HomeMy WebLinkAboutItem 08 - Oncor Street Lighting AgreementITEM 0 _.-9.....
MEMO TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: ROGER NELSON, CITY MANAGET_r�%
MEETING DATE: NOVEMBER 18, 2003
SUBJECT: ONCOR STREET LIGHTING AGREEMENT
RECOMMENDATION:
City Council to consider a street lighting service agreement with Oncor.
FUNDING SOURCE:
This agreement will not change the current funding mechanism or amounts.
BACKGROUND:
Oncor has requested that the City Council consider the attached agreement regarding
tariffs and procedures for the delivery of street lighting service. Many of the cities served
by Oncor have formal agreements for the delivery of street lighting service and others,
like Grapevine, do not have formal agreements in place. The purpose of the proposed
agreement would be to standardize existing agreements and provide agreements for
those cities that do not already have one. This agreement is merely intended to
formalize the process by which street lighting service is provided to the City.
Attorney Geoffrey Gay has endorsed the agreement on behalf of the Steering
Committee of cities served by TXU. His memo is attached. In addition, the City Attorney
and the Department of Public Works have reviewed the document and find it acceptable.
Staff recommends approval.
November 7, 2003 (8:02AM)
Jodi Brown Street Ilght memo from Geoffrey.doc
_.. ., Page 1
Lloyd, Gosselink, Blevins, Rochelle,
Baldwin & Townsend, p.c.
Attorneys at Law
111 CONGRESS AVENUE
SUITE 1800 Mr. Gay's Direct Line: (512)322-5875
AUSTIN, TEXAS 78701 Email: ggay@lglawfirm.com
MEMORANDUM
TO: Cities Served by Oncor
TELEPHONE (512) 322-5800
TELECOPIER (512) 472-0532
www.Iglawrirm.com
FROM: Geoffrey M. Gay On Behalf Of Cities Steering Committee
DATE: April 25, 2003
RE: Agreement For Street Lighting Service -- Comments For Inclusion Among
Oncor's Materials To Cities When The Agreement Is Distributed To Cities
On behalf of the Steering Committee of Cities Served by TXU, I have worked through a
number of concerns with Oncor's attempt to standardize an agreement between the Company and
Cities over the delivery of street lighting service.
The agreement defines procedures for implementation of the Public Utility Commission
tariff that authorizes certain charges for street lighting facilities. Earlier iterations of the Oncor
proposed agreement troubled me with regard to certain specific details, but the current form is
consistent with law and earlier informal agreements between the Steering Committee and Oncor
executives. Generally speaking, an agreement such as this can prove useful in avoiding
misunderstandings and in providing guidance to both City and Company personnel who are
charged with responsibilities for street lights.
This version of the Agreement and its Exhibits A and B refer exclusively to street lighting
facilities. Prior agreements included forms that could be used for facilities other than street
lighting. This version envisions a one time approval by a city council with subsequent street
lighting activity being covered by the completion of exhibits that are to be incorporated by
reference into the Agreement. These changes should reduce both confusion and time spent in
City Council review.
My objections to the Agreement have been satisfactorily resolved. The Public Utility
Regulatory Act does not prescribe a deadline for your consideration of an agreement such as the
one presented to you now. I recommend you consider approval at your convenience.
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS AUTHORIZING THE EXECUTION OF A
STREET LIGHT AGREEMENT WITH ONCOR ELECTRIC
DELIVERY COMPANY REGARDING TARIFFS AND
PROCEDURES FOR DELIVERY OF STREET LIGHTING
SERVICES AND PROVIDING AN EFFECTIVE DATE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GRAPEVINE,
TEXAS:
Section 1. That the City Manager or his designee is hereby authorized to
execute a Street Lighting Service Agreement with Oncor Electric Delivery Company
relative to tariffs and procedures for the delivery of street lighting services.
Section 2. That a substantial copy of the agreement is attached hereto as
Exhibit "A" and incorporated herein for all intents and purposes.
Section 3. That this resolution shall become effective immediately from and
after its passage and approval by the City Council.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS on this the 18th day of November, 2003.
ATTEST:
APPROVED AS TO FORM:
RES. NO.
AGREEMENT FOR STREET
BY AND BETWEEN
ONCOR ELECTRIC DELIVERY • , AND
[INSERT NAME OF CITY]
The City of , Texas, a municipal corporation ("Customer"), and Oncor
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 of the day of , 20 _ , and, unless
terminated early in accordance with the terms of this Agreement, shall remain in effect for an initial term of ten (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 contribution -in -aid -of -construction to be paid by Customer to Company. Company will
AGREEMENT FOR STREET LIGHTING, P. 1 OF 444-h
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 Oncor 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 Tariff 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 parties 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 of this 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 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.
14. 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.
11. 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
AGREEMENT FOR STREET LIGHTING, P. 2 OF 414
removing or trimming all trees that interfere with the distribution line providing service to the lighting facilities and
Customer is responsible for removing or trimming all trees that interfere with the dispersion of light from the
Facilities.
12. 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.oncorgroup.com
Telephone: 1-888-313-4747
13. 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 Manager
Oncor 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 (5) 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 12, CUSTOMER AGREES THAT COMPANY SHALL HAVE NO FURTHER
OBLIGATIONS REGARDING FUTURE PERFORMANCE HEREUNDER.
This Agreement is effective this day of
WM
120
[[INSERT CUSTOMER NAME]]
(TITLE)
AGREEMENT FOR STREET LIGHTING, P. 3 OF 4444
(DATE)
ONCOR ELECTRIC DELIVERY COMPANY
BY:
(TITLE)
(DATE)
AGREEMENT FOR STREET LIGHTING, P. 4 OF 444
88332.039203 DALLAS 43354v1
EXHIBIT "A"
SUPPLEMENT TO
THE AGREEMENT FOR STREET LIGHTING SERVICE BY AND BETWEEN
ONCOR ELECTRIC DELIVERY COMPANY AND
This Supplement ("Supplement") to the Agreement for Street Lighting Service dated
("Agreement"), is made and entered into this day of , 200_, by Oncor 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.
2. This Supplement shall become effective upon execution by the Parties.
3. 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 agents
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.
ONCOR ELECTRIC DELIVERY COMPANY
By:
Title:
[[INSERT CUSTOMER NAME]]
By:
Title:
Date: Date:
■............ t.... a... a.......... a aaaaa...........a....a............... a..a......•...................■
For CIAC purposes only pursuant
to Section (4) above.
88332.039203 DALLAS 43353vl
[[INSERT CUSTOMER'S AGENT'S NAME]]
By:
Title:
Date:
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