HomeMy WebLinkAbout026217 ORD - 04/12/2005
ORDINANCE
AMENDING CHAPTER 49 OF THE CITY OF CORPUS CHRISTI CODE
OF ORDINANCES BY AMENDING ARTICLE VII AND ALSO
AMENDING SECTIONS 35-154, 49-60, AND 49-61 OF SAID CODE,
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
OCCUPATION OF CITY RIGHTS-OF-WAY 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; AUTHORIZING
SETTLEMENT AND DISMISSAL OF A RELATED LAWSUIT;
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; PROVIDING FOR PUBLICATION; AND
DECLARING AN EMERGENCY.
WHEREAS, the City of Corpus Christi has received and considered comments
regarding Ordinance No. 026023 (November 16, 2004), and has determined that certain
changes to the ordinance are appropriate;
WHEREAS, the City possesses authority to control public rights-of-way within its
boundaries and to make appropriate charges for permitting the use of such right-of-way
and its other property, under various provisions of law, including but not limited to Article
11, Section 5 of the Texas Constitution, Article 1175 of Vernon's Texas Civil Statutes,
Texas Tax Code Section 182.025, Texas Utility Code Sections 181.006 and 181.023,
Texas National Resources Code Section 111.022, 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
occupy the rights-of-way, or that occupy rights-of-way without permission, 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 property subject to City rights-of-way
is necessary and appropriate;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
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CORPUS CHRISTI, TEXAS, THAT:
SECTION 1. Chapter 49, Article VII, Corpus Christi Code of Ordinances, is amended to
read as follows:
ARTICLE VII. Charges for Occupation of Right-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
service under the definition of "abandoned" in the Code of Federal Regulations,
49 CFR ~192.3, and includes the process defined in the Code of Federal
Regulations, 49 CFR ~192.727, by which a pipeline owner or operator can
conduct abandonment activities of its pipeline or a section of its pipeline.
City Manager means the City Manager of City, or his or her designee.
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, parks, airports, landfills,
and other facilities owned, maintained, or controlled by the City.
City rights-of-way means street, road, avenue, highway, freeway, toll road,
bridge, alley, boulevard, sidewalk, lane, drive, circle, or canal owned or controlled
by the City and located within the corporate limits of the City from time to time,
including the City's interest, if any, in all in-City portions of any federal or state
highway, farm-to-market road, or other public right-of-way.
Director means the City's Director, Engineering Services (or other position
designated by the City Manager) or the Director's designee.
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.
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(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 as of the effective date.
Expiration date means the date on which a license granted under this article
expires.
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 for pipelines as
described in this article.
License fee means a fee assessed by the City on pipelines occupying City rights-
of-way under Section 49-95.
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.
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) License required. 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
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form of the Appendix to this article, with any pipeline owner or operator. The term of the
first license shall commence on the issue date (or, if issued to replace a license revoked
by the City in 2004, then on the effective date of the revocation) and shall expire at
midnight on December 31 of the year of issue. Thereafter, the City Manager shall
execute one-year extensions of the license that expire each December 31, without
application or further action on the part of the licensee, unless the license to be
extended is sooner terminated pursuant to Section 49-99 or released by the licensee.
(b) Licensed activities. A license authorizes the licensee to operate, alter, inspect,
repair, replace with like property, remove, construct, maintain, or abandon pipeline
within the City rights-of-way specifically described in the license. The license only
authorizes licensee to use City rights-of-way to the extent specifically described in the
license. The license is limited by the nature of the City's interest in any particular City
rights-of-way and does not grant an interest in any real property, estate or interest
owned by another person.
(c) Extensions of pipeline. Licensee may not extend or enlarge its pipeline beyond
the configuration within the City rights-of-way identified in its license without approval of
a license amendment pursuant to Section 49-93(b).
Sec. 49-93. Application process.
(a) Application. All owners of existing pipelines on the effective date shall submit to
the Director an application for a license by July 1, 2005. An owner proposing to install a
new pipeline or extend or enlarge an existing pipeline in City rights-of-way shall make
application for and obtain a license or license amendment prior to commencing
construction. The application must be submitted on a form provided by the City and
must include the following:
(1) A certification that the information required by City Code Sections 35-
147(a) and (b) and 35-153(a) and (k) has previously been furnished for the
pipeline and is currently accurate, or the updated information necessary for
current compliance.
(2) If the maps required by City Code Sections 35-147(a)(1) and 35-
153(a)(3)(7) and (k) do not identify the location of a pipeline within City rights-
of-way, that information shall be added.
(3) If the applicant desires to choose the alternate payment method under
Section 49-95(a), a statement of the applicant's total linear feet of pipeline
within City rights-of-way.
(4) A copy of the license form authorized in Section 49-92, executed by the
authorized representative of the applicant
(5) Tender of the annual fee required in Section 49-95, if due and not
previously paid, and tender of the application fee required in Section 49-
93(c).
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An owner of an existing pipeline may request reasonable, additional time to provide the
information in (1) and (2) above, with an explanation of the reason for the request and
the time requested to provide the information. A license may be granted subject to
submission of the information within a reasonable, additional time. For applications
granted after timely filing on or before July 1, 2005, the City waives any fees imposed by
Ordinance No. 026023 on or after November 16, 2004.
(b) Application to extend or enlarge. A license may be amended to allow the licensee
to extend, enlarge, or relocate a pipeline by filing an application updating the information
previously provided under subsection (a), including the proposed extension, relocation,
or enlargement, and tendering the application fee.
(c) Application fee. All applications for a license must be accompanied by payment of
a non-refundable application fee in the amount of $3,000.
(d) Action on applications. The City Manager shall grant or deny the license within 30
days of receipt If the application is in compliance with the terms of this article, the City
Manager shall execute the tendered license. The City Manager's denial of a license
shall be in writing addressed to the address provided by the applicant and shall state
the reasons for the denial.
(e) Appeal. An applicant may appeal the City Manager's denial of a license in writing to
the City Council. The appeal shall be filed with the City Secretary within 60 days of the
applicant's receipt of written notice of the City Manager's denial.
(f) Security. The City will implement procedures to release detailed information about
pipeline location only as necessary to facilitate work in City rights-of-way, to provide
information to regulatory or other government agencies, or for other similar purposes.
The City will submit any public information request about pipeline location to the
Attorney General with written notice to the licensee.
Sec. 49-94. Abandoned pipe.
A licensee may leave abandoned pipe in place, whether abandoned before or after the
grant of a license under this article, unless the Director requires the licensee to remove
the abandoned pipe to facilitate City operations or protect the public safety. Upon
notice from the Director, a licensee shall promptly remove the specified abandoned
pipe, notwithstanding expiration or termination of the license. If a licensee abandons
pipe, the 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. The 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
writing accepts a particular facility. Section 49-97(e) continues to apply to any facilities
and appurtenances not removed by a licensee after abandonment If a licensee
removes pipe, the licensee shall restore the City property, at the sole cost of the
licensee, under Section 49-97(c). Each licensee will provide City with written notice
within 30 days after abandonment of any pipe abandoned after January 1, 2005,
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identifying the location in the City right-of-way of the abandoned pipe. If a question
arises about ownership of abandoned pipe not reported to the City, a licensee will use
reasonable efforts to assist the City in determining ownership, upon the City's request
Sec. 49-95. License fee.
(a) License fees. Each licensee shall pay the City an annual license fee of $1,500,
regardless of the number of pipelines licensed or City rights-of-way they occupy. In the
alternative, a licensee may elect to pay an annual license fee of $2.00 per linear foot of
pipeline located in City rights-of-way.
(b) Basis; reservation. The annual license fee is commensurate with the cost to the
City of permitting pipelines in City rights-of-way, including administration, supervision,
inspection, and regulation of the location of pipelines. The City does not waive by
assessing the foregoing fees and expressly reserves its right (1) under Texas Tax Code
Section 182.025 to make a reasonable lawful charge for the use of a street in the city by
a public utility, as defined therein, to distribute gas, and (2) to assess any other lawful
fees or charges.
(c) Due date. The annual license fee is payable in advance upon filing of the initial
application for the license for the balance of the current year and thereafter on or before
each January 1, for the year then starting or 30 days after invoice by the City, whichever
is later. If the initial application for a license is denied the initial annual fee shall be
promptly refunded.
(d) Late fee. Each required annual payment must be made in advance on or before
January 1 of each year of the license. Late payments will accrue interest from
January 1 to the date payment is received by the City at the rate of three percent (3%)
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 January 1 or each year. However, the interest rate may never exceed the
maximum lawful rate permitted by applicable law.
(e) Additional pipe found. Each 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 a licensee which has not been identified in
the licensee's license, and the licensee has elected the alternative payment in Section
49-95(a), the 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 the 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 January 1 of each year.
However, the interest rate shall never exceed the maximum lawful rate permitted by
applicable law.
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Sec. 49-96. Accounting.
(a) Recordkeeping. If a licensee has elected the alternative payment in Section 49-
95(a), the licensee shall maintain books and records sufficient to support the calculation
and payment of license fees under this article.
(b) Audit. If a licensee has elected the alternative payment in Section 49-95(a), the City
may cause, upon reasonable notice, an audit to be made of the books and records of
the licensee relating to the licensee's performance under this article and its license. An
omission by the City to exercise its rights to any audit at any time will not constitute a
waiver of the right In the event that the City elects to exercise its right of audit, the City
will provide to the licensee written notice at least five (5) business days in advance of
the audit The City will select the auditor. The Licensee shall make available to the
auditor personnel and records reasonably necessary to complete the audit, and the City
has the right to copy pertinent licensee records. The Licensee shall answer questions
and provide records or information within fourteen (14) business days of any written
request The City will bear the cost of any audit The City and the licensee shall meet
and attempt in good faith to resolve any disputed issues arising from the audit report.
Sec. 49-97. Construction, maintenance and operations.
(a) Costs. Each 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) Each 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, or the flow of storm water in any gutter, drain, sewer, or open
drainage system, or with City water, wastewater, storm water, gas utility, park,
airport, landfill or other operations, whether the traffic, flows, or operations are
existing or planned.
(2) No licensee may 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 a licensee's pipeline.
(c) Restoration. Any portion of City rights-of-way or City-owned property disturbed by a
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
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from the date of the restoration activities, that the portion disturbed requires additional
restorative work in order to place it in its original condition, the licensee shall perform
the additional restorative work to the reasonable satisfaction of the City.
(d) City approvals.
(1) In maintaining its pipeline, no licensee may disturb the City's street
pavement, water, wastewater, gas, storm water, park, airport, or landfill facilities
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, the 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, each licensee shall
obtain approval of the Director to assure consistency with existing and planned
City facilities and other facilities.
(e) Relocations. The City reserves the right to construct, maintain, and modify City-
owned facilities for City operations. The City will give thirty (30) days prior written notice
to a 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 provide the licensee an opportunity, reasonable under the circumstances, to design,
contract for, and complete the required work. Upon written notice by the City, the
licensee shall temporarily or permanently remove, relocate, change, or alter the position
of the affected portion of the licensee's pipeline. The required work will be at the
licensee's expense, unless the licensee shows that the licensee owns an easement for
the pipeline with priority over the City right-of-way, in which case the reasonable cost of
the work will be at the City's expense.
(f) Damage to City-owned facilities. If a licensee's construction or maintenance
activities result in damage to any City-owned facilities, requiring the City to repair the
City-owned facilities, the City will invoice the licensee for the City's reasonable costs to
make the repairs, and the licensee shall reimburse the invoiced amount to the City
within 10 days of the date of invoice. Late payments shall be subject to the interest rate
defined in Section 49-95(d).
Sec. 49-98. Insurance.
Each licensee shall provide and maintain the insurance required by City Code Section
35-147(c)(2)
Sec. 49-99. Termination.
(a) Termination Events. A license issued under this article may, at the option of the
City, be terminated upon the occurrence of anyone or more of the events described
below (collectively referred to in this article as "events of termination"). Each event of
termination is a separate and independent basis for termination of the license. The
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events of termination are as follows:
(1) The 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.
(2) The licensee fails to maintain at any time the insurance required by this
article.
(3) The licensee fails to commence or thereafter diligently to 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 the licensee, and the licensee shall commence the requested repairs within
twenty-four (24) hours.
(4) The licensee fails to comply with any of its terms, conditions, or provisions of
the license or this article.
(5) The licensee commences dissolution or some other similar proceeding that
would impair, modify, alter, extinguish, or significantly change its ability to
perform its obligations under its license or this article.
(b) Termination Procedures. Upon the occurrence of one or more of events of
termination, the City may institute the termination process as follows:
(1) The Director shall so notify the licensee in the manner provided in the license.
(2) After the notice, the 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 the 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) No Implied Waiver. No failure of the City to enforce its rights and remedies under
this section with respect to any event of termination will operate as a waiver of the City's
right thereafter to enforce its rights and remedies with respect to any continuation of the
event of termination or another event of termination. Termination of a license will not
waive, release, or satisfy any duty, covenant or obligation of licensee under this article
or the license which the licensee has not fully performed as of the time of termination.
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Sec. 49-100. Assignments/sublicensing.
A license shall be personal to the licensee. However, a 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 The City Manager may not unreasonably withhold
consent to a 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, and the licensee will be
released from its obligations under the license. Notwithstanding any of the foregoing, a
licensee may assign its interest in the license to any licensed affiliate without the prior
written consent of City, but such an assignment may not relieve the licensee of any of
its obligations or liabilities under the license, whether accrued or unaccrued.
Sec. 49-101. Violation of Article.
(a) Violations. It shall be a civil violation of this article for a person knowingly to 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) Revocation. A material and willful violation of any section, subsection, or part of
this article is grounds for revocation of the license, subject to the process in Section 49-
99(b).
(c) Other Remedies. 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.
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
amounts 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 the amount prescribed by
the license, franchise, grant, or applicable ordinance.
(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.
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(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," "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 unauthorized occupation of the City rights-of-way or City-owned
property by unauthorized pipelines and by monitoring and recovery wells.
(g) Except for the charge assessed in Section 49-61(b) and the charge for City-owned
property assessed in Section 49-61, this section and section 49-61 do not apply to
pipelines for which application for a license is made in accordance with section 49-93 by
July 1, 2005, and ultimately issued.
SECTION 3. 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(e)(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 which, when
added to the annual fees assessed pursuant to Section 49-95, is equal to two percent of
the public utility's gross receipts from the sale of gas or water within the City by means
of the unauthorized use of a city street, alley, or public way by that pipeline, to the
extent such charge is authorized by Section 182.025, Tax Code. Said two percent
charge shall apply regardless of whether the owner or operator has a license or other
grant from the City unless the license or grant expressly waives the two percent charge.
If the 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, applied to its pipeline in such property. Nothing in this
subsection or in Section 13 of the form of license in the Appendix to Chapter 49, Article
VII of the City Code shall be construed to limit or impair the rights reserved to the City in
Section 49-95(b).
(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 unauthorized use of City rights-of-way and City-owned property
the sum of $2,000 per year or the charge prescribed by subsections (d) and (e) of this
section, whichever is greater.
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(d) Unless authorized by a license issued under article VII of this chapter, a person who
owns or operates a pipeline located within City rights-of-way or City-owned property,
other than a pipeline subject to subsection (b), shall pay to the City annually:
(1) $2.50 per linear foot of pipe in City rights-of-way or City-owned property
(excluding street crossings);
(2) $550 per street crossing crossed by the pipeline; and
(3) for pipelines exceeding six inches (6") in diameter, an additional annual fee of
ten cents ($.10) per linear foot for each inch or part of an inch over six inches
plus ten dollars ($10.00) per inch or part of an inch over six inches (6") for each
street crossing.
As used herein, "crossing" means any occupation of City rights-of-way by pipelines that
extends from one side of the right-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
(e) The annual minimum, 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 $2,000/$2.50/$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
12
H:\LEG-DIR\Jeannie\Jimmy\ T xEnCltn _Corpus Ordinance. DOC
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 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 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.
U) 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
or in accordance with article VII of this chapter 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 4. Section 35-154, Code of Ordinances, is amended by changing the title
from "Pipeline markers" to "Pipeline markers and security" and by amending subsection
(c) and adding new subsections (e) and (f) to read as follows:
(c) No person shall tamper with, deface, damage, or remove any pipeline marker, or
tamper with or operate any pipeline shut-off valves, except the pipeline owner or his
duly authorized agent, within the city's jurisdiction.
(e) No person shall excavate within pipeline right-of-way without compliance with the
Texas "One-Call" statute (Chapter 251, Texas Utility Code).
(f) No person shall construct within pipeline right-of-way without compliance with the
statute governing construction in pipeline right-of-way (Chapter 756, subchapter G,
Texas Health and Safety Code).
SECTION 5. 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
13
H :\LE G-DIR\Jeannie\Jimmy\ T xEnCltn_ Corpus Ordinance. DOC
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. The City consents to the continued
occupation of City rights-of-way and City-owned property by pipelines in accordance
with such easements, agreements, and rights following revocation, provided that
application for replacement licenses are made in accordance with section 49-95, Code
of Ordinances, and ultimately granted, until such replacement licenses become effective
or are denied. Thereafter such occupation of City-owned property shall be on such
terms, if any, as may be agreed to by the City and the owner.
SECTION 6. The terms and conditions of the form of Settlement Agreement between
this City and each of the following six pipeline owners are hereby approved as
presented. The City Manager is hereby authorized to execute and deliver Settlement
Agreements substantially in such form and to such effect in the name of the City with
each of Air Liquide America, LF, Citgo Refining & Chemical Company, Equistar
Chemicals, L.P, Flint Hills Resources, LF, GulfTerra Energy Partners, LP., and
Valero Refining-Texas, L.P. or one or more of their affiliates. The City Manager is also
authorized to and shall cause to be dismissed Cause No. 04-06556-A filed by the City in
the District Court of Nueces County, Texas, styled City of Corpus Christi, Texas v. Air
Liquide America, LP et al., as to each such party to such a Settlement Agreement and
its affiliates upon mutual execution and delivery of its Settlement Agreement and as to
all defendants named therein upon mutual execution and delivery of all six such
Settlement Agreements.
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, except as expressly provided in the Settlement Agreements
authorized by Section 6 of this Ordinance on the conditions therein expressed.
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, except as otherwise provided in the ordinance.
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 ChristL
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SECTION 13. That upon written request of the Mayor or five Council members, copy
attached, the City Council (1) finds and declares an emergency due to the need for
immediate action necessary for the efficient and effective administration of City affairs
and (2) suspends the Charter rule that requires consideration of and voting upon
ordinances at two regular meetings so that this ordinance is passed and takes effect
upon .rst _ rlading as an emergency measure on this the J,1J1'- day of
I ,2005.
ATTEST:
Arman~
City Secretary
Hen
Mayor
APPROVED: 12#. day of A,n/
)~ ~,ftJQN
Mary y is er
City Attorney
,2005:
~Of.n:
f If 05
15
H :\LEG.OIR\Jeannie\Jimmy\T xEnCltn _Corpus Ordinance. DOC
Corpus Christi, Texas
.u,,",-
IN Day of
(~) L0l
TO THE MEMBERS OF THE CITY COUNCIL
Corpus Christi, Texas
,2005
For the reasons set forth in the emergency clause of the foregoing ordinance an
emergency exists requiring suspension of the Charter rule as to consideration and
voting upon ordinances at two regular meetings: I/we, therefore, request that you
suspend said Charter rule and pass this ordinance finally on the date it is introduced, or
at the present meeting of the City Council.
Respectfully,
Respectfully,
Council Members
The above ordinance was passed by the following vote:
~f
O,ilt
M
04'
lid
(Jr
. I
( f'
{c,tit(
,
Henry Garrett
Brent Chesney
Melody Cooper
Jerry Garcia
Bill Kelly
Rex A. Kinnison
John E Marez
Jesse Noyola
Mark Scott
(J)/f
I
. ,
16
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026217
APPENDIX
AGREEMENT GRANTING A PIPELINE LICENSE TO
UNDER ARTICLE VII, CHAPTER 49, CITY OF
CORPUS CHRISTI CODE OF ORDINANCES, GRANTING THE RIGHT
TO OCCUPY CERTAIN CITY RIGHTS-OF-WAY AND CITY-OWNED
PROPERTY FOR PIPELINES THROUGH DECEMBER 31,
WHEREAS, ("Licensee") has made application to the
City of Corpus Christi, Texas ("City") for a pipeline license in order to occupy property
subject to certain City rights-of-way 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. City grants to Licensee a license to operate, alter,
inspect, repair, replace with like property, remove, construct, maintain, or abandon
pipeline within the City rights-of-way 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 December 31,
unless earlier terminated or extended under the provisions of Article VII.
SECTION 2. Definitions. 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 $3,000.00 for an initial application or for an application for extension, relocation, or
enlargement of pipeline.
SECTION 4. License fee. Licensee has tendered with its application the first annual
license fee as set forth in Section 49-95, City's Code of Ordinances, in the amount of
$1,500, or, if Licensee has elected the alternate method in Section 49-95, an amount
calculated as follows; $2.00 X (total number of linear feet of pipe in City rights-
of-way) plus CPI adjustments and late fees, if any, and agrees to make additional
annual payments in accordance with such Section during the term of this Agreement, as
extended.
SECTION 5. Indemnification. By its acceptance of this license, Licensee covenants
and agrees fully to indemnify and hold harmless the City and the elected officials and
officers and employees 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,
17
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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. The City shall cooperate with Licensee in the defense of all
claims, proceedings, actions, and suits subject to this indemnification. This
indemnification shall not extend to any costs, claims, liens, damages, losses, expenses,
fees, fines, penalties, proceedings, actions, demands, causes of action, liability, or suit
to the extent they directly or indirectly arise out of, result from or relate to the negligent
or wrongful acts or omissions of City or its officers, agents, employees, representatives,
consultants, or contractors. This indemnification survives the termination or expiration
of this license.
SECTION 6. 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
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 City.
18
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Notice to Licensee:
or to any other addresses as may be designated in writing by Licensee.
SECTION 7. 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 8. 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 9. 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 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 10. 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 11. 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 the particular term and is not deemed a waiver of any
subsequent breach.
SECTION 12. Claims reserved. 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 such claims.
SECTION 13. Compliance with other ordinances. Nothing in this license relieves
Licensee from full compliance with 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, City's Code of Ordinances, to serve natural gas consumers within the
City, as opposed to sales and deliveries for resale or generation of electric energy.
SECTION 14. Relationship of parties. This license may not be construed to create
between City and Licensee the relationship of partnership, joint venture, principal and
19
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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.
In witness whereof, this license agreement has been duly authorized, executed,
and delivered by the parties as of the respective dates appearing below.
CITY OF CORPUS CHRISTI, TEXAS
Dated:...
By.................................................
City Manager
[NAME OF LICENSEE]
Dated:...........................................
By.........
Title:.........
20
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EXHIBIT A
(Description of Licensee's pipelines)
21
H :\LE G-DIR\Jeann ie\Jimmy\TxEnCltn_ Corpus Ordinance. DOC
.-,- '0"
:'.i"''''''-
- l-', t. ~ '1. \
~\ \ ~ \ '
PUBLISHER'S AFFIDAVIT
tI\'\l:Z.\
State otgexas
County of Nueces
f,(\ s: 53
ss:
CITY OF CORPUS CHRISTI
Ad # 5180849
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
SENIOR COLLECTOR 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 Oak, Nueces, Refugio, San Patricio, Victoria and Webb Counties, and that
the 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 18TH day(s) of
APRIL, 2005.
$177.19
bL'~ ?tjUuo-aO.5~
SENIOR COLLECTOR
TWO (2 ) Time(s)
Subscribed and sworn to me on the date of
APRIL 19,2005.
00:Ja. Yrn/2{~ ~___
Notary Public, Nueces County, Texas
ROSA MARIA FLORES
Print or Type Name of Notary Public
My commission expires on 04/23/05.
~ -
---- -
CALLE." ""R. Aori118. 2005. Mondav. 11 F ;
, ~7 NO
Amondlng Chapter 49 ot
the City of Corpus
Christl Code of
Ordinances by
amenc:lng ArtlcJe VII
and also amending
_35-154._.
IN 49~61 of said
QooIo. releting to the
"'Nment that all
"'*"'" In the City
rtihtI-ot~w.Y and In
cIy-cwned _rty be
IIaMMd or oth8IWtIe
lutIlori2ed by the CIty;
.stabllshlng
procedures for. the
appUcatk)n for anet
- "'. Ikior-.;
i.tlbliahlng the
charge. for the
occupation of City
rl,hls-of-way by
authorized and
....- pIpoIInoo;
prO\lldlngtorP_n
of City rigttto.cl-woy
and City-owned
5.=-~.~
-,... '" JlWlIIc
~ngby===i
anet clamlssal of a
related lawsuit;
PfOYIdng for related
matter. and other
_ releted to
the oulljoct matter of
thl, ordinance;
providing for an
eft.ctivl date;
providing for penalties;
prOvidIng for
res.rvatlon .of civil
remedle.. This
Oldllbdl_"'~
If4iiiZ~
p !oI AmwlcIo et,.
. CIIy Socretary
City of CofIHJI Chrietl ,