[Adopted 9-14-1998 by Ord. No. 1658]
[1]
Editor's Note: Ord. No. 1658, adopted 9-14-1998, amended this Ch. 33 by adding provisions designated as Art. VI, §§ 33-108—33-113. In order to avoid conflicts in section numbering, the editor has redesignated the provisions of said ordinance as herein set out.
As used in this article, the following terms shall have the meanings indicated:
CITY MANAGER
The City Manager of the City of Kalamazoo, and shall include his or her designee.
ELECTRICAL SYSTEM
Electric lines, towers, masts, poles, cross-arms, guides, braces, feeders, transmission and distribution wires, transformers and other electrical appliances used in the transmission of electricity which exist on, along, across or under the highways, streets, alleys, bridges (hereinafter "rights-of-way") within the City of Kalamazoo.
FRANCHISE
A revocable franchise which allows a person to be a retail wheel electrical provider.
PERSON
An individual, corporation, company, association, firm, partnership or limited liability company, including their lessors, trustees and receivers.
RETAIL WHEEL ELECTRICAL PROVIDER or PROVIDER
A person which supplies or desires to supply electricity, generated by another, through an electrical system which is entirely or substantially owned by another.
A. 
A provider, or one who desires to be a provider, shall apply for a revocable franchise by providing to the City the following information:
(1) 
The name and address of the applicant; if the applicant is not a natural person, the name and address of each of its officers, general partners and each limited partner holding an equity interest of more than 20%;
(2) 
Evidence of all required regulatory approvals, permits and licenses for the offering or providing of electricity by way of retail wheeling; to the extent such an approval, permit or license cannot be obtained prior to the issue of a franchise, the provider shall satisfy the City that it has been obtained prior to the provider's actual use of an electrical system;
(3) 
A statement that the applicant is not in any way indebted to the City for taxes, fees, costs or any other sums; and
(4) 
A list of all persons to whom the provider intends to provide electricity.
B. 
The City may request that an applicant submit additional information which the City reasonably deems necessary to respond to the application.
C. 
To reimburse the City for its fixed and variable costs incurred by the City for granting and monitoring revocable franchises, each applicant shall pay a nonrefundable application fee in the amount of $2,500 (unless changed hereafter by resolution of the City Commission); said fee shall be paid as follows:
(1) 
One thousand two hundred fifty dollars upon the submission of the application; and
(2) 
One thousand two hundred fifty dollars upon the return to the City by the applicant of the signed revocable franchise.
D. 
Within 60 days of receiving a provider's application and all required information, the City Manager shall present the provider's request for a revocable franchise to the City Commission, which shall grant or deny the request or, if reasonably necessary, request more information before granting or denying said request.
E. 
A revocable franchise shall not be granted unless the applicant establishes that it is capable of complying with the legal, technical and financial requirements of this article.
F. 
If the City Commission grants the provider's request for a revocable franchise, the City Manager shall prepare and execute a revocable franchise agreement consistent with this chapter and submit it to the provider for its signature; said signature shall indicate that the provider acknowledges and agrees to abide by the terms and conditions set forth therein and within this chapter.
G. 
A revocable franchise shall become effective when the City receives an original franchise bearing the signature of the applicant along with the payment of the second required application fee.
H. 
A revocable franchise granted by the City Commission, executed by the City Manager and sent to the applicant but not signed and returned (with the required fee) by the applicant within nine months of its being mailed to the applicant shall be null and void.
I. 
Prior to the expiration of a revocable franchise, a provider may apply for a renewed revocable franchise, the process and application fee for which shall be same as the original revocable franchise.
J. 
The terms, conditions and duration of a renewed revocable franchise shall be the same as for the original revocable franchise.
A. 
A revocable franchise shall remain in effect for a term of five years commencing upon the date it is executed by the City.
B. 
All such revocable franchises shall be nonexclusive and non-assignable; by issuing a revocable franchise, the City does not agree to restrict the number of revocable franchises in all or part of the City.
C. 
The revocable franchise shall not limit or modify any other revocable franchise, license or revocable franchise previously granted by the City to any other occupant of the rights-of-way.
D. 
All revocable franchises shall be revocable by the City Commission for any reason, upon providing 180 days' written notice to the provider; in the event a public electric utility desires an irrevocable franchise, the process set forth in § 144 of the City Charter shall apply.
E. 
The provider's use of any rights-of-way shall not exceed that authorized by this chapter and the revocable franchise.
F. 
The provider shall use the electrical systems of others and shall not itself construct or cause to be constructed any electrical system for its own purposes other than when such system is located upon a customer's property or is necessary to connect a customer to another utility's electrical system (and then, only if such construction would not amount to an unreasonable duplication of existing facilities owned by local utilities). In the event such construction is necessary, the provider shall first give the City 10 days written notice of its intent to so construct.
G. 
Any unlawful use of private property over the objection of the property owner shall constitute a violation of this chapter.
H. 
In the event a provider, during the term of its revocable franchise, desires to provide electricity to persons not previously disclosed to the City in the provider's application, the provider shall notify the City in writing prior to so providing electricity.
I. 
In the event of a conflict between this chapter and a revocable franchise, this chapter shall prevail.
J. 
Unless required to do so by state or federal law, a person, including a public utility, which owns an electrical system, shall not lease or sublease any portion of its electrical system, or allow another to use its electrical system, unless said person has first obtained from the City a revocable franchise allowing it to do so.
K. 
If a franchisee forfeits or otherwise loses it rights under a pole-conduit license agreement with the owner of an electrical system, the franchisee shall notify the City Manager in writing within 14 days.
L. 
A franchisee shall provide the City with copies of all documents which it sends to the Michigan Public Service Commission and copies of all orders, decisions or correspondence franchisee receives from the Michigan Public Service Commission.
A. 
A provider shall have no recourse against the City for any loss or damage arising out of the failure of the City to have the authority to grant all or any part of a revocable franchise or the authority to grant permission to use all or part of the rights-of-way. A provider acknowledges that on accepting a revocable franchise:
(1) 
It did so relying on its own investigation and understanding of the power and authority of the City; and
(2) 
That it has not been induced to obtain a revocable franchise by any understanding or promise by or on behalf of the City concerning any term or condition of a revocable franchise not expressed in this chapter or in the revocable franchise.
B. 
Each provider accepts as its own risk that the City may make use of the rights-of-way in which a system used by a provider is located in a manner inconsistent with the provider's use and that in such event the provider will not be entitled to compensation from the City.
C. 
The City shall not be liable for injury or damage to others arising out of a provider's use of a system due to the act or omission of any person or entity other than the City or those persons or entities for which the City is legally liable as a matter of law.
D. 
A provider shall, at its sole cost and expense, indemnify and hold harmless the City and its respective employees, officers, boards, agents, and contractors (hereinafter referred to in this chapter as "indemnitees"), from and against any and all liability which may be imposed upon or against the indemnitees by reason of any act or omission of a provider, its employees, agents, contractors or subcontractors, resulting in personal injury or property damage to any person arising out of its use of an electrical system.
E. 
In the event any action shall be brought against the indemnitees by reason of any matter for which the indemnitees are indemnified hereunder, a provider shall, at the provider's sole cost and expense, defend same with legal counsel selected by the provider and consented to by the City Attorney, which consent shall not to be unreasonably withheld.
F. 
A provider shall immediately advise the City Attorney of any claim or litigation that may result in liability to the City.
G. 
The issuance of a revocable franchise, or other action or transaction of the City, shall not constitute any representation, guarantee or warranty by the City of any kind to any person, customer or a provider and shall not be a defense against a provider's obligation to indemnify and hold the City harmless.
[Amended 5-7-2018 by Ord. No. 1964]
A. 
The City of Kalamazoo may charge any person who violates any section of this chapter with a civil infraction, unless the section specifically states otherwise.
(1) 
A fine for a violation of this chapter shall be not more than $200.
(2) 
A second or subsequent violation of this chapter committed by an individual who has been previously adjudicated responsible for a violation of this chapter within any twelve-month period may be fined a minimum fine of $200 but not more than $500.
B. 
In addition to any remedies under this chapter, the City may:
(1) 
Bring an action for an injunction or other process against a person to restrain, prevent, or abate any violation of this chapter; and/or
(2) 
Revoke a person's revocable franchise.
C. 
Each day on which any violation of this chapter continues constitutes a separate infraction and shall be subject to penalties and other remedies as a separate infraction.
D. 
Any material, false or misleading statement or representation knowingly made by an applicant or provider in an application, in any document submitted to the City pursuant to this chapter, shall be a violation of this chapter and, if made by a provider, a material breach of its revocable franchise, and shall subject the applicant or provider to all penalties and remedies which are available to the City, including the denial of the application or revocation of the revocable franchise.