[Adopted 8-2-2000 by Ord. No. 378]
The City of Rockwood (the "city") grants to DTE Energy Marketing,
Inc. ("DTE"), its successors and assigns, subject to the terms and
conditions set forth below and to the extent permissible and approved
by the Michigan Public Service Commission, the nonexclusive right,
power and authority to conduct an electric power business in the City
by supplying electrical power to customers in the City over electric
lines consisting of towers, masts, poles, cross-aims, guys, braces,
feeders, transmissions and distribution wires, transformers and electrical
appliances (the "electrical system") that are owned either by Detroit
Edison or by any other electric utility which has the necessary authority
from the Michigan Public Service Commission and a valid franchise
from the city, which electric systems exists on, along, across and
under the highways, streets, alleys and bridges of the City (the "public
rights-of-ways").
This franchise shall be for a term of 10 years, subject to revocation
at will by the City Council.
A.
In consideration of the rights, power and authority granted by the
city, DTE shall faithfully perform all duties required by the terms
of this article.
B.
In further consideration of the rights, power and authority granted
by the city, DTE agrees to pay to the City a nonrefundable application
fee in an amount set by resolution of the City Council and to compensate
the City for the amount of its actual expenses incurred by the City
in the draft and preparation of this article, including reasonable
actual attorney fees, and for the amount of its actual expenses resulting
from the process of adopting this article, which shall together with
the application fee not exceed an amount set by resolution of the
City Council.[1]
C.
In the event that DTE, or any company which is a subsidiary, affiliate
or other related company to DTE, pays a fee, charge or other payment
of any kind on a periodic basis (such as monthly, quarterly, annually)
to any municipality in the State of Michigan as a condition, or in
consideration for the right to transact a local utility business in
that municipality, DTE shall notify the city, in writing, of the details
of the fee or periodic charge within 60 days of the effective date
of the fee or periodic charge, at which time the franchise granted
by this article shall be automatically revoked. This franchise shall
also be revoked upon 10 days' written notice to DTE, upon the
city's discovery of such fee or periodic charge paid elsewhere
by DTE to any other local unit of government. Any new franchise granted
by the City to DTE shall require payment of a similar fee or periodic
charge as a condition of the new franchise.
D.
DTE agrees to abide by any future ordinance(s) of the city, if and
when formally adopted, which may require the payment by DTE of a fee,
charge or other payment on a periodic basis (such as monthly, quarterly,
annually), provided that any such future ordinance(s) apply equally
to all electric franchise holders. The City shall notify DTE within
60 days of the formal adoption of such an ordinance by the city, at
which time the franchise granted by this article shall be automatically
revoked. Any new franchise granted by the City to DTE shall be subject
to the provisions of such future ordinance(s), and shall require payment
of a similar fee or periodic charge as a condition of the new franchise.
DTE covenants and represents that it will sell and distribute
its electric product only through the current and existing electrical
system owned by third parties already in place in the City of Rockwood.
DTE does not intend, nor shall it erect, construct or maintain its
own power distribution system or electrical system under, over, through
or in any of the public rights-of-way under this grant of franchise.
Violation of this section shall be a material breach of this franchise
giving cause for revocation if so determined by the city.
A.
City not liable. The city, and its agents, employees, and contractors,
shall not be liable to DTE or DTE's customers for any interference
with or disruption in the operation of DTE's electric system,
or the provision of service over or through the electric system, or
for any damages arising out of DTE's use of the public ways.
B.
Indemnification. As part of the consideration for this article, DTE
shall defend, indemnify, protect and hold harmless city, its officers,
agents, employees, departments, boards, and commissions from any and
all claims, losses, liabilities, causes of action, demands, judgments,
decrees, proceedings, and reasonable expenses of any nature (including,
without limitation, actual fees and expenses of attorneys, expert
witnesses and consultants), arising out of or resulting from the acts
or omissions of DTE, its officers, agents, employees, contractors,
successors, or assigns, but only to the extent of the fault of DTE,
its officers, agents, employees, contractors, successors, or assigns.
C.
Assumption of risk. DTE undertakes and assumes for its officers,
agents, contractors and subcontractors and employees, all risk of
dangerous conditions, if any, on or about any City owned or controlled
property, including public ways, and DTE hereby agrees to indemnify
and hold harmless the City against and from any claim asserted or
liability imposed upon the City for personal injury or property damage
to any person arising out of the installation, operation, maintenance
or condition of the electric system or DTE's failure to comply
with any federal, state or local statutes ordinance or regulation.
D.
Notice, cooperation and expenses. The City shall give DTE prompt
notice of the making of any claim or the commencement of any actions,
suit or other proceeding covered by the provisions of this section.
(1)
Nothing herein shall be deemed to prevent the City from cooperating
with DTE and participating in the defense of any litigation by city's
own counsel.
(2)
DTE shall pay all expenses incurred by City in defending itself with
regard to any such actions, suits or proceedings. These expenses shall
include all out-of-pocket expenses such as attorney fees and shall
also include the reasonable value of any services rendered by or on
behalf of the city's attorney, and the actual expenses of city's
agents, employees or expert witnesses, and disbursements and liability
assumed by City in connection with such suits, actions or proceedings.
DTE shall, at the time of ownership or construction of any systems,
equipment, lines, and/or building independent of its use of the existing
Detroit Edison transmission and distribution system, obtain and maintain
in full force and effect, for the entire effective period of this
article, the following insurance covering all insurable risks associated
with its ownership and use of its electric system:
A.
A comprehensive general liability insurance policy, including completed
operations liability, independent contractors liability, contractual
liability coverage and coverage for property damage from perils of
explosion, collapse or damage to underground utilities, commonly known
as XCU coverage, in an amount not less than $5,000,000.
B.
An automobile liability insurance policy to cover any vehicles used
in connection with its activities under this article, in an amount
not less than $2,000,000.
C.
Workers' compensation and employer's liability insurance
with statutory limits. The City shall be named as an additional insured
in all applicable policies. All insurance policies shall provide that
they shall not be canceled or modified unless 30 days prior written
notice is given to the city. DTE shall provide the City with a certificate
of insurance evidencing such coverage as a condition of this article
and shall maintain on file with the City a current certificate. All
insurance shall be issued by insurance carriers licensed to do business
by the State of Michigan or by surplus line carriers on the Michigan
Insurance Commission approved list of companies qualified to do business
in Michigan. All insurance and surplus line carriers shall be rated
A+ or better by A.M. Best company.
(1)
Each policy which is to be endorsed to add the City as an additional
insured hereunder, shall contain cross-liability wording, as follows:
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"In the event of a claim being made hereunder by one insured
for which another insured is or may be liable, then this policy shall
cover such insured against whom a claim is or may be made in the same
manner as if separate policies had been issued to each insured hereunder."
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(2)
If the insurance policies required by this section are written with
deductibles, the deductibles shall be approved in advance by the city.
DTE agrees to indemnify and hold harmless the City from and against
the payment of any deductible and from the payment of any premium
on any insurance policy required to be furnished by this article.
(3)
City shall require that its contractors and subcontractors working
in public ways carry, in full force and effect, workers' compensation,
comprehensive public liability and automobile liability insurance
coverage of the type which City is required to obtain under the terms
of this section with appropriate limits of insurance.
The rights, power and authority granted herein are not exclusive.
DTE shall be entitled to charge the inhabitants of the City
for electricity furnished at the rates approved by the Michigan Public
Service Commission, which body, or its successors, have authority
and jurisdiction to fix and regulate electrical rates and promulgate
rules regulating such service in the city. Such rates shall be subject
to review and change any time upon petition being made by either the
City acting through the Council or by DTE.
The franchise granted by this article is subject to revocation
at the will of the City Council upon 60 days' written notice
to DTE.
DTE shall be and remain subject to all ordinances, rules and
regulations of the City now in effect or which might subsequently
be adopted for the regulation of land uses or for the protection of
the health, safety and general welfare of the public; provided, however,
that nothing herein shall be construed as a waiver by the grantee
of any of its existing or future rights under Michigan or federal
law or a limitation upon the existing or future posers of the City
pursuant to its Charter or Michigan or federal laws.
A.
Jurisdiction. DTE shall, as to all other conditions and elements
of service not addressed or fixed by this article, remain subject
to the rules and regulations applicable to electric service by the
Michigan Public Service Commission, or its successor bodies.
B.
Filing. DTE shall provide the City with copies of all documents which
DTE sends to the Michigan Public Service Commission and copies of
all orders, decisions, or correspondence the City receives from the
Public Service Commission. DTE shall permit City inspection and examination
of all records it is required to maintain or file under Michigan Public
Service Commission rules and regulations.
This article shall take effect 30 days after adoption by the
council and shall continue in effect for a period of 10 years thereafter,
subject to revocation at the will of the City at any time during said
ten-year period; provided, however, it shall cease and be of no effect
unless and until within 15 days after adoption DTE shall file its
written acceptance of the same with the Clerk, and pay to the City
the sum required by § 95-48B hereof.
