance of any guarantee of the dealer's present or future obligations to the farm equipment manufacturer;
(e) the farm equipment dealer has failed to operate in the normal course of business for seven consecutive days or has otherwise abandoned its business;
(f) the farm equipment dealer has pleaded guilty to or has been convicted of a felony affecting the relationship between the dealer and manufacturer;
(g) the dealer has engaged in conduct which is injurious or detrimental to the dealer's customers or to the public welfare;
(h) the farm equipment dealer has consistently failed to meet the manufacturer's requirements for reasonable market penetration based on the manufacturer's experience in other comparable marketing areas.
History: L. 1986, ch. 2, § 3; July 1.
(a) Except as otherwise provided in this section, a farm equipment manufacturer shall provide a farm equipment dealer at least ninety-days' prior written notice of termination, cancellation or nonrenewal of the dealership agreement. The notice shall state all reasons constituting good cause for termination, cancellation or nonrenewal and shall provide that the dealer has 60 days in which to cure any claimed deficiency. If the deficiency is rectified within 60 days the notice shall be void. The notice and right to cure provisions under this section shall not apply if the reason for termination, cancellation or nonrenewal is for any reason set forth in subsections (a) through (h) of K.S.A. 16-1203, and amendments thereto.
(b) In the event that a farm equipment manufacturer has contractual authority to approve or deny a request by a farm equipment dealer to sell or transfer any portion the dealer's business ownership to another party or to enter into an agreement to operate the dealership with another party, the manufacturer shall approve or deny such a request within 90 days after receiving the request. If the manufacturer has neither approved nor denied the request within 90 days, the request shall be deemed approved. The farm equipment dealer's request shall include the reasonable financial information, personal background, character references and work histories as required by the manufacturer to render such a determination. In the event the manufacturer denies the request, the manufacturer shall provide the farm equipment dealer with a written notice of its determination with the stated reasons for the denial.
History: L. 1986, ch. 2, § 4; L. 1998, ch. 79, § 1; July 1.
(a) It is a violation of this act for a farm equipment manufacturer to coerce, or attempt to coerce, any farm equipment dealer to accept delivery of any farm equipment, parts or accessories therefor, which the farm equipment dealer has not voluntarily ordered.
(b) It is a violation of this act for a farm equipment manufacturer: (1) To condition, or attempt to condition, the sale of any farm equipment on a requirement that the farm equipment dealer also purchase other goods or services; except that nothing herein shall prohibit a farm equipment manufacturer from requiring the dealer to purchase all parts reasonably necessary to maintain the quality of operation in the field of any farm equipment used in such dealer's trade area; (2) to coerce or attempt to coerce any farm equipment dealer into a refusal to purchase the farm equipment manufactured by another farm equipment manufacturer; or (3) to discriminate in the prices charged for farm equipment of like grade and quality sold by the farm equipment manufacturer to similarly situated farm equipment dealers, except that nothing herein shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale or delivery resulting from the differing methods or quantities in which such farm equipment is sold or delivered, by the farm equipment manufacturer.
History: L. 1986, ch. 2, § 5; July 1.
Any term of a dealership agreement, either expressed or implied, which is inconsistent with the terms of this act shall be void and unenforceable and shall not waive any rights which are provided to any person by this act.
History: L. 1986, ch. 2, § 6; July 1.
If any farm equipment manufacturer violates any provision of this act, a farm equipment dealer may bring an action against such manufacturer in any court of competent jurisdiction for damages sustained by the dealer as a consequence of the manufacturer's violation, together with the actual costs of the action, including reasonable attorney fees, and the dealer also may be granted injunctive relief against unlawful termination, cancellation, nonrenewal or substantial change of competitive circumstances. The remedies set forth in this section shall not be deemed exclusive and shall be in addition to any other remedies permitted by law including proceedings under the Kansas consumer protection act.
History: L. 1986, ch. 2, § 7; July 1.
This act may be cited as the Kansas agricultural equipment dealership act.
History: L. 1986, ch. 2, § 8; July 1.
The purpose of this act is to prevent arbitrary or abusive conduct and to preserve and enhance the reasonable expectations for success in the business of distributing outdoor power equipment. The retail distribution of outdoor power equipment, as defined in this act, utilizing independent retail businesses operating under agreements with suppliers, vitally affects the general economy of the state, public interest, and public welfare, and it is necessary to regulate the business relations between the independent retailers and the outdoor power equipment suppliers.
History: L. 1991, ch. 67, § 1; April 25.
As used in this act:
(a) "Outdoor power equipment" means and includes machinery, equipment, attachments or repair parts therefor, used for industrial, construction, maintenance or utility purposes.
(b) "Retailer" means any person, partnership, firm, corporation, association, or other form of business enterprise engaged in the business of:
(1) Selling or leasing outdoor power equipment to the ultimate consumer thereof; and
(2) repairing or servicing outdoor power equipment.
(c) "Contract" means either a written or parol agreement or arrangement for a definite or indefinite period between a retailer and a supplier which provides for the rights and obligations of the parties with respect to the purchase or sale of outdoor power equipment, and which agreement, regardless of the retailer's territorial scope, contemplates the establishment or maintenance by the retailer of a location within the state of Kansas at which outdoor power equipment and services for the same are displayed, and offered or demonstrated for sale.
(d) "Net cost" means the amount of money actually paid by a retailer to the supplier.
(e) "Current net price" means the price listed in a supplier's price list or catalogue in effect on the date of termination of a contract, less any applicable trade and cash discounts.
(f) "Supplier" means any person, partnership, corporation, association, or any and all other forms of business enterprise engaged in the business of manufacturing, assembly or wholesale distribution of outdoor power equipment. The term "supplier" and the provisions of this act shall be interpreted liberally, with regard to the equities of the retailer, and in a manner not limited to traditional doctrines of corporate successor liability, and the obligations of a supplier hereunder shall consequently apply to any actual successor in interest to a supplier, including but not limited to, a purchaser of substantial assets or substantial stock, any receiver, trustee or assignee, or any surviving corporation resulting from a merger, liquidation or reorganization of the original or any intermediate successor supplier.
History: L. 1991, ch. 67, § 2; April 25.
(a) Whenever any retailer enters into a contract with a supplier and such supplier or retailer terminates, cancels, fails to renew, or in fact substantially discontinues such contract, such supplier shall pay to such retailer, or credit to such retailer's account, if and only to the extent that the retailer has outstanding sums owing the supplier, unless the retailer should desire to keep all or part of such merchandise, a sum equal to 100% of the net cost of all new, unused, undamaged and complete outdoor power equipment, including transportation charges which have been paid by such retailer, and 95% of the current net prices of new, unused and undamaged repair parts which had previously been purchased from such supplier preceding the date of notification of the termination, and held by such retailer on the date of the cancellation or discontinuance of such contract. The supplier also shall pay such retailer a sum equal to 5% of the current net price of all parts returned for the handling, packing and loading of such parts for return to the supplier, except that such 5% shall not be paid or credited to the retailer if the supplier elects to perform the handling, packing, loading and transportation of the parts itself. Upon the payment of such sum, the title and right of possession of such outdoor power equipment and repair parts and other equipment shall then pass to the supplier making such payment, and such supplier shall then be entitled to the possession of such outdoor power equipment and repair parts. All payments required to be made under the provisions of this section must be made within 60 days after the return of the outdoor power equipment, repair parts or other equipment. After 60 days, all payments or allowances shall include interest calculated from the date of return at the rate prescribed in K.S.A. 16-204, and amendments thereto.
(b) The provisions of this section shall not be construed to affect in any way any security interest which the supplier may have in the inventory of the retailer, except that any repurchase hereunder shall not be subject to the provisions of the bulk sales law or to the claims of any secured or unsecured creditors of the supplier or any assignee or the supplier until such time the retailer has received payment in full, subject to any offset the retailer may owe to the supplier.
History: L. 1991, ch. 67, § 3; L. 2000, ch. 84, § 3; July 1.
The provisions of K.S.A. 16-1303, and amendments thereto, shall not require the repurchase from a retailer of any:
(a) Repair part which is in a broken or damaged package;
(b) single repair part which is priced as a set of two or more items;
(c) repair part which, because of its condition, is not resalable as a new part;
(d) inventory for which the retailer is unable to furnish evidence, satisfactory to the supplier, of title, free and clear of all claims, liens and encumbrances;
(e) inventory which the retailer desires to keep, and for which the retailer has a contractual right to do so;
(f) machines, equipment, and attachments which are not in new, unused, undamaged, or complete condition;
(g) repair parts which are not in new, unused, or undamaged condition;
(h) machines, equipment or attachments which were purchased 24 months or more prior to notice of termination of the contract;
(i) inventory which was ordered by the retailer on or after the date of notification of termination of the contract;
(j) inventory which was acquired by the retailer from any source other than the supplier or transferee of such supplier, unless such inventory was ordered from, invoiced to the retailer by or financed to the retailer by the supplier or transferee of such supplier; or
(k) part that has been removed from an engine or short block or piece of equipment or any part purchased separately that has been mounted or installed by the retailer on an engine or on equipment.
History: L. 1991, ch. 67, § 4; L. 2002, ch. 67, § 2; July 1.
In the event that any supplier, after such supplier or the retailer terminates, cancels, fails to renew, or in fact substantially discontinues such contract, fails or refuses to make payment to such retailer as required by the provisions of K.S.A. 16-1303, and amendments thereto, such supplier shall be liable in a civil action to the retailer for the actual costs of the action, including attorney, paralegal and expert witness fees; for interest as provided in K.S.A. 16-1303, and amendments thereto; for 100% of the net cost of such machinery, plus transportation charges which have been paid by the retailer; and for 100% of the current net price of the repair parts, plus 5% for handling, packing and loading plus freight charges which have been paid by the retailer. In any such action, it shall be the burden of the supplier to establish that the terms of K.S.A. 16-1304, and amendments thereto, may apply to except any particular item of outdoor power equipment from the terms of K.S.A. 16-1303, and amendments thereto.
History: L. 1991, ch. 67, § 5; L. 2000, ch. 84, § 4; July 1.
No supplier, directly or through any officer, agent or employee, may terminate, cancel or fail to renew without good cause. Good cause means failure by a retailer to substantially comply with essential and reasonable requirements imposed upon the retailer by the contract if such requirements are not different from those requirements imposed on similarly situated dealers either by their terms or in the manner of their enforcement. In addition, good cause shall exist whenever:
(a) The retailer has transferred a controlling interest in the retailer business without the supplier's consent;
(b) the retailer has filed a voluntary petition in bankruptcy or has had an involuntary petition in bankruptcy filed against it which has not been discharged within 30 days after the date of filing, or there has been a closeout or sale of a substantial part of the retailer's assets related to the retailer's business or there has been a commencement or dissolution or liquidation of the retailer's business;
(c) there has been a change, without the prior written approval of the supplier, in the location of retailer's principal place of business if such approval is required under the retailer's agreement with the supplier;
(d) the retailer has defaulted under any reasonable and essential term of a chattel mortgage or other security agreement between the retailer and supplier, or there has been a revocation or discontinuance of any guarantee of the retailer's present or future obligations to the supplier;
(e) the retailer has failed to operate in the normal course of business for seven consecutive days or has otherwise abandoned such retailer's business, except for reasonable and customary closures of business;
(f) the retailer has pleaded guilty to or has been convicted of a felony affecting the relationship between the retailer and supplier;
(g) the retailer has engaged in conduct which is injurious or detrimental to the retailer's customers or the public welfare; or
(h) following receipt of written notices of the supplier's requirements and of written notices of the supplier's determination of the retailer's initial and persisting failures to meet the supplier's requirements, the retailer has consistently failed to meet the supplier's requirements for reasonable market penetration based on the supplier's experience in other identified and comparable market areas.
History: L. 1991, ch. 67, § 6; April 25.
(a) Except as otherwise provided in this section, a supplier shall provide a retailer at least 90 days' prior notice of termination, cancellation, or nonrenewal of the contract. The notice shall state all reasons constituting good cause for termination, cancellation or nonrenewal and shall provide that the dealer has 60 days in which to cure any claimed deficiency. If the deficiency is rectified within 60 days, the notice shall be void. The notice and right to cure provisions under this section shall not apply if the reason for termination, cancellation or nonrenewal is for any reason set forth in subsections (a) through (h) of K.S.A. 16-1306.
(b) In the event that a "supplier" of outdoor power equipment has contractual authority to approve or deny a request by a "retailer" to sell or transfer any portion of the retailer's business ownership to another party or to enter into an agreement to operate the dealership with another party, the supplier shall approve or deny the request within 90 days after receiving such a request. If the supplier has neither approved nor denied the request within 90 days, the request shall be deemed approved. The retailer's request shall include the reasonable financial information, personal background, character references and work histories as required by the supplier to render such a determination. In the event the supplier denies the request, the supplier shall provide the retailer with a written notice of its determination with the stated reasons for the denial.
History: L. 1991, ch. 67, § 7; L. 1998, ch. 79, § 2; July 1.
If any supplier violates any provisions of K.S.A. 16-1306 or 16-1307, a retailer may bring an action in any court of competent jurisdiction for damages sustained by the retailer as a consequence of the supplier's violation. The court may also award court costs and reasonable attorney fees to the prevailing party. The remedies set forth in this section shall not be deemed exclusive and shall be in addition to any other remedies permitted by law including proceedings under the Kansas consumer protection act.
History: L. 1991, ch. 67, § 8; April 25.
Except for subsection (b) of K.S.A. 16-1307, the provisions of this act shall apply to all continuing and nonrenewable contracts, and all other contracts entered into, renewed, amended, assigned or transferred by a supplier to a transferee on or after July 1, 1991, and shall apply only to outdoor power equipment and repair parts purchased after the effective date of this act. The provisions of subsection (b) of K.S.A. 16-1307 shall apply only to those contracts executed after July 1, 1998. Any contract in force and effect on July 1, 1991, or with respect to the provisions of subsection (b) of K.S.A. 16-1307, and amendments thereto, on July 1, 1998, which by its own terms will terminate on a date certain subsequent thereto shall be governed by the law as it existed prior to this act unless renewed, amended, assigned or transferred as described above.
History: L. 1991, ch. 67, § 9; L. 1998, ch. 79, § 3; July 1.
The provisions of this act shall be supplemental to any agreement between the retailer and the supplier. The retailer may elect to pursue either the contract remedy, the remedy provided herein, or any other remedies permitted by law, and an election by the retailer to pursue such retailer contract or other remedies shall not bar such retailer's right to any remedy provided herein as to the outdoor power equipment and repair parts not affected by the contract or other remedies.
History: L. 1991, ch. 67, § 10; April 25.
If any section of this act, or any part of any section thereof, or the application of such provision to any person or circumstance shall be declared invalid or unconstitutional, such declaration of invalidity shall not affect the remaining portions thereof and the application of such provision to other persons or circumstances.
History: L. 1991, ch. 67, § 11; April 25.
This act may be cited as the Kansas outdoor power equipment dealership act.
History: L. 1991, ch. 67, § 12; April 25.
The purpose of this act is to prevent arbitrary or abusive conduct and to preserve and enhance the reasonable expectations for success in the business of distributing lawn and garden equipment. The retail distribution of lawn and garden equipment, as defined in this act, utilizing independent retail businesses operating under agreements with suppliers, vitally affects the general economy of the state, public interest, and public welfare, and it is necessary to regulate the business relations between the independent retailers and the lawn and garden equipment suppliers.
History: L. 1992, ch. 40, § 1; April 16.
As used in this act:
(a) "Equipment" means and includes machinery, equipment, attachments or repair parts therefor, used for lawn, garden, golf course, landscaping or grounds maintenance purposes.
(b) "Retailer" means any person, partnership, firm, corporation, association, or other form of business enterprise engaged in the business of:
(1) Selling or leasing lawn and garden equipment to the ultimate consumer thereof; and
(2) repairing or servicing lawn and garden equipment.
(c) "Contract" means either a written or parol agreement or arrangement for a definite or indefinite period between a retailer and a supplier which provides for the rights and obligations of the parties with respect to the purchase or sale of lawn and garden equipment, and which agreement, regardless of the retailer's territorial scope, contemplates the establishment or maintenance by the retailer of a location within the state of Kansas at which lawn and garden equipment and services for the same are displayed, and offered or demonstrated for sale.
(d) "Net cost" means the amount of money actually paid by a retailer to the supplier.
(e) "Current net price" means the price listed in a supplier's price list or catalogue in effect on the date of termination of a contract, less any applicable trade and cash discounts.
(f) "Supplier" means any person, partnership, corporation, association, or any and all other forms of business enterprise engaged in the business of manufacturing, assembly or wholesale distribution of lawn and garden equipment. The term "supplier" and the provisions of this act shall be interpreted liberally, with regard to the equities of the retailer, and in a manner not limited to traditional doctrines of corporate successor liability, and the obligations of a supplier hereunder shall consequently apply to any actual successor in interest to a supplier, including but not limited to, a purchaser of substantial assets or substantial stock, any receiver, trustee or assignee, or any surviving corporation resulting from a merger, liquidation or reorganization of the original or any intermediate successor supplier.
History: L. 1992, ch. 40, § 2; April 16.
(a) Whenever any retailer enters into a contract with a supplier and such supplier or retailer terminates, cancels, fails to renew, or in fact substantially discontinues such contract, such supplier shall pay to such retailer, or credit to such retailer's account, if and only to the extent that the retailer has outstanding sums owing the supplier, unless the retailer should desire to keep all or part of such merchandise, a sum equal to 100% of the net cost of all new, unused, undamaged and complete lawn and garden equipment, including transportation charges which have been paid by such retailer, and 95% of the current net prices of new, unused and undamaged repair parts which had previously been purchased from such supplier preceding the date of notification of the termination, and held by such retailer on the date of the cancellation or discontinuance of such contract. The supplier also shall pay such retailer a sum equal to 5% of the current net price of all parts returned for the handling, packing and loading of such parts for return to the supplier, except that such 5% shall not be paid or credited to the retailer if the supplier elects to perform the handling, packing, loading and transportation of the parts itself. Upon the payment of such sum, the title and right of possession of such lawn and garden equipment and repair parts and other equipment shall then pass to the supplier making such payment, and such supplier shall then be entitled to the possession of such lawn and garden equipment and repair parts. All payments required to be made under the provisions of this section must be made within 60 days after the return of the lawn and garden equipment, repair parts or other equipment. After 60 days, all payments or allowances shall include interest calculated from the date of return at the rate prescribed in K.S.A. 16-204, and amendments thereto.
(b) The provisions of this section shall not be construed to affect in any way any security interest which the supplier may have in the inventory of the retailer, except that any repurchase hereunder shall not be subject to the provisions of the bulk sales law or to the claims of any secured or unsecured creditors of the supplier or any assignee or the supplier until such time the retailer has received payment in full, subject to any offset the retailer may owe to the supplier.
History: L. 1992, ch. 40, § 3; L. 2000, ch. 84, § 5; July 1.
The provisions of K.S.A. 16-1403, and amendments thereto, shall not require the repurchase from a retailer of any:
(a) Repair part which is in a broken or damaged package;
(b) single repair part which is priced as a set of two or more items;
(c) repair part which, because of its condition, is not resalable as a new part;
(d) inventory for which the retailer is unable to furnish evidence, satisfactory to the supplier, of title, free and clear of all claims, liens and encumbrances;
(e) inventory which the retailer desires to keep, and for which the retailer has a contractual right to do so;
(f) machines, equipment, and attachments which are not in new, unused, undamaged, or complete condition;
(g) repair parts which are not in new, unused, or undamaged condition;
(h) machines, equipment or attachments which were purchased 24 months or more prior to notice of termination of the contract;
(i) inventory which was ordered by the retailer on or after the date of notification of termination of the contract;
(j) inventory which was acquired by the retailer from any source other than the supplier or transferee of such supplier, unless such inventory was ordered from, invoiced to the retailer by or financed to the retailer by the supplier or transferee of such supplier; or
(k) part that has been removed from an engine or short block or piece of equipment or any part purchased separately that has been mounted or installed by the retailer on an engine or on equipment.
History: L. 1992, ch. 40, § 4; L. 2000, ch. 84, § 6; L. 2002, ch. 67, § 3; July 1.
In the event that any supplier, after such supplier terminates, cancels, fails to renew, or in fact substantially discontinues such contract, fails or refuses to make payment to such retailer as required by the provisions of K.S.A. 16-1403, and amendments thereto, such supplier shall be liable in a civil action to the retailer for the actual costs of the action, including attorney, paralegal and expert witness fees; for interest as provided in K.S.A. 16-1403, and amendments thereto; for 100% of the net cost of such machinery, plus transportation charges which have been paid by the retailer; and for 100% of the current net price of the repair parts, plus 5% for handling, packing and loading plus freight charges which have been paid by the retailer. In any such action, it shall be the burden of the supplier to establish that the terms of K.S.A. 16-1404, and amendments thereto, may apply to except any particular item of lawn and garden equipment from the terms of K.S.A. 16-1403, and amendments thereto.
History: L. 1992, ch. 40, § 5; L. 2000, ch. 84, § 7; July 1.
No supplier, directly or through any officer, agent or employee, may terminate, cancel or fail to renew without good cause. Good cause means failure by a retailer to substantially comply with essential and reasonable requirements imposed upon the retailer by the contract if such requirements are not different from those requirements imposed on similarly situated dealers either by their terms or in the manner of their enforcement. In addition, good cause shall exist whenever:
(a) The retailer has transferred a controlling interest in the retailer business without the supplier's consent;
(b) the retailer has filed a voluntary petition in bankruptcy or has had an involuntary petition in bankruptcy filed against it which has not been discharged within 30 days after the date of filing, or there has been a closeout or sale of a substantial part of the retailer's assets related to the retailer's business or there has been a commencement or dissolution or liquidation of the retailer's business;
(c) there has been a change, without the prior written approval of the supplier, in the location of retailer's principal place of business if such approval is required under the retailer's agreement with the supplier;
(d) the retailer has defaulted under any reasonable and essential term of a chattel mortgage or other security agreement between the retailer and supplier, or there has been a revocation or discontinuance of any guarantee of the retailer's present or future obligations to the supplier;
(e) the retailer has failed to operate in the normal course of business for seven consecutive days or has otherwise abandoned such retailer's business, except for reasonable and customary closures of business;
(f) the retailer has pleaded guilty to or has been convicted of a felony affecting the relationship between the retailer and supplier;
(g) the retailer has engaged in conduct which is injurious or detrimental to the retailer's customers or the public welfare; or
(h) following receipt of written notices of the supplier's requirements and of written notices of the supplier's determination of the retailer's initial and persisting failures to meet the supplier's requirements, the retailer has consistently failed to meet the supplier's requirements for reasonable market penetration based on the supplier's experience in other identified and comparable market areas.
History: L. 1992, ch. 40, § 6; April 16.
(a) Except as otherwise provided in this section, a supplier shall provide a retailer at least 90 days' prior notice of termination, cancellation, or nonrenewal of the contract. The notice shall state all reasons constituting good cause for termination, cancellation or nonrenewal and shall provide that the dealer has 60 days in which to cure any claimed deficiency. If the deficiency is rectified within 60 days, the notice shall be void. The notice and right to cure provisions under this section shall not apply if the reason for termination, cancellation or nonrenewal is for any reason set forth in subsections (a) through (h) of K.S.A. 16-1406.
(b) In the event that a supplier of lawn and garden equipment has contractual authority to approve or deny a request by a retailer to sell or transfer any portion of the retailer's business ownership to another party or to enter into an agreement to operate the dealership with another party, the supplier shall approve or deny the request within 90 days of receiving such a request. If the supplier has neither denied nor approved the request within 90 days, the request shall be deemed approved. The retailer's request shall include the reasonable financial information, personal background, character references and work histories as required by the supplier to render such a determination. In the event the supplier denies the request, the supplier shall provide the retailer with a written notice of its determination with the stated reasons for the denial.
History: L. 1992, ch. 40, § 7; L. 1998, ch. 79, § 4; July 1.
If any supplier violates any provisions of K.S.A. 16-1406 or 16-1407, a retailer may bring an action in any court of competent jurisdiction for damages sustained by the retailer as a consequence of the supplier's violation. The court may also award court costs and reasonable attorney fees to the prevailing party. The remedies set forth in this section shall not be deemed exclusive and shall be in addition to any other remedies permitted by law including proceedings under the Kansas consumer protection act.
History: L. 1992, ch. 40, § 8; April 16.
Except for the provisions of subsection (b) of K.S.A. 16-1407, the provisions of this act shall apply to all continuing and nonrenewable contracts, and all other contracts entered into, renewed, amended, assigned or transferred by a supplier to a transferee on or after July 1, 1992, and shall apply only to lawn and garden equipment and repair parts purchased after the effective date of this act. The provisions of subsection (b) of K.S.A. 16-1407 shall apply only to those contracts executed after July 1, 1998. Any contract in force and effect on July 1, 1992, or with respect to subsection (b) of K.S.A. 16-1407, on July 1, 1998, which by its own terms will terminate on a date certain subsequent thereto shall be governed by the law as it existed prior to this act unless renewed, amended, assigned or transferred as described above.
History: L. 1992, ch. 40, § 9; L. 1998, ch. 79, § 5; July 1.
The provisions of this act shall be supplemental to any agreement between the retailer and the supplier. The retailer may elect to pursue either the contract remedy, the remedy provided herein, or any other remedies permitted by law, and an election by the retailer to pursue such retailer contract or other remedies shall not bar such retailer's right to any remedy provided herein as to the lawn and garden equipment and repair parts not affected by the contract or other remedies.
History: L. 1992, ch. 40, § 10; April 16.
If any section of this act, or any part of any section thereof, or the application of such provision to any person or circumstance shall be declared invalid or unconstitutional, such declaration of invalidity shall not affect the remaining portions thereof and the application of such provision to other persons or circumstances.
History: L. 1992, ch. 40, § 11; April 16.
This act may be cited as the Kansas lawn and garden equipment dealership act.
History: L. 1992, ch. 40, § 12; April 16.
(a) For the purposes of K.S.A. 16-1501 through 16-1506, and amendments thereto, the term "contractor" means any corporation, trust, limited liability company, or limited partnership or corporate partnership other than a family farm corporation, authorized farm corporation, limited liability agricultural company, limited agricultural partnership, family trust, authorized trust or testamentary trust, as defined in K.S.A. 17-5903, and amendments thereto, which established a swine production facility in this state or which contracts with a producer to grow or raise hogs in this state and in either case which in the ordinary course of business buys hogs in this state.
(b) For the purposes of K.S.A. 16-1501 through 16-1506, and amendments thereto, the term producer means any individual, family farm corporation, authorized farm corporation, limited liability, agricultural company, limited agricultural partnership, family trust, authorized trust or testamentary trust, as defined in K.S.A. 17-5903, and amendments thereto, which raises hogs in this state or provides the service of raising hogs in this state and which is able to transfer title in such hogs to another or who provides management, feed, labor, facilities, machinery or other production input for raising hogs in this state.
(c) For the purposes of this section production input includes, but is not limited to, management, labor, facilities, machinery or feed used in the raising of hogs in this state.
(d) If the contractor is the subsidiary of another corporation, partnership, or a member of another association or other business entity, the parent corporation, partnership, association or other business entity is liable to a producer for the amount of any unpaid claim or contract performance claim if the contractor fails to pay or perform according to the terms of the contract.
(e) There is an implied promise of good faith as defined in K.S.A. 2025 Supp. 84-1-201(b)(20), and amendments thereto, by all parties in all contracts between contractors and producers. In an action to recover damages, if the court finds that there has been a violation of this provision, damages, court costs, and attorney fees may be recovered.
(f) Each contractor shall require in its contract that the producer comply with any applicable state and federal environmental laws and shall provide to the producer, upon request, information regarding compliance with such laws.
History: L. 1994, ch. 130, § 8; L. 2007, ch. 89, § 25; July 1, 2008.
(a) Except as provided in subsection (b), if a producer fails to comply with the provisions of a contract that requires a capital investment in excess of $100,000 or more and has a useful life of five years or more, a contractor may not terminate or cancel that contract until:
(1) The contractor has given written notice with all the reasons for the termination or cancellation at least 90 days before termination or cancellation or as provided in subsection (b); and
(2) the producer who receives the notice fails to correct the reasons stated for termination or cancellation in the notice within 60 days of receipt of the notice.
(b) The 90-day notice period and 60-day notice period under subsection (a)(1) and (2) are waived and the contract may be terminated or canceled immediately if the alleged grounds for termination or cancellation are:
(1) Voluntary abandonment of the contract relationship by the producer;
(2) conviction of the producer of an offense directly related to the business contracted under the contract;
(3) material breach of the contract by the producer;
(4) a failure to care for the swine in accordance with good animal husbandry practices;
(5) the bankruptcy or insolvency of the producer; or
(6) an acceleration of any indebtedness secured by the property on which the swine are being raised.
History: L. 1994, ch. 130, § 9; April 14.
(a) For the benefit of orderly marketing of swine in Kansas and to facilitate the capture of markets by swine producers and to improve the quality of the state's swine herd, registered swine marketing pools may be created. To qualify for participation under this act a swine marketing pool created pursuant to this act must register with the secretary of agriculture. The secretary of agriculture will facilitate creation of swine marketing pools and information sharing to foster contract agreements between swine marketing pools and purchasers of hogs for slaughter. Such registration for any swine marketing pool may be revoked by the secretary of agriculture for failure to properly carry out its functions pursuant to subsection (b) subsequent to a hearing pursuant to the provisions of the Kansas administrative procedure act.
(b) Swine marketing pools are hereby authorized to do the following on behalf of their members:
(1) Assume debt;
(2) enter and negotiate contracts for the sale and delivery of hogs;
(3) own assets;
(4) sue and be sued;
(5) assist members to upgrade the quality of hogs marketed by the pool;
(6) negotiate in good faith for timely completion and quality assurance of swine marketing contracts; and
(7) perform any other activities to achieve the goals and objectives of the swine marketing pool.
History: L. 1994, ch. 130, § 10; L. 2004, ch. 101, § 65; July 1.
(a) Any contractor who establishes a swine production facility in this state or who contracts for the production or raising of hogs in this state shall:
(1) Provide fair and open access to all registered swine marketing pools and actively negotiate in good faith with all registered swine marketing pools who desire to market hogs to that contractor;
(2) provide to all registered swine marketing pools on a regular basis descriptive data concerning carcass efficiency value;
(3) pay a fair price; and
(4) make all payments promptly pursuant to the requirements of applicable federal and state law.
(b) For the purposes of this section, the terms contractor and producer shall have the meaning ascribed to them in K.S.A. 16-1501.
(c) Nothing in this section shall prohibit any contractor from purchasing hogs from any other business entity or from refusing to purchase and/or discounting hogs which do not meet the contractor's quality specifications or delivery terms.
(d) Nothing in this section shall prevent a marketing pool from selling hogs to any other business entity.
History: L. 1994, ch. 130, § 11; April 14.
Any swine purchasing contract, swine marketing contract or swine production contract between a contractor and a swine production facility owner or swine marketing pool or swine producer shall contain language providing for resolution of contract disputes by either mediation or arbitration. If there is a contract dispute the parties may submit the disputed issue to an arbitrator or mediator selected by the parties pursuant to the contract provisions. All arbitration proceedings held pursuant to this act shall follow the procedures set forth in K.S.A. 5-201 et seq., and amendments thereto. If the parties cannot agree upon a mediator or arbitrator, either party may make a written request to the secretary of agriculture for mediation or arbitration services to facilitate resolution of the dispute.
History: L. 1994, ch. 130, § 12; L. 2004, ch. 101, § 66; July 1.
The secretary of agriculture may promulgate rules and regulations to implement the provisions of K.S.A. 16-1501 through 16-1505.
History: L. 1994, ch. 130, § 13; April 14.
This act shall be known and may be cited as the uniform electronic transactions act.
History: L. 2000, ch. 120, § 1; July 1.
In this act:
(a) "Agreement" means the bargain of the parties in fact, as found in their language or inferred from other circumstances and from rules, regulations, and procedures given the effect of agreements under laws otherwise applicable to a particular transaction.
(b) "Automated transaction" means a transaction conducted or performed, in whole or in part, by electronic means or electronic records, in which the acts or records of one or both parties are not reviewed by an individual in the ordinary course in forming a contract, performing under an existing contract or fulfilling an obligation required by the transaction.
(c) "Computer program" means a set of statements or instructions to be used directly or indirectly in an information processing system in order to bring about a certain result.
(d) "Contract" means the total legal obligation resulting from the parties' agreement as affected by this act and other applicable law.
(e) "Digital signature" means a type of electronic signature consisting of a transformation of an electronic message using an asymmetric crypto system such that a person having the initial message and the signer's public key can accurately determine whether:
(1) The transformation was created using the private key that corresponds to the signer's public key; and
(2) the initial message has not been altered since the transformation was made.
(f) "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic or similar capabilities.
(g) "Electronic agent" means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, without review or action by an individual.
(h) "Electronic record" means a record created, generated, sent, communicated, received or stored by electronic means.
(i) "Electronic signature" means an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.
(j) "Governmental agency" means an executive, legislative, or judicial agency, department, board, commission, authority, institution or instrumentality of the federal government or of a state or of a county, municipality or other political subdivision of a state.
(k) "Information" means data, text, images, sounds, codes, computer programs, software, databases or the like.
(l) "Information processing system" means an electronic system for creating, generating, sending, receiving, storing, displaying or processing information.
(m) "Message" means a digital representation of information.
(n) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation or any other legal or commercial entity.
(o) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(p) "Registered certification authority" means a person providing certification of a digital signature who is, or is certified by, a member of the group of certification authorities approved by and registered with the secretary.
(q) "Secretary" means the Kansas secretary of state.
(r) "Security procedure" means a procedure employed for the purpose of verifying that an electronic signature, record or performance is that of a specific person or for detecting changes or errors in the information in an electronic record. The term includes a procedure that requires the use of algorithms or other codes, identifying words or numbers, encryption, callback or other acknowledgment procedures.
(s) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.
(t) "Transaction" means an action or set of actions occurring between two or more persons relating to the conduct of business, insurance, health care, commercial or governmental affairs.
History: L. 2000, ch. 120, § 2; L. 2011, ch. 114, § 35; L. 2012, ch. 166, § 2; July 1.
(a) Except as otherwise provided in subsection (b), this act applies to electronic records and electronic signatures relating to a transaction.
(b) This act does not apply to a transaction to the extent it is governed by:
(1) A law governing the creation and execution of wills, codicils or testamentary trusts; and
(2) the uniform commercial code, other than K.S.A. 2025 Supp. 84-1-306 and articles 2 and 2a of chapter 84 of the Kansas Statutes Annotated, and amendments thereto.
(c) This act applies to an electronic record or electronic signature otherwise excluded from the application of this act under subsection (b) to the extent it is governed by a law other than those specified in subsection (b).
(d) A transaction subject to this act is also subject to other applicable substantive law.
History: L. 2000, ch. 120, § 3; L. 2007, ch. 89, § 26; July 1, 2008.
This act applies to any electronic record or electronic signature created, generated, sent, communicated, received or stored on or after the effective date of this act.
History: L. 2000, ch. 120, § 4; July 1.
(a) This act does not require a record or signature to be created, generated, sent, communicated, received, stored or otherwise processed or used by electronic means or in electronic form.
(b) This act applies only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.
(c) A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. The right granted by this subsection may not be waived by agreement.
(d) Except as otherwise provided in this act, the effect of any of its provisions may be varied by agreement. The presence in certain provisions of this act of the words "unless otherwise agreed", or words of similar import, does not imply that the effect of other provisions may not be varied by agreement.
(e) Whether an electronic record or electronic signature has legal consequences is determined by this act and other applicable law.
(f) The uniform electronic transactions act does not require any person to use electronic signatures.
(g) Any state agency that offers or provides the option of using an electronic signature to persons doing business with that state agency shall establish written standards governing the use of those electronic signatures as follows:
(1) On or before December 31, 2002, for electronic signature applications that are in use by the state agency before July 1, 2002; or
(2) before offering or providing the option of using an electronic signature for any applications implemented on or after July 1, 2002.
(h) The uniform electronic transactions act does not require any person to use or permit the use of digital signatures.
(i) The secretary of state shall adopt rules and regulations governing the use of digital signatures by state agencies. Each state agency offering or providing the option of using a digital signature to persons doing business with that state agency shall implement digital signatures in a manner consistent with the regulations of the secretary of state, except that the state agency may adopt rules and regulations governing that agency's use of digital signatures that exceed the minimum standards established by the rules and regulations of the secretary of state.
History: L. 2000, ch. 120, § 5; L. 2002, ch. 183, § 4; July 1.
This act must be construed and applied:
(a) To facilitate electronic transactions consistent with other applicable law;
(b) to be consistent with reasonable practices concerning electronic transactions and with the continued expansion of those practices; and
(c) to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.
History: L. 2000, ch. 120, § 6; July 1.
(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.
(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
(c) If a law requires a record to be in writing, an electronic record satisfies the law.
(d) If a law requires a signature, an electronic signature satisfies the law.
History: L. 2000, ch. 120, § 7; July 1.
(a) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send or deliver information in writing to another person, the requirements is satisfied if the information is provided, sent or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.
(b) If a law other than this act requires a record (1) to be posted or displayed in a certain manner, (2) to be sent, communicated or transmitted by a specified method, or (3) to contain information that is formatted in a certain manner, the following rules apply:
(A) The record must be posted or displayed in the manner specified in the other law.
(B) Except as otherwise provided in subsection (d)(2), the record must be sent, communicated or transmitted by the method specified in the other law.
(C) The record must contain the information formatted in the manner specified in the other law.
(c) If a sender inhibits the ability of a recipient to store or print an electronic record, the electronic record is not enforceable against the recipient.
(d) The requirements of this section may not be varied by agreement, but:
(1) To the extent a law other than this act requires information to be provided, sent or delivered in writing but permits that requirement to be varied by agreement, the requirement under subsection (a) that the information be in the form of an electronic record capable of retention also may be varied by agreement; and
(2) a requirement under a law other than this act to send, communicate or transmit a record by first-class mail, may be varied by agreement to the extent permitted by the other law.
History: L. 2000, ch. 120, § 8; July 1.
(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.
(b) The effect of an electronic record or electronic signature attributed to a person under subsection (a) is determined from the context and surrounding circumstances at the time of its creation, execution or adoption, including the parties' agreement, if any, and otherwise as provided by law.
History: L. 2000, ch. 120, § 9; July 1.
If a change or error in an electronic record occurs in a transmission between parties to a transaction, the following rules apply:
(a) If the parties have agreed to use a security procedure to detect changes or errors and one party has conformed to the procedure, but the other party has not, and the nonconforming party would have detected the change or error had that party also conformed, the conforming party may avoid the effect of the changed or erroneous electronic record.
(b) In an automated transaction involving an individual, the individual may avoid the effect of an electronic record that resulted from an error made by the individual in dealing with the electronic agent of another person if the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual:
(1) Promptly notifies the other person of the error and that the individual did not intend to be bound by the electronic record received by the other person;
(2) takes reasonable steps, including steps that conform to the other person's reasonable instruction, to return to the other person or, if instructed by the other person, to destroy the consideration received, if any, as a result of the erroneous electronic record; and
(3) has not used or received any benefit or value from the consideration, if any, received from the other person.
(c) If neither paragraph (a) nor paragraph (b) applies, the change or error has the effect provided by other law, including the law of mistake, and the parties' contract, if any.
(d) Subsections (b) and (c) may not be varied by agreement.
History: L. 2000, ch. 120, § 10; July 1.
If a law requires a signature or record to be notarized, acknowledged, verified or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law, is attached to or logically associated with the signature or record.
History: L. 2000, ch. 120, § 11; L. 2004, ch. 126, § 2; L. 2021, ch. 64, § 32; January 1, 2022.
(a) If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information in the record which:
(1) Accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise; and
(2) remains accessible for later reference.
(b) A requirement to retain a record in accordance with subsection (a) does not apply to any information the sole purpose of which is to enable the record to be sent, communicated or received.
(c) A person may satisfy subsection (a) by using the services of another person if the requirements of that subsection are satisfied.
(d) If a law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an electronic record retained in accordance with subsection (a).
(e) If a law requires retention of a check, that requirement is satisfied by retention of an electronic record of the information on the front and back of the check in accordance with subsection (a).
(f) A record retained as an electronic record in accordance with subsection (a) satisfies a law requiring a person to retain a record for evidentiary, audit or like purposes, unless a law enacted after the effective date of this act specifically prohibits the use of an electronic record for the specified purpose.
(g) This section does not preclude a governmental agency of this state from specifying additional requirements for the retention of a record subject to the agency's jurisdiction.
History: L. 2000, ch. 120, § 12; July 1.
In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form.
History: L. 2000, ch. 120, § 13; July 1.
In an automated transaction, the following rules apply:
(a) A contract may be formed by the interaction of electronic agents of the parties, even if no individual was aware of or reviewed the electronic agents' actions or the resulting terms and agreements.
(b) A contract may be formed by the interaction of an electronic agent and an individual, acting on the individual's own behalf or for another person, including by an interaction in which the individual performs actions that the individual is free to refuse to perform and which the individual knows or has reason to know will cause the electronic agent to complete the transaction or performance.
(c) The terms of the contract are determined by the substantive law applicable to it.
History: L. 2000, ch. 120, § 14; July 1.
(a) Unless otherwise agreed between the sender and the recipient, an electronic record is sent when it:
(1) Is addressed properly or otherwise directed properly to an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record;
(2) is in a form capable of being processed by that system; and
(3) enters an information processing system outside the control of the sender or of a person that sent the electronic record on behalf of the sender or enters a region of the information processing system designated or used by the recipient which is under the control of the recipient.
(b) Unless otherwise agreed between a sender and the recipient, an electronic record is received when:
(1) It enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and
(2) it is in a form capable of being processed by that system.
(c) Subsection (b) applies even if the place the information processing system is located is different from the place the electronic record is deemed to be received under subsection (d).
(d) Unless otherwise expressly provided in the electronic record or agreed between the sender and the recipient, an electronic record is deemed to be sent from the sender's place of business and to be received at the recipient's place of business. For purposes of this subsection, the following rules apply:
(1) If the sender or recipient has more than one place of business, the place of business of that person is the place having the closest relationship to the underlying transaction.
(2) If the sender or the recipient does not have a place of business, the place of business is the sender's or recipient's residence, as the case may be.
(e) An electronic record is received under subsection (b) even if no individual is aware of its receipt.
(f) Receipt of an electronic acknowledgment from an information processing system described in subsection (b) establishes that a record was received but, by itself, does not establish that the content sent corresponds to the content received.
(g) If a person is aware that an electronic record purportedly sent under subsection (a), or purportedly received under subsection (b), was not actually sent or received, the legal effect of the sending or receipt is determined by other applicable law. Except to the extent permitted by the other law, the requirements of this subsection may not be varied by agreement.
History: L. 2000, ch. 120, § 15; July 1.
(a) In this section, "transferable record" means an electronic record that:
(1) Would be a note under article 3 of chapter 84 of the Kansas Statutes Annotated, and amendments thereto, or a document under article 7 of chapter 84 of the Kansas Statutes Annotated, and amendments thereto, if the electronic record were in writing; and
(2) the issuer of the electronic record expressly has agreed is a transferable record.
(b) A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred.
(c) A system satisfies subsection (b), and a person is deemed to have control of a transferable record, if the transferable record is created, stored and assigned in such a manner that:
(1) A single authoritative copy of the transferable record exists which is unique, identifiable, and, except as otherwise provided in paragraphs (4), (5) and (6), unalterable;
(2) the authoritative copy identifies the person asserting control as:
(A) The person to which the transferable record was issued; or
(B) if the authoritative copy indicates that the transferable record has been transferred, the person to which the transferable record was most recently transferred;
(3) the authoritative copy is communicated to and maintained by the person asserting control or its designated custodian;
(4) copies or revisions that add or change an identified assignee of the authoritative copy can be made only with the consent of the person asserting control;
(5) each copy of the authoritative copy and any copy of a copy is readily identifiable as a copy that is not the authoritative copy; and
(6) any revision of the authoritative copy is readily identifiable as authorized or unauthorized.
(d) Except as otherwise agreed, a person having control of a transferable record is the holder, as defined in K.S.A. 2025 Supp. 84-1-201(b)(21), and amendments thereto, of the transferable record and has the same rights and defenses as a holder of an equivalent record or writing under the uniform commercial code, including, if the applicable statutory requirements under K.S.A. 84-3-302(a), or 84-9-308, or K.S.A. 2025 Supp. 84-7-501, and amendments thereto, are satisfied, the rights and defenses of a holder in due course, a holder to which a negotiable document of title has been duly negotiated, or a purchaser, respectively. Delivery, possession, and indorsement are not required to obtain or exercise any of the rights under this subsection.
(e) Except as otherwise agreed, an obligor under a transferable record has the same rights and defenses as an equivalent obligor under equivalent records or writings under the uniform commercial code.
(f) If requested by a person against which enforcement is sought, the person seeking to enforce the transferable record shall provide reasonable proof that the person is in control of the transferable record. Proof may include access to the authoritative copy of the transferable record and related business records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.
History: L. 2000, ch. 120, § 16; L. 2007, ch. 89, § 27; L. 2007, ch. 195, § 8; July 1, 2008.
(a) Any person, before entering upon the duties of a registered certification authority, shall:
(1) Register with the secretary on forms approved and provided by the secretary;
(2) pay to the secretary an annual filing fee of $1,000;
(3) file with the secretary a good and sufficient surety bond, certificate of insurance or other evidence of financial security in the amount of $100,000; and
(4) be approved by the secretary as meeting the requirements of any rules and regulations adopted by the secretary, as the secretary determines appropriate, to ensure the person's financial responsibility and condition, character, qualifications and fitness to be a registered certification authority.
(b) A registered certification authority shall create, maintain and preserve all records that are necessary to demonstrate compliance with rules and regulations adopted by the secretary.
(c) If any person who is approved and registered with the secretary as a registered certification authority fails to maintain any of the qualifications listed in subsection (a) and (b) or otherwise required by rules and regulations of the secretary, the person's registration shall be deemed lapsed.
(d) Any person who violates or fails to comply with this section and any provision related to registered certification authority and the rules and regulations of the secretary promulgated pursuant to K.S.A. 16-1618, and amendments thereto, upon notice and hearing, shall be subject to a civil penalty not to exceed $10,000 per failure or violation.
History: L. 2000, ch. 120, § 17; July 1.
The secretary may adopt rules and regulations to implement the provisions of K.S.A. 16-1617 and 16-1619, and amendments thereto, and related provisions thereto.
History: L. 2000, ch. 120, § 18; July 1.
The secretary shall have the authority to establish reciprocity with other states and nations for purposes of K.S.A. 16-1617 and 16-1618, and amendments thereto, and related provisions thereto.
History: L. 2000, ch. 120, § 19; July 1.
If any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
History: L. 2000, ch. 120, § 20; July 1.
(a) As used in this section:
(1) "Contractor" means a person who owns poultry that is raised or cared for by a poultry producer;
(2) "poultry" means posthatched to finished live chickens or turkeys that are raised by a poultry producer for slaughter by another;
(3) "poultry producer" means any individual or group of individuals that raise or care for live poultry for slaughter by another under terms of a written production contract;
(4) "production contract" means any written agreement that provides for the raising and care of poultry by a poultry producer for a contractor; and
(5) "production" means to raise and care for poultry under the terms of a poultry production contract.
(b) Poultry production contracts shall:
(1) Be written in a readable form and shall be accompanied by a clearly written disclosure statement setting forth the nature of the material risks faced by the poultry producer if the poultry producer enters into such poultry production contract;
(2) be negotiated and entered into in an environment free from unfair or deceptive trade practices or other violations of law;
(3) not require disclosure of trade secrets and not be contrary to the uniform trade secrets act, K.S.A. 60-3320 et seq., and amendments thereto;
(4) not require poultry producers to reveal intellectual property rights nor disclose personal financial information or production practices;
(5) not prohibit nor discourage poultry producers from associating with other poultry producers to compare contract terms or address concerns or problems;
(6) not prohibit nor discourage poultry producers from seeking professional, legal, financial and agricultural production advice and counsel related to production contract terms, obligations and responsibilities;
(7) not allow a contractor to terminate any poultry production contract with a poultry producer that has complied with the provisions of the poultry production contract; and
(8) not deny poultry producers of the ability to address a dispute in the Kansas courts. The poultry production contract may contain a provision to have the option of submitting any dispute arising under a poultry production contract to arbitration.
(c) Any provision of a poultry production contract which violates the provisions of subsection (b) is void and unenforceable. This subsection shall not affect other provisions of a poultry production contract, including a contract or related document, policy or agreement which can be given effect without the voided provision.
(d) A poultry producer who suffers damages because of a contractor's violation of the provisions of subsection (b) may obtain appropriate legal and equitable relief, including, but not limited to, injunctive relief and punitive damages, as provided in K.S.A. 60-3702, and amendments thereto. In such a civil action against the contractor, the court may award the poultry producer who is the prevailing party, reasonable attorney fees and other litigation expenses.
History: L. 2002, ch. 95, § 1; May 2.
(a) K.S.A. 16-1801 through 16-1807, and amendments thereto, shall be known and may be cited as the Kansas fairness in private construction contract act.
(b) The rights and duties prescribed by this act shall not be waivable or varied under the terms of a contract. The terms of any contract waiving the rights and duties prescribed by this act shall be unenforceable.
History: L. 2005, ch. 156, § 1; July 1.
As used in this act:
(a) "Alternate security" means an irrevocable bank letter of credit, certificate of deposit, cash bond or other type of asset or security of value equal to or exceeding the amount of retained funds. "Alternate security" shall not include a performance bond or a payment bond.
(b) "Construction" means furnishing labor, equipment, material or supplies used or consumed for the design, construction, alteration, renovation, repair or maintenance of a building, structure, road, bridge, water line, sewer line, oil line, gas line, appurtenance or other improvement to real property, including any moving, demolition or excavation.
(c) "Contract" means a contract or agreement concerning construction made and entered into by and between an owner and a contractor, a contractor and a subcontractor or a subcontractor and another subcontractor.
(d) "Contractor" means a person performing construction and having a contract with an owner of the real property or with a trustee, agent or spouse of an owner.
(e) "Owner" means a person who holds an ownership interest in real property.
(f) "Person" means an individual, corporation, estate, trust, partnership, limited liability company, association, joint venture or any other legal entity.
(g) "Retainage" or "retention" means money earned by a contractor or subcontractor but withheld to ensure proper performance by the contractor or subcontractor.
(h) "Subcontractor" means any person performing construction covered by a contract between an owner and a contractor but not having a contract with the owner.
(i) "Substantial completion" means the stage of a construction project where the project, or a designated portion thereof, is sufficiently complete in accordance with the contract, so that portion thereof can be used for its intended purpose.
History: L. 2005, ch. 156, § 2; L. 2010, ch. 128, § 1; July 1.
(a) Subject to the provisions of subsections (b), (c), (d), (e), (f), (g) and (h) and K.S.A. 16-1804 and 16-1805, and amendments thereto, all persons who enter into a contract for private construction after the effective date of this act, shall make all payments pursuant to the terms of the contract.
(b) The following provisions in a contract for private construction shall be against public policy and shall be void and unenforceable:
(1) A provision that purports to waive, release or extinguish the right to resolve disputes through litigation in court or substantive or procedural rights in connection with such litigation except that a contract may require binding arbitration as a substitute for litigation or require non-binding alternative dispute resolution as a prerequisite to litigation;
(2) a provision that purports to waive, release or extinguish rights provided by article 11 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto, except that a contract may require a contractor or subcontractor to provide a waiver or release of such rights as a condition for payment, but only to the extent of the amount of payment received; and
(3) a provision that purports to waive, release or extinguish rights of subrogation for losses or claims covered or paid by liability or workers compensation insurance except that a contract may require waiver of subrogation for losses or claims paid by a consolidated or wrap-up insurance program, owners and contractors protective liability insurance, or project management protective liability insurance, unless otherwise prohibited under subsection (b)(5) of K.S.A. 40-5403, and amendments thereto.
(c) Any provision in a contract for private construction providing that a payment from a contractor or subcontractor to a subcontractor is contingent or conditioned upon receipt of a payment from any other private party, including a private owner, is no defense to a claim to enforce a mechanic's lien or bond to secure payment of claims pursuant to the provisions of article 11 of chapter 60 of the Kansas Statutes Annotated, and amendments thereto.
(d) All contracts for private construction shall provide that payment of amounts due a contractor from an owner, except retainage, shall be made within 30 days after the owner receives a timely, properly completed, undisputed request for payment.
(e) If the owner fails to pay a contractor within 30 days following receipt of a timely, properly completed, undisputed request for payment, the owner shall pay interest to the contractor beginning on the thirty-first day after receipt of the request for payment, computed at the rate of 18% per annum on the undisputed amount.
(f) A contractor shall pay its subcontractors any amounts due within seven business days of receipt of payment from the owner, including payment of retainage, if retainage is released by the owner, if the subcontractor has provided a timely, properly completed and undisputed request for payment to the contractor.
(g) If the contractor fails to pay a subcontractor within seven business days, the contractor shall pay interest to the subcontractor beginning on the eighth business day after receipt of payment by the contractor, computed at the rate of 18% per annum on the undisputed amount.
(h) The provisions of subsections (f) and (g) shall apply to all payments from subcontractors to their subcontractors.
History: L. 2005, ch. 156, § 3; L. 2009, ch. 136, § 6; July 1.
(a) Retainage shall not exceed 5% of the value of the contract or subcontract unless the owner or contractor determines that a higher rate of retainage is required to ensure performance of the contract. Retainage, however, shall not exceed 10% of the value of the contract or subcontract.
(b) If the contractor or subcontractor has failed to meet the terms of the contract, is not performing according to schedule or there is a problem with workmanship or other issues, the owner may increase retainage up to 10%.
(c) An owner shall release all remaining retainage on any undisputed payment due to a contractor on a construction project within 30 days after substantial completion of the project; however, if any contractor or subcontractor is still performing work on the project, an owner may withhold that portion of the retainage attributable to such work until 30 days after such work is completed.
(d) An owner may withhold not more than 150% of the value of incomplete work, provided that the incomplete work is due to the fault of a contractor. Any amounts retained for incomplete work shall be paid within 45 days after completion of the work as a part of the regular payment cycle.
(e) A contractor may withhold not more than 150% of the value of incomplete work, provided that the incomplete work is due to the fault of a subcontractor. Any amounts retained for incomplete work shall be paid within 45 days after completion of the work as part of the regular payment cycle.
(f) A subcontractor may withhold not more than 150% of the value of incomplete work that is the responsibility of another subcontractor, provided that the incomplete work is due to the fault of such other subcontractor. Any amounts retained for incomplete work shall be paid within 45 days after completion of the work as a part of the regular payment cycle.
(g) Prior to commencement of work, a general contractor or subcontractor may request an alternate security in lieu of retainage.
(h) If a contractor or subcontractor requests the use of an alternate security, as defined in subsection (a) of K.S.A. 16-1802, and amendments thereto, in lieu of retainage, the owner or contractor who would otherwise withhold the retainage shall have the right to determine which type of alternate security, as defined in subsection (a) of K.S.A. 16-1802, and amendments thereto, shall be accepted.
(i) An owner, contractor or subcontractor may withhold no more than 10% retainage from the amount of any undisputed payment due.
(j) If an owner, contractor or subcontractor fails to pay retainage, if any, pursuant to the terms of a contract for private construction or as required by this act, the owner, contractor or subcontractor shall pay interest to the contractor or subcontractor to whom payment was due, beginning on the first business day after the payment was due, at a rate of 18% per annum.
(k) Nothing in this section shall prevent early release of retainage if it is determined by the owner, the contractor and the project architect or engineer, that a subcontractor has completed performance satisfactorily and that the subcontractor can be released prior to substantial completion of the entire project without risk or additional cost to the owner or contractor. Once so determined, the contractor shall request such early release of retainage from the owner as necessary to enable the contractor to pay the subcontractor in full. The owner shall, as part of the next contractual payment cycle, release the subcontractor's retainage to the contractor, who shall, as part of the next contractual payment cycle, release such retainage as is due to the subcontractor.
History: L. 2005, ch. 156, § 4; L. 2010, ch. 128, § 2; July 1.
If any undisputed payment is not made within seven business days after the payment date established in a contract for private construction or in this act, the contractor and any subcontractors, regardless of tier, upon seven additional business days' written notice to the owner and, in the case of a subcontractor, written notice to the contractor, shall, without prejudice to any other available remedy, be entitled to suspend further performance until payment, including applicable interest, is made. The contract time for each contract affected by the suspension shall be extended appropriately and the contract sum for each affected contract shall be increased by the suspending party's reasonable costs of demobilization, delay and remobilization.
History: L. 2005, ch. 156, § 5; July 1.
In any action to enforce K.S.A. 16-1803, 16-1804 or 16-1805, and amendments thereto, including arbitration, the court or arbitrator shall award costs and reasonable attorney fees to the prevailing party. Venue of such an action shall be in the county where the real property is located. The hearing in such an arbitration shall be held in the county where the real property is located.
History: L. 2005, ch. 156, § 6; July 1.
The provisions of this act shall not apply to single family residential housing and multifamily residential housing of four units or less. The provisions of this act shall not apply to public works projects. The provisions of this act shall not apply to contracts entered into prior to the effective date of this act.
History: L. 2005, ch. 156, § 7; July 1.
(a) K.S.A. 16-1901 through 16-1908, and amendments thereto, shall be known and may be cited as the Kansas fairness in public construction contract act.
(b) The rights and duties prescribed by this act shall not be waivable or varied under the terms of a contract. The terms of any contract waiving the rights and duties prescribed by this act shall be unenforceable.
History: L. 2007, ch. 163, § 1; July 1.
As used in this act:
(a) "Alternate security" means an irrevocable bank letter of credit, certificate of deposit, cash bond or other type of asset or security of value equal to or exceeding the amount of retained funds. "Alternate security" shall not include a performance bond or a payment bond.
(b) "Construction" means furnishing labor, equipment, material or supplies used or consumed for the design, construction, alteration, renovation, repair or maintenance of a building, water or waste water treatment facility, oil line, gas line, appurtenance or other improvement to real property, including any moving, demolition or excavation of a building. "Construction" shall not mean the design, construction, alteration, renovation, repair or maintenance of a road, highway or bridge.
(c) "Contract" means a contract or agreement concerning construction made and entered into by and between an owner and a contractor, a contractor and a subcontractor or a subcontractor and another subcontractor.
(d) "Contractor" means a person performing construction and having a contract with an owner of the real property or with a trustee or agent of an owner.
(e) "Owner" means a public entity that holds an ownership interest in real property.
(f) "Public entity" means the state of Kansas, political subdivisions, cities, counties, state universities or colleges, school districts, all special districts, joint agreement entities, public authorities, public trusts, nonprofit corporations and other organizations which are operated with public money for the public good.
(g) "Retainage" or "retention" means money earned by a contractor or subcontractor but withheld to ensure timely performance by the contractor or subcontractor.
(h) "Subcontractor" means any person performing construction covered by a contract between an owner and a contractor but not having a contract with the owner.
(i) "Substantial completion" means the stage of a construction project where the project, or a designated portion thereof, is sufficiently complete in accordance with the contract, so that the owner can occupy or utilize the constructed project for its intended use.
(j) "Undisputed payment" means payments which all parties to the contract agree are owed to the contractor.
History: L. 2007, ch. 163, § 2; L. 2010, ch. 128, § 3; July 1.
(a) Subject to the provisions of subsections (b), (c), (d), (e), (f), (g), (h) and K.S.A. 16-1904 and 16-1905, and amendments thereto, all owners, contractors and subcontractors, who enter into a contract for public construction after the effective date of this act, shall make all payments pursuant to the terms of the contract.
(b) The following provisions in a contract for public construction shall be against public policy and shall be void and unenforceable:
(1) A provision that purports to waive, release or extinguish the right to resolve disputes through litigation in court or substantive or procedural rights in connection with such litigation except that a contract may require nonbinding alternative dispute resolution as a prerequisite to litigation;
(2) a provision that purports to waive, release or extinguish rights to file a claim against a payment or performance bond, except that a contract may require a contractor or subcontractor to provide a waiver or release of such rights as a condition for payment, but only to the extent of the amount of payment received; and
(3) a provision that purports to waive, release or extinguish rights of subrogation for losses or claims covered or paid by liability or workers compensation insurance except that a contract may require waiver of subrogation for losses or claims paid by a consolidated or wrap-up insurance program, owners and contractors protective liability insurance, or project management protective liability insurance or a builder's risk policy.
(c) All contracts for public construction shall provide that payment of amounts due a contractor from an owner, except retainage, shall be made within 30 days after the owner receives a timely, properly completed, undisputed request for payment according to terms of the contract, unless extenuating circumstances exist which would preclude approval of payment within 30 days. If such extenuating circumstances exist, then payment shall be made within 45 days after the owner receives such payment request.
(d) The architect or engineer of record or agent of the owner shall review, approve and forward undisputed requests for payment to the owner within seven business days of receipt from the contractor.
(e) If the owner fails to pay a contractor within the time period set forth in subsection (c), the owner shall pay interest computed at the rate of 18% per annum on the undisputed amount to the contractor beginning on the day following the end of the time period set forth in subsection (d).
(f) A contractor shall pay its subcontractors any amounts due within seven business days of receipt of payment from the owner, including payment of retainage, if retainage is released by the owner, if the subcontractor has provided a timely, properly completed and undisputed request for payment to the contractor.
(g) If the contractor fails to pay a subcontractor within seven business days, the contractor shall pay interest to the subcontractor beginning on the eighth business day after receipt of payment by the contractor, computed at the rate of 18% per annum on the undisputed amount.
(h) The provisions of subsection (g) shall also apply to all payments from subcontractors to their subcontractors.
History: L. 2007, ch. 163, § 3; July 1.
(a) Retainage shall not exceed 5% of the value of the contract or subcontract unless the owner or contractor determines that a higher rate of retainage is required to ensure performance of the contract. Retainage, however, shall not exceed 10% of the value of the contract or subcontract.
(b) If the contractor or subcontractor has failed to meet the terms of the contract, is not performing according to schedule, shows poor workmanship or other issues, the owner may increase retainage up to 10%.
(c) An owner may withhold not more than 150% of the value of incomplete work, provided that the incomplete work is due to the fault of a contractor. Any amounts retained for incomplete work shall be paid within 45 days after completion of the work as a part of the regular payment cycle.
(d) A contractor may withhold not more than 150% of the value of incomplete work, provided that the incomplete work is due to the fault of a subcontractor. Any amounts retained for incomplete work shall be paid within 45 days after completion of the work as part of the regular payment cycle.
(e) A subcontractor may withhold not more than 150% of the value of incomplete work that is the responsibility of another subcontractor, provided that the incomplete work is due to the fault of such other subcontractor. Any amounts retained for incomplete work shall be paid within 45 days after completion of the work as a part of the regular payment cycle.
(f) Prior to commencement of work, a contractor or subcontractor may request an alternate security in lieu of retainage.
(g) If a contractor or subcontractor requests the use of an alternate security, as defined in subsection (a) of K.S.A. 16-1902, and amendments thereto, in lieu of retainage, the owner or contractor who would otherwise withhold the retainage shall have the right to determine which type of alternate security, as defined in subsection (a) of K.S.A. 16-1902, and amendments thereto, shall be accepted.
(h) An owner, contractor or subcontractor must release all remaining retainage on any undisputed payment due on a construction project within 30 days after substantial completion of the project as part of the regular payment cycle; however, if any contractor or subcontractor is still performing work on the project, an owner may withhold that portion of the retainage attributable to such work until 30 days after such work is completed.
(i) If an owner, contractor or subcontractor fails to pay retainage, if any, pursuant to the terms of a contract for public construction or as required by this act, the owner, contractor or subcontractor shall pay interest to the contractor or subcontractor to whom payment was due, beginning on the first business day after the payment was due, at a rate of 18% per annum.
(j) Nothing in this section shall prevent early release of retainage if it is determined by the owner, the contractor and the project architect or engineer, that a subcontractor has completed performance satisfactorily and that the subcontractor can be released prior to substantial completion of the entire project without risk or additional cost to the owner or contractor. Once so determined, the contractor shall request such adjustment in retainage, if any, from the owner as necessary to enable the contractor to pay the subcontractor in full, and the owner shall, as part of the next contractual payment cycle, release the subcontractor's retainage to the contractor, who shall, as part of the next contractual payment cycle, release such retainage as is due to the subcontractor.
History: L. 2007, ch. 163, § 4; L. 2010, ch. 128, § 4; July 1.
If any undisputed payment is not made within seven business days after the payment date established in a contract for public construction or in this act, the contractor and any subcontractors, regardless of tier, upon seven additional business days' written notice to the owner and, in the case of a subcontractor, written notice to the contractor, shall, without prejudice to any other available remedy, be entitled to suspend further performance until payment, including applicable interest, is made. The contract time for each contract affected by the suspension shall be extended appropriately and the contract sum for each affected contract shall be increased by the suspending party's reasonable costs of demobilization, delay and remobilization.
History: L. 2007, ch. 163, § 5; July 1.
In any action to enforce K.S.A. 16-1903, 16-1904 or 16-1905, and amendments thereto, including arbitration, between a contractor and subcontractors or subcontractors and subcontractors, the court or arbitrator shall award costs and reasonable attorney fees to the prevailing party. Venue of such an action shall be in the county where the real property is located and under Kansas law. The hearing in such an arbitration shall be held in the county where the real property is located.
History: L. 2007, ch. 163, § 6; July 1.
Any provision in a contract that purports to waive the rights of a party to the contract to collect damages for delays caused by another party to the contract shall be void, unenforceable and against public policy. This provision is not intended to create a contract between parties where a contract did not otherwise exist.
History: L. 2007, ch. 163, § 7; July 1.
The provisions of the Kansas fairness in public construction contract act shall not apply to construction projects which are required to comply with section 109 of the Kansas department of transportation special provisions to the standard specifications, 1990 edition (90P-205-R6) or any subsequent editions.
History: L. 2007, ch. 163, § 8; July 1.
(a) Prior to entering into a contract in any sum exceeding $100,000 with an owner that involves a public-private agreement, the contractor shall furnish to the owner or owner's agent the following bonds, which shall be placed with good and sufficient sureties as determined by the public owner and shall become binding upon the award of the contract by the owner or owner's agent to the contractor:
(1) If a performance bond is not otherwise required pursuant to state law, a performance bond in an amount equal to the full contract amount conditioned upon the faithful performance of the contract in accordance with plans, specifications and conditions thereof, made solely for the protection of the owner awarding the contract; and
(2) a payment bond in an amount equal to the full contract amount solely for the protection of claimants supplying labor or materials to the contractor or subcontractors in the performance of the work.
(b) Each bond shall include a provision allowing the prevailing party in any action on the bond to recover as a part of the judgment reasonable attorney fees and expenses as determined by the court.
(c) For purposes of this section:
(1) "Public-private agreement" means an agreement for public construction involving a nontraditional arrangement between the owner and one or more private entities, including a contractor, that provides for acceptance by the owner of a private contribution to the public construction project in exchange for a public benefit concerning such public construction project other than only a money payment;
(2) "private contribution" means the supply by a private entity of resources to accomplish all or any part of the work to be performed under a public-private agreement, including, but not limited to, funds, financing, supplies, materials or engineering or construction services; and
(3) "public benefit" means a grant by the owner of a right or interest in or concerning the construction project and may include receipts or revenue arising out of, or in connection with, the grant of a right or interest in the construction project.
(d) This section shall be a part of and supplemental to the Kansas fairness in public construction contract act.
History: L. 2017, ch. 29, § 1; July 1.
K.S.A. 16-2001 through 16-2005, and amendments thereto, shall be known and may be cited as the competitive bid protection act.
History: L. 2012, ch. 153, § 1; July 1.
The purposes of the competitive bid protection act are to:
(a) Provide for the efficient procurement of goods and services by governmental entities;
(b) promote the economical, nondiscriminatory and efficient administration and completion of state and state-funded or state-assisted construction projects by governmental entities;
(c) provide for fair and open competition for construction contracts, awarded by governmental entities;
(d) prohibit requirements for certain terms in construction contracts awarded by governmental entities;
(e) prohibit the expenditure of public funds under certain conditions;
(f) prohibit certain terms in procurement documents by governmental entities for public facilities; and
(g) provide powers and duties for certain public officers, employees and contractors.
History: L. 2012, ch. 153, § 2; July 1.
(a) Unless otherwise required by law, each governmental entity within this state that contracts for public works construction shall ensure that neither the awarding governmental entity nor any agent responsible for procuring a contract directly between the governmental entity and a contractor shall not:
(1) Require any bidder, contractor, subcontractor or material supplier to enter into or agree to enter into any prehire agreement, project labor agreement, collective bargaining agreement or any other similar agreement with one or more labor organizations on the same or other related construction projects; or
(2) discriminate against or treat differently any bidder, contractor, subcontractor or material supplier for becoming, refusing to become or remaining signatories or otherwise to agree to enter into any prehire agreement, project labor agreement, collective bargaining agreement or any other similar agreement with one or more labor organizations on the same or other related construction projects.
(b) Nothing in this section shall prohibit:
(1) Any bidder, contractor, subcontractor, construction manager, design-builder or material supplier of any tier from voluntarily entering into agreements described in paragraph (1) of subsection (a); or
(2) any contractor, construction manager or design builder from requiring its subcontractors or material suppliers of any tier to enter into a collective bargaining agreement.
History: L. 2012, ch. 153, § 3; July 1.
No provision of this act shall be construed to:
(a) Prohibit any employer or other party from entering into any agreement or engaging in any other activity protected by the national labor relations act, 29 U.S.C. §§ 151 to 169; and
(b) interfere with labor relations of any party that is protected under the national labor relations act, 29 U.S.C. §§ 151 to 169.
History: L. 2012, ch. 153, § 4; July 1.
For the purposes of this act:
(a) "Governmental entity" means a state agency or a municipality as the context requires.
(b) "Municipality" means the same as specified in K.S.A. 12-105a, and amendments thereto.
(c) "State agency" means the same as specified in K.S.A. 75-3728a, and amendments thereto.
History: L. 2012, ch. 153, § 5; July 1.
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