Item 5FCity of Southlake, Texas
MEMORANDUM
May 2, 2006
TO: Shana Yelverton, City Manager
FROM: Robert H. Price, P.E., Director of Public Works, x8097
SUBJECT: TXU Street Lighting Agreement
Action Requested: Authorize the Mayor to enter into a Street Lighting Service Agreement
with TXU Electric Delivery Service for the installation and maintenance
of street lights.
Background
Information: In 2003, TXU (formerly Oncor Electric Delivery Company), began
requesting that cities adopt a standard form street lighting service
agreement. Certain provisions in the original agreement raised concerns
with many cities. This led to the formation of a Steering Committee of
Cities represented by attorneys in Austin, TX. The law firm of Lloyd
Gosselink in Austin worked with Oncor to address the concerns of the
various cities. The revised street lighting service agreement was endorsed
by Ms. Kristen Doyle of the law firm and has been signed by numerous
cities since 2003.
The street lighting service agreement is a ten year contract required by
TXU's Tariff for Retail Delivery Service. The street lights installed under
this agreement are owned, operated, and maintained by TXU. Not all
street lights in the City of Southlake fall into this category. Some are
installed and owned by specific HOA's.
In November 2005, the Public Works Staff, while conducting research on
new types of city street lighting, discovered that there was no record of the
city formally entering into a street lighting service agreement with TXU
(formerly Oncor). This was confirmed by Gyna M. Bivens, Area Manager
for TXU, when a copy of an executed document was not available through
TXU either.
Financial
Considerations: The City of Southlake and TXU have been operating as if the lighting
agreement had been executed in 2003. TXU is currently installing and
maintaining Southlake's street lights at a maintenance cost to the city of
approximately $10 -$12 per light per month. Southlake does not incur the
initial street light installation cost, does not have to maintain inventory of
expensive poles, lamps and globes, does not have to have a facility for
N; \Cristina's Documents \CMO Memos \TXU Street Lighting Agreement 2006- 05- 02.doc 1
Shana Yelverton, City Manager
May 2, 2006
Page 2 of 2
storing these materials and does not have to staff city personnel to perform
these functions. The city further benefits from economies of scale.
Citizen Input/
Board Review: None.
Legal Review: The standard Street Lighting Agreement received endorsement from the
Lloyd Gosselink law firm representing the Steering Committee of Cities in
2003. In 2003, Southlake's city attorney reviewed the standard agreement
and determined it was legally sound. A copy of the letter from the city
attorney is attached to the rear of this document. Please note that at the
time of the Attorney review, TXU Energy was operating under the name
of "Oncor ". The document presented today has no substantive changes
from the agreement reviewed in 2003.
Alternatives: Approve or Deny.
Supporting
Documents: Exhibit "A" - Letter from City Attorney to CMO dated June 18, 2003.
Exhibit "B" - Agreement for Street Lighting Service.
Staff
Recommendation: Staff recommends that City Council authorize the Mayor to execute this
agreement.
N:ACristina's Documents \CMO Memos \TXU Street Lighting Agreement 2006- 05- 02.doc
EXHIBIT "A"
6000 WESTERN PLACE
SUITE 200
I -30 AT BRYANT -IRVIN RO•
FORT WORTH. TEXAS 76107
EMAIL: TOASE@TOASE.COP
WEBSITE: WWW.TOASEXOP
ROBERT M..A.LLIUON
raIlibnniciaoasexom
- I MMW
JUG! LV'.JJ
TELEPHONE: (817)332 -2580
TOLL FREE: (800) 318-3400
FACSIMILE: (8 17) 332-4740
DENTON: (94 3
DENTON METRO: (97 434
Billy Campbell
City Manager
City of Southlake
1400 Main Street, Suite 460
Southlake, Texas 76092
RE: Revised Street Lighting Service A:.;reemont with Oncor Electric Deiivery
Company ( "Oncor ")
Dear Billy:
As you will recall, at the end of last year, Oncor began contacting cities and requesting that
they adopt a proposed form street lighting agreement. Many cities raised concerns and issues with
certain provisions in the proposed street tighting agreement, and Oncor revis °d the street lighting
agreement in certain respects. Some cities adopted the street lighting agreement after those initial
revisions. Other cities did not adopt the sh lighting agreement as there; were still othi_r unresolved
issues in the aureetnent which Oilco, had not addressed.
At the Texas C.ityAttorney's conference last week, Kristen Doyle, of the Lloyd Gosselink law
firm in Austin, provided the attached re(1 -11ned version of th:; street lighting agreement with Oncor.
-N/Is. Doyle advised that this new revised version of the agreement has been negotiated with Oncor
to address the outstanding issues with regard to the agreement. Ms. Doyle advised that with these
revisions, this amended version of the agreement should be ready for adoption by the cities.
I would recommend -that you contact \ local Oncor representative to confin that this
a.mendecl version of the agreerneat is acceptaibie to Oricor, and if so, that. the agreeme.:tt be placed on
a future Council Agenda for approval. For those cities who may have already adopted a previous
version of the agreement, Oncor should be willing to allow the City to adopt this amended version
so that the agreements are uniforin in all cities,.
Should you liave ally questions about a:.ry (if the ahove or should you need any additional
in.foL - niation, please call nie or you:' pi attorney ;!t this office. Best regards.
V y
Robc Allibon
RIVIA /mar
Enclosure
cc: Allen Taylor
VA':\Municipal \Merge \Street Lighting.RMA003 Final.wpd
EXHIBIT "B"
AGREEMENT FOR STREET LIGHTING SERVICE
BY AND BETWEEN
A MUNICIPAL CORPORATION
AND
TXU ELECTRIC DELIVERY COMPANY
DATE
AGREEMENT FOR STREET LIGHTING, P. I OF 5
AGREEMENT FOR STREET LIGHTING SERVICE
BY AND BETWEEN
TXU ELECTRIC DELIVERY COMPANY AND
JINSERT NAME OF CITY]
The City of , Texas, a Municipal Corporation ( "Customer "), and TXU
Electric Delivery Company, a Texas corporation ( "Company "), for and in consideration of the mutual covenants set
forth in this Agreement for Street Lighting Service (the "Agreement "), agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the meanings indicated:
a. "Company's Tariff" shall mean the Company's approved Tariff for Retail Delivery Service, as may be
revised from time to time during the term of this Agreement, on file with the Public Utility Commission of'Texas;
b. Customer shall be the "Retail Customer" as such term is used in Company's Tariff,
C, "Facility" or "Facilities" shall mean the electrical facilities or equipment, including but not limited to,
pole(s), luminaire(s), wires, and appurtenances, owned by Company or Customer, through which Company will
provide service to Customer pursuant to this Agreement.
2. Term and Termination. Consistent with the requirements of section 6.1.1.6 - Lighting Service of
Company's Tariff, this Agreement shall be effective as oftee day of , 20 ____ , and, unless
terminated early in accordance with the terms of this Agreement, shall remain in effect for an initial term often (10)
years and from year to year thereafter until canceled by either party consistent with the terms of this Agreement.
After the expiration of the initial ten year term, this Agreement may be terminated by either party upon ninety (90)
days written notice to the other party, Notwithstanding any provision of this Agreement to the contrary, this
Agreement may be terminated at any time under the following conditions.
(a) If Company begins installation of any requested Facilities prior to receiving full payment of any
contribution -in- aid -of- construction provided for in section 6.1.1.6 - Lighting Service of
Company's Tariff or any subsequently approved similar provision, from Customer or Customer's
agent or representative ( "Customer's Agent ") as appropriate, and Customer or Customer's Agent
thereafter fails to make such payment in full, then: (i) Company may immediately terminate this
Agreement by providing written notice of such termination to Customer, (ii) Company may
remove all such Facilities, and (iii) Customer shall pay Company all cost incurred by Company in
removing such Facilities, less the salvage value of such Facilities, within 30 days of Company's
removal of the subject Facilities
(b) If Customer discontinues taking electric service from Customer's designated competitive retailer
at Facilities, for purposes other than to allow the Customer to begin receiving service from another
competitive retailer at such Facilities, then: (i) Company may immediately terminate this
Agreement by providing written notice of such termination to Customer, (ii) Company may
remove all such Facilities owned by Company, and (iii) Customer shall pay Company all cost
incurred by Company in removing such Facilities, less the salvage value of such Facilities, within
30 days of Company's removal of the subject Facilities.
(c) If Customer purchases Facilities owned by Company..
3. Contribution -In- Aid -Of- Construction, Section 6..1..1..6 - Lighting Service of Company's Tariff provides
for the installation or construction by Company of a base level of Facilities with no contribution-in-aid-of-
construction required from Customer. For example, Schedule A provides for the installation or construction of
wood poles of a type normally used by Company served overhead without the payment of contribution -in- aid -of=
construction by Customer. Schedule B provides for the installation or construction of steel or other ornamental
poles of a type normally used by Company served overhead without the payment of a contribution-in-aid-of-
construction, but requires the payment of a higher monthly charge by Customer. Requested Facilities that exceed
such base level require a contribut ion -in- a id- of= construction to be paid by Customer to Company. Company will
AGREEMENT FOR STREET LIGHTING, P. 2 OF 5
begin work on the requested Facilities prior to receipt of full payment of any required contribution -in- aid -of=
construction from Customer or Customer's Agent. However, Customer or Customer's Agent shall pay to Company
any required contribution -in- aid -of- construction prior to Company energizing the requested Facilities or within 90
days from the receipt of a contribution -in- aid -of- construction invoice, whichever is earlier. If Customer has
arranged for Customer's Agent to pay to Company any required contribution -in- aid -of- construction, then
Customer's Agent shall execute a Supplement to this Agreement, the form of which is attached hereto as Exhibit A,
for the sole purpose of establishing such agent's agreement to pay such contribution -in- aid -of construction..
4. Service Subject to Company's Tariff. This Agreement is subject to the terms and conditions of
Company's Tariff, and all services provided by Company shall be pursuant to and consistent with Company's Tariff:
To the extent any provision of this Agreement conflicts with or is inconsistent with Company's Tariff, then the
provisions of Company's Tarilf'shall control .
5. Material Change, In the event that a ,judicial decision, order, new law or regulation, or a change in any
law or regulation, materially and directly affects a party's ability to perform its obligations hereunder, then the party
that is negatively affected shall have the right to notify the other party, within 30 days after becoming aware of such
detrimental event The parties shall use their best efforts to negotiate a modification to the terms ofthis Agreement
so as to mitigate the impact of the event.. If, after twenty (20) days beyond the notice, the parties have been unable
to negotiate a mutually satisfactory modification to the terms of this Agreement, then either party shall have the right
to terminate this agreement upon ten (10) days written notice to the other party. If such right to terminate is not
exercised within forty-five (45) days after the date of the original notice, then the right to terminate this Agreement
shall be waived with respect to the particular event.
6. Type of Service and Applicable Rate Schedule. The type of service provided and rate schedule
applicable at each Facility or group of Facilities shall be agreed to by the Parties and specified on the form entitled
Request for Street Lighting Service, attached hereto as Exhibit "B," which may be amended or supplemented as
necessary, at any time, by mutual agreement of the parties.
7. Installation /Construction. All requests for installation or construction of Facilities subject to this
Agreement shall be made on the form entitled Request for Street Lighting Service, attached hereto as Exhibit "B"
and incorporated into this Agreement by execution of the form Supplement to the Agreement attached hereto as
Exhibit "A." All such installation or construction shall be performed by Company pursuant to and consistent with
section 6.1.1,6 - Lighting Service of Company's Tariff, and all other applicable provisions of such Tariff.
8. Relocation of Facilities, Nothing contained herein modifies section 37..101 of'PURA, which provides that
"the governing body of a municipality may require an electric utility to relocate the utility's facility at the utility's
expense to permit the widening or straightening of a street by: (1) giving the electric utility 30 days' notice; and (2)
specifying the new location for the facility along the right -of -way of the street." Notwithstanding the foregoing,
issues regarding the relocation of Facilities should, if possible, be resolved by the parties prior to the execution of
this Agreement and may require the execution of a separate agreement -
9. Billing and Payment. Company will invoice Customer directly for the contribution -in- aid -of construction
specified on the form entitled Request for Street Lighting Service, attached hereto as Exhibit "B" and any other
charges for which Company's Tariff provides for direct billing by Company to Customer. Federal income taxes are
due on contributions -in- aid -of- construction, pursuant to current Internal Revenue Service ( "IRS ") rulings and
regulations, unless Customer is eligible for an exemption available under applicable IRS regulations_ To the extent
such IRS rulings and regulations are modified in a manner that impacts the obligation of Customer' to pay such
federal income taxes, then the Parties shall implement such modified rulings and regulations on a prospective basis.
All other charges associated with the Services provided by Company to Customer will be included on the bill or
invoice that Customer receives from Customer's designated competitive retailer.
10. No Delegation of Authority. Customer does not by this Agreement delegate its authority or responsibility
for the Facilities covered by this Agreement to Company but shall continue to hold full discretion to determine the
policies and procedures regarding such Facilities_
IL Obstructions. Customer is responsible for removing all obstructions and trimming all trees that may
interfere with the installation or construction of requested Facilities. After installation, Company is responsible for
removing or trimming all trees that interfere with the distribution line providing service to the lighting facilities and
AGREEMENT FOR STREET LIGHTING, P. 3 OF 5
Customer is responsible for removing or trimming all trees that interfere with the dispersion of' light from the
Facilities.
11 Outages. To the extent that Company is responsible for maintaining Facilities pursuant to this Agreement,
Customer may report any Facilities requiring maintenance to Company via either of the following means:
Internet: http: // streetlights .txuelectricdeIi very com
Telephone: 1- 888 - 313 -4747
11 Permits. Customer will secure for Company all permits and consents necessary for the performance of this
Agreement,
14. Notice. Except as provided in section 12 above, any notice required under this Agreement shall be
forwarded to the following representatives of the parties:
Customer:
Company:
Asset Mam ser
TXU Electric Delivery Company
15, Prior Agreements for Street Lighting Service. This Agreement supersedes and amends all prior
agreements for Street Lighting Service between Company and Customer.
16. Successors and Assigns. This Agreement shall inure to the benefit of, and be binding upon, Company and
Customer and their respective successors and permitted assigns. Neither party shall assign this Agreement or any of
its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the
foregoing, Company may, without the consent of Customer and upon five (S) days advance written notice, (a)
transfer or assign this Agreement to an affiliate of Company, or (b) transfer or assign this Agreement to any person
or entity succeeding to all or a substantial portion of the assets of Company. UPON AN ASSIGNMENT
PURSUANT TO THIS SECTION, CUSTOMER AGREES THAT COMPANY SHALL HAVE NO FURTHER
OBLIGATIONS REGARDING FUTURE PERFORMANCE. HEREUNDER.,
This Agreement is effective this day of 1 20 _
[[INSERT CUSTOMER NAME]]
fflu
(TITLE)
(DATE)
AGREEMENT FOR STRUT LIGHTING, P. 4 OF 5
TXU ELECTRIC DELIVERY COMPANY
i
(TITL.E)
(DATE)
AGREEMENT FOR STREET LIGHTING, P. 5 OF 5
88332.010002 I) 1LLAS 492M I
EXHIBIT "A"
SUPPLEMENT TO
THE AGREEMENT FOR STREET LIGHTING SERVICE BY AND BETWEEN
TXU ELECTRIC DELIVERY COMPANY AND
DATED
This Supplement ( "Supplement ") to the Agreement for Street Lighting Service dated
( "Agreement "), is made and entered into this day of 200, by TXU Electric Delivery
Company and ( "Customer ") both hereinafter referred to as the "Parties." In
consideration of the mutual promises and undertakings herein set forth, the Parties hereby agree to amend
the Agreement as follows:
The following Request for Street Lighting Service is hereby added to the Agreement:
Request for Street Lighting Service dated , attached hereto.
This Supplement shall become effective upon execution by the Parties.
This Supplement is subject to the terms and conditions of the Agreement.
4. If Customer has arranged for its designated agent or representative ( "Customer's Agent ") to pay
to Company the contribution -in- aid -of- construction ( "CIAC ") referenced in the Agreement, then
Customer's Agent shall execute this Amendment for the sole purpose of establishing such agent's
agreement to pay such CIAC.
Except as otherwise provided herein, the Agreement shall continue in full force and effect in
accordance with its terms.
IN WITNESS HEREOF, the Parties have caused this Supplement to be executed in several counterparts,
each of which shall be deemed an original but all shall constitute one and the same instrument.
TXU ELECTRIC DELIVERY COMPANY
By:
[[INSERT CUST01\/1ER NAI\/IE]]
By:
Title:
Date:
For CIAC purposes only pursuant
to Section (-t) above.
Title:
Date:
[[INSERT CUSTOMER'S AGENT'S NAME]]
By:
Title:
Date:
88332.010002 DALLAS 492850
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