Appendix A. ELECTRIC FRANCHISE
ORDINANCE NO. 96-133
An ordinance granting franchise to CENTRAL LOUISIANA ELECTRIC COMPANY, INC. ("Company"), its successors and assigns, for a period of 20 years for the construction, maintenance and operation of electric utilities, electric generating facilities and/or transmission and distribution systems in, through and across the MUNICIPALITY OF MARKSVILLE, LOUISIANA ("Municipality"), and for the use of the streets, alleys and public places of said Municipality, in connection therewith, for the generation, transmission, distribution and sale of electric energy, fixing the terms, considerations and limitations thereof and providing for payment by Central Louisiana Electric Company, Inc. (its successors and assigns) of a sum equal to four percent (4%) of amounts receivable by said Company from the sale and delivery of electric energy at retail for residential and commercial purposes based on residential and commercial net rates billed for service within the limits of said Municipality, as same may now or hereafter lawfully exist, and repealing all ordinances in conflict herewith.
BE IT ORDAINED by the governing body of Marksville, Louisiana ("Municipality"), in regular session duly and legally convened:
SECTION 1. That Central Louisiana Electric Company, Inc., hereinafter designated as the "Company" (a Louisiana corporation), domiciled and doing business in the State of Louisiana, its successors and assigns, be and the said Company is hereby granted the right, privilege and franchise of producing (including the right to construct, maintain and operate electric power plants) and/or otherwise acquiring, transmitting, distributing and selling electricity (for light, heat, power and other purposes) to the Municipality and the inhabitants thereof, which right, privilege and franchise shall be deemed to include the right, authority and privilege to construct, maintain and operate in, along, under and upon the present and future streets, alleys, bridges and public ways and places of said Municipality, lines with all necessary or desirable appurtenances (including poles, wires, transformers, street and other lights, towers, aerial and underground transmission and distribution lines, conduits and apparatus) for the purpose of supplying and/or selling electricity for light, heat, power and other purposes to the said Municipality and the inhabitants thereof.
SECTION 2. That the Company, its successors and assigns, shall at all times maintain its electric transmission and distribution systems in a safe and good condition and shall comply with all necessary and reasonable safety regulations in the operation thereof, and shall protect and save harmless the Municipality from all claims and damages due to the Company's negligence, or the Company's failure to comply with any obligations of this franchise; and the Company, its successors and assigns, shall extend said electric aerial transmission and distribution systems, from time to time, as may be necessary to the end that the said Municipality and the inhabitants thereof shall be afforded adequate service, commensurate with the demands therefor, whenever the estimated earnings from any extension shall be sufficient to pay the cost of giving aerial service thereon, including depreciation and a fair return on the property used and useful in giving such service.
SECTION 3. That all changes made necessary in the Company's transmission lines in connection with the improvements of streets, roads, bridges, alleys or other public places shall be made by the Company, its successors or assigns, who shall likewise repair all damage to the streets, roads, bridges, alleys or other public places caused by the construction or maintenance of said transmission lines.
SECTION 4. That the Company, its successors and assigns, shall have the right to formulate and publish rules and regulations under which service will be furnished subject to the approval of the legally constituted authorities having jurisdiction over such matters; which regulations may provide for the payment, on or before a specified day each month, for all service furnished for the preceding month, with right to disconnect and discontinue service to all delinquents.
SECTION 5. That this franchise and the rights, authorities and privileges herein granted are not exclusive and are granted for a period of 20 years from and after date the ordinance becomes effective.
SECTION 6. In consideration of the grant of this franchise:
(a)
The Company agrees to pay to the Municipality during the effective period of this franchise, a sum of money equal to four percent (4%) of the amounts receivable by the Company from the sale and delivery of electric energy at retail for residential and commercial purposes based on residential and commercial net rates approved by the Louisiana Public Service Commission billed for service within the limits of said Municipality. It is understood and agreed that no payment shall be due to the Municipality by the Company on amounts receivable from the following classifications of sales:
(1)
Sales of electricity for resale.
(2)
Sales of electricity to the Municipality and to other public authorities, including, but not limited to, the United States of America, the State of Louisiana and its political subdivisions, including parishes and other municipalities, and all divisions and agencies of any of the foregoing.
(3)
Sales of electricity to industrial customers who are identified as those who engage in the business of working raw materials into wares suitable for use or which gives new shapes, qualities or combinations to matter which already has gone through some artificial process and who are billed on or the equivalent of rate schedules GS or LPS on file with the Louisiana Public Service Commission or any rate schedules amending or superseding those rate schedules or any rate schedules filed with the Louisiana Public Service Commission having application to industrial use.
The period for which the amount payable under this Section shall be computed will commence when this ordinance becomes effective, and the amount shall be paid quarterly, the quarterly periods being fixed on a calendar year basis, and the payments on a quarterly basis shall be made not later than thirty (30) days after the end of each quarter, that is, on or before April 30, July 30, October 30, and January 30 of each year, and on the payment date the Company shall furnish to the Municipality a statement showing the total of such amounts receivable by the Company for the preceding quarterly period to which payment of four percent (4%) is applicable. The payments herein provided to be made by the Company to the Municipality will be reduced in an amount equal to the sum of any new or increased taxes of any nature whatsoever levied by the Municipality and payable by the Company, subsequent to the date of this ordinance (except uniform ad valorem taxes, that is, any uniform taxes based on property values).
(b)
The Company shall be obligated during the term of this franchise to furnish, operate and maintain a system for lighting the streets of the Municipality, and to furnish electric energy for other requirements of the Municipality for facilities owned and operated by the Municipality, all at costs to the Municipality, as agreed upon by the Municipality and the Company under contracts to be entered into hereafter, provided, however, that the validity of this franchise shall not in any way be contingent upon the existence or validity of any such contracts.
SECTION 7. That all of the franchise rights and obligations created hereunder shall be applicable to electric service by the Company within the corporate limits of the Municipality as same may now or hereafter lawfully exist. The Municipality shall provide to the Company in writing a legal description of said corporate limits as of the effective date of this franchise and shall immediately provide to the Company in writing all changes therein. All obligations of the Company under Section 6 of this franchise shall be based upon the last designation of the corporate limits made by the Municipality to the Company pursuant to this Section.
SECTION 8. That all ordinances or parts of ordinances contrary to or in conflict with the provisions of this ordinance be and the same are hereby repealed, and this ordinance shall take effect from and after its promulgation and its acceptance in writing by the Company for itself, its successors and assigns.
The foregoing was then read and considered, section by section, and as a whole, and thereupon, on motion of Janet Gros, seconded by Dennis Decuir, the ordinance was adopted, section by section, and as a whole, by the following vote:
YEAS: Janet Gros, Dennis Decuir, Alfred Channel, Madeline McGlory, John Ed Laborde.
NAYS: None.
ABSENT: None.
ABSTAIN: Malcolm Baudin.
The foregoing ordinance was thereupon declared adopted by the Mayor and was approved and signed by him on the 18th day of December, 1996, and ordered published.
ORDINANCE NO. 2003-007
AN ORDINANCE
Upon the request of Entergy Louisiana, Inc., (the "Company"), and pursuant to La. R.S. 33:4401, this municipality's police powers, and Article 4 of the municipality's Charter, and in order to protect the health, safety, and welfare of the public, City of Marksville, Louisiana, (the "Municipality") as set forth hereinbelow grants to the Company, its successors and assigns, a franchise, right, and privilege for a period of twenty-five (25) years from the date of adoption hereof, to distribute, deliver, sell and supply, in such a manner as it chooses, electric service throughout the Municipality, and to the inhabitants thereof, or to any person, firm, or corporation; the right to acquire, construct, operate, and maintain such plants, structures, transmission lines, distribution systems, cables, fibers, facilities, and equipment as may be useful or necessary for the generation, production, transportation, distribution, delivery and/or sale of electric service throughout the Municipality; the right to erect, operate, and maintain poles, masts, supports, wires, cables, fibers, transmission lines, conduits, conductors, substations, distribution systems, and any and all other appliances useful or necessary in connection with the sale, transportation, delivery and/or distribution of electric service on, over, under, along, upon, and across all of the present and/or future streets, roads, highways, alleys and public places of the Municipality; the right to repair, replace or remove same or any portion thereof; and the right to connect any such facilities to any other such facilities for the purpose of selling, transporting and/or distributing electric service into through, or beyond the boundaries of the Municipality.
SECTION 1: Be it ordained by the Mayor and Board of Aldermen of the Municipality in regular session duly convened, that the Municipality grants and there is hereby granted to Entergy Louisiana, Inc. (the "Company"), its successors and assigns, in addition to the rights and privileges presently enjoyed by the Company, a franchise, right, and privilege from the date of adoption hereof,
(1)
to distribute, deliver, sell and supply electric service throughout the Municipality and to the inhabitants thereof, or to any person, firm, or corporation, in such manner and from such sources as the said Company chooses;
(2)
to acquire, construct, operate, and maintain such plants, structures, transmission lines, distribution systems, cables, fibers, facilities, and equipment as may be useful or necessary for the generation, production, transportation, distribution, delivery and/or sale of electric power and energy throughout the Municipality;
(3)
to erect, operate, and maintain poles, masts, supports, wires, cables, fibers, transmission lines, conduits, conductors, substations, distribution systems, and any and all other appliances useful or necessary in connection with the sale, transportation, delivery and/or distribution of electric service on, over, under, along, upon, and across all of the present and/or future streets, roads, highways, alleys and public places of the Municipality;
(4)
to repair, replace or remove same or any portion thereof; and
(5)
to connect any such facilities to any other such facilities for the purpose of selling, transporting and/or distributing electric service into, through, or beyond the boundaries of the Municipality.
SECTION 2: Be it further ordained that this Franchise does not authorize the Company to use its facilities for the transportation, distribution, or sale of electric service for or on behalf of third parties to any person, firm, or corporation other than the Company located within the boundaries of the Municipality, unless and until the Company has been notified, in writing, by the Municipality that the interests of the Municipality, including, but not limited to, its recovery of franchise fee revenue on such third party transactions, are adequately protected in connection with the provision of such third party service by the Company. In the event that the operations of the Company are unbundled, in connection with the adoption of a plan for retail open access or otherwise, the Company will have the right to assign its franchise rights with respect to particular facilities or operations as may be necessary to facilitate unbundled operations; provided, however, that any such assignment (1) shall not result in a reduction in the franchise fees received by the Municipality relating to the provision of electric service within the Municipality; and (2) shall ensure that the Municipality retains all other rights and protections afforded by this Franchise.
SECTION 3: Be it further ordained that this Franchise is granted upon and subject to the following provisions:
A.
In maintaining its properties, the Company shall not unnecessarily or unreasonably damage, impair or obstruct the streets, roads, highways, alleys, sidewalks, and public grounds, and the Company shall at its own expense, without unreasonable delay, make all necessary repairs to remedy any damage or remove any obstruction caused by its operations hereunder, all in accordance with applicable industry standards. The Company shall obtain all necessary permits or approvals for construction, maintenance, and operations; provided, however, that this provision shall not apply to any requirements for such permits or approvals that are adopted or amended subsequent to the date of this Ordinance and that, as so adopted or amended, have a material effect on the Company's rights or obligations pursuant to this Franchise or on the Company's cost of providing service pursuant to this Franchise.
B.
Upon request, the Company will make its best reasonable efforts to provide current maps for specific areas showing feeder routes and the majority of pole locations, and will provide construction manuals that show the typical structural configurations used by the Company; provided, however, that the provision of such information by the Company shall not relieve the Municipality of any obligations that it may have pursuant to title 40, section 1749 or title 45, sections 141-146 of the Louisiana Revised Statutes or any related or successor statutes; and provided that such information shall be provided by the Company without any warrant as to its accuracy.
C.
The Company shall use reasonable precautions to avoid damage or injury to persons or property, and shall hold and save harmless the Municipality from all damages, losses, and/or expense, including cost of defense, attributable to the negligence or fault of the Company, its agents or employees, while exercising any of the rights and privileges herein granted.
A.
In consideration of the facts:
(i)
that the Company, pursuant to this Ordinance holds a good, valid, and irrevocable twenty-five year franchise granted by the Municipality; and
(ii)
that, to the extent the Company is permitted by law to provide such service, the Municipality has signed with the Company contracts for the purchase of all its electric service requirements, each of which contracts is for a period of two years from its date, or such longer period as may be required by the applicable rate schedule or other circumstances, and provides for periodic renewals for similar periods unless notice of termination is given as therein provided;
and other good and valid considerations, the Company agrees that it will pay to the Municipality a sum of money equal to two percent (2%) of the gross receipts of the Company from the sale of electric service at retail for residential and commercial purposes within the corporate limits of the Municipality (the Company's "gross receipts"), such payments to be calculated on such receipts commencing with the month of February, 2003, the first payment to be due and payable on the 25th day of April, 2003, subsequent payments to be due quarterly thereafter.
B.
Further, upon the adoption of an appropriate Ordinance, the Municipality may require that the Company pay to the Municipality up to an additional two percent (2%) of the gross receipts of the Company from the sale of electric service at retail for residential and commercial purposes within the corporate limits of the Municipality (the "Additional Franchise Fee"). The Company shall include in its franchise fee calculation such Additional Franchise Fee commencing with respect to gross receipts received by the Company pursuant to bills rendered during the first calendar quarter following the adoption of an appropriate Ordinance, and the receipt of written notification from the Mayor of the Municipality. Pursuant to the October 11, 1988, General Order of the Louisiana Public Service Commission ("LPSC"), the Company shall collect from residential and commercial customers located within the corporate limits of the Municipality such additional percent of gross receipts as is not included in the Company's base rates through a line item included in bills rendered for electric service. The Company agrees that, in the event the LPSC approves the recovery of the Additional Franchise Fee through base rates, the Company shall remove the line item notation relating to the Additional Franchise Fee from the bills rendered to customers for electric service at such time as base rate recovery of the Additional Franchise Fee becomes effective.
C.
It is distinctly understood and agreed that the percentage of gross receipts paid to the Municipality shall not apply to or include any receipts from the sale of electric energy to the Municipality, or to Government or Municipal Agencies, or to any sale for industrial purposes or for resale within the corporate limits of the Municipality. It shall be the responsibility of the Municipality to notify the Company of any annexations or other changes in the corporate limits of the Municipality, so that the Company can make any adjustments to its gross receipts calculation that may be necessary as a result of such a change.
D.
This obligation to make such payments to the Municipality shall remain in full force and effect so long as (1) the Company holds a good, valid and irrevocable twenty-five (25) year franchise granted by the Municipality, and (2) the Municipality, to the extent permitted by law, purchases all of its electric service requirements from the Company; provided, however:
(i)
This contract is wholly and entirely conditioned upon the approval of the Treasury Department of the United States of America and the Department of Revenue of the State of Louisiana, and upon the approval of the Louisiana Public Service Commission of the right of the Company to deduct from its gross revenues and charge as an operating expense any and all amounts which it may pay to the Municipality pursuant hereto other than such amounts as may be collected from customers through a line item on customer bill and in the event of failure to obtain the approval of any such authority for such purpose, the Company shall have the right to cancel this Contract upon thirty (30) days' notice; it being understood that in the event of the cancellation by the Company upon the grounds set out in this paragraph, the Company shall not be entitled to any refund of any monies theretofore paid to the Municipality pursuant hereto.
(ii)
Should the Municipality levy any new taxes, of any nature whatsoever, subsequent to the date of this Contract, or increase the rates of any taxes in existence on the date of this Contract (except uniform ad valorem taxes now authorized by Article VII, Section 18 of the Constitution of the State of Louisiana or other taxes that are generally applicable to all businesses in the Municipality), then the payments herein provided to be made by the Company to the Municipality will be reduced in an amount equal to the sum of such new and increased taxes, if any. The Additional Franchise Fee shall not be considered to be a new tax or an increase in the rate of a tax for purposes of this provision of the Ordinance.
(iii)
To the extent the Company is permitted by law to provide to the Municipality all of its electric requirements, in the event that retail open access is implemented in Louisiana, and is adopted for the Municipality, the obligation of Entergy Louisiana, Inc. to pay a franchise fee as set forth hereinabove shall cease to be conditioned on the purchase by the Municipality of all of its electric requirements from Entergy Louisiana, Inc.
E.
In the event that the Company contracts with any town or municipality to pay a franchise fee more than four percent (4%) of gross receipts (includes fuel adjustment) of the Company from the sale of electric service at retail for residential and commercial purposes, the Company, upon the adoption of an appropriate Ordinance, and upon the receipt of written notification from the Mayor of the Municipality, will increase the franchise fee paid to the Municipality by an amount which will equal the difference between four percent (4%) and the said higher amount paid to the other town or municipality; provided, however, that the Municipality shall have the right to increase the franchise fee to such higher amount only in the event that the Municipality is willing to accept all other terms and conditions of the franchise with the town or municipality that receives the higher amount. The Company shall include in its franchise fee calculation said increase in the franchise fee commencing with respect to gross receipts received by the Company pursuant to bills rendered during the first calendar quarter following the adoption of an appropriate Ordinance, and the receipt of written notification from the Mayor of the Municipality. In no event shall the Municipality have the right to increase the franchise fee to an amount in excess of five (5%) percent or such other amount as may established as a limitation on the application of the provisions set forth in title 33, section 4510 of the Louisiana Revised Statutes or any successor statute regarding the recovery of franchise fees. Any amount in excess of four percent (4%) shall be passed on by the Company to the residential and commercial customers in the Municipality as a line item on their bills for electric service to the extent that such treatment is afforded the Additional 2% Franchise Fee paid pursuant to Section 4(B), above.
F.
The Municipality shall have the right, upon reasonable notice, to review the available data and calculations upon which the franchise fee calculations are based; provided that such notice must be received within three (3) years of the beginning of the period to which the data and/or calculations pertain.
SECTION 5: Be it further ordained that the Municipality shall make, adopt and enforce all ordinances necessary to protect the property and property rights of the Company owned and operated under this Franchise, while still recognizing the rights of any other entities holding valid franchises with the Municipality, and that the Municipality will not in any way interfere with the full legal use by the Company of the property which it now maintains or may hereafter maintain in the Municipality.
SECTION 6: Be it further ordained that this Ordinance, the public health and welfare and the public necessity requiring it, shall take effect from and after its adoption. Notwithstanding the foregoing, the Company shall file with the Municipality the Company's written acceptance of this Ordinance not later than thirty (30) days from the date of its passage.
SECTION 7: Be it further ordained that this Franchise shall be for a term of twenty-five (25) years from date hereof, and upon exercise by the Company of any of the privileges granted hereunder, this Franchise shall be irrevocable. If either the Municipality or the Company, its legal representatives, successors, or assigns, institutes any action or proceedings to enforce the provisions of this Ordinance, the parties hereby agree that specific performance may be sought and obtained for any breach of this Ordinance, without the necessity of providing actual damages; provided, however, that either party may, at its option, waive its right to specific performance and collect damages resulting from any breach hereof or failure to perform hereunder.
SECTION 8: Nothing in this Franchise shall be construed as superseding, repealing, canceling, modifying, or in any way affecting any of the rights enjoyed by Entergy Louisiana, Inc. under that certain franchise granted by Ordinance No. -, adopted by the Municipality on the 14th day of October, 1980, and said franchise is hereby recognized as continuing in full force and effect in accordance with its terms. However, in the event of a conflict between said franchise and this Franchise, the provisions of this Franchise shall be controlling.
SECTION 9: Nothing herein shall be construed to constitute the grant of a franchise for the provision of any service other than electrical service to customers within the Municipality.
WHEREUPON, in open session said Ordinance was read and considered section by section and as a whole.
Whereupon the Mayor declared such legally passed and adopted on this the 8th day of January, 2003.