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Company shall indemnify and save harmless City from any and all claims, suits, losses, damages, costs or expenses on account of injury or damage to any person or property, caused or occasioned, or allegedly caused or occasioned, in whole or in part, by Company’s negligence in construction, reconstruction, excavation, operation or maintenance of the electric facilities authorized by the franchise, provided, however, that the Company shall not be obligated to defend, indemnify and save harmless the City for any costs or damages arising from the negligence of the City, its officers, employees or agents. The Company shall purchase and maintain insurance to protect the City throughout the duration of the franchise. Coverage may be provided under a program of self insurance. The Company’s indemnification obligations under the franchise shall survive the expiration, cancellation, or termination of the franchise.
The franchise shall apply and bind the City and the Company, their successors and assigns, provided that any assignment by the Company shall be subject to the approval of the Council by resolution, which shall not be unreasonably withheld, except that no consent shall be required for any assignment or transfer by merger, consolidation or reorganization. The City shall have 60 days after the effective date of the assignment to adopt the resolution. If the City fails to adopt a resolution affirming or rejecting the assignment during the 60-day period, the assignment shall be deemed approved. The Company shall provide notice to the City in the event of an assignment of the franchise.
The violation of any material portion of the franchise by the Company, or its failure to perform any of the provisions of the franchise, may be cause for forfeiture of the franchise and the termination of all rights under this chapter. Such forfeiture may be accomplished after written notice to the Company by the City, and a continuation of the violation, failure or default specified in the notice for at least 60 days from the date the notice was served upon the Company, unless a different cure period is agreed upon by the parties. If the City determines there to be a default under the franchise, it shall provide a written notice to the Company describing the default, stating whether a forfeiture and termination of the franchise will be sought, and where the default is curable, proposing a reasonable time to cure the default, which shall be not less than sixty (60) days. Company may respond to such notice, proposing a different time to accomplish the cure of the default. If Company has not cured the default within the agreed-upon cure period, the City may proceed to terminate the franchise agreement and the same shall be deemed forfeited by the Company as provided above.
In consideration of the right and franchise granted to MidAmerican Energy Company (the "Company") in Section 117.01 herein, a franchise fee is hereby imposed effective May 1, 2011, equal to two percent (2%) of the gross receipts minus uncollectable amounts derived by the Company in the City of Ankeny for the delivery and sale of electric energy.
1. The amount of franchise fee shall be shown separately on the utility bill to each customer. The Company shall remit collected franchise fees to the City on a quarterly basis, within thirty (30) days after the last day of the last revenue month of each quarter of the calendar year (i.e. remitted by April 30, July 31, October 31 and January 31). The City shall not modify the level of the franchise fee more frequently than once in any twelve (12) month period.
2. The City shall be solely responsible for the proper use of any amounts collected as franchise fees, and shall only use such franchise fees for purposes allowed by Iowa law and as set forth in the Revenue Purpose Statement previously adopted by the City.
3. The franchise fee shall be applied to all customers' bills in accordance with Iowa Code Chapters 362.2(f) and 423B.5, except for the City's bills which shall be exempt from the franchise fee.
4. Upon receipt of a final and unappealable order or approval authorizing annexation or changes in the corporate boundaries of the City, the City Clerk shall provide written notification to the Company of such annexation or change in the corporate boundaries of the City, and the Company shall apply the franchise fee to its customers who are affected by the annexation or change in the corporate boundaries of the City, commencing no more than ninety (90) days after receipt of the written notice and City's verification of the area added to the City.
5. To fulfill the purpose and intent of this section, the City and the Company may enter into an agreement addressing the implementation of the collection of the franchise fee, which agreement shall be approved by resolution of the City.
6. The obligation to collect and remit the fee imposed by this section is modified or repealed if:
A. Any other person is authorized to sell electricity or natural gas at retail to City consumers and the City imposes a franchise fee or its lawful equivalent at zero or a lesser rate than provided in this section, in which case the obligation of Company to collect and remit franchise fee shall be modified to zero or the lesser rate;
B. The City adds additional territory by annexation or consolidation and is unable or unwilling to impose the franchise fee upon all persons selling electricity or natural gas at retail to consumers within the additional territory, in which case the franchise fee imposed on the revenue from sales by Company in the additional territory shall be zero or equal to that of the lowest fee being paid by any other retail seller of electricity or natural gas within the City; or
C. Legislation is enacted by the Iowa General Assembly or the Supreme Court of Iowa issues a final ruling regarding franchise fees or the Iowa Utilities Board issues a final nonappealable order (collectively, "final franchise fee action") that modifies, but does not repeal, the ability of the City to impose a franchise fee or the ability of Company to collect from City customers and remit franchise fees to City. Within a reasonable time of final franchise fee action, the City and Company shall meet to determine whether this section can be revised, and, if so, how to revise the franchise fee on a continuing basis to meet revised legal requirements. After final franchise fee action and until passage by the City of revisions to the franchise fee section, Company may temporarily discontinue collection and remittance of the franchise fee if in its sole opinion it believes it is required to do so in order to comply with revised legal requirements.
(Ord. 1686 - Apr. 11 Supp.)