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HomeMy WebLinkAboutOrdinance No. 2000-05 ORDINANCE NO. 2000-05 AN ORDINANCE GRANTING A PERMIT AND CONSENT TO PG&E GAS TRANSMISSION, TEXAS CORPORATION, PG&E GAS TRANSMISSION TECO,INC.,AND PG&E ENERGYTRADING-GAS CORPORATION, THEIR WHOLLY OWNED SUBSIDIARY CORPORATIONS AND WHOLLY OWNED SUBSIDIARY GENERAL AND LIMITED PARTNERSHIPS, AND THEIR SUCCESSORS, LESSEES OR ASSIGNS, TO MAINTAIN, USE AND OPERATE CERTAIN NATURAL GAS AND/OR NATURAL GAS LIQUIDS TRANSMISSION PIPELINES ALONG, ACROSS, AND UNDER PUBLIC PROPERTY AND RIGHTS OF WAY IN THE CITY OF FRIENDSWOOD , TEXAS * * * * * BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CITY OF FRIENDSWOOD , TEXAS: Section 1. Permit and consent granted; consideration. That the City of CITY OF FRI ENDSWOOD ,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 ($2,000.00), for each year of the Term hereof, reduced to present value using a 6°/a per year discount rate, and (b) an annual payment of fifteen cents($.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 (as defined herein)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 herewith and the terms, conditions and definitions set forth herein, hereby grants to Grantee (as defined herein) a permit and consent for the Term (as defined herein) to operate, use and maintain the PG&E Pipeline System and to exercise the rights and privileges granted by this Ordinance. 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 Grantee, 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 Grantee. The PG&E Pipeline System has been disclosed to the City and/or its counsel by maps, written descriptions or by other identification. The PG&E Pipeline System is not a "local gas distribution system" or "LDC" (as defined herein). 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. (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 or successor thereof. (c) In this Ordinance, "Grantee" shall mean and shall be understood to be PG&E Gas Transmission, Texas Corporation, PG&E Gas Transmission Teco, Inc., and PG&E Energy Trading-Gas Corporation, their wholly owned subsidiary corporations and wholly owned subsidiary general and limited partnerships, and their successors, lessees or assigns. (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 FINAL ORDINANCE 01/27/00 - herewith and the rights, permit, and consent granted by this Ordinance for the Term. (e) In this Ordinance, "Local Distribution Company" or "LDC" shall mean a person�; corporation, general or limited partnership, or other entity that owns one or more lines of pipe within a city service area and holds itself out to both residential and commercial customers generally within such city service area to provide public utility service through such line or lines of pipe for a fee. Section 3. Maintenance, Operation, Repair, Relocation, Expansion or Removal of PG&E Pipeline System. The consent and permit granted herein includes, without limitation, all rights and privileges to own, 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 and/or other governmental requirements, if any, concerning such excavation and work performed, subject to the provisions of this Ordinance and to the extent that such requirements are applicable to other pipelines and facilities similarly situated. Grantee shall comply with ordinances of general application. Section 4. New Construction. (a) General. Subject to the provisions of Section 2(a) above (and as � limited by Section 4(b) below), should Grantee, during the Term of this Ordinance, desire to construct or install new pipelines or add new facilities in City Rights Of Way, Grantee shall notify the City and comply with existing City and/or other governmental requirements, if any, concerning such construction to the extent applicable to other pipelines and facilities similarly situated, except that no additional payment, other than what is expressly set forth herein, shall be made during the Term and thereafter such new pipelines or facilities stiall 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 a cumulative increase of more than 300 linear feet of pipe 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 Rights of Way (excluding for purposes of this payment calculation only any in-City portion of the designated state highway system), multiplied by the number of years remaining on the Term, reduced to present value using a 6% discount rate. After completion of construction and compliance with existing Ciry and/or other governmental requirements, if any, the new pipeline and/or new facilities shall become a part of the PG&E Pipeline System as defined herein and covered by this Ordinance. For the purpose of calculating any lump sum payment obligation, the terms "new pipeline" and "new facilities"slo not include any upgrades, � replacements, changes in diameter, size or configuration, of any part of the existing PG&E Pipeline System. Further, any relocation of the existing PG&E Pipeline System due to any change in location, expansion or widening of the paved road surface portion of any City Rights of Way shall not be considered to be a "new pipeline" or "new facility" for the purpose of calculating any lump sum payment obligation. Nothing in this Ordinance shall effect the rights, if any, of the City to receive any monies from the Texas Department of Transportation that may, in the future, be collected by or through the Texas Department of Transportation from any user of the Texas state highway system. (b) Limitations on Future Expansion. Although this Ordinance grants consent to expand the PG&E Pipeline System, by the construction or installation of new pipelines or new facilities, such consent shall be limited by this Section as follows: (i) During the Term, if and only in the event any construction involving new pipelines or new facilities is proposed in any City Rights of Way open to the public but not located along or under a road or other City Right of Way subject to vehicular traffic— such as an airport, public park, municipal building site, or landfill site — the Grantee entity(ies) that owns and/or � operates the in-City portion of the PG&E Pipeline System ("Pipeline Owner") will file an application for consent to construct new pipelines or new facilities. In addition, in no event shall the City seek or impose any terms, conditions or consideration in granting the application that are greater or more onerous than those being imposed or received by the City upon or from any other person or entities that are similarly situated to or compete with Pipeline Owner. The City agrees to act on such application in a timely fashion, not to exceed 60 days; and/or (ii) During the Term, if and only in the event that the Pipeline Owner desires to construct or install new pipelines or add new facilities in a manner that would cause the PG&E Pipeline System to cross under or along any additional FINAL ORDINANCE 01/27/00 - , City Rights of Way, for the purpose of delivering gas directly (it being agreed that direct deliveries of gas shall not include a sale � for resale nor a delivery of gas to the LDC or any oth�r third party transporter) to any retail gas consumer not served by the Pipeline Owner as of the effective date of this Ordinance and located inside the City, the Pipeline Owner agrees to provide notice to the City. To the extent required by this Section 4(b)(ii), Pipeline Owner will file an application for consent to construct new pipelines or new facilities, such consent not to be unreasonably withheld by the City. In addition, in no event shall the City seek or impose any terms, conditions or consideration in granting the application that are greater or more onerous than those being imposed or received by the City upon or from any other person or entity that is similarly situated to or compete with Pipeline Owner. The City agrees to act on such application in a timely fashion, not to exceed 60 days. Notwithstanding anything to the contrary, this Section 4(b)(ii) shall not apply to the construction or installation of new pipelines or addition of new facilities to deliver gas to existing or new electric power generating plants. . Section 5. Substances. Subject to the terms and conditions of this Ordinance: (a) the following substances may be transported and/or delivered for purposes of sale, sale for resale, transportation or purchase in any part of the PG&E Pipeline System by Grantee: natural gas or natural gas liquids, in gaseous or liquid state or the equivalent thereof, whether natural or synthetic ("Substances"); and (b) Grantee may transport and deliver its own Substances, and transport and/or deliver for hire Substances owned by affiliates, governmental entities and/or third parties. Section 6. Nature And Sufficiency of Consideration. (a) Findings. The monies paid to the City and the agreements set forth in Section 4 are sufficient consideration for all purposes (b) Exclusive Charge. The consideration described in Sections 1 and 4 shall be the exclusive compensation, tax (except as provided in Subsection (c) below), fee, rental, assessment or other charge, however characterized, payable or due to the City by Grantee pertaining to the presence, use, ownership, and/or 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 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, regulatory, use, sales, gross receipts, or occupation taxes, fees, assessments, exactions, rentals or charges which may levied or attempted to be levied by the City. (c) Certain Taxes Not Exempt. Nothing herein shall constitute an exemption to Grantee from (i) ad valorem taxes levied by the City on real or personal property owned by the Grantee within the City, or (ii) any new tax (including any new increment to an existing tax) first authorized, mandated or imposed by the state or federal government after the effective date of this Ordinance if such new tax or new increment is equally applied to all persons and entities within the City that are similarly situated to or compete with Grantee. 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 ("the Term"). 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 be compelled to renew but shall not unreasonably withhold or refuse renewal of this consent and permit. The City shall not require more onerous terms or conditions nor require greater consideration from Grantee for renewal than those then in effect for other persons and entities that are similarly situated to or compete with Grantee and are using or occupying City Rights of Way. 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. FINAL ORDINANCE 01/27/00 - Section 9. Existing Obligations Affecting The PG&E Pipeline System. (a) As of the effective date of this Ordinance, there may be existing contracts, ordir�ances, easements, leases, agreements or permits• imposing obligations and/or City requirements pertaining to the � PG&E Pipeline System or Grantee ("Existirig 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 Notice to the City shall be sent to: (�� CITY OF FRIENDST�v'OOD FR�ENDSWOODNDTXOOD546I4856 Attn: Deloris A4cKenzie, City Secretary (ii) Notice to Grantee shall be sent to: PG&E Gas Transmission, Texas Corporation and PG&E Gas Transmission Teco, Inc. 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, incfuding but not limited to any derivative liability, with regard to all past and present 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 Locai Government Code § 282.003, Texas Transpo�tation 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 or Grantee. 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, lease, or assign, to any person or entity, Grantee's rights under this consent and permit, and fo sell, convey, transfer, lease, or assign all 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 righfs 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, FINAL ORDINANCE 01/27/00 � lessee, or assignee the right, power or privilege to operate as an LDC within the City. Section 14. Indemnity. Except as expressly provided for below, 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, and subject to the language and conditions hereof, the Pipeline Owner agrees to indemnify and hold harmless the City from any adjudged liability and damages caused by any negligent or wrongful act or omission of Pipeline Owner relating to the construction, maintenance, operation, or repair of the PG&E Pipeline System; provided, however, the City shall promptly notify Pipeline Owner in writing of such claim or lawsuit. In the event that City desires to settle any such claim or suit relating to any matter for which indemnification is or will be sought by City hereunder, prior to final judgment by the court, then this indemnity shall be without legal effect, unless the City obtains Pipeline Owner's written consent to such settlement. Pipeline Owner shall have the right, but not the obligation, to assume the defense of any claim made against the City relating to any matter for which indemnification is or will be sought hereunder. Pipeline Owner agrees to bear the costs of defense in circumstances in which Pipeline Owner assumes the defense. 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 constitute a contract between the City and Grantee and shall govern the rights and relationships befinreen 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. READ, CONSIDERED, PASSED and APPROVED at a Regular Meeting of the City Council, on the Z-�day of February, 2 0 0 0 , held in accordance with the Open Meetings Act,Texas Gov't Code§551.001 et seq.,at which a quorum was present. - APPROVED bythe Mayor of the City of CITY OF FRIENDSWOOD ,Texas, on this the 2'l�tltay of FPhriia r� , 2000. CI F CITY DSWOOD By: Mayor ATTEST: , S � . Ci y Secretary APPROVED AS TO FORM: KIM DZICKELSON City Attorney STATE OF TEXAS § COUNTY OF GALVESTON § § I, the undersigned City Secretary of the City of CITY OF FRIENDSWOOD , Texas, hereby certify that the above and foregoing is a full, true and correct copy of an ordinance adopted by the governing body of the City at the meeting held on the�� day of Februarv , 2000, as the same appears in the official minutes of the City Council meeting. WITNESS MY HAND AND SEAL of the C' of CITY OF FRIENDSWOOD , Texas, this��lay of Feb. , 2000. , �, s � City Secretary City of CITY OF FRIENDSWOOD , Texas