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HomeMy WebLinkAbout026023 ORD - 11/16/2004 ORDINANCE AMENDING CHAPTER 49 OF THE CITY OF CORPUS CHRISTI CODE OF ORDINANCES BY ADOPTING NEW ARTICLE VII AND AMENDING ARTICLE IV, SECTION 49, RELATING TO THE REQUIREMENT THAT ALL PIPELINES IN THE CITY RIGHTS-OF-WAY AND IN CITY-OWNED PROPERTY BE LICENSED OR OTHERWISE AUTHORIZED BY THE CITY; ESTABLISHING PROCEDURES FOR THE APPLICATION FOR AND GRANTING OF LICENSES; ESTABLISHING THE CHARGES FOR THE USE OF CITY RIGHTS-OF-WAY AND CITY-OWNED PROPERTY BY AUTHORIZED AND UNAUTHORIZED PIPELINES; PROVIDING FOR PROTECTION OF CITY RIGHTS-OF-WAY AND CITY-OWNED PROPERTIES AND INTERESTS; RESERVING THE CITY'S CLAIMS FOR PRIOR OCCUPATION OF PUBLIC PROPERTY BY PIPELINES; PROVIDING FOR RELATED MATTERS; AND OTHER PROVISIONS RELATED TO THE SUBJECT MATTER OF THIS ORDINANCE; PROVIDING AN EFFECTIVE DATE; PROVIDING FOR PENALTIES; PROVIDING FOR RESERVATION OF CIVIL REMEDIES; PROVIDING FOR SEVERANCE; AND PROVIDING FOR PUBLICATION. WHEREAS, the City of Corpus Christi has determined that there are numerous pipelines in the City rights-of-way and in City-owned property; WHEREAS, many of the existing pipelines in the City rights-of-way and in City-owned property have not received any permission from the City to occupy these public properties, nor do any adequately compensate the City for their use of these public properties; WHEREAS, the City has determined that the public properties used by these pipelines have value to the City and to the pipeline owners; WHEREAS, the City has determined the value to the City of these public properties and has further determined that fees should be charged for the use of City rights-of-way and City-Owned Properties by the owners of these pipelines; WHEREAS, the City possesses authority to control its rights-of-way and other property, and to receive fair compensation for the use of its right-of-way and other property, under various provisions of law, including but not limited to Article 11, Section 5 of the Texas Constitution, Article 1175 of Vemon's Texas Civil Statutes, Texas Tax Code Section 182.025, subchapters A and B of Texas Utility Code Chapter 181, and the City's Charter; WHEREAS, under Article IX of the Corpus Christi City Charter no person may be authorized to use City rights-of-way or other public property without the consent of the City pursuant to ordinance; WHEREAS, the City has further determined that the implementation of the fees contained in this article on a non-discriminatory and equitable basis for all pipelines that Pipelines and rights of wayMKF\lIa 026023 2 use the public properties is appropriate, and the City Council finds that the fees established are reasonable, equitable, and non-discriminatory; and WHEREAS, a system for administering the use of City rights-of-way and City-owned property is necessary and appropriate; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS, THAT: SECTION 1. Chapter 49, Code of Ordinances, is amended by adding a new Article VII, Charges for Use of Rights-of-way by pipelines, to read as follows: "CHAPTER 49 STREETS AND SIDEWALKS . . . . . "Article VII. Charges for Use of Rights-of-way by pipelines "Sec. 49.91. Definitions. "The following terms, when used in this article, have the meanings ascribed to them by this Section: "Abandon or abandonment or abandoned means permanently removed from seNice under the definition of "abandoned" in the Code of Federal Regulations, 49 C.F.R 9192.3, and includes the process defined in the Code of Federal Regulations, 49 C.F.R. 9192.727, by which a pipeline owner or operator can conduct abandonment activities of its pipeline or a section of its pipeline. "City-owned property means any real property and its fixtures, other than City rights-of-way, owned in fee, leased, controlled, held in trust. or otherwise possessed by the City within the corporate boundaries of the City. "City-owned facilities means all streets, curbs, sidewalks, water facilities, wastewater facilities, gas facilities, storm water facilities, park, airport, landfill, and other facilities owned, maintained, or controlled by the City. "City rights-of-way means any water, wastewater, gas, storm water drainage, or other public utility easement, street, road, avenue, highway, freeway, toll road, bridge, alley, boulevard, sidewalk, lane, drive, circle, or canal, 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 the City's interest, if any, in all in-City portions of any federal or state highway, farm to market road, or other rights-of-way claimed by the City. "Crossing means any occupation of City rights-of-way (excluding public utility easements) by pipelines that extends from one side of the rights-of-way to the opposite side. Except as otherwise provided in this article, it is presumed that each crossing by a pipeline includes seventy five (75) linear feet. Pipeline and rights of way-2.mkf\lIa 3 "Director means the City's Director, Engineering Services (or other position designated by the City Manager) or the Director's designee. "Effective date means the effective date of this article, which is the date of final passage by the City Council. "Emergency refers to an incident that may cause an immediate threat to public health, safety, or welfare, including an incident in which any of the following has occurred, is occurring or is imminent: "(i) Fire or explosion not initiated by the licensee as part of its operations, under accepted safety practices. "(ii) Release of an explosive gas, hazardous liquid, or chemical that could adversely affect the environment or health of individuals, livestock, domestic animals, and wildlife. "(iii) Death of any person. "(iv) Bodily harm of any person that results in loss of consciousness, the need to assist a person from the scene of an incident or the necessity of medical treatment in excess of first aid. "(v) Damage to private or public property not owned by the licensee in excess of $5,000.00 in combined values. "(vi) The rerouting of traffic or evacuation of buildings. "Existing pipeline means a pipeline, not abandoned, in any portion of the City rights-of-way or City-owned property as of the effective date of this article. "Expiration date means the date on which a license granted under this article expires. "G./.S. means Geographic Information System. "License means a license granted by the City under the terms and provisions of this article authorizing the licensee to occupy City rights-of-way and City-owned property for pipelines as described in this article. "License fee means a fee assessed by the City on pipelines occupying City rights-of-way or City-owned property, under Section 49-96. "Licensed affiliate means a person controlling, controlled by, or under common control with licensee, which has (or for which licensee has) agreed, in a form approved by the City Attorney, to unconditionally assume all duties, obligations, and liabilities of licensee under this article, without regard to the legal status of the person. Pipeline and rights of way-2.mkf\lla 4 "Licensee means a person, its successors and assigns, and licensed affiliates named in a license. "Person means an individual, a partnership (limited or general), a limited liability corporation, a trust, a joint venture, an unincorporated organization, or other legal entity or governmental authority. "Pipeline or pipe means all parts of those physical facilities through which natural gas, hazardous liquids, chemicals, water, or other liquids or gaseous substances move in transportation, including, but not limited to, pipe, valves, and other appurtenances attached to pipe, compressor units, metering stations, pumping units, regulator stations, delivery stations, terminals, holders, and fabricated assemblies and breakout tanks. "Sec. 49-92. License required. "(a) No person may own, maintain, operate, acquire, construct, install, or extend a pipeline in City rights-of-way or City-owned property except under a license granted under this article, or through a franchise or other right granted by the City Council. The City Manager is authorized to execute a license, substantially in the form required by Section 49-95, with any pipeline owner. The term of the license expires at midnight on September 30,2012. Thereafter, the City Manager may execute licenses that expire at 10 year anniversaries of the date; i.e., on September 30, 2022, September 30, 2032, etc. A license is granted to any pipeline company executing the form if the form is executed by the City Manager. "(b) A license authorizes the licensee to operate, alter, inspect, repair, replace with like property, remove, construct, extend or abandon the licensee's pipeline within the City rights-of-way and City-owned property as specifically described in the license. The license only authorizes licensee to use City rights-of-way and City-owned property to the extent specifically described in the license and as provided in this article for extensions. The grant is limited by the nature of the City's interest in any particular City rights-of-way or City-owned property, and does not grant an interest in any real property, estate or interest owned by another person. "(c) Extensions of pipeline. "( 1) Licensee has the right to extend or enlarge its pipeline beyond the configuration identified in its license within the City rights-of-way subject to compliance with Section 49-98 in this article and with Chapters 35 and 49 of the Code of City Ordinances, and other applicable ordinances. "(2) In the event licensee desires to extend its pipeline across City-owned property, it must seek permission to do so from the City prior to commencing any work or construction, which permiSSion may be granted at the sole discretion of the City. If the City is agreeable to the requested use of City-owned property, it will grant an amendment to the license for the use, at consideration of not less than that set for City rights-of-way in Section 49-96. Pipeline and rights of way~2.mkf\lIa 5 "(3) In the event of an extension or enlargement, licensee is obligated to include the additional pipe that occupies the City rights-of-way or City-owned property as a result of any extension or enlargement, in the calculation of its annual license fee to City under Section 49-96. "(d) Change in pipe diameter. If licensee desires to replace any part of the pipeline that occupies City rights-of-way or City-owned property with new equipment or pipe that has the same or a smaller diameter than the existing pipe, it may make the improvement subject to compliance with Section 49-98 in this article and with Chapter 35, Article VII, Code of Ordinances, and other applicable ordinances. A replacement of an existing pipe with new pipe of the same or smaller diameter will not result in licensee owing City an additional license fee. However, replacement of existing pipe with larger diameter pipe subjects licensee to increased license fees, as provided in Section 49-96. "(e) Drainage easements and rights-of-way. If licensee desires to construct, extend, or locate part of its pipeline in a way that it would occupy drainage easements or rights-of- way, licensee must first seek permission to use the drainage easements or rights-of- way from the Director. All requests for use of drainage easements and rights-of-way must be in writing and will be evaluated for approval on the basis of whether the requested use materially interferes with the primary function of the subject drainage easement or rights-of-way. "Sec. 49.93. Application process. "(a) Existing pipelines. All owners of existing pipelines on the effective date of this article shall submit to the Director an application for a license by November 16, 2004. The application must be submitted on a form provided by the City, and, to the extent the information has not already been provided to the City under 9 35-146, et. seq., Code of Ordinances, must include the following: "(1) Maps as required by Section 49-94. "(2) A statement of licensee's total linear feet of pipe and number of street crossings within City rights-of-way and City-owned property, broken down by pipe diameter, for purposes of calculating the fees due under Section 49-96. "(3) The business address and telephone number of the person responsible for the operation of each existing pipeline. "(4) The business address and telephone number of the owner of each existing pipeline. "(5) The telephone number of at least one emergency contact available on a 24-hour basis. "(6) Certificates of insurance for the coverage required in this article. "(7) The name, address, and telephone number of licensee and the names of its licensed affiliates, if any. Pipeline and rights of way-2.mkf\lIa 6 "(8) A copy of the license form authorized in Section 49-92, executed by the authorized representative of the Applicant. "(9) A statement as to whether the applicant is in compliance with the City's Pipeline Safety Ordinance (Article VII, Chapter 35, Code of Ordinances). "(10) Any other information the Director requests. "(b) Application Fee. All applications for a license must be accompanied by payment of a non-refundable application fee in the amount of $ 250.00. "(c) If the application is in compliance with the terms of this article, the City Manager may execute the tendered license. "Sec. 49.94. Maps. "(a) Prior to the granting of a license, licensee shall identify to the Director in writing the position of all of licensee's existing pipeline in City rights-of-way and City-owned property. The location information must be provided using G.LS. technology, compatible with the City's G.LS. software. As an alternative to using G.LS. technology, a licensee may use alignment sheets, surveys, or as-built drawings as a means to locate its pipeline and for calculating the total number of linear feet of licensee's pipeline that occupies City rights-of-way and City-owned property, to the extent it is the best, presently-available information. If the initial information is not provided in G.LS. format, licensee shall provide the required information formatted to be compatible with the City's G.LS. software within 180 days of the granting of the license. "(b) Within sixty (60) days of any change to the configuration of licensee's pipeline within City rights-of-way and City-owned property, licensee shall file with the City Engineer updated, accurate maps of licensee's pipes within City rights-of-way and City- owned property. All maps shall be in digital format compatible with the City's G.LS. software, except as the information is permitted to be deferred in subsection (a) of this section. "(c) Within one year of the effective date, licensee shall update its maps required by this section to identify licensee's previously abandoned pipe, not included in the pipe reported in Section 49-93(a)(1) and (2). "Sec. 49-95. Form of license. A license must be substantially in the form set forth in the Appendix to this article. "Sec. 49.96. Consideration for license. "(a) License fees. As consideration for the grant of the license, licensee shall pay the City an annual license fee consisting of the following, adjusted as provided below: "(1) For pipeline of six inches (6") or less outside diameter: Pipeline and rights of way-2.mkf\lla 7 "a. A sum of money representing five hundred dollars ($500.00) per crossing per year, multiplied by the number of crossings made by licensee's pipeline. "b. A sum of money representing One dollar and 25/100 ($1.25) per linear foot. multiplied by the number of linear feet of licensee's pipe located in City rights-of-way or City-owned property. "(2) For pipeline of diameter greater than six inches (6"): "a. A sum of money representing five hundred dollars ($500), plus five dollars ($5.00) for each inch or part of an inch of pipe outside diameter over six inches (6") per crossing per year, multiplied by the number of crossings made by licensee's pipeline. "b. A sum of money representing one dollar and 25/100 ($1.25), plus five cents ($0.05) for each inch or part of an inch of pipe diameter over six inches (6") per linear foot, multiplied by the number of linear feet of licensee's pipe located in City rights-of-way or City-owned property. "(b) For purposes of calculating the number of linear feet occupied by licensee's pipeline, it is presumed that each crossing includes seventy five (75) linear feet. The linear feet included in a crossing will not be included in the counting of linear feet for purposes of the license fee, unless the crossing actually exceeds seventy five (75) linear feet, in which case only the linear feet actually contained in the crossing in excess of seventy five (75) feet must be counted. Each pipeline within a crossing counts as one crossing. "(c) The license fees in this article and charged to licensee are in the nature of compensation for licensee's use and occupancy of the City right-of-way and City-owned property. The license fees are payable in advance each year by October 1, and constitute payment for the annual period beginning October 1. Initial payments upon granting of licenses must be pro-rated to October 1. "( d) Adjustments of linear foot license fee. The linear foot and crossing fees established in this article will be adjusted each year by the cumulative percentage increase in the Consumer Price Index as described in this article, as measured from the $1.25/$500 base in effect on the effective date of this article. The Director will calculate the linear foot license fee for each succeeding year after the effective date based on the original license fee shown above adjusted by the Consumer Price Index, All Urban Consumers, U.S. City Average - All Items (1982-84=100) ("CPI"), and provide the calculation to licensees by April 1 of each year, beginning on April 1 , 2005. "(e) Late fee. Each required annual payment must be made in advance on or before October 1 of each year of the license. Late payments will accrue interest from October 1 to the date payment is received by the City at the rate of five percent (5%) over the per annum rate of interest announced as the "Prime Rate" for commercial loans as published in the Wall Street Journal or equivalent, as selected by the Director, as of Pipeline and rights of way-2.mkf\lIa 8 October 1 or each year. However, the interest rate may never exceed the maximum lawful rate permitted by applicable law. "(f) Pipeline extension. If licensee extends its pipeline beyond the configuration described in its license and if any part of the extension occupies City rights-of-way or City-owned property, then the annual license fee described in Section 49-96(a) in this article must be adjusted accordingly. For purposes of determining when any new occupation of City rights-of-way or City-owned property begins, licensee shall use the date on which construction commenced or existing pipe was acquired. Any increment to the annual license fee that results from the extension is first due to the City in the October payment subsequent to the commencement or acquisition of the extension. The initial payment for the increment shall be prorated to October 1. For example, if licensee's extension adds 1000 feet of pipe to its system, 100 feet of which occupies City rights-of-way, and the extension is commenced or acquired on March 31, 2005, the increment to the annual license fee owed the following October would be Y:z x $1.25 (as adjusted) x 100, or $67.25, plus $250 for any additional street crossing, if any. "(g) Pipeline reduction. If licensee sells pipe it has in City rights-of-way or under City- owned property, then the license fee described in this Section will be reduced effective October 1 following the date of sale in an amount equal to the fee that would have otherwise been charged for the linear feet and crossings included in the pipe sold. Provided, however, licensee shall furnish a copy of the transfer document to the City and shall by contract require any third party purchaser of its pipe to obtain a license from City for licensee's pipe to be acquired, and licensee may not close a pipeline sales transaction with a third party purchaser until that purchaser has obtained a license from the City. Licensee's fee may not be reduced until the third party purchaser has obtained a license. "(h) As used in this section, "sells" includes sale, trade, transfer, assignment, gift or other conveyance, and "third party purchaser" includes any person to whom the pipe is sold, traded, transferred, assigned, given, or conveyed; provided, however, the City, if it is the purchaser, is not required to obtain a license. "(i) If licensee abandons or otherwise reduces the amount of pipe it has in City rights-of- way or under City-owned property any time during the term of its license, then the license fee described in this section will be reduced starting October 1 following the date of written notification to the City in an amount equal to the fee that would have otherwise been charged for the abandoned pipe and abandoned crossings. Licensee may leave abandoned pipe in place, whether abandoned before or after the grant of a license under this article, unless the Director requires licensee to remove the abandoned pipe as the Director determines necessary to facilitate City operations or protect the public safety. Upon notice from the Director, licensee shall promptly remove the specified abandoned pipe, notwithstanding expiration or termination of the license. If licensee abandons pipe, licensee remains responsible for complying with legal abandonment processes and for the safe condition of the facilities and appurtenances after the pipe is abandoned, notwithstanding expiration or termination of the license. City will not assume ownership or control over the abandoned facilities and appurtenances, and the City assumes no responsibility for their maintenance and safety, unless the City in Pipeline and rights of way.2.mkf\lIa 9 writing accepts a particular facility. Section 49-98(e) continues to apply to any facilities and appurtenances not removed by licensee after abandonment. If licensee removes pipe, the licensee shall restore the City property, at the sole cost of the licensee, under Section 49-98(c). "0) Additional pipe found. Licensee must endeavor, prior to obtaining a license, to identify all of its non-abandoned pipe within the City, and the non-abandoned pipe must be described in the license. If, however, additional non-abandoned licensee pipe is subsequently identified by the City or by licensee, which has not been identified in licensee's license, licensee shall pay to the City the incremental amount which licensee would have paid to the City if the additional pipe had been included in licensee's license, plus interest from the date of the license to the date the license is modified to include the additional pipe at the rate of five percent (5%) over the per annum rate of interest announced as the "Prime Rate" for commercial loans as published in the Wall Street Journal or equivalent, as selected by the Director, as of October 1 of each year. However, the interest rate shall never exceed the maximum lawful rate permitted by applicable law. "Sec. 49-97. Accounting. "(a) Recordkeeping. Licensee shall maintain books and records sufficient to support the calculation and payment of license fees under this article. "(b) Audit. City may cause, upon reasonable notice, an audit to be made of the books and records of licensee relating to licensee's performance under this article and its license. The omission by City to exercise its rights to any audit at any time may not constitute a waiver of the right. In the event that City elects to exercise its right of audit, City will provide to licensee written notice at least five (5) business days in advance of the audit. City will select the auditor. Licensee shall make available to the auditor personnel and records reasonably necessary to complete the audit, and City has the right to copy pertinent licensee records. Licensee shall answer questions and provide records or information within fourteen (14) business days of any written request. City will bear the cost of any audit. City and licensee shall meet and attempt in good faith to resolve any disputed issues arising from the audit report. "Sec. 49-98. Construction, maintenance and operations. "(a) Costs. Licensee is solely responsible for all costs and expenses of any nature relating to its pipeline, including but not limited to construction, installation, maintenance, operation, and future repair of any portion of the licensee's pipeline that occupies City rights-of-way or City-owned property during the term of the license. "(b) Maintenance and construction. "(1) Licensee's pipeline must be constructed and maintained in conformity with all applicable federal, state, and local laws and regulations governing operations in the City rights-of-way and City-owned property, and may not unduly (in the opinion of the Director) interfere with traffic over streets, alleys, and sidewalks, the flow of storm water in any gutter, drain, sewer, or open drainage system, or Pipeline and rights of way~2.mkf\lIa 10 with City water, wastewater, storm water, gas utility, park, airport, landfill or other City operations, whether the traffic, flows, or operations are existing or planned. "(2) Licensee may not impede any City rights-of-way or any City-owned property for longer or to a greater extent than is reasonably necessary to execute any of its work. "(3) "Constructed and maintained," as used in this section, includes installation, construction, maintenance, and repair of the licensee's pipeline. "(c) Restoration. Any portion of City rights-of-way or City-owned property disturbed by licensee in the construction or maintenance of its pipeline must be promptly restored at completion of the work to the same or better condition as it was in before the commencement of the work. Should the City reasonably determine, within one year from the date of the restoration activities, that the portion disturbed requires additional restorative work in order to place it in its original condition, licensee shall perform the additional restorative work to the reasonable satisfaction of the City. "(d) City approvals. "(1) In maintaining its pipeline, licensee may not disturb City's street pavement, water, wastewater, gas, storm water, park, airport, landfill or other City-Owned Facilities without first obtaining the approval of the Director, except during an emergency. As soon as practicable after an emergency disturbance, licensee shall provide a written report to the Director stating the nature of the emergency and the work required to alleviate the emergency. "(2) Before constructing extensions or new improvements, licensee shall obtain approval of the Director to assure consistency with existing and planned City facilities and other facilities and public safety. "(e) Relocations. City reserves the right to construct, maintain, and modify City-owned facilities for City operations. City will give thirty (30) days prior written notice to licensee whenever City has determined that removal, relocation, change or alteration to the licensee's pipeline is reasonably necessary for construction, maintenance, modification, or operation of City-owned facilities. The amount of notice will be reasonable under the circumstances. Upon written notice by City, licensee shall, at licensee's expense, temporarily or permanently remove, relocate, change, or alter the position of the affected portion of the licensee's pipeline. "(f) Damage to City facilities. If licensee's construction or maintenance activities result in damage to any City facilities, requiring the City to repair the City facilities, City will invoice licensee for City's costs to make the repairs, plus 10%, and licensee shall reimburse the invoiced amount to City within 10 days of the date of invoice. "Sec. 49-99. Insurance. "Licensee shall (or require its contractors to) provide and maintain insurance, at its own expense, with companies admitted to do business in Texas, in the type and amounts for Pipeline and rights of way-2.mkf\lIa 11 the term of the license as may be required by the City's Risk Manager under 9 17 -15(b), City Code. "Sec. 49-100. Termination. "(a) A license issued under this article may, at the option of the City, terminate upon the occurrence of anyone or more of the events described below (collectively referred to in this article as "events of termination"). In the event of occurrences under paragraphs (1), (4), or (5) of this subsection affecting only a portion of licensee's pipeline, the City may choose to apply these termination provisions to only those affected portions of the pipeline. Each event of termination is a separate and independent basis for termination of the license (or application of each event of termination to the affected pipeline or portion of an affected pipeline, as applicable). The events of termination are as follows: "(1) The City Council, in its legislative discretion, determines that the existence or operation of a pipeline, or any part of a pipeline, in the City right-of-way or City- owned property constitutes a hazard, nuisance, or other threat to the public health, safety, or welfare. Termination under this paragraph must be by ordinance and become effective after licensee has been given one hundred eighty (180) days' notice of the termination, unless circumstances comprising an emergency warrant more immediate termination. "(2) Licensee fails to timely pay any of the fees in this article provided for or is delinquent in the payment of any charges due under the license. "(3) Licensee fails to maintain at any time the insurance as required in this article. "(4) Licensee fails to commence or thereafter to diligently prosecute to completion any required maintenance, repair, or other work required by this article to be done by licensee within thirty (30) days after being notified of the required action by the Director. In the event of an emergency, notice is deemed given and received after telephone contact with an authorized officer or director of licensee, and licensee shall commence the requested repairs within twenty- four (24) hours. "(5) Licensee abandons the pipeline. "(6) Licensee fails to comply with any of the terms, conditions, or provisions of the license or this article. "(7) Licensee commences dissolution or some other similar proceeding that would impair, modify, alter, extinguish, or significantly change licensee's ability to perform licensee's obligations under the license or this article. "(b) Upon the occurrence of an event of termination described in subsection (a)(1), the event of termination may not be cured by licensee, and the license shall terminate in the manner and under the applicable provision of the subsection. Pipeline and rights of way-2.mkf\lIa 12 "( 1) Upon the occurrence of one or more of the events of termination other than in subsection (a)(1), the Director shall so notify the licensee in the manner provided in the license. "(2) After the notice, licensee shall have thirty (30) days in which to cure the event of termination. "(3) Should licensee fail or refuse to cure the event of termination with the thirty (30) day time period prescribed, the City Manager may terminate the license; provided that if licensee commences efforts to cure the event of termination within thirty (30) days after receipt of the written notice and thereafter prosecutes the efforts with reasonable diligence in the sole determination of the City until the event of termination is cured, then the event of termination shall cease to exist and no action to terminate the license will be taken. "(c) Failure of the City to enforce its rights and remedies under this section with respect to one event of termination may not operate as a waiver of the City's right to thereafter enforce its rights and remedies with respect to the continuing event of termination or another event of termination. Termination of the license may not waive, release, or satisfy any duty, covenant or obligation of licensee under this article or the license which licensee has not fully performed as of the time of termination. "Sec. 49-101. Assignment/sublicensing. "A license shall be personal to licensee. However, licensee may assign a license to other entities provided that, prior to the assignment, it first obtains the City Manager's written consent to the assignment. City Manager may not unreasonably withhold consent to the licensee's request to assign its license. In the event of any transfer of the license to a third party, all of the benefits and obligations created by a license will inure to the benefit of and become binding upon the assignee. Notwithstanding any of the foregoing, licensee may assign its interest in the license to any licensed affiliate without the prior written consent of City, but the assignment may not relieve licensee of any of its obligations or liabilities under its license, whether accrued or unaccrued. "Sec.49-102. Violation of Article. "(a) It shall be a civil violation of this article for a person to knowingly make a material misrepresentation of any information reported under this article or to own, maintain, operate, acquire, construct, install, or extend a pipeline in City-owned property or City rights-of-way except under the provisions of this article. "(b) A material and willful violation of any section, subsection, or part of this article is grounds for revocation of the license. "(c) The City will also be entitled to injunctive relief in a court of appropriate jurisdiction to prevent violation of or to compel compliance with the provisions of this article, in addition to all other rights and remedies available to the City. Pipeline and rights of way-2.mkf\lIa 13 SECTION 2. Section 49-60, Code of Ordinances, is revised to read as follows: "Sec. 49-60. Establishment of Policy; definitions. "(a) The following is the established policy to be used by the City to establish and fix compensation to be charged users of City rights-of-way and City-owned property for the privilege of constructing, installing, maintaining, and operating pipelines to carry any substance or solid, liquid, or gaseous material within the City rights-of-way or City- owned property, and establishes a rate from which a fee is to be computed and paid to the City for this use. "(b) It is the policy of the City that all pipeline users of City rights-of-way and City-owned property must have the consent of the City to occupy the City rights-of-way and City- owned property through a license granted under Article VII of this Chapter 49 or through a franchise or other grant by the City Council and must pay fair and reasonable compensation for the grant. "(c) It is also the policy of the City that if any pipeline user should occupy City rights-of- way or City-owned property without consent, that unauthorized user must pay the compensation prescribed in this article for the use. "( d) For purposes of this article, the following terms shall have the meanings prescribed in Article VII of this Chapter: "pipe," "pipeline," "abandoned," "City rights-of-way," "City- owned property," "crossing," "effective date," and "Director." "(e) This article also establishes the policy to establish and fix a fee to be charged users for the privilege of placing monitoring and recovery wells and associated piping within City rights-of-way. "(f) The fees in this article are found by the City Council to constitute fair and reasonable compensation for the occupation of the City rights-of-way or City-owned property by unauthorized pipelines and by monitoring and recovery wells. SECTION 3. Sections 49-62, 49-63, and 49-64 of Article IV, Chapter 49, Code of Ordinances, are repealed. Any other ordinance in conflict with this ordinance is repealed to the extent of the conflict. SECTION 4. Section 49-61(b), Code of Ordinances, is redesignated as Section 49-62, and is revised to read as follows: "Sec. 49-62. Fees for use of public ways by monitoring or recovery wells. The following items shall be used in computing the right-of-way use fee: "(1) The basic rate for the installation of each monitoring or recovery well within the City's right-of-way is two hundred fifty dollars ($250.00) for a well that is twelve (12) inches or less in diameter and twenty (20) feet or less in depth, plus ten dollars ($10.00) per inch of nominal diameter over and above twelve (12) inches in diameter and ten dollars ($10.00) of depth over twenty (20) feet in depth. This basic rate allows the monitoring or recovery well to remain in place Pipeline and rights of way-2.mkf\lIa 14 for up to two (2) years. The basic rate is increased by one hundred dollars ($100.00) for each additional year authorized in the permit agreement. "(2) The basic rate charged for use of any portion of the right-of-way that will be used for any pipelines associated with a recovery well will be charged at the same rate as the street rate or pipelines. "(3) Rate charges do not apply for vaults, manholes, valve boxes, or similar appurtenances; however, the lineal foot charges as prescribed in paragraph (1) of this section must be computed continuously through any structure along a straight center line projected between the connection orifice(s) of a pipe in the structure," SECTION 5. Section 49-61, Code of Ordinances, is revised to read as follows: "Sec. 49.61. Fees for use of public ways by unauthorized pipelines. "(a) Unless provided differently in a license granted under Article VII of this Chapter or in a franchise or other grant by the City Council, a person who owns or operates a pipeline located within the City that occupies City rights-of-way or City-owned property without authorization shall pay for the use the compensation provided in this section. "(b) A public utility, as defined by Texas Tax Code Section 182.025(3)(A), which owns or operates a gas or water pipeline used for local sale and distribution located within the City, shall pay for the use of a city street, alley or public way a charge of two percent of the public utility's gross receipts from the sale of gas or water within the City by means of that pipeline. If the a public utility also uses City-owned property or other property not included in the statutory scope of "city street, alley, or public way," the public utility shall additionally pay for the City-owned property or other property the charge prescribed in subsections (d) and (e) of this section. "(c) A person not a public utility, as defined by Texas Tax Code Section 182.025(3)(A), which owns or operates a pipeline used for local sale and distribution located within the City, shall pay for the use of City rights-of-way and City-owned property the charge prescribed by Section 49-70 or the charge prescribed by subsections (d) and (e) of this section, whichever is greater. "(d) A person who owns or operates a pipeline located within City rights-of-way or City- owned property, other than a pipeline subject to subsections (b) or (c), up to six inches (6") in diameter (not including vaults, manholes or similar appurtenances), shall pay to the City annually: "(1) $1.50 per linear foot of pipe in City rights-of-way or City-owned property (excluding street crossings); and "(2) $550 per street crossing crossed by the pipeline. "(3) An additional annual fee for pipelines exceeding six inches (6") in diameter of ten cents ($.10) per linear foot for each inch or part of an inch over six inches Pipeline and rights of way-2.mkf\lIa 15 plus ten dollars ($10.00) per inch or part of an inch over six inches (6") for each street crossing. "(e) The linear foot and street crossing amounts will be adjusted effective each October 1, with the first adjustment October 1, 2005, by the cumulative percentage increase in the Consumer Price Index - All Urban Consumers, U. S. City Average - All Items (1982-84=100) as measured from the $1.50/$550 in effect on the effective date. The Director will calculate the linear foot/crossing charge for each succeeding year after the effective date and will make the calculation available to users upon request by April 1 preceding the October 1 payment due date. "(f) Payment of the fees required by this section must be made annually in advance before October 1 of each year. Late payments shall accrue interest from October 1 to the date payment is received by the City at the annual rate of 10% or the highest allowable legal rate of interest, whichever is less. The fee for the partial year from the effective date of this ordinance until October 1 shall be pro-rated, and shall be due on the 60th day after the effective date of this ordinance. The fee for any new unauthorized pipeline shall be pro-rated for the year of installation. "(g) Within sixty (60) days of the effective date, owners and operators of unauthorized pipelines subject to the fee imposed by this section shall notify the City Manager of the number of linear feet of pipeline they own or operate within City rights-of-way and City- owned property, the diameter of the pipelines, and the number of crossings by the pipelines. "(h) Within sixty (60) days of the effective date, owners and operators of unauthorized pipelines subject to the fee imposed by this section shall identify to the Director in writing all of their pipelines in City rights-of-way and City-owned property. The location information must be provided using G.LS. technology compatible with the City's G.LS. software. As an alternative to using G.LS. technology, the owners and operators may use alignment sheets, surveys or as-built drawings as a means to locate their pipelines and for calculating the total number of linear feet of the pipelines, to the extent it is the best, presently-available information. If the initial information is not provided in G.LS. format, the owners and operators shall provide the required information formatted to be compatible with the City's G.LS. software within two hundred forty (240) days of the effective date. Within sixty (60) days of any change to the configuration of the pipelines within City rights-of-way and City-owned property, the owners and operators shall file with the Director updated, accurate maps of their pipelines in City rights-of-way and City-owned property, in digital format compatible with the City's G.LS. software. Within one year of the effective date, owners and operators shall update the maps required by this subsection to identify the location of their abandoned pipe. "(i) Should the compensation in this article for unauthorized pipelines, or some part of the compensation or its application to a particular situation, be held by a court of competent jurisdiction after exhaustion of final appeals to exceed the amount that by law may be prescribed, then, to the extent of the court's holding, the compensation is reduced to the highest rate permitted by law to be levied by the City. The compensation in this article remains in effect for all situations and applications not addressed in the Pipeline and rights of way-2.mkt\lIa 16 court's holding. Any owner or operator of a pipeline who contends that the amount prescribed in this article exceeds the amount that by law may be prescribed must, prior to the October 1 due date, tender a written explanation clearly specifying the reasons for the contention and must tender any amount of payment that is not being disputed. "(j) This article does not authorize any person to have pipelines in City rights-of-way or City-owned property without the consent of the City granted or authorized by ordinance upon the terms as the public interest may require and City retains all its legal remedies to have unauthorized pipelines removed. Provided, however, lack of authorization may not excuse failure to pay the fees prescribed in this article. By allowing its pipeline to remain in City rights-of-way or City-owned property without express written authorization, the pipeline's owner or operator agrees to pay the compensation provided in this section." SECTION 6. The City Council previously directed the City Manager to provide notice of revocation of all revocable easements, use privilege agreements, and similar rights granted for pipelines in City rights-of-way and City-owned property consistent with the terms of the granting instrument. The rights under any revocable easements, use privilege agreements, or similar rights granted remain in effect until the revocation notice requirements, if any, have been satisfied. SECTION 7. Adoption of this ordinance does not release or waive claims of the City against any person for occupation of City rights-of-way or other property prior to adoption of this ordinance. SECTION 8. Pipelines of the City of Corpus Christi are exempt from this ordinance. SECTION 9. The effective date of this ordinance is the date of final passage by the City Council. SECTION 10. This ordinance does not enact a criminal penalty for violation of the provisions it adopts; however, the City has all civil remedies available to enforce the provisions. Nothing in this ordinance may be construed to limit the City in its exercise of the police power for the public health, safety, and welfare. SECTION 11. If for any reason any section, paragraph, subdivision, clause, phrase, word or provision of this ordinance shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction, it may not affect any other section, paragraph, subdivision, clause, phrase, word, or provision of this ordinance, for it is the definite intent of this City Council that every section, paragraph, subdivision, clause, phrase, word or provision of this ordinance be given full force and effect for its purpose. SECTION 12. Publication shall be made in the official publication of the City of Corpus Christi as required by the City Charter of the City of Corpus Christi. Pipeline and rights of way-2.mkf\lIa 17 That the foregoing ordinance was read for the first time and passed to its second reading on this the 12th day of October, 2004, by the following vote: ~ (lu\,.( f) a~ 0.<.,1 L~ That the foregoing ordinance was read for the second time and passed finally on this the 16th day of November, 2004 by the following vote: Samuel L. Neal, Jr. Sill Kelly ~7_ Brent Chesney Rex A. Kinnison c~/ ~- . - D.jk' Javier D. Colmenero Jesse Noyola Melody Cooper Mark Scott Henry Garrett Samuel L. Neal, Jr. ~ C~ Henry Garrett (~ PASSED AND APPROVED, this the ~ay of ~ Bill Kelly n1(~ ~C 0."j- Brent Chesney Rex A. Kinnison Javier D. Colmenero Jesse Noyola Melody Cooper Mark Scott ,2004. ATTESli /1'. I ~IY'lCAtk.y I Armando Chapa City Secretary APPROVED: 12nd day of November, 2004: ~,U, \~ Ma;Ytlay F~her - City Attorney Pipeline and rights of way~2.mkf\lIa n?r.02~ 18 "APPENDIX "AGREEMENT GRANTING A PIPELINE LICENSE TO UNDER ARTICLE VII, CHAPTER 49, CITY OF CORPUS CHRISTI CODE OF ORDINANCES, GRANTING THE RIGHT TO USE CERTAIN CITY RIGHTS-OF- WAY AND CITY-OWNED PROPERTY FOR PIPELINES THROUGH SEPTEMBER 30, 2012. "WHEREAS, ("Licensee") has made application to the City of Corpus Christi, Texas ("City") for a pipeline license in order to use certain City rights-of-way and City-owned property for pipeline purposes, under Article VII, Chapter 49, City's Code of Ordinances ("Article VII"); and "WHEREAS, the City has determined that Licensee's application meets the requirements of Article VII; "NOW, THEREFORE, LICENSEE AND CITY HEREBY AGREE AS FOLLOWS: "SECTION 1. Grant of License. The City grants to Licensee a license to operate, alter, inspect, repair, replace with like property, remove, construct, extend, or abandon the Licensee's pipeline within the City rights-of-way and City-owned property as specified and described in Exhibit A. attached to this license and incorporated into it for all purposes. This license is granted under and subject to Article VII, the provisions of which are incorporated in this license and made part of this license for all purposes. The license granted commences on execution of this license by City and Licensee, and expires at midnight On September 30, 2012, unless earlier terminated under the provisions of Article VII. "SECTION 2. Definitions contained in Article VII apply to those terms as they are used in this license. "SECTION 3. Application Fee. City acknowledges receipt of Licensee's application fee of $250.00. "SECTION 4. License Fee. As consideration for the use of City rights-of-way and City- owned property, Licensee shall pay the license fee as set forth in Section 49-96, City's Code of Ordinances. "For the pipe described in Exhibit A, Licensee's initial license fee is calculated as follows: "A. Total number of linear feet of pipe in City rights-of-way and City-owned property, with diameter of six inches (6") or less: "B. Total number of linear feet of pipe in City rights-of-way and City-owned property, with diameter of greater than six inches (6"), identified by pipe diameter: "C. Total number of crossings of City rights-of-way occupied by pipe with diameter of six inches (6") or less: Pipeline and rights of way-2.mkf\1ta 19 "D. Total number of crossings of City rights-of-way occupied by pipe with diameter greater than six inches (6"), identified by pipe diameter: Linear foot fee = "A" times $1.25 + "B" times [$1.25 plus $0.05 for each inch, or part of an inch, of pipe with diameter greater than six inches]: $ Crossing fee = "C" times $500 + "D" times [$500 plus $5 for each inch, or part of an inch, of pipe with diameter greater than six inches]: $ "E. Plus CPI adjustments and late fees, if any. "F. Licensee's first payment under this license, in the amount of $ (linear foot fee plus crossing fee), has been received by the City before or at the time of execution of this license. "SECTION 5. Recordation of License. This license will be recorded by Licensee in the official records of real property of the county in which any of the pipelines that are the subject of this license are located. The Licensee shall pay the recording costs. Licensee shall provide a copy of the recorded instrument to the City. "SECTION 6. Indemnification. By its acceptance of this license, Licensee covenants and agrees to fully indemnify and hold harmless the City and the elected officials, employees, officers, directors, volunteers, and representatives of the City, individually or collectively, from and against any and all costs, claims, liens, damages, losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action, liability, and suits of any kind and nature, including but not limited to, personal injury or death and property damage, made upon the City, directly or indirectly arising out of, resulting from or related to Licensee's activities under this license, including any acts or omissions of Licensee, and any respective agent, officer, director, representative, employee, consultant, or sublicensee of Licensee, and their respective officers, agents, employees, directors and representatives while in the exercise or performance of the rights or duties under this license, all without, however, waiving any governmental immunity available to the City under Texas law and without waiving any defense of the parties under Texas law. The provisions of this indemnification are solely for the benefit of the parties to this license and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity. Licensee shall promptly advise the City in writing of any claim or demand against the City or Licensee known to the Licensee related to or arising out of Licensee's activities under this license and shall see to the investigation and defense of the claim or demand at Licensee's cost. The City shall have the right, at its option and at its own expense, to participate in the defense without relieving Licensee of any of its obligations under this paragraph. This indemnification survives the termination or expiration of this license. "SECTION 7. Notices. All notices required or permitted by the terms of this license and Article VII, are deemed sufficient if given by personal delivery, or facsimile, or by prepaid, certified mail and addressed to each party as follows: "Notice to City: City Manager City of Corpus Christi P.O. Box 9277 Pipeline and rights of way-2.mkf\lIa 20 Corpus Christi, Texas 78469-9277 Telephone: 361 880-3220 Facsimile: 361 880-3839 "Director of Engineering Services City of Corpus Christi P.O. Box 9277 Corpus Christi, Texas 78469-9277 Telephone: 361 880-3500 Facsimile: 361 880-3501 "For overnight delivery: 1201 Leopard Street Corpus Christi, Texas 78401 "Or to any other addresses as may be designated in writing by the City. "Notice to Licensee: "Or to any other addresses as may be designated in writing by the Licensee. "SECTION 8. Applicable law. This license must be construed under and in accordance with the laws of the State of Texas and all obligations of the parties created under this license are performable within the incorporated limits of the City of Corpus Christi, Texas. "SECTION 9. Venue. Venue for any cause of action brought under this license shall be the State courts of competent jurisdiction in Nueces County, Texas, unless Texas law requires a matter to be submitted to a particular regulatory body or court outside Nueces County. "SECTION 10. Condemnation. In the event City-owned property or City rights-of-way are taken, in whole or in part, by a governmental authority other than City, all rights created by this license may, at the option of the City, as to the condemned real property, cease on the date title to the land so taken or transferred vests in the condemning authority. Licensee will not have right to any proceeds of the condemnation. Licensee has the right to seek a separate condemnation award. Nothing in this license may be construed to limit City's condemnation authority. "SECTION 11. Attorneys Fees. In the event either party brings any action under this license alleging that the other party to this license has defaulted on or breached obligations created by this license, the party who prevails is entitled to recover its reasonable attorneys' fees from the losing party. "SECTION 12. Waiver. Failure of either party to require the performance of any term in this license or the waiver by either party of any breach of this license does not prevent subsequent enforcement of this particular term and is not deemed a waiver of any subsequent breach. Pipeline and rights of way-2.mkf\lIa 21 "SECTION 13. Claims reserved. The City does not, by the granting of this license, waive any claims it may have against Licensee for payments related to past occupancy of City rights-of-way or City-owned property by Licensee's pipe, and nothing contained in this license operates as a bar to City's actions, undertaken at City's sole discretion, to seek to recover payment of the claims. "SECTION 14. Compliance with other ordinances. Nothing in this license relieves Licensee from full compliance with the City's Pipeline Safety Ordinance provisions, found in Article VII, Chapter 35, City's Code of Ordinances.. Nothing in this license may be construed to grant Licensee permission, as required by Section 55-3 of the City Code, to serve natural gas customers within the City. "SECTION 15. Relationship of parties. This license may not be construed to create between City and Licensee the relationship of partnership, joint venture, principal and agent, or any relationship other than that of City and Licensee as established by the provisions of this license and Article VII, nor may it be construed to be for the benefit of any third party other than City and Licensee. "EXHIBIT A "(Description of Licensee pipeline)" Pipeline and rights of way-2.mkf\lIa '/,'11'1\:'" . "',!{CE. uE.Pf'l~ . [li'H I} M'\ 9: 3 a State a~~cfu } County of Nueces } PUBLISHER'S AFFIDAVIT ss: CITY OF CORPUS CHRISTI Ad # 5060255 PO # Before me, the undersigned, a Notary Public, this day personally came Diana Hinojosa, who being first duly sworn, according to law, says that she is Credit Manager of the Corpus Christi Caller-Times, a daily newspaper published at Corpus Christi in said City and State, generally circulated in Aransas,' Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg, Live a Nueces, Refugio, San Patricio, Victoria and Webb Counties, and tha~ publication of, NOTICE OF PASSAGE OF ORDINANCE NO. which the annexed is a true copy, was inserted in the Corpus Christi Caller-Times and on the World Wide Web on the Caller-Times Interactive on the 22ND day(s) of NOVEMBER, 2004. $155.25 bLQ/LtJ.. ctj Uuo-JO.s~ Credit Manager TWO (2 ) Time(s) Subscribed and sworn to me on the date of NOVEMBER 23, 2004. (3?O.U1 10VJl/li/1 ~ Notary Public, Nueces County, Texas ROSA MARIA FLORES Print or Type Name of Notary Public My commission expires on 04/23/05. . . Monda e NOTICE PASSAGE ,; OF ORDINANCE NO. 026023 Amending Chapter 49 of tho City of Corpus Christi Code of Ordinances by adopting now A.-' VII and amending II Article IV. Section 411, r.lating to the requirement that all pIpoIInos In the cay righto-of.wOY and In CIty-owned _ be Iiceneed or- oIherWiee ou1horizod by the CIty; establishing procedures for the application lor and granting of lice"..; establishing the charges for the use of Clty rights-of.way and Clly-ownod property by authorized and unauthorized p6peNnM; providing fOf .._, of CIty righlI-of_ and City-owned properties and i.......ls; rooeMng the CIly's claims for prior occupation 01 pubic _ by pIpelInoo; providing for _ matters; and other provioionS _ to tho subjocl moIIor of this ordinance; providing an IIffecIiye date; providing for penalties; providing for reservation of civil remedies. This ordinance was passed and approved on its second reading by the City Council of the City of Corpus Christi on _18,2004. IslA/mOndOChIpo cay~ of CtrIoti