Loading...
ORD 511 11/9/1999O✓✓ne„� L 4 512 ORDINANCE NO. - , 511 AN ORDINANCE GRANTING A PERMIT AND CONSENT TO PG&E TEXAS PIPELINE, L.P., ITS SUCCESSORS AND ASSIGNS TO MAINTAIN, USE AND OPERATE CERTAIN NATURAL GAS TRANSMISSION PIPELINES ALONG, ACROSS, AND UNDER PUBLIC PROPERTY AND RIGHTS OF WAY IN THE CITY OF CIBOLO , TEXAS BE IT ORDAINED BY THE COUNCIL MEMBERS OF THE CITY OF CIBOLO , TEXAS: Section 1. Permit and consent granted; consideration. That the CITY OF CIBOLO , Texas ("the City"), for and in consideration of the payment of the Agreed Settlement Sum, which includes a one-time, lump sum payment equal to (a) an annual payment of two thousand dollars ($2,000.00), for each year of the Term hereof, reduced to present value using a 6% per year discount rate, and (b) an annual payment of fifteen cents ($.15) for each linear foot of pipe constituting part of "the PG&E Pipeline System" (as defined herein) that is presently located within City Rights of Way (as defined herein but excluding for purposes of this payment calculation only any in -city portion of the designated state highway system), to be calculated for each year of the Term hereof and reduced to present value using a 6% per year discount rate, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and subject to the terms and conditions of the Full and Final Release and Settlement Agreement executed and approved by the City contemporaneously and the terms, conditions and definitions set forth herein, hereby grants to PG&E Texas Pipeline, L.P., its successors, lessees and assigns ("PG&E" or "Grantee"), a permit and consent for the term hereinafter stated to operate, use and maintain the PG&E Pipeline System and to exercise the rights and privileges granted by this Ordinance. This Ordinance shall not control or otherwise affect any gas franchise ordinance previously or subsequently granted by the City to Southern Union Gas Company, Entex, or any other local gas distribution company. This Ordinance does not address or concern, and shall not be construed to have any application to, any future occurrence involving leakage, rupture, fire or explosion involving any in - City portion of the PG&E Pipeline System which causes or is alleged to cause any personal injury or property damage. If and only in the event the City is sued as a result of any such occurrence during the Term hereof, Grantee agrees to indemnify and hold harmless the City from any liability or damages caused by any negligent or wrongful act or omission of Grantee, if any. Section 2. Definitions. (a) For purposes of this Ordinance, "the PG&E Pipeline System" shall mean the intrastate, interurban natural gas and natural gas liquids transmission pipelines and all their appurtenant facilities, including, but not limited to, mains, spurs, laterals, meters, valves, corrosion protection systems, city gates, and all other similar facilities of PG&E, located in, under or along City Rights of Way. The PG&E Pipeline System includes all pipelines and facilities owned, leased, operated and/or controlled, in whole or in part (such as through a joint venture or partnership, for example), by PG&E or an affiliate. The PG&E Pipeline System has been disclosed to the City and/or its counsel by maps, written descriptions or by other identification as may have been requested or required by the City. The PG&E Pipeline System is not a "local gas distribution system ("LDC')," as that term is customarily understood, and is dissimilar in function and purpose to local municipal or investor-owned public utilities operating in and franchised in various Texas cities. The consent, permit, rights and privileges granted by this Ordinance encompass the PG&E Pipeline System and the operations, lines of business, and business activities of Grantee in the City; such grants however do not allow the PG&E Pipeline System or any portion thereof hereafter to be operated, used or maintained as an LDC, as above described. (b) In this Ordinance, "City Rights of Way" shall mean any public easement, street, road, avenue, highway, freeway, toll road, bridge, alley, boulevard, sidewalk, park, parkway, lane, drive, circle, canal, sanitary or storm sewer runoff, drainage ditch, dump, landfill or other public property, thoroughfare, way, or place currently owned or controlled by, and/or located within or which may in the future be constructed within or annexed into the corporate limits of, the City, including all in -city portions of any federal or state highway, farm to market road, or other right of way designated as part of the Texas state highway system by the Texas Department of Transportation, Texas Transportation Commission, State Highway Commission, and/or any predecessor thereof. Consent/Permit Ordinance for San Benito Class Cities Page 2 - Vers.11 October 18, 1999 (9:55pm) (c) In this Ordinance,"Grantee" shall mean and shall be understood to be PG&E Texas Pipeline, L.P., its general partner(s), limited partner(s), parent, subsidiary and other affiliated entities, successor(s), lessees or assigns, and any individual, corporations or corporation, receiver, or other person or authority owning or operating the PG&E Pipeline System at anytime during the Term hereof. (d) In this Ordinance,"Agreed Settlement Sum" shall mean and be understood to be Grantee's one time, lump sum payment of money and all other things of value given to and accepted by the City as consideration for the Full and Final Release and Settlement Agreement executed and approved by the City contemporaneously herewith and the rights, permit, and consent granted by this Ordinance for the Term hereof. Section 3. Maintenance, Operation, Repair, Relocation, Expansion or Removal of PG&E Pipeline System. The consent and permit granted herein includes all rights and privileges to maintain, operate, improve, enlarge, extend, repair, remove, and relocate any part of the PG&E Pipeline System as may be deemed necessary by Grantee. In the event that Grantee finds it necessary to excavate in any City Rights of Way, Grantee shall notify the City and shall comply with all then existing City requirements, if any, concerning such excavation and work performed subject to the provisions of Sections 7 and 10, and to the extent that such requirements are applicable to other pipelines and facilities similarly situated. Grantee shall do no permanent injury to any City Rights of Way nor in any manner unnecessarily disturb or interfere with utility and sewer pipes, lines, conduits, cables, or facilities installed or constructed by the City or by any authorized person or corporation, but no utility and sewer pipes, lines, conduits, cables or facilities shall be so installed as to unnecessarily disturb or interfere with the PG&E Pipeline System. Section 4. New Construction. Subject to the provisions of Section 2(a) above, should PG&E, during the term of this Ordinance, need to construct or install new pipelines or add new facilities in City Rights Of Way, PG&E shall notify the City and comply with existing City requirements, if any, concerning such construction to the extent applicable to other pipelines and facilities Consent/Permit Ordinance for San Benito Class Cities Page 3 - Vers.11 October 18, 1999 (9:55pm) similarly situated, except that no additional payment, other than what as expressly set forth herein, shall be made during the term hereof and thereafter such new pipelines or facilities shall be made subject to the provisions of Sections 6 and 9. In the event any new pipeline construction or expansion of an existing pipeline causes an increase of more than 300' along or under City Rights of Way, then in such event Grantee shall make an additional lump sum payment to the City equal to 15 cents per linear foot of such new pipeline within City Right of Way, multiplied by the number of years remaining on the Term hereof, reduced to present value using a 6% discount rate. After completion of construction and compliance with any other City requirements, the new pipeline and/or new facilities shall become a part of the PG&E Pipeline System as defined herein and made subject of this ordinance. The terms ,.new pipeline" and "new facilities" do not include upgrades, replacements, changes in diameter, size or configuration, of any part of the exit PG&E Pipeline System, or any relocation thereof due to any change in location, expansion or widening of the paved road surface. Section 5. Substances. The following substances may be transported and delivered for purposes of sale, sale for resale, transportation or purchase in any part of the PG&E Pipeline System: natural gas or natural gas liquids, in gaseous or liquid state or the equivalent thereof, whether natural or synthetic. Grantee may transport and deliver its own substances, and transport and deliver for hire substances owned by affiliates, governmental entities and third parties. Section 6. Nature And Sufficiency of Consideration. (a) Findings. The consideration paid to the City is consistent with and sufficient to provide for the City's reasonable recovery of costs associated with the exercise of the City's authority and police powers as may be necessary for the public health, safety and welfare with regard to the construction, operation and maintenance of the PG&E Pipeline System within affected City Rights of Way and all reasonable costs of administration of the consent and permit granted by this Ordinance for the Term hereof. (b) Exclusive Charge. The consideration described in Section 1 shall be the exclusive compensation, tax (other than ad valorem taxes, if any, assessed by the City), fee, rental, assessment or other charge, Consent/Permit Ordinance for San Benito Class Cities Page 4 - Vers.11 October 18, 1999 (9:55pm) however characterized, payable or due to the City by PG&E pertaining to the presence, use, operation of the PG&E Pipeline System, and the natural gas or natural gas liquid sales, purchases, transportation and other business activities related thereto, during the Term of this Ordinance. Grantee's agreement to pay such consideration shall be full consideration during the Term hereof for the City's consent and permit for the rights and privileges granted by this Ordinance and shall be in lieu of all other franchise, license, sales, gross receipts, or occupation taxes, levies, exactions, rentals or charges which may levied or attempted to be levied by the City. (c) Ad Valorem Taxes Not Exempt. Nothing herein shall constitute an exemption to Grantee from any ad valorem property taxes levied by the City on real or personal property owned by the Grantee within the City. Section 7. Term. The consent and permit granted by this Ordinance shall continue and remain in full force and effect for a period of twenty-five (25) years from and after its effective date pursuant to Section 15. Section 8. Expiration of Term; Renewal. If Grantee desires a renewal of this consent and permit, it shall notify the City at least two (2) years prior to the expiration date of the Term. The City shall not unreasonably withhold or refuse renewal of this consent and permit. The City shall not require more onerous terms or require greater consideration from Grantee for renewal than those then in effect for other persons and entities that are using or occupying City Rights of Way similarly to Grantee. If the City, acting in good faith and with a reasonable basis decides not to renew this consent and permit, the City shall give Grantee formal written notice of such decision not later than 18 months before the expiration of the Term. After receipt of such notice, Grantee shall have until the end of the Term to find a buyer or buyers to acquire all or any divisible parts of the PG&E Pipeline System. For any part of the PG&E Pipeline System Grantee is unable to sell or convey after expiration of the Term, Grantee shall have a reasonable time after the expiration of such Term to remove from City Rights of Way those parts, and shall restore affected City Rights of Way to the condition existing before such removal. Consent/Permit Ordinance for San Benito Class Cities Page 5 - Vers.11 October 18, 1999 (9:55pm) Section 9. Existing Obligations Affecting The PG&E Pipeline System. (a) As of the effective date of this Ordinance, there may be existing contracts, ordinances, easements, leases, agreements or permits imposing obligations and/or City requirements pertaining to the PG&E Pipeline System ("existing pipeline facility obligations"). It is the intent of City and Grantee that any such payment obligation shall be subsumed into Section 6(b) hereof and that this Ordinance shall control and supercede any such existing pipeline facility obligations to the extent they conflict or vary in any manner from this Ordinance. (b) Grantee and City further agree and declare that: (i) the consideration paid under this Ordinance satisfies in full any fee, charge or payment obligation that otherwise would be due under existing pipeline facility obligations after the effective date of this Ordinance; (ii) the term, if any, for any such existing pipeline facility obligations is hereby extended to coincide with the Term of this Ordinance; and (iii) Grantee and City shall execute such further documents as necessary to conform existing pipeline facility obligations to this Ordinance. Section 10. Notice. (a) Written Notice. All notices required or sent in accordance with this Ordinance shall be in writing. (b) Addresses. All notices shall be addressed to the other party at the address below or at such other address as the receiving party may subsequently designate by notice to the sending party (i) Notice to the City shall be sent to: [Address of Director of Public Works, Mayor, or other appropriate official] Consent/Permit Ordinance for San Benito Class Cities Page 6 - Vers.11 October 18, 1999 (9:55pm) (ii) Notice to Grantee shall be sent to: PG&E Texas Pipeline, L.P. 1100 Louisiana, Suite 1000 Houston, Texas 77002 Attn: General Counsel Section 11. Satisfaction of Consent and Permit Requirements City acknowledges and agrees that Grantee has satisfied and fully paid all of Grantee's obligations, duties, responsibilities, fees and charges, and liability, if any, including but not limited to any derivative liability, with regard to all past, present and, through the term hereof, any future statutory and regulatory consent requirements pertaining to use or occupation of any City Rights of Way under any state or municipal law or regulation, applicable to Grantee, including, by way of example and not limitation, Texas Revised Civil Statutes art. 1175, Texas Local Government Code § 282.003, Texas Transportation Code § 311.071, Texas Utilities Code §§ 181.006, 181.023 and 181.026, the City Charter and Code of Ordinances, if any, and/or any City ordinance, resolution, permit or consent requirement, if any, pertaining or applicable to the PG&E Pipeline System. Section 12. Severability. It is hereby declared to be the intention of the parties that the phrases, clauses, sentences, paragraphs, and Sections of this Ordinance are severable, and, if any phrase, clause, sentence, paragraph, or Section of this Ordinance shall be declared void, ineffective, or unconstitutional by the valid judgment or final decree of a court of competent jurisdiction or a final order, rule or regulation of a governmental regulatory authority, such voidness, ineffectiveness, or unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs, and sections of this Ordinance since the same would have been enacted by the City without the incorporation herein of any such void, ineffective, or unconstitutional phrase, clause, sentence, paragraph, or section. Section 13. Transfer or Assignment. Grantee is expressly given the right, power and privilege to sell, convey, transfer or assign, to any person or entity, Grantee's rights under this consent and permit, and to sell, convey, transfer, lease, or assign all Consent/Permit Ordinance for San Benito Class Cities Page 7 - Vers.11 October 18, 1999 (9:55pm) or any portion of the PG&E Pipeline System. Grantee agrees to give written notice to the City, within a reasonable time afterward, of any such conveyance, sale, transfer, lease, or assignment, but failure to provide such notice shall not constitute a forfeiture of any of Grantee's rights under the terms and conditions of the Ordinance. The consent, permit, rights and privileges granted by this Ordinance encompass the PG&E Pipeline System and the operations, lines of business, and business activities of Grantee in the City; but such grants do not allow the PG&E Pipeline System or any portion thereof hereafter to be operated, used or maintained as an LDC (as such term is defined above). Therefore, absent separate and express city consent and agreement, no such conveyance, sale, transfer, lease, or assignment by Grantee, as authorized herein, shall constitute or convey to any buyer, transferee, lessee, or assignee the right, power or privilege to operate as an LDC within the City. Section 14. Waiver of three separate readings. If permitted by the City Charter and Code of Ordinances, if any, the requirement of three separate readings of this Ordinance, if any, may be waived and dispensed with a vote of not less than a majority of all the members of the City Council or as required by the Charter and Code. Section 15. Effective Date and Controlling Effect of this Ordinance. This ordinance shall become effective upon the last in time of its adoption by the City in the form accepted by the Grantee and the payment in full to the City of the Agreed Settlement Sum. Upon such effective date, this ordinance shall govern the rights and relationships between the City and Grantee for the duration of the Term, and it shall supersede and take precedence over inconsistent ordinances, resolutions, or regulations hereafter or heretofore passed by the City. Consent/Permit Ordinance for San Benito Class Cities Page 8 - Vers.11 October 18, 1999 (9:55pm) READ, CONSIDERED, PASSED and APPROVED at a Regular Meeting of the Council Members of the City of Cibolo , on the ee P day of q!4(w, 1999, held in accordance with the Open Meetings Act, Texas Gov't Code §551.001 et seq., at which a quorum was present. APPROVED by the Mayor of the City of Cibolo, Texas, on this the 9 day of "-.Ape- , 1999. Clty Cibolo By: ��d4A, Mayor �"�/ APPROVED AS TO FORM: City Attorney STATE OF TEXAS COUNTY OF I, the undersigned City Secretary of the City of Cibolo , Texas, hereby certify that the above and foregoing is a full, true and correct coppy of an ordinance adopted by the City Council at the meeting held on the 9�4 day of .t irr..6,:e , 1999, as the same appears in the official minutes of the City Council for the City of Cibolo. WITNESS MY HAND AND SEAL of the City of Cibolo , Texas, this W-� day of iU%xr 1999. ty Secretary City of Cibolo , Texas The above and foregoing Ordinance No. and the grants, powers, rights and privileges thereto were accepted by PG&E Texas Pipeline, L.P., on and as of the day of , 1999. By: Title: STATE OF TEXAS § COUNTY OF § PG&E TEXAS PIPELINE, L.P., A Delaware Limited Partnership, By PG&E Texas Pipeline Company, its General Partner PG&E Texas Pipeline Company The foregoing instrument was acknowledged before me on the day of , 1999, by of PG&E Texas Pipeline Company, General Partner of PG&E Texas Pipeline, L.P. , a Delaware Limited Partnership, on behalf of said partnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of '1999. Notary Public, State of Texas Consent/Permit Ordinance for San Benito Class Cities Page 11 - Vers.11 October 18, 1999 (9:55pm)