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1995 10 31 CC Minutes, SpecialMINUTES OF THE SPECIAL SESSION OF THE CITY COUNCIL OF THE CITY OF BAYTOWN October 31, 1996 The City Council of the City of Baytown, Texas, met in special session on October 31, 1995, at 5:00 p.m. in the Don M. Hullum Conference Room of the Baytown City Hall with the following in attendance: Eva Benavides Council Member David Byford Council Member Manuel Escontrias Council Member E. Frank Hinds, Jr. Council Member Stephen DonCarlos Council Member Rolland J. Pruett Council Member Pete C. Alfaro Mayor Bobby Rountree City Manager Ignacio Ramirez City Attorney Eileen P. Hall City Clerk The meeting was opened with a quorum present; after which Mayor Alfaro recessed the meeting and requested that Council move to the Council Chamber. The meeting reconvened in the Council Chamber. Council Member Hinds offered the invocation. The following business was conducted: Consider Action on the Appeal of the Houston Pipe Line Company Case Mayor Alfaro informed those present that anyone desiring to speak should register on the list provided in the lobby because the list would provide the speaking order. The City Manager explained that Judge Elizabeth Ray, in her order signed October 17, 1995, granted Houston Pipe Line Company's motion for summary judgement while denying the city's. Council may appeal the judge's decision at the appellate court level or take no further action. He called attention to a memorandum from Texas Municipal League which stated, in part, "The Texas Municipal League and the Texas City Attorney's Association may want to consider submitting an amicus brief on behalf of Baytown if Baytown appeals this ruling." 951031 -2 Minutes of the Special Session - October 31, 1995 Mayor Alfaro recognized the following speakers: Henry Adair, Post Office Box 501, Vice President of the Baytown Area/West Chambers County Economic Development Foundation, stated that the franchise fee is an added cost to the industries and may be the beginning of the end of the city's industrial base. Therefore, he requested that Council vote "no" to an appeal. Perry Simmons, 1309 North Dakota, a resident of Baytown for almost sixty years stated he related to the difficult decisions Council must make because of his tenure on Council. He served on Council during a time when difficult decisions were made regarding Brownwood and single member districts; however, he requested that Council consider what our industrial benefactors have contributed to the community. He stressed the importance of making a decision that is in the best interest of the city. He concluded by stating his opposition as a private citizen on the continuation of the lawsuit. Tracey Wheeler, 4903 St. Andrews, Executive Vice President of the Chamber of Commerce, stated the chamber represents 1,000 plus constituents and of those 95% are small businesses. The lawsuit has projected a negative image of the community. Small businesses are concerned with what legislation may be forthcoming. Up to the filing of this lawsuit, the Chamber of Commerce, Economic Development Foundation, and the City of Baytown had worked closely to foster a positive business image. Ms. Wheeler requested Council to end the lawsuit. Doff Baker, 5000 Homewood, a small business owner, stated that it would not be good for Baytown to continue the lawsuit and that a "no" vote would be better for the community. Tom McLaughlin, 4610 Alamance, pointed out that any short-term gains derived from successful completion of the lawsuit would have long -term detrimental effects. He mentioned a refinery withdrawing from a south Texas community which resulted in the town folding. He requested that Council take this into account and look at this situation from the stand point of a small business dependent on industry for survival. Council Member DonCarlos moved to drop the appeal in the summary judgement styled City of Baytown vs Houston Pipe Line Company, et al. Council Member Benavides seconded the motion. Council Member DonCarlos stated that he originally felt it was the Council's duty to explore whether the city was owed money under the two ordinances. Since the judge had made a decision, he now felt that there were less drastic ways for the 951031 -3 Minutes of the Special Session - October 31, 1995 city to control its streets. He no longer supported the lawsuit, because the price was too high, and requested that Council consider the effects of this continued litigation. Council Member Benavides concurred with Council Member DonCarlos. She had received numerous calls in opposition to the continuation of the appeal. Originally, she did not realize the impact to the community, and personally, did not feel the disruption in the community was worth it. The city took the matter to court and was ruled against. Therefore, she felt that it is now time to move forward. Benjamin Hall said that on October 17, 1995, for the first time, a Harris County court held that a city, like Baytown, did not have control over its streets. Under State law the city does have the right to control its streets. The judge got it wrong. When the city began to exercise its rights to collect a street rental, this industry refused to cooperate. The city sued, and they sued back with a counterclaim that the city had no authority to tell them they cannot use city property. The same company is paying the City of Houston three percent and has chosen not to pay the City of Baytown. The city's claim is not anything new or anything extraordinary. A poll of Baytown's citizens shows support for the city's efforts by two to one of persons who are not connected with industry. Our judicial system recognizes that an individual judge can get it wrong. The problem is that this judge got it wrong. If the judge got it wrong, to appeal will not cost the city any money. This is an outside company. It has no local location. If the city relinquishes its right to appeal as to this company, it relinquishes control of its streets as to location or relocation of pipelines. Texas Municipal League has taken the position that this is a dangerous precedent for Texas cities and will file a brief in support of Baytown's position. Mr. Hall concluded by saying that the action required is to appeal. If Council were to forego the right to appeal, later the city would be unable to have the decision set aside or to challenge it. Council Member Hinds noted that from the various editorials and letters to the editor, it was obvious to him that much of the information being put forth was erroneous. Council never intended to charge a four - percent fee on transmission pipelines. The only franchise fee authorized would apply to those pipelines that terminate within the city limits. It was never Council's intent to harm any company or put excessive costs on any company. Council was simply trying to determine if money was owed to the city. Now, the whole situation has become so volatile, the question becomes should Council back off to allow things to settle down? Council Member Pruett concurred with Council Member Hinds in that Council is not after a windfall but to maintain control of the city's property. 951031-4 Minutes of the Special Session - October 31, 1995 Council Member Escontrias noted that all decisions concerning the lawsuit must be made by Council, especially regarding retroactivity and the two percent and four percent fees. Mayor Alfaro pointed out that in the memorandum from Texas Municipal League, the indication is that a brief may be filed. Mr. Hall responded that based on discussions with Texas Municipal League and the City of Houston, both would file briefs on Baytown's behalf. In response to Council inquiry, Mr. Hall replied that should the city prevail, the Council would have the ultimate decision with regard to settlement; however, should the case go to trial, the jury will decide the amount owed. Council would still have the option of settling for less than the jury awards. He also indicated that he felt that the Attorney General of Texas would support Baytown's appeal. Mayor Alfaro acknowledged that the city's attorneys feel that the law is on Baytown's side, and the city will win the appeal, but Council was told that the city would win the summary judgement. He verified his original support of the audit of franchise fees. However, he now feels that the city's economic future is at stake. Also, he emphasized that at no time during this process had anyone from Exxon contacted him with regard to the lawsuit or the appeal. During the process, the Mayor has come to believe that the ordinances in question never were intended to apply to pipelines. Therefore, he stressed that he did not favor the appeal nor would he vote to proceed. The vote follows: Ayes: Council Members Benavides, Hinds, and DonCarlos Mayor Alfaro Nays: Council Members Escontrias, Byford, and Pruett Council Member Pruett suggested and Council Members Escontrias and Byford concurred that since the motion passed by four to three it should be made unanimous. Ayes: Council Members Benavides, Byford, Escontrias, Hinds, DonCarlos, and Pruett Mayor Alfaro Nays: None 951031 -5 Minutes of the Special Session - October 31, 1995 Adjourn There being no further business to be transacted, the meeting was adjourned. CA WPWIN601WPDOMMINUTES110- 31- 95,SPC Eileen P. Hall, City Clerk