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Home My WebLink AboutMINUTES - 10191993 - 1.59 #1: 59 TO: BOARD OF SUPERVISORS Contra �. c FROM: COSta Phil Batchelor, County Administrator o < x.. County 9:1i� 4 DATE: October 19/ 1993 rte" .•'P grrq coiinr` SUBJECT: Cooperative Agreement with C & H Sugar Company SPECIFIC REQUEST(S)OR RECOMMENDATION(S)8 BACKGROUND AND JUSTIFICATION RECOMMENDATION Approve agreement and authorize County Administrator to sign. BACKGROUND As part of the Conditions of Certification for the Crockett Cogeneration Project, a commitment was made to obtain an annual $30,000 a year payment for 15 years to the Crockett Community Foundation commencing in fiscal year 1996=1997 provided that such payment will not be payable unless the project is substantially completed, steam is being delivered and the Foundation has been formed as a tax-exempt entity. The County under the agreement reaffirms its commitments made in Resolution No. 92/757 including dedication of property tax increment for the benefit of the community and to enhance law enforcement subject to any discounted amounts due to tax losses in adoptions of the State budget. The parties agree that the Crockett Community Foundation is intended to be, and shall be recognized, as the third-party beneficiary of this agreement. 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. ? ^ CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COM ITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON OCT U 1993 APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS ZUNANIMOUS I HEREBY CERTIFY THAT THIS IS A TRUE (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 OCT 19 1993 Contact: Scott Tandy (646-4087) PHIL BATCHELOR.CLERK OF THE BOARD OF CC: County Administrator SUPERVISORS AND COUNTY ADMINISTRATOR County Counsel Auditor BY ,DEPUTY COOPERATION AGREEMENT BETWEEN THE COUNTY OF CONTRA COSTA AND CALIFORNIA AND HAWAIIAN SUGAR COMPANY THIS COOPERATION AGREEMENT (the "Agreement") is made and entered into as of September 29, 1993, by and between the COUNTY OF CONTRA COSTA ("County'l, a political subdivision of the State of California, and CALIFORNIA AND HAWAIIAN SUGAR COMPANY ("C&H"), a California corporation. RECITALS THIS AGREEMENT is made with respect to the following facts: A. C&H will receive benefits from the development of the Crockett Cogeneration Project, a cogeneration plant to be located adjacent to the C&H sugar refinery in Crockett, an unincorporated area of the County(hereinafter sometimes referred to as the "project"). B. On May 3, 1993, the Energy Resources and Development Commission of the State of California (hereinafter the California Energy Commission or CEC) issued its Decision in Docket No. 92-AFC-1 certifying the project, subject to certain Conditions of Certification("conditions'). C. Among the conditions is SOC-9, which requires Crockett Cogeneration, A California Limited Partnership(herein "CC"),the project applicant,to use due diligence and all good-faith efforts to ensure that the parties hereto execute a contract providing for certain payments to the Crockett Community Foundation and for the relocation of C&H's corporate offices from Concord to Crockett. C&H has already completed the relocation of C&H's corporate offices from Concord to Crockett. The parties desire to enter into this Agreement in order to satisfy the remaining requirements of SOC-9. 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 remaining requirements of Condition SOC-9 of the Decision. 2. Crockett Community Foundation Payments 2.1 C&H agrees to pay $30,000 annually for a period of fifteen (15) years to the Crockett Community Foundation, commencing in the fiscal year ending June 30, 1996; rop vided, however, that such payment shall not be payable unless (i) the project is substantially completed and steam is being delivered on a commercial operations basis, and (ii) the Crockett Community Foundation has been formed and is being maintained and operated as a tax-exempt entity under applicable state and federal laws. r 2.2 C&H will cooperate with CC in the formation of the Crockett Community Foundation. 3. Commitment by County County reaffirms that its Resolution 92/757 and its paragraphs c.1. and 2. remain in force. 4. Sole 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 through the Crockett Community Foundation. The parties agree that, upon its formation as a tax-exempt entity, the Crockett Community Foundation is intended to be, and shall be recognized as, the sole third-party beneficiary of this Agreement. Except as expressly stated in this paragraph, the parties agree and assert that no person or entity other than the Crockett Community Foundation is intended to be, nor shall any person or entity other than the Crockett Community Foundation be authorized to claim any rights as, a third- party beneficiary. 5. General Provisions 5.1 Entire Agreement This Agreement constitutes the entire agreement between the parries with respect to the subject matter hereof and supersedes all prior agreements and understandings, written and oral. 5.2 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. 5.3 Warranty of Authority By executing this Agreement, each of the parties hereto covenants, warrants and represents that the persons executing this Agreement 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 authority .and legal power to enter into and perform this Agreement. 5.4 Successors and Assigns This Agreement shall be binding in all respects upon any and all assignees and successors of the parries. 5.5 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. 5.6 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. 2 CA932850.044 73300-001 10/12/93 02:08 pm a 5.7 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) C&H 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. 5.8 Notices 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,Esq. County Administrator County Counsel County of Contra Costa County of Contra Costa County Admin. Bldg., 11th Floor County Admin. Bldg., 9th Floor 651 Pine Street 651 Pine Street Martinez, CA 94553 Martinez, CA 94553 For C&H Counsel for C&H Harold R. Somerset Thomas W. Rowland,Esq. President and CEO General Counsel California and Hawaiian Sugar Co. California&Hawaiian Sugar Co. 830 Loring Avenue 830 Loring Avenue Crockett, CA 94525 Crockett, CA 94525 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. COUNTY OF CONTRA COSTA By: Title: CALIFORNIA AND HAWAIIAN SUGAR COMPANY By: Title: 3 CA932850.044 73300-001 10/12/93 02:08 pm