HomeMy WebLinkAboutMINUTES - 08171993 - 1.76 f '
t
1 . 76
TO: BOARD OF SUPERVISORS S _ Contra
FROM:
Costa
•�' '�,•
Phil Batchelor, County Administrator <'. ►- - s
xA County
gust t 17 1993Ty
DATE: g i EoU.
SUBJECT: Fire Protection Agreement for Crockett Cogeneration Plant
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
Approve agreement between Crockett Cogeneration and the Crockett-
Carquinez Fire Protection District, and authorize Chair to execute
same to ensure that fire protection services are provided over the
next two years of construction and 30 years of operation at the
plant.
FINANCIAL IMPACT:
Crockett Cogeneration agrees to. pay fire district a one-time fee of
$37, 000 and an annual fee of $4,000 to be adjusted by Consumer
Price Index over the term of the agreement.
BACKGROUND:
At the time that the County endorsed the proposed Crockett
Cogeneration Plant and committed itself to a community benefits
package, the Board (as the Governing Body of the Crockett-Carquinez
Fire Protection District) , agreed to enter into a contract to
provide adequa.te . fire protection for that . portion of the project
not in the district.
CONTINUED ON ATTACHMENT: YES SIGNATURE: /
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMM"T
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON APPROVED AS RECOMMENDED XX OTHER
VOTE OF SUPERVISORS
X _ _ _ I HEREBY CERTIFY THAT THIS IS A TRUE
UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
pp ATTESTED August 17, 1993
Contact: Scott Tandy 646-4087 7 PHIL BATCHELOR,CLERK OF THE BOARD OF
cc: County Administrator SUPERVISORS AND COUNTY ADMINISTRATOR
County Counsel
BY DEPUTY
FIRE PROTECTION SERVICE AGREEMENT
(Health and Safety Code Section 13877 & 13878)
1 . Parties and Effective Date. Effective July 1,
1993 (the "Effective Date" ) , the Crockett-Carquinez Fire
Protection District (a California special district hereinafter
called the "District" ) and Crockett Cogeneration, A California
Limited Partnership (a limited partnership organized under the
laws of the State of California hereinafter "Crockett .
Cogeneration" ) mutually agree (this "Agreement") and promise as
follows .
2 . Purpose. Crockett Cogeneration has proposed the
installation and operation of a cogeneration project (the
"Project" ) adjacent to the C & H Sugar Refinery ( "Refinery" ) on
Loring Avenue in Crockett, California, on the parcel of real
property, including a public access fishing pier (the "Site" )
described on Exhibit "A" attached hereto and incorporated by
this reference. Crockett Cogeneration has asked that the
District make its Services (as defined in Section 3 below)
available to the Project for the Project and the Site on the
same basis as if the Project and Site were located within the
District . By its Resolution No. 92/757 adopted on November 3,
1992, the Board of the District indicated its intent to enter
into an appropriate contract with Crockett Cogeneration for the
provision of Services to the Project and the Site.
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3. District Services .
a. Provision. As long as this Agreement
remains in effect and has not been terminated as herein
provided, District shall provide fire protection and any other
Health and Safety Code Section 13862 services (including
District use of its vehicles, apparatus, or equipment) (herein,
the "Services" ) to the portion of the Project and the Site
located outside of the District in the same manner and to the
same extent that the Services are provided at the District ' s
discretion to properties located within the District. In other
words, during the operative period of this Agreement, the
Project and Site will be considered "as if" located in the
District and will be provided Services on the same basis as
such services are made available to properties and persons
contained within the District' s boundaries .
b. Privileges, Immunities and Defenses . In
connection with the District ' s provision of, or failure to
provide, any Service pursuant to this Agreement, the District
shall be entitled to the same privileges (e.g. , discretion,
etc . ) immunities and defenses available to the District
pursuant to Government Code Division 3 . 6 (§§ 810 ff . ) , the
California Health and Safety Code §§ 13877, 13878 and any other
provisions of law as are applicable concerning its provision of
(or lack thereof) similar Services to property and persons
within the District. In other words, nothing in this Agreement
is intended (nor shall it be construed) to impose any
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additional duty or duties for the provision of District
Services other than would exist if the Project and Site were
contained within the District ' s boundaries and this Agreement
did not exist.
C . Code Enforcement. The District shall be
responsible for the administration and enforcement of any
adopted Contra Costa County Uniform Fire Code and related fire
prevention regulations applicable to the Project and Site
located outside of the District but covered by this Agreement.
Crockett shall pay fees and charges for such administration and
enforcement providing such fees and charges are uniformly
charged to enterprises conducted on property located within the
District and which are substantially similar to Crockett .
4 . Crockett Cogeneration' s Obligations .
a. Advance Payments . So long as this Agreement
shall be in effect and continuing, pursuant to Health and Safety
Code Section 13878, Crockett Cogeneration shall pay District an
annual service fee (on a fiscal year basis, from July 1 to
June 30) , payable semi-annually in advance, on June 1, and
December 1, for the benefits of this Agreement as follows:
(1) For the period commencing July 1, 1993 ,
and ending June 30, 1994, and each successive annual period the
base fee shall be $4 , 000 . The first payment may be deferred
until December 1, 1993 or commencement of construction,
whichever first occurs . The fee shall be adjusted annually.by
a percentage adjustment based upon the percentage change in the
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Consumer Price Index published by the U.S. Bureau of Labor
Statistics for San Francisco-Oakland-San Jose for all items for
all Urban Consumers (1982-84=100) for the current year over the
prior reporting year for the nearest reported annual period;
provided that in no event shall the fee be reduced because of
such adjustment . District shall provide Crockett Cogeneration
with a invoice showing the amount due no later than May 1 of
each year . If District does not, Crockett Cogeneration may pay
the fee established for the prior year and defer payment of the
cost of living adjustment until thirty (30.) days after receipt
of an invoice from the County for such adjustment.
(2) If Crockett Cogeneration fails to make
any payment on the date due, then District may give written
notice to Crockett Cogeneration which shall have twenty days
thereafter to cure the default by making the required payment .
If after notice is given, Crockett Cogeneration fails to cure
the default within twenty (20) days, District may terminate
this Agreement effective immediately or at the end of the
period for which payment has been made whichever is later . For
example, if Crockett Cogeneration makes the payment required
for the period ending June 30, 1995, but fails to make the
payment for the following period (7/1/95 through 12/31/95) due
on June 1, 1995, and District gives notice of the resulting
default on June 5, Crockett shall have twenty days or until
June 25 to cure the default by making the payment and if it
fails to do so, District may terminate this Agreement effective
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July 1 , 1995. For further example,. if the notice were given on
June 20 and Crockett failed to cure the default the District
could terminate the Agreement on July 11,:_1995 after the
expiration of the cure period of twenty days.
b. Capital Contributions . On or before
January 1, 1994, Crockett shall pay to District the sum of
$37,000 as a one-time contribution to the District to defray
costs associated with training and equipment associated with
the services to be provided pursuant to this Agreement .
C. Entry to the Site. For the purposes of this
Agreement, Crockett Cogeneration shall allow the entry of
District personnel and equipment on the Site. Access to the
Site shall be made available through the Refinery at designated
ingress and egress locations shown on Exhibit A.
5. Term and Termination.
a. Failure to Pay. During the term of this
Agreement, District may terminate this Agreement for default in
payments . Termination shall be by notice to Crockett
Cogeneration which may be given only after Crockett
Cogeneration has been given the opportunity to cure the
default, as provided by Section 4 . a. (2) of this Agreement, and
has failed to cure the default within the time allowed.
b. Optional Termination. District or Crockett
Cogeneration may terminate this Agreement if another district
or governmental agency provides similar services for the Site
which duplicate District ' s Services or if the Site is annexed
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to District and the party terminating this Agreement gives at
least 90 days ' prior written notice to the other party.
C. Term. Unless sooner terminated as provided
herein, this Agreement shall remain in effect until the
thirty-second anniversary of the date of commencement of
commercial operations of the Project, as such date is
established in a written notice from the Project to Pacific
Gas & Electric Company; provided, however, that if a notice to
proceed is not issued to the prime contractor for the
construction of the Project by June 30, 1995, this Agreement
shall terminate on July 1, 1995 . Crockett shall have the
option to extend the term of this Agreement for an additional
ten (10) years to be exercised by written notice to District
given no later than the thirty-first anniversary of said date
of commencement. If said option is exercised, Crockett shall
have an additional option to extend the term of this Agreement
for a second ten-year period to be exercised by written notice
to District given no later than the forty-first anniversary of
said date of commencement.
d. Failure to Obtain Financing. If Crockett
fails to obtain financing for the Project, it may terminate
this Agreement by written notice to District and District may
retain all payments made by Crockett prior to such notice. In
such event, District shall have no right to damages or any
payments in addition to amounts received prior to such notice.
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6 . Notice. Any notices required by this Agreement
shall be given to the parties at the following addresses :
If to Crockett Cogeneration:
Crockett Cogeneration, A California Limited Partnership
c/o Pacific Crockett Energy, Inc .
500 N.E. Multnomah, Suite 900
Portland, Oregon 97232
Attn: Vice President, Engineering and Operations
Facsimile: (503) 236-3324
If to District:
Crockett-Carquinez Fire Protection District
c/o
Attn:
Facsimile•
with a copy to:
Attn•
Any notices shall be made by telecopier facsimile, with
delivery of the original by first-class mail, postage prepaid,
or by Federal Express or other nationally recognized overnight
courier service, or certified mail , addressed as provided in
this Agreement .
7 . Miscellaneous Provisions .
a. This Agreement shall be binding upon the
parties and their respective successors and assigns . Crockett
Cogeneration may assign this Agreement to any lender holding a
first mortgage lien or deed of trust on the Project assets for
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the construction or permanent financing of the Project, and
District shall provide a customary consent to such assignment,
which consent shall not be unreasonably withheld.
b. This Agreement shall remain in full force
and effect through the term of this Agreement unless sooner
terminated as provided herein.
C . This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original
and such counterparts shall together constitute but one and the
same Agreement. It shall not be necessary in making proof of
this Agreement to produce or account for more than one such
counterpart. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of
California.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be signed in its respective corporate name or
partnership name by its duly authorized officers, as of the day
and year first above written.
Crockett Cogeneration, A California Limited Partnership
By: Energy National, Inc.
Its General Partner
By,:
Name:
Title:
(Signatures continued on next page)
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1.2/0593F.001/08.16.93/73300-001
(Signatures continued from previous page)
By: Pacific Crockett Energy, Inc.
Its General Partner
By:
Name:.
Title:
Crockett—Carquinez Fire Protection District
By:
Name: -T-Orn Tot C.R-05O V
Title: Board Chair
ATTEST:
Phil Batchelor
Clerk of the Board of Supervisors
and County Administrator
By: 42. `7�
Deputy
SMS:mg/1.2
0593F.001/08.16.93
73300-001
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EXHIBIT F-8
to Loan Agreement
CONSENT AND AGREEMENT
(FIRE PROTECTION SERVICE AGREEMENT)
This CONSENT AND AGREEMENT (this "Consent and Agreement"), dated as of
1993, is executed by CROCKETT-CARQUINEZ FIRE PROTECTION
DISTRICT ("District"), and CROCKETT COGENERATION, A CALIFORNIA LIMITED
PARTNERSHIP, a limited partnership organized under the laws of California ("Borrower") for the
benefit of ABN AMRO BANK N.V., as Administrative Agent ("Administrative Agent") under the
Loan Agreement (as defined below).
A. Borrower has entered into that certain Construction and Term Loan
Agreement, dated as of , 1993, among Borrower, Administrative Agent, the Co-
Agents and the Banks named therein (the "Loan Agreement").
B. District and Borrower have entered into that certain Fire Protection Service
Agreement (Health and Safety Code Section 13877 and 13878), dated as of , 1993 (the
"Contract").
C. Pursuant to the Security Agreement, dated as of , 1993 (the
"Security Agreement"), between Borrower and Administrative Agent, Borrower has assigned its
interest under the Contract to the Banks.
NOW THEREFORE, District hereby agrees as follows:
1. District acknowledges the assignment referred to in paragraph C above and
consents to such assignment and agrees with Administrative Agent for the benefit of the Banks, their
designee(s) and assignee(s) as follows:
(a) Unless otherwise defined, all terms used herein which are defined in
the Security Agreement or, if not defined therein, in the Loan Agreement, shall have their
respective meanings as used therein.
(b) Administrative Agent shall be entitled to exercise all rights and to cure
any defaults of Borrower under the Contract. Upon receipt of notice from Administrative
Agent, District agrees to accept such exercise and cure by Administrative Agent and to render
all performance due by it under the Contract and this Consent and Agreement to the Banks.
District agrees to make all payments (if any) to be made by it under the Contract directly to
Administrative Agent for the benefit of the Banks upon receipt of Administrative Agent's
written instructions.
(c) District will not, without the prior written consent of Administrative
Agent (such consent not to be unreasonably withheld), (i) cancel or terminate the Contract
except as provided in the Contract and in accordance with Section 1(d) hereof, or consent to
or accept any cancellation or termination thereof by Borrower, (ii) sell, assign or otherwise
dispose (by operation of law or otherwise) of any part of its interest in the Contract, or (iii)
amend or modify the Contract in any material respect. District agrees to deliver duplicates or
copies of all notices of default delivered under or pursuant to the Contract to Administrative
Agent promptly upon receipt or delivery thereof and will advise Administrative Agent of any
non-material amendments to the Contract.
(d) District will not terminate the Contract on account of any default or
breach of Borrower thereunder without written notice to Administrative Agent and first
providing to Administrative Agent (i) thirty (30) days from the date notice of default or
breach is delivered to Administrative Agent to cure such default if such default is the failure
to pay amounts to District which are due and payable under the Contract or (ii) a reasonable
opportunity,but not fewer than ninety(90) days, to cure such breach or default if the breach
or default cannot be cured by the payment of money to District so long as Administrative
Agent or its designee shall have commenced to cure the breach or default within such ninety-
day period and thereafter diligently pursues such cure to completion and continues to perform
any monetary obligations under the Contract and all other obligations under the Contract are
performed by Borrower or Administrative Agent. If possession of the Project is necessary to
cure such breach or default, and Administrative Agent or its designee(s) or assignee(s) declare
Borrower in default and commence foreclosure proceedings, Administrative Agent or its
designee(s) or assignee(s) will be allowed a reasonable period to complete such proceedings.
If Administrative Agent or its designee(s) or assignee(s) are prohibited by any court order or
bankruptcy or insolvency proceedings from curing the default or from commencing or
prosecuting foreclosure proceedings, the foregoing time periods shall be extended by the
period of such prohibition_ District consents to the transfer of Borrower's interest under the
Contract to the Banks or any of them or a purchaser or grantee at a foreclosure sale by
judicial or nonjudieial foreclosure and sale or by a conveyance by Borrower in lieu of
foreclosure and agrees that upon such foreclosure, sale or conveyance, District shall recognize
the Banks or any of them or other purchaser or grantee as the applicable party under the
Contract (provided that such Banks or purchaser or grantee assume the obligations of
Borrower under the Contract).
(e) In the event the Banks or their designee(s) or assignee(s) elect to
perform Borrower's obligations under the Contract as provided in subparagraph (d) above, the
Banks, their designees and assignees, shall not have personal liability to District for the
performance of such obligations, and the sole recourse of District in seeking the enforcement
of such obligations shall be to such parties' interest in the Project.
(f) In the event the Banks or their designees) or assignee(s) succeed to
Borrower's interest under the Contract, the Banks or their designee(s) or assignee(s) shall cure
any defaults for failure to pay amounts owed under the Contract, but shall not otherwise be
required to perform or be subject to any defenses or offsets by reason of any of Borrower's
other obligations under the Contract that were unperformed at such time. The Banks shall
have the right to assign all or a pro rata interest in the Contract to a person or entity to whom
the Project is transferred, provided such transferee assumes the obligations of Borrower(or
the Banks) under the Contract. Upon such assignment, Administrative Agent and, if
applicable, the Banks (including their agents and employees) shall be released from any
further liability thereunder to the extent of the interest assigned.
2
(g) In the event that the Contract is rejected by a trustee or debtor-in-
possession in any bankruptcy or insolvency proceeding, or if the Contract is terminated for
any reason other than a default which could have been but was not cured by Administrative
Agent as provided in paragraph 1(d) above, and if, within forty-five (45) days after such
rejection or termination, the Bankes or their successors or assigns shall so request, the District
will execute and deliver to the Banks a new Contract, which Contract shall be on the terms
and conditions as the original Contract for the remaining term of the Contract before giving
effect to such termination.
2. District hereby represents and warrants that:
(a) The execution, delivery and performance by District of the Contract
and this Consent and Agreement have been duly authorized by all necessary corporate action,
and do not and will not require any further consents or approvals which have not been
obtained, or violate any provision of any law, regulation, order,judgment, injunction or
similar matters or breach any agreement presently in effect with respect to or binding on
District;
(b) This Consent and Agreement and the Contract are legal, valid and
binding obligations of District enforceable against District in accordance with their respective
terms;
(c) All government approvals necessary for the execution, delivery and
performance by District of its obligations under the Contract have been obtained and are in
full force and effect;
(d) As of the date hereof, the Contract is in full force and effect and has
not been amended, supplemented or modified; and
(e) To the best of District's knowledge Borrower has fulfilled all of its
obligations under the Contract, and there are no breaches or unsatisfied conditions presently
existing (or which would exist after the passage of time and/or giving of notice) that would
allow District to terminate the Contract.
3. All Notices required or permitted hereunder shall be in writing and shall be
effective (a) upon receipt if hand delivered, (b) upon telephonic verification of receipt if sent by
telefacsimile and (c) if otherwise delivered, upon the earlier of receipt or two (2) Banking Days after
being sent registered or certified mail, return receipt requested, with proper postage affixed thereto,
or by private courier or delivery service with charges prepaid, and addressed as specified below:
If to District:
CROCKETT-CARQUINEZ FIRE PROTECTION DISTRICT
Attention:
Telecopy No:
Telephone No:
3
If to Administrative Agent:
ABN AMRO BANK N.V.
135 South LaSalle Street
Chicago, IL 60603
Attention: Project Finance Group
Telecopy No: (312) 443-2000
Telephone No: (312) 750-6387
4. This Consent and Agreement shall be binding upon and benefit the successors
and assigns of District, Borrower, the Banks and their respective successors, transferees and assigns
(including without limitation, any entity that refinances all or any portion of the Obligations under the
Loan,Agreement). District agrees to confirm such continuing obligation in writing upon the
reasonable request of Borrower, the Banks or any of their respective successors, transferees or
assigns. No termination,:amendment, variation or waiver of any provisions of this Consent and
Agreement shall be effective unless in writing and signed by District, Administrative Agent and
Borrower. This Consent-and Agreement shall be governed by the laws of the State of California,
without reference to principles of conflicts of laws.
5. This Consent and Agreement may be executed in one or more duplicate
counterparts, and when executed and delivered by all the parties listed below, shall constitute a single
binding agreement.
4
IN WITNESS WHEREOF, District by its officer thereunto duly authorized, has duly
executed this Consent and Agreement as of the date first set forth above.
CROCKET'T-CARQUINEZ FIRE PROTECTION
DISTRICT
By:
Name: „
Title: rvisors
Accepted and agreed to:
ABN AMRO BANK N.V.,
as Administrative Agent
By:
Name:
Tide:
By:
Name:
Title:
CROCKETT COGENERATION, A CALIFORNIA
LIMITED PARTNERSHIP, a limited partnership
organized under the laws of California
By: Pacific Crockett Energy, Inc., a Utah corporation, managing
general partner
By:
Name:
Title:
5
EXHIBIT F-16
to Loan Agreement
This instrument was prepared by the
attorney described below in
consultation with counsel in the State
in which the Properties are located
and, when recorded, the recorded
counterpart should be returned to:
Tim Flato
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, CA 94111
CONSENT AND AGREEMENT
(Easement Agreement)
This Consent and Agreement ("Consent") is executed by and among CONTRA
COSTA COUNTY, a political subdivision of the State of California ("Grantor"), ABN AMRO BANK
N.V. as Administrative Agent (the "Administrative Agent") under that certain Construction and Term
Loan Agreement, dated as of , 1993 (the "Loan Agreement"), among Crockett Cogeneration, a
California Limited Partnership, a limited partnership organized under the law of California
("Borrower"); Administrative Agent; ABN AMRO Bank N.V., CIBC, Inc., Deutsche Bank AG, Los
Angeles Branch and Swiss Bank Corporation, New York Branch as Co-Agents; and the financial
institutions ("Banks") named therein.
RECITALS
A. Grantor, as grantor, and Borrower, as grantee, have entered into that certain
Quitclaim of Non-Exclusive Easement (Conveyance of Right to Use Certain Public Streets), dated
June 15, 1993 (the "Easement"), whereby, inter alia, Grantor has granted a non-exclusive easement to
Borrower for the routing of transmission lines from Borrower's cogeneration project ("Easement
Property"), more fully described in Exhibit A attached hereto which is incorporated herein by this
reference.
B. Borrower has executed and delivered to the Administrative Agent on behalf of
the Banks, a Deed of Trust'(the "Deed of Trust") and a Security Agreement (the "Security
P:\18636X8\CONSENTS\EASMNTCO.2
Agreement") covering, among other things, all of its right, title and interest in, to and under the
Easement as security for loans made by the Banks to Borrower under the Loan Agreement, and for
other obligations owing by the Borrower to the Banks.
AGREEMENT
NOW, THEREFORE, with the understanding that the Banks will be relying on each of
the statements contained in this Consent and that the Banks would not advance any funds to Borrower
without this Consent, Grantor hereby acknowledges and agrees as follows:
1. The Easement constitutes the only agreement between Grantor and Borrower
with respect to the interests described therein.
2. Grantor is not in default in the performance of the Easement and no event has
occurred which with the passage of time or the giving of notice, or both, would constitute a default by
Grantor under the Easement.
3. Grantor acknowledges and agrees that Borrower has the right to and has
encumbered its interests under the Easement with the Deed of Trust, the Security Agreement and other
security documents, securing loans from the Banks and other obligations owed by the Borrower to the
Banks in an aggregate principal amount not to exceed the amounts set forth in the Loan Agreement.
Grantor consents to the assignment pursuant to the Deed of Trust, the Security Agreement and the
other security documents and, notwithstanding any provisions to the contrary in the Easement, Grantor
agrees with the Administrative Agent for the benefit of the Banks as follows:
(a) The Administrative Agent shall be entitled to exercise all rights and to
cure any defaults of Borrower under the Easement. Upon receipt of notice from the Administrative
Agent, Grantor agrees to accept such exercise and cure by the Administrative Agent. Grantor agrees
to render all performance due by it under the Easement and this Consent directly to the Administrative
Agent for the benefit of the Banks upon receipt of the Administrative Agent's written instructions and
written authorization from the Borrower.
(b) Grantor will not, without the prior written consent of the
Administrative Agent (such consent not to be unreasonably withheld), (i) cancel or terminate the
Easement except as provided in the Easement and in accordance with Section 3(c) hereof, or consent to
or accept any cancellation or termination thereof by Borrower, or (ii) amend or modify the Easement in
any material respect, except by mutual written agreement between Borrower and Grantor together with
the written consent thereto by the Administrative Agent. Grantor will deliver duplicates or copies of
all notices of default delivered under or pursuant to the Easement to the Administrative Agent promptly
upon receipt or delivery thereof.
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(c) (i) Grantor will not terminate the Easement on account of any default
or breach of Borrower thereunder without written notice to the Administrative Agent
and first providing to the Administrative Agent (A) thirty (30) days from the date notice of
default or breach is delivered to Administrative Agent to cure such default if such default is the
failure to pay amounts to Grantor which are due and payable under the Easement or (B) a
reasonable opportunity, but not fewer than ninety (90) days, to cure such breach or default if
the breach or default cannot be cured by the payment of money to Grantor so long as the
Administrative Agent or its designee shall have commenced to cure the breach or default
within such ninety (90) day period and thereafter diligently pursues such cure to completion
and continues to perform any monetary obligations under the Easement. If possession of the
Project is necessary to cure such breach or default, and the Administrative Agent declares
Borrower in default and commences foreclosure proceedings, the Administrative Agent will be
allowed a reasonable period to complete such proceedings. If the Administrative Agent is
prohibited by any court order or bankruptcy or insolvency proceedings from curing the default
or from commencing or prosecuting foreclosure proceedings, the foregoing time periods shall
be extended by the period of such prohibition. Grantor consents to the transfer of Borrower's
interest under the Easement to the Banks or any of them or a purchaser or grantee at a
foreclosure sale by judicial or nonjudicial foreclosure and sale or by a conveyance by Borrower
in lieu of foreclosure, so long as the Banks, purchaser or grantee, as the case may be, assumes
the obligations of Borrower under the Easement, and Grantor agrees that upon such
foreclosure, sale or conveyance, Grantor shall recognize the Banks or any of them or other
purchaser or grantee as the applicable party under the Easement.
(ii) Grantor, Borrower and Administrative Agent acknowledge
and agree that notwithstanding Section 9(b) of the Easement or anything to the contrary
in this Consent and Agreement, following any notice delivered to Borrower by Grantor
(following the occurrence of a twenty-four month period of discontinued use described in such
Section 9(b)) of its intent to terminate Borrower's rights under the Easement if use of the
Easement is not re-commenced, Grantor shall not terminate the Easement so long as (a) the
Borrower or Administrative Agent (if Administrative Agent, or its designee or assignee has
succeeded to Borrower's interest in the Easement or Administrative Agent has commenced or
attempted to commence the exercise of its remedies under the Loan Agreement and/or other
documents entered into in connection therewith) has informed Grantor that such party intends
to re-commence use of the transmission facilities and (b) less than two (2) years have passed
since the delivery of such notice of intent to terminate.
(d) In the event that the Easement is rejected by a trustee or
debtor-in-possession in any bankruptcy or insolvency proceeding, or if the Easement is terminated for
any reason other than a default which could have been but was not cured by the Administrative Agent
as provided in Section 3(c) above, and if, within forty-five (45) days after such termination, the Banks
or their successors or assigns shall so request, Grantor will, to the extent that Grantor then has
jurisdiction over the Easement Property, execute and deliver to the Banks a new easement, which
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3
easement shall be on the terms and conditions as the Easement for the remaining term of the Easement
before giving effect to such termination.
(e) In the event the Banks or their designee(s) or assignee(s) elect to
perform Borrower's obligations under the Easement or to enter into a new easement as provided in
Section 3(c) or (d) respectively above, the Banks, and their designees and assignees, shall not have
personal liability to Grantor for the performance of such obligations, and the sole recourse of Grantor
in seeking the enforcement of such obligations shall be to such parties' interest in the Project. In the
event the Banks or their designee(s) or assignee(s) succeed to Borrower's interest under the Easement,
or perform any of Borrower's obligations under the Easement, the Banks or their designee(s) or
assignee(s) shall cure any defaults for failure to pay amounts owed under the Easement, but shall not
otherwise be required to perform (or be subject to any defenses or offsets) by reason of any of
Borrower's other obligations under the Easement that were unperformed at such time. The Banks shall
have the right to assign all or a prorata interest in the Easement or a new easement entered into
pursuant to Section 3(d) to a person or entity to whom the Project is transferred, provided such
transferee assumes the obligations of Borrower under the Easement and/or a new easement. Upon
such assignment, the Administrative Agent (including its agents, employees and contractors) shall be
released from any further liability thereunder to the extent of the interest assigned.
4. Grantor agrees that the Administrative Agent and the Banks shall have the right
to enter and use the Easement Property at such reasonable times and manner as are necessary or
desirable to effectuate the remedies and enforce the rights of the Administrative Agent and the Banks
under the Loan Agreement, the Deed of Trust, the Security Agreement and other security documents.
5. Grantor hereby represents and warrants that (a) the execution, delivery and
performance by Grantor of the Easement and this Consent have been duly authorized by all necessary
corporate action, and do not and will not require any further consents or approvals which have not
been obtained, or violate any provision of any law, regulation, order,judgment, injunction or similar
matters or breach any agreement presently in effect with respect to or binding on Grantor, (b) this
Consent and the Easement are legal, valid and binding obligations of Grantor enforceable against
Grantor, (c) to the best knowledge of Grantor, all government approvals necessary for the execution,
delivery and performance by Grantor of its obligations under the Easement have been obtained and are
in full force and effect and (d) as of the date hereof, the Easement are in full force and effect and have
not been amended, supplemented or modified, (e) to the best of Grantor's knowledge, Borrower has
fulfilled its obligations under the Easement, and (f) there are no breaches or unsatisfied conditions
presently existing (or which would exist after the passage of time and/or giving of notice) that would
allow Grantor to terminate any of the Easement.
6. All Notices required or permitted hereunder shall be in writing and shall be
effective (i) upon receipt if hand delivered, (ii) upon telephonic verification of receipt of sent by tele-
facsimile and (iii) if otherwise delivered, upon the earlier receipt or two (2) business days after being
sent registered or certified mail, return receipt requested, with proper postage affixed thereto, or by
private courier or delivery service with charges prepaid, and addressed as specified below:
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4
If to Grantor:
Contra Costa County Public Works Department
Real Property Division
255 Glacier Drive
Martinez, CA 94553
Attn:
Telephone: �)
Fax: (__)
If to Administrative Agent:
ABN AMRO BANK N.V,
135 South LaSalle Street
Chicago, Illinois 60603
Attn.: Project Finance
7. This Consent shall be binding upon the successors and assigns of Grantor and
shall inure, together with the rights and remedies of the Administrative Agent hereunder, to the benefit
of Borrower, the Administrative Agent, the Banks and their respective successors, transferees and
assigns (including, without limitation, any entity that refinances all or any portion of the obligations
under the Loan Agreement). Grantor agrees to confirm such continuing obligation in writing upon the
reasonable request of any of the Borrower, the Banks or any of their respective successors, transferees
or assigns.
8. No termination, amendment or waiver of any provisions of this Consent or
consent to any departure by Grantor from any provisions of this Consent shall in any event be effective
unless the same shall be in writing and signed by Grantor, the Administrative Agent and Borrower and
then such waiver or consent shall be effective only in the specific instance and for the specific purpose
for which it was given.
9. This Consent shall be governed by, and construed in accordance with, the laws
of the State of California.
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5
y
IN WITNESS WHEREOF, Grantor, by its officer thereunto duly authorized, has duly
executed this Consent as of the date set forth below.
Dated: Grantor:
CONTRA COSTA COUNTY, a political subdivision
of the State of California
Name:
Title: .0—shAwfd ofSueary rft
Accepted and agreed to:
Administrative Agent:
ABN AMRO BANK N.V.
as Administrative Agent under the Loan Agreement
By:
Name: _
Title:
By:
Name:
Title:
Borrower:
CROCKETT COGENERATION, A CALIFORNIA LIMITED PARTNERSHIP,
a limited partnership organized under the laws of California
By:
Name:
Title:
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6
EXHIBIT"A"
Kendall Avenue,tying between the westerly prolongation of a line described as adue west
50.50 feet" In the Deed to Contra Costa County recorded October 24, 1941, Book 621,
Page 493, Official Records of Contra Costa County, and the northeast line of Merchant
Street as said Merchant Street Is described In the Relinquishment of State Highway
recorded November 22, 1961, Book 4009,Page 317, Official Records of Contra Costa
County.
Merchant Street, as described in the Relinquishment of State Highway recorded
November 22, 1961, Book 4009, Page 317, Official Records of Contra Costa County.
San Pablo Avenue and Wanda Street, as described In the Relinquishment of State
Highway recorded June 30,1959,Book 3402,Page 285,Official Records of Contra Costa
County.
Wanda Street, lying between the southeast line of that portion described in the
Relinquishment of State Highway recorded June 30, 1959,Book 2402,Page 285,Official
Records of Contra Costa County, and the east line of Second Avenue, as said Second
Avenue is shown on the Map of the Town of Valona, filed April 15, 1887, Map Book E,
Page 117, Contra Costa County Records. Excepting therefrom: Any portion thereof
remaining in the name of the State of California.
Second Avenue, lying between the north line of Wanda Street and the westerly
prolongation of the north line of Starr Street as said Streets are shown on the Map of the
Town of Valona, filed April 15, 1887, Map Book E. Page 117, Contra Costa County
Records.
Starr Street, lying between.the east line of Second Avenue and the west line of Fourth
Avenue,as said Streets are shown on the Map of the Town of Valona,filed April 15, 1887,
Map Book E, Page 117, Contra Costa County Records.
Fourth Avenue, lying north of the easterly prolongation of the south line of Starr Street,
as said Streets are shown on the Map of the Town of Valona, filed April 15, 1887, Map
Book E, Page 117, Contra Costa County Records.
Center Street, lying between the east line of Fourth Avenue, as said Fourth Avenue is
shown on the Map of the Town of Valona, filed April 15, 1887, Map Book E, Page 117.
Contra Costa County Records, and the northerly prolongation of the east line of Ralph
Avenue, as said Ralph Avenue (formerly known as Valley Street) Is shown on the
Amended Map No.1 of the Town of Crolona,filed November 9, 1908, Map Book 2,Page
27, Contra Costa County Records.
Loring Avenue,lying between the northerly prolongation of the east line of Ralph Avenue
and the East line of Bay Street, as said Streets are shown on the Amended Map No. 1
of the Town of Crolona,filed November 9, 1908, Map Book 2, Page 27, and the Map of
the Town of Crockett, filed January 14, 1884, Map Book D, Page 88, Contra Costa
County Records.
Bay Street, lying north of the north line of Loring Avenue,as said Streets are shown on
the Map of the Town of Crockett filed January 14, 1884, Map Book D. Page 88, Contra
Costa County Records. Excepting therefrom:That portion of Bay Street described in the
Order of Abandonment recorded July 13, 1648, Book 1221, Page 314, Official Records
of Contra Costa County.
QKgio
c:Ex1JbkA
STATE OF
COUNTY OF
On this day of , 19_, before me, the undersigned, Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
STATE OF
COUNTY OF
On this day of , 19_, before me, the undersigned, Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
P:\18636X8\C0NSENTS\EASMNTC0.2
STATE OF
COUNTY OF
On this day of , 19_, before me, the undersigned, Notary Public,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
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