[Adopted 9-14-1998 by Ord. No. 1658]
As used in this article, the following terms
shall have the meanings indicated:
The City Manager of the City of Kalamazoo, and shall include
his or her designee.
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.
A revocable franchise which allows a person to be a retail
wheel electrical provider.
An individual, corporation, company, association, firm, partnership
or limited liability company, including their lessors, trustees and
receivers.
A person which supplies or desires to supply electricity,
generated by another, through an electrical system which is entirely
or substantially owned by another.
No person shall become a retail wheel electrical
provider within the City without first obtaining a revocable franchise.
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:
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.
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.
