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HomeMy WebLinkAboutMINUTES - 10191993 - 1.58 #1 . 58 TO: BOARD OF SUPERVISORS 5E L Contra Costa FROM: Phil Batchelor, County Administrator = - s -...� � County October 19 1993 DATE: / �°,rr ouN� r SUBJECT: Cooperation Agreement between County and Crockett Cogeneration SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATION Approve agreement and authorize County Administrator to sign. BACKGROUND Pursuant to the California Energy Commission's decision approving the Crockett Cogeneration Project, and defined in the Conditions of Certification, an agreement has been prepared between the County and Crockett Cogeneration to confirm and reaffirm certain commitments made by Crockett Cogeneration and the County to the Crockett community. Crockett Cogeneration is to pay $300,000 per year to the Crockett Community Foundation, a tax-exempt charity, to be formed to receive and disburse funds for the benefit of the Crockett community. Crockett Cogeneration will advance monies up to $100,000 per year, if necessary, and shall pay additional foes not to exceed $15,000 incurred by the Crockett Advisory Committee in negotiating a community benefit package and the formation of a Crockett Community Foundation. The County reaffirms that its Resolution No. 92/757 adopted on November 3, 1992, will remain in force to annually dedicate during the project's operation $200,000 of property tax increment subject to any discounted amounts that may result from tax losses due to adoptions of the State budget and related public funding; and in addition, the County will commit up to $250,000 of new property tax increment to enhance law enforcement in the greater Crockett area subject to any discounted amount resulting from any tax losses due to adoptions of the State budget and related public funding. CONTINUED ON ATTACHMENT:. ✓ YES SIGNATURE: -^ / RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON19 1993 APPROVED AS RECOMMENDED OTHER VOTE OF UPERVISORS 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. ATTESTED_ O'C1 19 1993 Contact: PHIL BATCHELOR,CLERK OF THE BOARD OF cc: County Administrator SUPERVISORS AND COUNTY ADMINISTRATOR County Counsel Auditor BY ,DEPUTY 1\. -2- The parties agree that upon its formation the Crockett Community Foundation is intended to be, and shall be recognized as, the third-party beneficiary of this agreement, and could also serve as the advisory council to the Board of Supervisors regarding County commitments of property tax increments . The terms of the agreement have been reviewed by the Crockett Advisory Committee and its attorney and they recommend it be approved. FINANCIAL IMPACT As part of the exchange for the commitments made by Crockett Cogeneration and the County for a community benefits program, as contained in the California Energy Commission Conditions of Certification, the project will be constructed and subsequent property tax revenues will accrue to the County. Dept. : Scott Tandy (646-4087) a COOPERATION AGREEMENT BETWEEN THE COUNTY OF CONTRA COSTA AND CROCKETT COGENERATION THIS COOPERATION AGREEMENT (the "Agreement") is made and entered into as of 1993, by and between the COUNTY OF CONTRA COSTA ("County"), a political subdivision of the State of California, and CROCKETT COGENERATION ("CC"), A California Limited Partnership. RECITALS THIS AGREEMENT is made with respect to the following facts: A. CC is developing the Crockett Cogeneration Project, a cogeneration plant to be located in Crockett, an unincorporated area of County(hereafter sometimes referred to as the"project"). B. On May 3, 1993,the Energy Resources and Development Commission of the State of California(hereafter the California Energy Commission or CEC)issued its Decision in Docket No. 92-AFC-1 certifying the Crockett Cogeneration Project, subject to certain Conditions of Certification. C. Among the conditions is SOC-8, which requires CC to use due diligence and all good-faith efforts to execute a contract with the County incorporating conditions SOC-4, SOC-5 and SOC-6. The parties desire to enter into this Agreement in order to satisfy condition SOC-8. AGREEMENT NOW, THEREFORE,for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: 1. Purpose of Agreement. The purpose of this Agreement is to satisfy condition SOC-8 of the Decision in Docket No. 92-AFC-1 of the California Energy Commission and to confirm and reaffirm certain commitments made by County to the Crockett community.. 2. Crockett Community Foundation. 2.1 CC shall pay$300,000 per fiscal year to the Crockett Community Foundation, a tax exempt charity to be formed to receive and disburse funds for the benefit of the Crockett community. Payments shall commence in the fiscal year ending June 30, 1996, and shall continue for 30 years escalating at 3 percent per year. Payments shall be made semi-annually on November 10 and May 10,beginning November 10, 1995. In the event the Crockett Community Foundation is not in existence at the time any payment pursuant to the Decision is due,such payment shall be made to an independent trustee for the benefit of the Crockett community. 2.2 Upon request, CC shall advance to the Crockett Community Foundation up to $100,000 per year,beginning in the fiscal year ending June 30, 1993, for any purpose including payment of attorneys' fees in excess of the$15,000 to be paid by CC pursuant to Condition SOC-6 and Section 3 below. Such advances shall be credited against the first annual payment to be made by the Applicant to the Crockett Community Foundation as required by Condition SOC-4 and section 2.1 above. 2.3 Payment of the amounts set forth in sections 2.1 and 2.2 is conditioned upon CC obtaining financing for the project and upon CC commencing construction of the project. 2.3 CC shall exercise its best efforts to encourage the formation of the Crockett Community Foundation. 3. Payment to Crockett AdvisM Committee. CC shall pay attorneys' fees not to exceed$15,000 incurred by the Crockett Advisory Committee in negotiating the community benefits package and the formation of Crockett Community Foundation. Payment shall be made upon presentation of a statement atement of attorneys' fees signed by the Chairperson of the Crockett Advisory Committee(or other designee named by the County)or the Chairperson of the Crockett Community Foundation, as applicable. Payment shall be made within a reasonable time after presentation of the statement. 4. Commitment by County County reaffirms that its Resolution 92/757, and its paragraphs c.1. and 2. remain in force as follows: 4.1 To annually dedicate during the project's operation $200,000 of project property tax increment subject to any discounted amounts that may result from tax losses due to adoptions of the State budget and related public funding. 4,2 To commit up to $250,000 of new project property tax increment to enhance law enforcement in the greater Crockett area subject to any discounted amount resulting from any tax losses due to adoptions of the State budget and related public funding. 5. Crockett Community Foundation as Third-Party Beneficiary. The parties recognize and acknowledge that the purpose of this Agreement is to confer and secure certain benefits provided herein on and to the Crockett community. Accordingly,the parties agree that, upon its formation,the Crockett Community Foundation is intended to be, and shall be recognized as,the third-party beneficiary of this Agreement. Except as expressly stated in this paragraph,the parties agree and assert that no other person or entity is intended to be,nor shall any other person or entity be authorized to claim any rights as, a third-party beneficiary. 2 CA932390.048 73300-001 10/12/93 04:34 pm 6. General Provisions. 6.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, written and oral. 6.2 Validity of Agreement. If any term,provision,or condition of this Agreement is determined by a court of competent jurisdiction to be invalid,void or unenforceable,then the remainder of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated by such determination. 6.3 Warranty of Authority. By executing this Agreement, each of the undersigned covenants, warrants and represents that he or she has the power and authority to execute this Agreement on behalf of the corporation or the County for whom he or she is signing. Upon request, each party will provide to the other true and satisfactory evidence of the authority of the person executing this agreement on its behalf and of the party's authority and legal power to enter into and perform this Agreement. 6.4 Successors and Assigns. This Agreement shall be binding in all respects upon any and all assignees and successors of the parties. 6.5 Joint Cooperation. Throughout the process described in this Agreement, the parties shall work in good faith to effectuate the purposes of this Agreement. Such cooperation shall include, but shall not be limited to, such joint efforts as may be appropriate to resolve any potential claims by third parties that may arise as a result of, or in connection with,this Agreement. 6.6 Reservation of Lawful Authority. Nothing in this Agreement shall be construed as limiting the lawful authority of the County to execute its police powers on behalf of the health, safety and welfare of its residents. 6.7 Execution of Further Papers:Evidence of Compliance. (1) The parties hereto agree to execute,from time to time, all documents that may be necessary or desirable to carry out the terms of this Agreement, or to effect the purposes of this Agreement. (2) CC may from time to time request from the County and the County shall provide a statement showing confirmation of its compliance with the obligations imposed under this Agreement. 3 CA932390.048 73300-001 10/12/9310:23 am 6.8 Notice. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to be duly given on the date of service if delivered personally to the party to whom notice is to be given, or if mailed, on the date of receipt. Notices shall be directed to the parties as follows: For County: With a copy to: Phil Batchelor Victor Westman County Administrator County Counsel County of Contra Costa County of Contra Costa County Administration Bldg. 11th Floor' County Administration Bldg., 9th Floor 651 Pine Street 651 Pine Street Martinez, CA 94553 Martinez, CA 94553 For CC: Counsel for CC: Crockett Cogeneration David Lloyd,Esq. 500 NE Multnomah Street, Suite 900 Stoel Rives Boley Jones& Grey Portland, OR 97232 900 SW 5th Avenue, Suite 2300 Attention: Brian Holt,President Portland, OR 97204-1268 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. COUNTY OF CONTRA COSTA By: Title: CROCKETT COGENERATION, A California Limited Partnership By PACIFIC CROCKETT ENERGY,INC., Its General Panner By: Title: 4 CA932390.048 73300-001 10/12/93 10:23 am