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HomeMy WebLinkAboutItem 4.4 - 2848 Encroachment Agreement with Kinder Morgan f Page 1 of 2 STAFF REPORT CITY COUNCIL DATE: October 1, 2019 TO: Honorable Mayor and City Councilmembers FROM: Christopher L. Foss, City Manager SUBJECT: Encroachment Agreement with Kinder Morgan for Electric Facilities in Scarlett Drive and Don Biddle Community Park Prepared by: Laurie Sucgang, City Engineer EXECUTIVE SUMMARY: The City Council will consider approval of an Encroachment Agreement for electric facilities and appurtenances within Scarlett Drive and Don Biddle Community Park property for SFPP, L.P., a Delaware limited liability company, (a.k.a. Kinder Morgan) serving an existing pipeline valve box. STAFF RECOMMENDATION: Adopt the Resolution Approving an Encroachment Agreement with SFPP, L.P., a Delaware limited liability company. FINANCIAL IMPACT: Approval of the Encroachment Agreement with SFPP, L.P., a Delaware limited liability company (a.k.a. Kinder Morgan) does not impact the General Fund. All Staff costs to negotiate and process the agreement are borne by Kinder Morgan. Once the agreement is executed, Kinder Morgan will pay the City $20,000 for the use, operation, and maintenance of their facilities within the right-of-way and City-owned park property for a period of 10 years. DESCRIPTION: SFPP, L.P., a Delaware Limited Liability company (a.k.a. Kinder Morgan), operates a pipeline valve box within an existing 10-foot wide easement running parallel to Scarlett Drive and the Iron Horse Trail. There are existing and proposed facilities serving the pipeline valve box that are located outside of the 10-foot wide easement, which are generally described as a deep anode well and a trench for an electrical line, depicted in Attachment 2. The existing deep anode well is located within Scarlett Drive right -of-way. The proposed trench and Kinder Morgan’s access is located within Don Biddle Community Park within a future parking lot adjacent to Horizon Parkway and within a concrete Page 2 of 2 pathway in the northwest corner of the park. The Encroachment Agreement will allow for Kinder Morgan to maintain these facilities, which will be located outside of Kinder Morgan’s existing 10-foot wide easement, for a period of 10 years with the option to extend the term for one additional 10 -year term, which will require an extension payment adjusted for inflation. STRATEGIC PLAN INITIATIVE: None. NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: 1. Resolution Approving Encroachment Agreement with SFPP, L.P., a Delaware Limited Liability Company 2. Exhibit A to Resolution - Encroachment Agreement for Electric Facilties and Appurtenances with Kinder Morgan RESOLUTION NO. XX-19 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* APPROVING AN ENCROACHMENT AGREEMENT WITH SFPP, L.P., A DELAWARE LIMITED LIABILITY COMPANY WHEREAS, SFPP, L.P. a Delaware limited liability company (a.k.a. Kinder Morgan), operates a pipeline and valve box within an existing 10-foot wide easement running parallel to Scarlett Drive and adjacent to the Don Biddle Community Park; and WHEREAS, an existing deep anode well, trench for an electric line, and access are located outside of the existing 10-foot wide Kinder Morgan easement, and are required to deliver power and serve the pipeline valve box; and WHEREAS, the City and Kinder Morgan have developed an Encroachment Agreement that will establish the responsibilities of each party, payment, terms and conditions under which licensee must operate and maintain the encroachments within Scarlett Drive right of way and Don Biddle Community Park property. NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve an Encroachment Agreement for Electric Facilities and Appurtenances with SFPP, L.P., a Delaware limited liability company. BE IT FURTHER RESOLVED that the City Manager is authorized to execute the Agreement in substantially the form attached hereto as Exhibit A to this Resolution, and to take such other and further action, as necessary and appropriate, to carry out the intention of this Resolution. PASSED, APPROVED AND ADOPTED this 1ST day of October, 2019, by the following vote: AYES: NOES: ABSENT: ABSTAIN: _______________________________ Mayor ATTEST: ______________________________ City Clerk Recording Requested By: City of Dublin Public Works Department No fee for recording pursuant to Gov’t Code Section 27383 When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 SPACE ABOVE TH IS LINE FOR RECORDER’S USE ENCROACHMENT AGREEMENT BETWEEN CITY OF DUBLIN AND SFPP, L.P, a Delaware limited liability company SCARLETT DRIVE AND PORTIONS OF APN 986-62-2 & 986-1-3-2 DUBLIN, CALIFORNIA THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Govt. Code 27361.6) Parcel: APNs 986-62-2 & 986-1-3-2 County: Alam eda State: Calif ornia ENCROACHM ENT AGREEM ENT This Encroachm ent Agreem ent ("Agreem ent") is m ade and entered on October 1, 2019 (“Effective Date”), by and between SFPP, L.P., a Delaware Lim ited Liability com pany (“Licensee”) and the City of Dublin, a m unicipal corporation ("City"). The Licensee and City are collectively referred to herein as the “Parties.” 1. Perm ission is hereby given to Licensee by City for the purpose of operation, maintenance and usage of one (1) deep anode well and one (1) electrical line with connected appurtenances (“Encroachment”) within the boundaries depicted in Exhibit A, attached hereto and incorporated herein by reference (the “Licensed Area”). 2. Together with access ingress and egress to the Licensed Area, Licensee shall operate, maintain, and use the Encroachm ent in accordance with Licensee’s O&M Procedures. 3. This Agreem ent shall be valid for a period of ten (10) years following the Effective Date (“Initial Term ”). Licensee has an option to extend the Initial Term for one (1) additional ten (10) year term by m ak ing an Extension Paym ent to City as defined in Section 4 below. 4. Licensee shall pay City $20,000 upon execution of this Agreem ent. If Licensee exercises its option to extend this Agreem ent beyond the Initial Term , Licensee shall rem it paym ent to City of an additional $20,000, adjusted for inflation, prior to the end of the Initial Term (“Extension Paym ent”). 5. City shall not reduce the depth of cover on, or alter the drainage of the Licensed Area without Licensee’s prior courtes y review. 6. Parties agree to not construct any perm anent structure, building, or sim ilar perm anent obstruction within the Licensed Area, other than the above-referenced authorized Encroachment. If either Party plans to construct any perm anent structures, buildings, or obstruction within the Licensed Area, plans shall be subject to a courtesy review by both Parties. 7. City shall not plant shrubs or trees within the Licensed Area, without Licensee’s prior courtesy review. 8. City shall not operate or perm it the operation of any heavy equipm ent on or over the Encroachm ent without Licensee’s prior courtesy review. City shall com ply with all precautionary m easures required by Licensee to protect the Encroachm ent. 9. Licensee shall not replace or m odify the Encroachment without City’s prior written consent. 10. Licensee shall be solely responsible for the construction, ownership, operation, m aintenance, use, and rem oval of the Encroachm ent and for any and all expenses incurred by City and/or dam age to City property as a result of Licensee’s exercise of its rights under this Agreem ent. Licensee shall reim burse City fully for any such expense or dam age. Licensee agrees to indem nif y and hold harm less City, its parent, affiliates, agents, employees, contractors, and subcontractors and their respective successors and assigns (individually and collectively k nown as the “City Indem nities”), against any claim , dem and, loss, cost, liability, expense, or cause of action of any party (including, but not lim ited to reasonable attorney’s fees) in any way arising from or related to (1) the existence of the Encroachm ent, (2) Licensee’s exercise of its rights under this Agreem ent, (3) Licensee’s breach of its obligations under this Agreement, or (4) any cause of action resulting from dam age to City property, except where such loss, cost, liability, or expense was caused solely by the gross negligence or willful m isconduct of City or City Indem nitees. Licensee’s indem nity obligations will survive the term ination of this Agreem ent for any reason. 11. In the event Licensee shall, at any tim e, desire to abandon or rem ove; or if, in the judgm ent of City, it is necessary that the Encroachm ent shall be relocated or altered in any way; or if, for any other reason, City deem s it necessary for Licensee to relocate or alter the Encroachm ent, City shall notif y Licensee of the necessity for such relocation and use reasonable efforts to m inimize the distance of said relocation and Licensee shall alter or relocate the Encroachm ent, at its sole cost and expense, as shall be deem ed necessary in the judgm ent of the Parties. In the event of such alteration or relocation, Licensee agrees to restore the Licensed Area and any other im pacted area, as nearly as practicable, to a condition acceptable to the City Engineer. 12. In the event Licensee deems the Encroachm ent is no longer necessary, Licensee will notify the City of this intent to abandon. Parties agree to commence a courtesy review upon form al notification and will not reasonably withhold acceptance of abandonm ent. In the event that both Parties reasonably agree that acceptance of abandonm ent is unfeasible, Licensee agrees to remove the Encroachment solely at its own cost. 13. Should Licensee rem ove the Encroachm ent, in its entirety, from the Licensed Area for a term of one hundred twenty (120) consecutive days, this Agreement shall be deem ed null and void. 14. Should Licensee fail to adhere to the provisions of this Agreement, City m ay have no adequate remedy at law and Licensee agrees that m onetary dam ages m ay not be sufficient. Licensee, therefore, consents to City seek ing injunctive relief or an em ergency order to enforce the provisions, or prevent breach of, this Agreem ent without the necessity to post a bond. 15. During the life of this Agreem ent, should Licensee require City to pay for engineering and/or inspection costs related to City work near Licensee’s pipeline anywhere within the City, Licensee agrees to m eet in good faith with the City to waive, reduce and/or negotiate said costs prior to invoicing the City. 16. Lim itation of Liability. Notwithstanding any other provision of this Agreem ent, neither Party shall be liable to the other hereunder for any indirect, consequential, special or punitive damages, whether sounding in contract or in tort. 17. Insurance. If reasonably available, Licensee shall obtain and m aintain in effect a com bined single lim it policy of liability insurance in an am ount not less than Two Million Dollars ($2,000,000) covering Licensee’s use of the Encroachm ent and nam e the City as an additional insured. 18. Nothing contained herein shall be deem ed to constitute any warranty or representation by City as to its authority to perm it the Encroachm ent as proposed by Licensee. 19. If any part, term or provision of this Agreem ent is, by a court of com petent jurisdiction or regulator y authority having jurisdiction over the Licensed Area held to be illegal, void or unenforceable, or to be in conflict with the law of the state which the Licensed Area lies, the validity of the rem aining provisions or portion hereof shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if this Agreem ent did not contain the particular part, term , or provision held to be invalid. 20. T he term s and conditions of this Agreem ent shall be binding on the Parties hereto, their heirs, successors and assigns. IN WIT NESS WHEREOF, the Parties hereunto subscribed their nam es as of the date first above written. LICENSEE SFPP, L.P., a Delaware Limited Liability company By: Kinder Morgan Operating L.P. "D", its general partner, By: Kinder Morgan G.P., Inc., its general partner Floyd C. Robertson Attorney-in-fact CIT Y City of Dublin 3351278.1 4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588 PHONE: (925) 227-9100 FAX: (925) 227-9300 E N G E E R SN N N S S SRRREEPAUYO {\Q0;DATE: AUGUST 30, 2019}{\Q0;JOB NO. 081076}{\Q0;SHEET 1 OF 1}G:\\JOB2008\\081076PH2AB\\CAD FILES\\00-EXHIBITS\\KINDER MORGAN EXH 8-22-19.DWG 8/22/2019 8:51:10 AM ROGER FONG{\LKINDER MORGAN VALVE BOX LOCATION EXHIBIT} N 20 60402001 inch = ft. W W W R R R WC WC WC M2 I 76T8 C1C1 C1 6 G \A1;10'\A1;10'EX 42"SDEX 42"SDSCARLETT DRIVEEX 60"SDEX JT\A1;10'TRANSFORMER AND SWITCH GEAR FOR KINDER MORGAN \A1;EX 6'\A1;PSEEX JTEX JT TRANSFORMER AND SWITCH GEAR FOR PARK (SIZE TO BE DETERMINED BY OTHERS) JT JT JT 340340341 RIDGE344 343 337339 342 342 338 341 342 TOE 337.5338TOE 336TOE 338 \A1;PROPOSED PSE \A1;EXISTING PSE 25.00'10.00' 84.85'10.00'84.85'192.75'153.30'53.01' 81.56'