Ord. 0938 11-08-99ORDINANCE NO. 938
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 PEARLAND,
TEXAS.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY PEARLAND , TEXAS:
Section 1. Permit and consent granted; consideration.
That the City of Pearland, 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.
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(c) In this Ordinance,"Grantee" shall mean and shall be understood to be
PG&E Texas Pipeline, L.P., its generatpartner(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 similarly situated, except
that no additional payment, other than what as expressly set forth herein,
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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 existing 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,
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
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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.
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
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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]
(ii) Notice to Grantee shall be sent to:
PG&E Texas Pipeline, L.P.
1100 Louisiana, Suite 1000
Houston, Texas 77002
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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 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
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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.
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READ, CONSIDERED, PASSED and APPROVED at a Regular Meeting of the
Council Members of the City Pearland , on the _ day of , 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 Pearland , Texas, on this the _ day of
, 1999.
By:
ATTEST:
City Secretary
APPROVED AS TO FORM:
City Attorney
STATE OF TEXAS §
COUNTY OF §
City Pearland
Mayor
I, the undersigned City Secretary of the City Pearland , Texas, hereby certify that the
above and foregoing is a full, true and correct copy of an ordinance adopted by the City Council
at the meeting held on the _ day of , 1999, as the same appears in the official
minutes of the City Council for the City Pearland
WITNESS MY HAND AND SEAL of the City Pearland , Texas, this _ day of
, 1999.
City Secretary
City Pearland , 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
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ORDINANCE NO. 938
PASSED and APPROVED ON FIRST READING this the
November , A. D., 1999.
TOM REID
MAYOR
ATTEST:
8th day of
PASSED and APPROVED ON SECOND AND FINAL READING this the
day of , A. D., 1999.
TOM REID
MAYOR
ATTEST:
YOUNG LORFING
CITY SECRETARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY