Filed 11 May 17 P3:34

Chris Daniel - District Clerk

2011-29666 / Court: 234 Harris County
ED101J016316856
No: By: Furshilla McGee

CITY OF HOUSTON $ IN THE DISTRICT COURT OF

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Plaintffi $
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V. $ HARzuS COLINTY, TEXAS

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CENTERPOINT ENERGY $
HOUSTON ELECTzuC, LLC

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Defendant. $ JUDICIAL DISTRICT

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PLAINTIFF'S ORIGINAL PETITION

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Plaintiff City of Houston files this Original Petition against Defendant CenterPoint
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Energy Houston Electric, LLC, and in support thereof respectfully shows the following:
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Discovery Control Plan

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1. Discovery in this case is intended to be conducted under Level 3, as set forth in

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Rule 190.4 of the Texas Rules of Civil Procedure.

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Parties
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2.
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The City of Houston is a Texas municipality located in Harris County, Texas.

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CenterPoint Energy Houston Electric, LLC ("CenterPoint") is a Texas corporation

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with its principal place of business located at 1111 Louisiana, Houston, Texas 77002, and may
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be served at its registered agent, Corporation Service Company, 350 N. St. Paul St., Ste 2900,
Dallas, TX7520l-4234.

Jurisdiction

4. This Court has jurisdiction over this action because the amount in controversy is

in excess of the minimum iurisdictional amount.

 Venue

5. Venue is proper in Harris County, Texas, pursuant to Tpx. Crv. Pnec. & R¡vr.

Cooe $ 15.002(a)(1) because Harris County is the county in which all or a substantial part of the

events or omissions giving rise to the claim occurred.

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Venue is proper in Harris County, Texas pursuant to TEX. CIV. PRAC & REM.

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Code $ 15.002(a)(3) because CenterPoint's principle office is in Harris County, Texas.

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Summary

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7. Houston brings this suit for breach of contract against CenterPoint because, for

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many years, CenterPoint has consistently delivered less lighting than it has billed Houston, and
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Houston has consequently paid for more lighting than it actually received. The breach of
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contract arises from CenterPoint's failure to accurately bill for street lighting and failure to
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properly maintain the street light system.

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Statement of Facts
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CenterPoint's Bus ines s

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8. CenterPoint engages in the transmission and distribution of electricity in a

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designated 5,000 squa.re mile area of the Texas Gulf Coast that includes the City of Houston.
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CenterPoint provides services under tariffs approved by the Texas Public Utilities Commission
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("PUC").

9. CenterPoint is a Transmission Distribution Supply Provider ("TDSP"). As such

CenterPoint distributes electricity from the point of generation to its retail customers.
CenterPoint's retail customers include entities such as developers, builders, and municipalities

such as the City of Houston. In addition to items relating to electric power, CenterPoint also
promises to "install, own and maintain street lights" in Houston and other areas. The terms of

the agreement between Houston and CenterPoint are governed by the CenterPoint Tariff for

Retail Delivery Service ("the Tariffl') which is filed and approved by the PUC and applicable to

all customers within CenterPoint's service area. The Tariff constitutes an enforceable contract.

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Ulectric Power and Lighting are distinct services.

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10. Underthe terms of the Tariff, CenterPoint sells both electric energy services and

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street lighting to Houston. These are two separate items, quantified separately with unique

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charges.

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I 1. Electricity is measured by kilowatts; CenterPoint bills Houston and Houston pays

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for the number of kilowatts of electricity actually consumed by Houston, as measured by electric
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meters. Lighting, which is the focus of the case, is unmetered and therefore measured and billed
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differently.

12.
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Under the Tarifl in addition to electric services, CenterPoint promises to install

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and maintain Houston's street light system. Lighting is measured in lumens. In

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contrast to
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metered electricity, CenterPoint does not charge Houston for the lighting it actually receives.
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Instead, CenterPoint charges Houston for the amount of illumination or lumens promised by
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CenterPoint under the terms of the Tariff. For reasons described more fully below. In terms of
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lumens, Houston actually receives only a portion of the lighting for which it pays CenterPoint.
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13. There are over 180,000 street lights in Houston. Every month, CenterPoint
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charges Houston for lighting from street lights. The fixed-rate charge for each is determined by

the number of lumens that particular light is expected to deliver and dependent upon the type of

bulb contained in the street light. Generally, the more lumens a light is expected to deliver, the

higher the monthly charge to Houston. The rate schedule is contained in the Tariff, and the
Tariff has been amended several times over the past 20 years. The 2011 Tariff Monthly Rate

Schedule is attached at Exhibit 1.

14. Houston has paid CenterPoint the amount invoiced by CenterPoint for street

lighting for many years.

To comply with its agreemen| CenterPoint must keep an accurate inventory

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and adequately maintain the street light system.

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15. Clearly, given the pricing structure, in order for CenterPoint to fulfill its

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contractual obligations, it must consistently maintain a highly accurate street light inventory and

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systematically maintain the street light system to ensure that Houston is receiving the promised

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number of lumens, or amount of illumination, paid for monthly by Houston. Unfortunately, for

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Houston, CenterPoint routinely fails to keep an accurate inventory of streetlights, and it fails to
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properly maintain the street light system, resulting in a failure to deliver the promised amount of
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lighting and therefore, a breach of contract by CenterPoint which is costly to Houstonians.

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CenterPoint Fails to Keep Accurate Streetlight Inventories.

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16. CenterPoint's street light inventories are routinely inaccurate. Given that each
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it is obvious that inaccurate inventories cause erroneous

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streetlight is charged every month,

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charges to Houston. By billing Houston for erroneous street light charges, CenterPoint breaches
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its contract with Houston.

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CenterPoint Fails to Implement Proper Systemic Street Light Maintenqnce.

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17. In general, at the very minimum, in order to be compliant with its contractual

obligations to Houston, CenterPoint's street light maintenance system must include the following

routine tasks:

(1) CenterPoint must systematically and timely replace street lights;

 (2) CenterPoint must systematically and timely replace street ballasts:

(3) CenterPoint must systematically clean and otherwise maintain street light fixtures

and lamps; and

(4) CenterPoint must trim the trees and eliminate other obstacles which prevent

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lighting from reaching the streets.

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18.

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Lights depreciate with age and produce fewer lumens over time. After four

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years, few lamps generate more than 80% of their original measure of lumens. CenterPoint has

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failed in the past and continues to fail to systematically replace street light bulbs. Accordingly,

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CenterPoint has in the past and continues to deliver to Houston less lighting than promised by
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CenterPoint and paid for by Houston.
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19.
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CenterPoint has failed in the past and continues to fail to timely replace ballasts.

A ballast is a device that

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maintains the electric current through the lamp. Failure to timely

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replace ballasts negatively affects lumen production. CenterPoint does not comply with industry
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standards for ballast replacement. Consequently, CenterPoint has in the past and continues to
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deliver to Houston less lighting than promised by CenterPoint and paid for by Houston.
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20. CenterPoint has failed in the past and continues to fail to implement an adequate
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system for cleaning and maintaining street light fixtures and lamps. Dirt accumulation on lamps
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and fixtures results in absorption of light and can greatly reduce the light emitted, sometimes to a
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fraction of the expected illumination, even if the lamp itself is producing at t00o/o. CenterPoint

fails to conform to industry standards on lamp cleaning. As a result, CenterPoint delivers to

Houston less lighting than promised by CenterPoint and paid for by Houston.
 21. CenterPoint has failed in the past and continues to fail to adequately trim trees and

eliminate other obstacles which prevent the lighting from reaching the streets. In order for the

lighting to reach the streets, CenterPoint must routinely and adequately trim trees surrounding

the lights and remove other lighting obstacles. However, CenterPoint fails to maintain an

adequate tree trimming system. Accordingly, CenterPoint has in the past and continues to

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deliver less lighting than promised by CenterPoint and paid for by Houston.

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22. For all of the reasons stated above, CenterPoint has in the past and continues to

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breach its contract to provide lighting services to Houston.

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Cause of Action: Breach of Contract

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23. Houston incorporates for all pulposes the paragraphs set forth above.
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24. CenterPoint breached its contract with Houston by charging Houston for more
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lumens of lighting than it actually provided under the present Tariff and the Tariffs effective in
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the past.
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25. The breach of contract was material.

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26. As a result of CenterPoint;s breach of contract. Houston has incurred natural.

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probable and foreseeable damages that are sought in this suit.

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Damages
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Houston seeks all damages flowing from CenterPoint's breach of contract over
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the past twenty years, including consequential damages.

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 Attornevst Fees

28. Houston re-alleges and incorporates for all purposes the paragraphs set forth

above.

29. Houston has incurred and continues to incur attorneys' fees in pursuing the relief

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requested, including, but not limited to outside counsel fees and expenses. Accordingly,

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Houston seeks to recover all reasonable attomeys' fees and costs to which it mav show itself

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lawfully entitled pursuant to T¡x. Clv. Pnnc. & RBv. Cone A¡w. $ 38.001(8).

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Conditions Precedent

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30.

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All conditions precedent have been performed or have occurred.

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Prayer for Relief
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31. Houston requests whatever relief it may be entitled to in law or equity, including:
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a. Actual damages in an amount to be proven at trial of this matter; and

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b. Costs, disbursements, and attorneys fees pursuant to applicable law.

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Respectfully submitted,
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BECK, REDDEN & SECREST, L.L.P.

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iJ.,, (rå t¡i"l¿

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W. Curt Webb
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State Bar No. 21035900

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Jennifer Pratchett
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State Bar No. 00786517

l22l McKinney, Suite 4500
Houston, Texas 77010
713.95t.3700
713.951.3720 (Fax)

ATTORNEYS FOR PLAINTIF'F'

CITY OF HOUSTON
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E,XHIBIT 1
2011-29666 / Court: 234

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Chapter 6: Cornparry Specifìc Itenrs Sheet No. 6.6
Page 2 of'8

CenterPoint Encrgy l-louston Electric, LLC

Applioablc: Ilntire Service Area CNP 8O2O

MONTHLY RATE

I. Transmission and Distribution Charges

In acldition to the T&D Charge per larnp forvarioLrs conligurations in the tablc

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['rclow, an additional $1.08 per month will be charged f-or all lainps with a

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break-away base.

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Lanrp I.r,pc Schcd u lc Schctlr¡ lc Sc hctl u lc Schctlulc Schcrlu lc i\l on th lv

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l.u¡¡lcn \\/:rtt lì* (l* I)* l(\\/fl

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Initi¿rl I,.',
( llultr Onlv)

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i\'l crcu rv \'
5 8.000 r.uìlctl r.00() $7.990040 $20.804890 $14.iltì88t $23.4_58-5 l8 $ r.5.ó20400 3(¡5

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22.ó00 I.unrr:n 400 $4.66 I 555 $ l 6.078765 $ I0.5(13752 $ r9.90:ì3{lr,ì :lìil .9047i t I50
7.fi00 u|tìctì l7-5 $3.2941_5{ì N.A. N.A $ l(r.0 14573 .$9.422999 (t()

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4.200 u¡ncrì r00 $3.209827 N,A. N.A. $ 12.42669f1 N.A. 4I
IIigh I'rcssurc Sotliunt Vanor
50.0(X) l.Lrntcrt
(Sct llack)
400 $l 4.335256 N.,4. Da N,A. $24.:ì453rì2 $2 1.4(¡,5 ll0 I (r0
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-50.0(X) Lu¡rcn .+00 $7.994{r80 $20.809730 $r4.t23721 $23.4633-57 lì1,5.(r2-i240 160

2[ì.000 I-Lrnrcn 2,s0 $ 14.-s(r 1900 N.A. N,A $24.3'+53tì2 ti2t.465il0 I06
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(Sct llacli )
2lJ.000 I-u¡ttc¡t 2_50 $4.662594 $ r 6.079803 $ I 0.5ó479 I ït9.904427 $ I r .905770 l0ó
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1.5.000 Lunrcrt t50 $3.2944 l8 $ r4.673tì53 $9.7,53 782 $ :ti9.423259 _s fl

9.5(X) l.trrcrt 100 $:ì.294890 N.A. N,A. $;r3.02 l7l0 $fì.044978 itÌ
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(r.0(X) l.u¡lrcrt 70 $3.2i844 I N.A. N.A. $ 12.0 r 1467 N.^. 29

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ñlctal I l¿¡lirlc
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i2.200 l.unrcrr 400 $,9.562527 N.A. N.A s24.124427 t; (r.tì05703 t59

1 9.475 Lunrcn 250 $9.i65700 N.^. N.^. $2:ì.9:i 7044 f; ó.(r l{1.ì20 96
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I 2.900 l.ur¡tcn r75 59.9754()q N.A N.^. $2-ì.70(r3.i9 5i I 7.2233ó6 t0

7.900 fi r0.585236 N.^. N.A. $21i.475634 l2 40
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[.Lrnrcn 100 :t; 7.1ì2tÌ4

DHSCRIPTION OF LICLI'|ING CONFIGURATIONS

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Schedule A -one or nrore lanrps mounted on existing distribution poles and served by overheacl
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corrductors.
Schedule Iì -single lamp mounted on ornanrental standard and scryecl by overheacl conductors.
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l,i¡n ited to existing installations.

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Scheclule Cl -twin lamps mounted on ornanrental standard and served by overhead concluctors.
Limited to existing installations.
Schcclule D -single larnp nrounted on ornanlental standard and served by underground concluctors, or'
decorative residential streetl ights.
Schedule E, -twin laurps mounted on ornalrental standard and served by underground conductors.

Revision Nurnber: I4th Eflfèctive: 7llll0

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