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HomeMy WebLinkAboutC2005-232 - 4/12/2005 - ApprovedSETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (this "Agreement") is made by and between the City of Corpus Christi, a Texas home-role city, ("City") and Enterprise GTM Holdings L.P., formerly GulfTerra Energy Partners, L.P. ("Company"). Recitals Company owns or operates pipelines that have occupied property subject to public rights- of-way within City's boundaries for many years. City and Company have heretofore entered into a License Agreement, dated as of December 16, 2003 (the "Prior Ltcense'), licensing Company pipelines in such rights-of-way, and Company has paid the sum of $446,000 to City in the current fiscal year in accordance with the Prior License. On November 16, 2004, City adopted Ordinance No. 026023 (the "Ordinance"), which provided an annual charge for pipelines located in such rights-of-way_ City and Company disagree as to City's authority to impose charges as provided in the Ordinance. On November 17, 2004, City filed a declaratory judgment action in the District Court in Nueces County, Texas, styled City of Corpus Christi v. Air Liquide, et al., Cause No. 04-06556- A (the "Lawsuit"). City and Company have had a mutually-beneficial relationship for many years and want to resolve certain issues between them without the time and expense of litigation. Agreement In consideration for the mutual obligations herein provided, City and Company agree as lbllows: 1. Term. This Agreement extends for a term commencing January 1, 2005, and expiring at nfidnight on December 31, 2014, unless sooner terminated in accordance with its terms. 2. Payments. (a) Amounts. Company shall pay the sum of $110,0130 to City annually on or before each March 31, beginning in 2006 and ending in 2014, or 30 days after invoice by City, whichever is later, in addition to license fees payable under the license referred to in paragraph (b)(iii) of this Section. (b) Conditions. The obligation of Company to make the annual payments described in this Section 4 shall be subject to the conditions prededent that: 2005-232 04/I 2/05 Ord026217 1 Enterprise GTM Holdings (i) Dismissal: City shall have dismissed the Lawsuit against all defendants named therein; (ii) Ordinance: City Council shall have adopted an ordinance in the form and to the effect appended hereto as Exhibit A, amending and restating the provisions of the Code of Ordinances of City enacted or mnended by the Ordinance; and (iii) License: City shall have issued a license to Company in accordance with the ordinance to be enacted pursuant to paragraph (b)(ii) of this Section (which license shall also authorize occupation of City rights-of-way and City-owned property at the locations described in Exhibits A and C to the Prior License or in any easement executed by City to Company in accordance with the Prior License and shall also authorize use of Company's pipeline system for all of the purposes permitted by the Prior License, notwithstanding anything in the form of license contained in such ordinance to the contrary), in lieu of the Prior License, if Company shall have applied for such license in accordance with such ordinance by July l, 2005. In addition, the obligation of Company to make such annual payments shall terminate, unless otherwise agreed by Company in writing, if: (iv) Ordinance Amendment: City amends the ordinance described in paragraph (b)(ii) of this Section without the written consent of Company; or (v) License Termination: City terminates the license described in paragraph (b)(iii) of this Section without the written consent of Company. If legislation is enacted (or an unappealable appellate decision is rendered) that either (A) resolves the parties' dispute as to whether City has the legal right to raise net revenues via a pipeline ordinance or (B) resolves the parties' dispute as to the nature or scope of what is the lawful charge that home role cities may impose for the use of c~ty streets by pipelines, or (C) otherwise hmits the annual charges that may be assessed for the license described in this Section to an amount that is less than the annual amount payable under such license plus the annual amount payable under this Agreement, then the annual payments described in this Section, together with the payments payable under the license described in this Section, shall be renegotiated in good faith by City and Company to be fully consistent with any such new legislation or binding decision and, absent agreement, Company's obligation to make annual payments hereunder shall terminate on the second anniversary of the enactment of such legislation or rendering of such decision, as applicable; provided, however, that unless City and Company otherwise agree, Company shall in any event make all annual payments due under this Section 2 on or before March 31, 2009, unless any condition described in paragraphs b(i), (b)(ii), or (b)(iii) of this Section has not been satisfied or Company's obligation to make such payments has been terminated pursuant to paragraph (b)(iv) or (b)(v) of this Section. (c) Use. City shall expend such annual payments by Company only for econormc development programs currently funded by City, other economic development programs, and emergency planning and response activities, including, but not limited to, training, equipment, record collection, and coordination ol' responding entities; provided, however, if revenue attributable to a particular City-owned property, such as airport property, is legally 2 GullTerraSctAgr doc limited to certain uses, use of that revenue shall be so limited. The City Manager of City shall, 30 days prior to submission of his annual budget recommendation to City Council, advise Company in writing of his recommended use of the annual payment, and he shall, at Company's request, meet with Company and consider any alternative proposal for use of such annual payment it rmghi make. (d) Late Payments. Late payments will accrue interest from the due date to the date payment is received by 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 City's Director, Engineering Services, or his designee (or other City officer designated by City's City Manager), as of January I of each year, or the maximum lawful rate permitted by applicable law, whichever is less. (e) Economic Development. City recognizes Company's contribution to the economic health of the Corpus Christi area. In entering this Agreement, the City Council finds that Company makes significant contributions to employment and business activity in the Corpus Christi area, and that this Agreement will promote local economic development, and declares that this Agreement and the license referred to in Section 2(b)(iii) hereof are part of City's prograin of economic development pursuant to Section 380.00l o£ the Texas Local Government Code. 3. Release of Claims. Except as otherwise set forth herein, City hereby releases any claims it may have against Company for payments related to past occupancy of public rights-of- way within City boundaries or City-owned property by Company's pipelines ; provided, however, this release shall become null and void if Company falls to make in full any of the annual payments due and payable pursuant to Section 2 hereof prior to termination of the Company's obligation to make such payments, and in such event all of City's valid claims, if any, shall be automatically reinstated, and Company's annual payments hereunder shall be applied to satisfy any such claims pro tanto. In consideration of the undertaking of Company to make annual payments to City in accordance with Section 2 hereof, City hereby releases Company from all payment obligations under the Prior License upon Company's application, duly made, for the license described in Section 2(b)(iii) hereof, and Company and City hereby terminate the Prior License upon issuance of license described in such Section. Notwithstanding anything herein to the contrary, in no event shall this Agreement effect the release provisions set forth in Section 5.2 of the Prior License 4. Dismissal of Lawsuit. Promptly after execution and delivery by Air Liquide America, L.P., Citgo Refining & Chemical Company, Equistar Chemicals, L.P., Flint Hills Resources, L.P., and Valero Refining--Texas, L.P. or one or more of their affiliates of agreements substantially similar to this Agreement (except that annual payments by such persons shall be in the suni of $68,000), City shall cause the Lawsuit to be dismissed against all defendants named in the Lawsuit. 5. Legislation. City shall not oppose, directly or indirectly, enactment of the Senate Natural Resources Committee substitute for Senate Bill 480, introduced by Senator Hinojosa in the pending regular session of the Texas Legislature, or any companion bill introduced in the 3 (;ullTcrraSclAgr tlt~' House of Representatives of the Texas Legislature, and shall take all action reasonably requested by Company to support passage of such legislation. 6. Assignment. This Ag)'eement shall be personal to Company. However, Company may assign this Agreement to other ent~t~es, provided that, prior to the assignment, it first obtains the City Council's written consent to the assignment. City may not unreasonably withhold consent to Company's request to assign this Agreement. In the event of any assignment of this Agreement to a third party, all of the benefits and obligations created by this Agreement will inure to the benefit of and become binding upon the assignee, and Company shall be released from any further obligation hereunder. Notwithstanding any of the foregoing, Company may assign its interest in this Agreement to any affiliate of Company without the prior written consent of City, but such assignment may not relieve Company of any of its obligations or liabilities under this Agreement, whether accrued or unaccmed. 7. Notices. All notices required or permitted by the terms of this Agreement are deemed sufficient if given by personal delivery, or facsimile, or by prepaid, certified mail or overnight delivery 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 For ovem~ght delivery: 1201 Leopard Street Corpus Christi, Texas 78401 or to any other address designated in writing by City to Company. Notice to Company: Land Department Enterprise GTM Holdings L.P. 2727 North Loop West Houston, Texas 77008-1044 or to any other address designated in writing by Company to City. 8. Applicable Law. This Agreement must be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created under this Agreement are performable within the incorporated hmits of City of Corpus Christi, Texas. 9. Venue. Venue for any cause of action brought under this Agreement shall be the federal or 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. 4 GullTcn ~SclAgr dlyc 10. Attorney Fees. in the event either party brings any action under this Agreement alleging that the other party to this Agreement has defaulted on or breached obligations created by this Agreement, the party who prevails is entitled to recover its reasonable attorneys' fees froxn the losing party. 11. Waiver. Failure of either party to require the performance of any term in this Agreement or the waiver by either party of any breach of th~s Agreement does not prevent subsequent enforcement of such term and is not deemed a waiver of any subsequent breach. The recitation of specific remedies in this Agreement does not waive the right of either party to other remedies available at law or equity to enforce this Agreement. 12. Relationship of Parties. This Agreement inay not be construed to create between City and Company a relationship of partnership, joint venture, principal and agent, or any similar relationship, nor may it be construed to be for the benefit of any third party other than City and Company. 13. Captions. The captions contained in this Agreement are for convenience only and in no way limit or enlarge the terms and conditions of the Agreement. 14. Severability. If for any reason any section, subdivision, clause, phrase, word or provision of this Agreement shall be held invalid or unconstitutional by final judgment of a court of competent jurisdiction after all appeals, if any, it shall not affect any other section, subdivision, clause, phrase, word or provision of this Agreement, for it is the definite intent of the parties that every section, subdivision, clause, phrase or word or provision hereof be given full, force and effect for its purpose. 15. Entire Agreement. This Agreement constitutes the entire Agreement between City and Company as to the issues between City and Company raised in the Lawsuit and any prior use of public rights-of-way within the City and City-owned property by Company for its pipelines. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly authorized, executed, and delivered as of the last date of execution specified below. CITY OF CORPUS CHRISTI, TEXAS Enterprise GTM Holdings L.P. By: Enterprise GTMGP, LLC, Its Geae,.xaL Partner By: ~ -: ~ Title: C~×eeu44ve, Vice. A'I-I'EST: Armando Chapa City Secretary APPROVED AS TO FORM: -~ ;5 /- d-- ,,i" Ma~ ~ay Fisher Ci~ ~orne~ 6