HECKERT CONSTRUCTION COMPANY, INC., )

and SE-KAN ASPHALT SERVICES, INC, )

Plaintiffs, )

)

vs. )Case No. 01C116

CITY OF FORT SCOTT, KANSAS )

[Pursuant to Chapter 60 of the Kansas Statutes Annotated]

Plaintiffs Heckert Construction Company, Inc. and SE-KAN Asphalt Services, Inc. hereby petition for such declaratory, injunctive and other equitable relief as may be necessary to immediately, temporarily and permanently enjoin and restrain Defendant City of Fort Scott, Kansas from selling or otherwise providing paving material to any private person or private entity in violation of 2001 Kan. Sess. Laws, ch. 111, § 1 (codification of House Bill No. 2369, effective July 1, 2001) as more fully set forth below.

In support of this petition, Plaintiffs allege and state as follows:

1. The District Court of Bourbon County, Kansas has general original jurisdiction over the subject matter of this civil action, K.S.A. 20-301, and statutory authority to grant relief under the provisions of K.S.A. 60-1701 et seq. (declaratory judgment), and K.S.A. 60-901 et seq. (injunctions and restraining orders).

3. Plaintiff Heckert Construction Company, Inc. ("Heckert") is a corporation organized and existing under the laws of the State of Kansas. Heckert is in good standing, does business in Kansas pursuant to lawful authority, and maintains its principal office in Pittsburg, Kansas. Heckert is a nongovernmental entity.

4. Plaintiff SE-KAN Asphalt Services, Inc. ("SE-KAN") is a corporation organized and existing under the laws of the State of Kansas. SE-KAN is in good standing, does business in Kansas pursuant to lawful authority, and maintains its principal office in Gas, Kansas. SE-KAN is a nongovernmental entity.

5. Defendant City of Fort Scott, Kansas ("Fort Scott" or "City") is a duly organized and existing municipal corporation and political subdivision of the State of Kansas which is governed by a city commission and has the capacity to be sued in accordance with K.S.A. 12-101. Pursuant to the provisions of K.S.A. 60-304(d)(3), Defendant Fort Scott may be served with process by personal delivery or certified mail addressed to City Clerk DeElda J. Coyan or Mayor Kenneth D. Lunt at Fort Scott City Hall, One East Third Street, Fort Scott, Kansas 66701.

6. Plaintiffs Heckert and SE-KAN are each in the business of producing and selling materials, including asphalt, which are used to pave roads, streets and drives. Heckert and SE-KAN regularly sell paving materials to customers in Fort Scott and surrounding areas, and each reasonably considers the City of Fort Scott and surrounding areas to be within their respective markets for the sale of paving materials.

7. Heckert and SE-KAN conduct business operations in reasonably close proximity to and within reasonable driving distance from the City; their paving material products are easily accessible through pick-up or delivery to customers in Fort Scott and surrounding areas; and each remains willing and able to continue making such products readily available to customers in the City and surrounding areas. Therefore, at all times pertinent hereto, paving materials have been and continue to be readily available from nongovernmental entities in Fort Scott and surrounding areas.

8. The 2001 Kansas Legislature enacted House Bill No. 23699, which was approved on April 16, 2001. This Act is codifed in Chapter 111 of the 2001 Kansas Session Laws and provides, in relevant part, as follows:

Section 1. (a) As used in sections 1 and 2, and amendments thereto:

2001 Kan. Sess. Laws, ch. 111, § 1 (emphasis added). House Bill No. 2369 became effective on July 1, 2001. Id., § 3 ("This act shall take effect and be in force from and after its publication in the statute book."),

9. On or about June 6, 2001, in apparent reliance on the approval of House Bill No. 2369 but before it became effective, the Fort Scott City Commission unanimously voted to sell asphalt to private customers based on Its purported and unsupported view that paving materials are not readily available from any private companies in the area. To the best of Plaintiffs' knowledge, information and belief, Defendant Fort Scott has been engaged in the sale of paving materials to private customers since House Bill No. 2369 became effective on. July 1, 2001.

10. Any determination made by Defendant's governing body that paving materials are not readily available from a nongovernmental entity as required under Section 1(c)(1) of House Sill No. 2369, 2001 Kan. Sess. Laws., ch. 111, § 1(c)(1), is not supported by substantial competent evidence and appears to be a pretext for unlawful government competition with private enterprise in the sale of paving materials. Moreover, Defendant's wrongful conduct is contrary to the letter of the law and the intent of the Kansas Legislature as expressed in House Bill No. 2369.

11. Since Heckert and SE-KAN make paving materials readily available in and around the Fort Scott area, Defendant's sale or provision of such products to private customers: (a) violates Section 1 of House Bill No. 2369 as codified in Chapter 111 of the 2001 Kansas Session Laws; (b) constitutes unlawful government competitive conduct that adversely affects Plaintiffs' rights, duties, and obligations as a private business; and (c) has caused and will continue to cause Plaintiffs to suffer irreparable economic injuries and damages due to unlawful competition that cannot be adequately remedied at law.

13. The Kansas Declaratory Judgment Act, K.S.A. 60-1701 et sea.. "is remedial in nature and its purpose is to settle and provide relief from uncertainty and insecurity with respect to disputed rights, status and other legal relations and should be liberally construed and administered to achieve that purpose." K.S.A. 60-1713. Plaintiffs are accordingly authorized to seek and obtain a declaratory judgment that resolves and provides meaningful relief in connection with any question regarding: (a) the disputed legality or validity of Defendant's conduct in selling or otherwise providing paving materials to private persons or entities; (b) the proper construction of House Bill No. 2369; and (c) the proper application of House Bill No. 2369 to Defendant's challenged conduct herein. E.g., K.S.A. 60-1704. Heckert and SE-KAN are likewise entitled to seek and obtain a judgment declaring the "rights, status or other legal relations" of the parties under Section 1 of House Bill No. 2369 as codified in Chapter 111 of the 2001 Kansas Session Laws. See K.S.A. 60-1704.

14. Pursuant to the provisions of K.S.A. 60-1701 et seg. Plaintiffs are entitled to and hereby request the entry of judgment declaring as follows: (a) Defendant's conduct in selling or otherwise providing paving materials to private persons or entities violates Section 1(b) of House Bill No. 2369 and is, therefore, unlawful; (b) any determination by Defendant's governing body that paving materials are not readily available from a nongovernmental entity in the area is unsupported by any substantial competent evidence and, accordingly, fails to authorize or justify Fort Scott's sale or provision of such materials to private persons or entities; (c) Defendant's involvement in the sale or other provision of paving materials to private persons or entities is contrary to or inconsistent with the law of Kansas; and/or (d) Defendant's purported justification is a pretext or subterfuge for its unlawful conduct in the sale or provision of paving materials to private persons or entities. Plaintiffs further request an award of such ancillary relief and costs as may be just and equitable under the circumstances.

15. The allegations set forth in Paragraphs 1 through 11 and Paragraphs 13 through 14 of this Verified Petition are hereby fully incorporated by reference.

16. Defendant's conduct in violation of Section 1 of Mouse Bill No. 2369 has caused and will continue to cause Plaintiffs to suffer irreparable injuries and damages proximately resulting from lost opportunities and sales due to unlawful government competition for which there is no adequate remedy at law. Such unlawful conduct also threatens the present and future competitive ability of each Plaintiff to compete for or to otherwise continue making paving materials readily available to private customers in and around the City of Fort Scott. Defendant's proprietary activities likewise undermine the public interest in competition between private businesses without unfair or undue government interference.

17. In accordance with the provisions of K.S.A. 60-901 et sea., Plaintiffs are entitled to and hereby request the Court to issue provisional and final injunctive relief prohibiting, restraining and enjoining Defendant City of Fort Scott, together with its officials, officers, agents and employees, from selling or otherwise providing paving materials to private persons or entities.

18. WHEREFORE, premises considered, Plaintiffs respectfully request the Court:

(a) to issue provisional relief in the form of a temporary restraining order and a temporary injunction that immediately prohibits, restrains and enjoins Defendant City of Fort Scott, Kansas, together with its officials, officers, agents and employees, from selling or otherwise providing paving materials to private persons or entities prior to the trial of this action and the entry of final judgment herein;

(b) to enter judgment declaring as follows: (i) Defendant's conduct in selling or otherwise providing paving materials to private persons or entities violates Section 1(b) of House Bill No. 2389 and is, therefore, unlawful; (ii) No substantial competent evidence supports any determination by Defendant's governing body that paving materials are not readily available from a nongovernmental entity and, accordingly, Section 1(c)(1) of House Bill No. 2369 fails to authorize or justify Fort Scott's sale or provision of paving materials to private persons or entities; (iii) Defendant's involvement in the sale or other provision of paving materials to private persons or entities is contrary to or inconsistent with the laws of the State of Kansas; and/or (iv) Defendant's purported justification is a pretext or subterfuge for its unlawful conduct in the sale or provision of paving materials to private persons or entities;

(c) to enter judgment awarding each Plaintiff such ancillary relief and costs as may be just and equitable under the circumstances;

(d) to enter judgment that permanently prohibits, restrains, and enjoins Defendant City of Fort Scott, Kansas, together with its officials, officers, agents and employees, from directly or indirectly selling or otherwise providing paving materials to private persons or entities; and

(c) to enter judgment awarding Plaintiffs their allowable costs in this civil action and such other and further relief as may be just and appropriate under the circumstances.

Respectfully submitted,

John C. Frieden #06592

Kevin M. Fowler #11227

Clinton E. Patty #18912

FRIEDEN, HAYNES & FORBES

555 South Kansas Avenue, Suite 303

P. O. Box 639

Topeka, KS ;66601-0639

TEL: (913) 232-7266

FAX: (913) 232-5841

Attorneys for Plaintiffs

STATE OF KANSAS )

)ss:

COUNTY OF CRAWFORD

I, Roger A. Heckert of lawful age and being first duly sworn under oath, depose and state as follows:

That I am the duly appointed President of Heckert Construction Company, Inc., one of the named Plaintiffs in this civil action; that I have been authorized to execute this Verification for and on behalf of Plaintiff Heckert Construction Company, Inc.; that this Verification is based on my personal knowledge and experience; that I have read the above and foregoing Verified Petition; and that the statements of fact applicable to Heckert Construction Company, Inc. as set forth in the Verified Petition are true and correct to the best of my knowledge, information and belief.

AFFIANT FURTHER SAITH NOT.

Roger A. Heckert

(Full Printed Name)

SUBSCRIBED AND SWORN TO before me, the undersigned Notary Public in and for the State of Kansas, on this 11^th day of October 2001.

My Commission Expires:

STATE OF KANSAS )

) ss:

COUNTY OF ALLEN )

I, Lawrence Macha of lawful age and being first duly sworn under oath, depose and state as follows:

That I am the duly appointed President of SE-KAN Asphalt Services, Inc., one of the named Plaintiffs in this civil action; that I have been authorized to execute this Verification for and on behalf of Plaintiff SE-KAN Asphalt Services, Inc.; that this Verification is based on my personal knowledge and experience; that I have read the above and foregoing Verified Petition; and that the

statements of fact applicable to SE-KAN Asphalt Services, Inc. as set forth in the

Verified Petition are true and correct to the best of my knowledge, information and

belief.

AFFIANT FURTHER SAITH NOT.

_______________________

(Full Printed Name)

SUBSCRIBED AND SWORN TO before me, the undersigned Notary Public in and for the State of Kansas, on this 11^th day of October 2001.