HomeMy WebLinkAboutMINUTES - 12201994 - 1.66 TO + BOARD OF SUPERVISORS
FROM: SUPERVISOR JEFF SMITH Contra
Costa
DATE: DECEMBER 20 , 1994 coirty
SUBJECT: AGREEMENT BETWEEN PACIFIC REFINING, THE RCA AND CONTRA
COSTA COUNTY
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) a BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
APPROVE the contract between Pacific Refining, the Rodeo
Citizens'_ Association (RCA) and Contra Costa County , and
AUTHORIZE the chair to sign.
BACKGROUND:
See attached contract
FISCAL IMPACT:
None
CONTINUED ON ATTACHMENT: _ YES SIGNATURWATI
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMM -'9MEE
APPROVE OTHER
SIGNATURE S :
ACTION OF BOARD ON 99 T APPROVED AS RECOMMENDED OTHER
Joe Sparano and Grey Feere addressed the Board with respect to this matter.
(see attached Speaker Forms)
VOTE OF SUPERVISORS
1 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.
CC: Supp. Jeff Smith ATTESTED
Pacific Refining , RCA: Via Supv. Smith' s PHIL BATCHELOR. CLERK OF THE BOARD OF
office SUPERVISORS AND COUNTY ADMINISTRATOR
CAO ,, (� (�
M382%7-83 BY � ' �"" �" "-IIa ,DEPUTY
Dater `z q9y�
REQUEST TO SPEAK FORM
(Two [2] Minute Limit)
Complete this form and place it in the box near the speakers' rostrum before addressing the Board.
Name: Ga re,, e-ce Phone: -z
Address: City:
I am speaking for: ❑ Myself OR Organization: -N,1c C"I c S
NAME OF ORGANIZATION
CHECK ONE:
01 wish to speak on Agenda Item # -\.(a
My comments will be: ElGeneral �or ❑ Against
'' 1 wish to speak on the subject of: \• L<.. G-.-.-N ts S-\--c,\ s.
❑ I do not wish to speak but leave these comments for the Board to consider:
Date:
REQUEST TO SPEAK FOAM
(Two [2] Minute Limit)
Complete this form and place it in the box near the speakers' rostrum before addressing the Board.
Name: C`1 N 1��� Phone:
Address: Q City: 000.��
I am speaking for: ❑ Myself OR [Organization: ce"
NAME OF ORGANIZATION
CHECK ONE:
❑ I wish to speak on Agenda Item # 1
My comments will be: ❑ General [ For ❑ Against
❑ I wish to speak on the subject of: l
❑ I do not wish to speak but leave these comments for the Board to consider:
COOPERATION AGREEMENT BETWEEN COUNTY OF CONTRA COSTA,
PACIFIC REFINING COMPANY AND
RODEO CITIZENS ASSOCIATION
COOPERATION AGREEMENT BETWEEN COUNTY OF CONTRA COSTA,
PACIFIC REFINING COMPANY AND
RODEO CITIZENS ASSOCIATION
THIS COOPERATION AGREEMENT (this "Agreement") is
entered into as of December 20, 1994 by and between the
COUNTY OF CONTRA COSTA, a political subdivision of the State
of California, through its BOARD OF SUPERVISORS
(collectively, the "County") ; the RODEO CITIZENS
ASSOCIATION, an unincorporated association of residents who
reside in the unincorporated community of Rodeo ("RCA") ; and
PACIFIC REFINING COMPANY, a California general partnership
between indirect subsidiaries of Sinochem of Beijing China
and The Coastal Corporation of Houston, Texas ( "Pacific" ) .
County, RCA and Pacific are collectively referred to as (the
"Parties" ) .
RECITALS
A. Pacific owns and operates a petroleum refinery
(the "Refinery") located in the City of Hercules (the
"City") . The Refinery produces a mix of fuel products,
including liquefied petroleum gases, gasoline, diesel fuel,
jet fuel, fuel oil and asphalt . The Refinery provides
substantial economic benefits to the County through, among
other things, payment of tax revenues and provision of jobs .
B . The unincorporated community of Rodeo is
located in close proximity to the Refinery. As used in this
Agreement, "Rodeo" shall mean the area described in the
attachment to Board of Supervisors Resolution 94/94 which
created the Rodeo Municipal Advisory Committee . This
proximity has contributed to a complex history between the
Refinery and the Rodeo community. Apart from its proximity
to the Refinery, the Rodeo community is located within the
County Redevelopment Area. In the Redevelopment Plan for
the Rodeo Redevelopment Project Area (the "Redevelopment
Plan") , the County identified the area as suffering from
blighting conditions and lacking adequate infrastructure and
public and community facilities . The Redevelopment Plan
recognizes that redevelopment assistance for the area is
imperative if it is to meet the development potential
envisioned by the General Plan.
C. In order to meet federal and state Clean Air
Act requirements that will be effective in 1996, Pacific
must undertake significant facility modifications known as
Improved Fuels Modification Project (the "IFMP" ) . The IFMP
will modify the Refinery to produce cleaner burning,
reformulated fuels that meet these legal requirements . In
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March 1994 , Pacific received approval by the City of a
permit necessary to implement the IFMP. RCA has initiated
litigation challenging that approval, thereby impeding
implementation of the IFMP (the "IFMP Lawsuit") . If the
IFMP is not implemented, Pacific will not be able to
continue its operations at the Refinery.
D. The IFMP would represent an overall investment
of approximately $500 million in the County and, if built,
is expected to generate over $1 . 7 million in annual revenues
to the County general fund, as well as substantial revenues
to local schools, special districts and other local
agencies . Pacific, however, will not go forward with this
massive investment in the IFMP without full and final
resolution of the pending litigation, as well as substantial
assurances that longstanding issues of concern between
Pacific and the Rodeo community can be addressed. RCA
requires assurance that the community will receive special
benefit from the IFMP commensurate with the potential
effects that the IFMP may have on Rodeo in relation to other
areas of the County.
E. County believes it is in the public interest
to induce Pacific to proceed with the IFMP through
resolution of these issues, and to provide special health,
safety and economic benefit to the Rodeo community. For
these reasons, County is entering into this Agreement .
Pacific is entering this Agreement to receive assurance that
Rodeo will receive special benefit from the IFMP (including
Pacific ' s financial contributions to the community and
enhanced environmental measures) , so that Pacific ' s
investment will have positive effects on its neighboring
community, as well as on Pacific ' s competitiveness . RCA is
entering this Agreement to secure special benefit for the
Rodeo community from the IFMP so that RCA need not continue
to seek further assurances for the benefit of the Rodeo
community.
F. Based upon this Agreement, Pacific will
continue to pursue phased implementation of the IFMP (the
"Phased IFMP" ) and will cooperate with RCA and the County in
securing special benefit for the Rodeo community. Based
upon this Agreement, the Rodeo community will be provided
special benefits, and RCA will accept the development of the
IFMP.
G. With this Agreement, the Parties intend to
resolve issues impeding the realization of the County-wide
economic benefits associated with the IFMP and to provide
benefits to the Rodeo community that appropriately reflect
the neighbor relationship between Pacific and Rodeo.
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AGREEMENT
NOW THEREFORE, for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged,
IT IS HEREBY AGREED as follows :
ARTICLE I
I . MUTUAL COMMITMENTS .
1 . 1 Emergency Response .
1 . 1 . 1 Planning. To provide greater public
health and safety assurances to the Rodeo community,
Pacific, County and RCA agree to cooperate with other
appropriate agencies, including the Rodeo-Hercules Fire
District, to develop a detailed off-site emergency response
plan for Rodeo (including specific notification protocol)
based on the phases of the Phased IFMP and covering "shelter
in place" and evacuation plans . In this regard, Pacific,
RCA and County will cooperate with appropriate agencies to
develop appropriate plans and guidelines (collectively, the
"Emergency Response Plans") , including
fire/release/explosion scenarios, car/tanker truck hazardous
spill scenario, and a review of Pacific ' s chemical
inventories . Pacific, County and RCA shall cooperate to
assure that the Emergency Response Plans provide for an
evacuation drill to be conducted within two months of start-
up of Phase I of the Phased IFMP and Phase III of the
Phased IFMP, with drills occurring every five years
thereafter. For purposes of this Agreement, Phase I,
Phase II and Phase III of the Phased IFMP shall be defined
as set forth on Exhibit A. The Emergency Response Plans
also shall provide for periodic notification of Rodeo
residents regarding emergency response procedures .
1 . 1 . 2 Hazardous Materials Response, Equipment
and Joint Operations . In view of the considerable public
interest in improving emergency fire and hazardous materials
response in West County, especially for major industrial
facilities, and the commitment of the County, Pacific and
RCA to that goal :
1 . 1 . 2 . 1 Pacific and RCA are in support
of a study by Contra Costa Fire Protection District, in
consultation with the County, the City of Hercules, Rodeo-
Hercules Fire Protection District and other nearby major
industrial facilities, to examine the exact nature and
extent of the benefits that might accrue from joint
operations of the Contra Costa Fire Protection District and
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Rodeo-Hercules Fire Protection District, particularly
regarding potential benefits relating to industrial
facilities .
1 . 1 . 2 . 2 When a Hazardous Materials
Response Program, which covers the Refinery, has been
developed for West County, Pacific ' s personnel will
participate fully in the operations and personnel training
of the Program, together with the fire services and other
industries in the area.
1 . 1 . 2 . 3 If the equipment for such a
Hazardous Materials Response Program is directly available
to respond to Pacific ' s needs, through joint operations or
other arrangements, Pacific will contribute toward the
Hazardous Materials Response Program: (a) $20 , 000 upon the
commencement of commercial operations of Phase I, and
$20, 000 at the end of the first year of such operations;
(b) $27, 500 upon the commencement of commercial operations
of Phase II , and $27, 500 at the end of the first year of
such operations; and (c) $27, 500 upon the commencement of
commercial operations of Phase III and $27, 500 at the end of
the first year of such operations .
1 . 2 Community Alert Network. For several years,
County, in cooperation with Pacific and other industries in
the County, has been developing an expanded community alert
network system ("CAN" ) that will utilize a network of sirens
to notify County residents in the event of industrial
accidents . Pacific, County and RCA shall cooperate with
other appropriate agencies and organizations (including
financial contributions by Pacific and other industries in
the County) to assist with CAN implementation in an
expeditious manner, and if feasible, prior to start-up of
Phase I of the Phased IFMP. Nothing in this section is
intended to, or shall be construed to, create a mandatory
duty on the part of the County or any other Party.
1 . 3 BAAQMD Rule Change; Issuance of Authority to
Construct . To enable Pacific to move forward with the
Phased IFMP, certain actions are required by the Bay Area
Air Quality Management District ("BAAQMD") . To induce
Pacific to invest in the Phased IFMP, County and RCA shall
cooperate in Pacific ' s efforts to secure such BAAQMD
actions, including, without limitation, (i) to secure such
modifications of permits, orders and/or BAAQMD rules and
regulations (including BAAQMD Rule 9-1-206) as may be
necessary to allow Pacific to install a sulfur recovery unit
as part of Phase II of the Phased IFMP; and (ii) to secure
issuance of an Authority to Construct from the BAAQMD that
will provide for the phased implementation of the
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Phased IFMP (the "ATC") . County and RCA shall provide
written statements, and, as reasonably necessary, shall
appear to request that the BAAQMD issue the ATC and grant
any and all modifications of permits, orders and/or BAAQMD
rules and regulations necessary to accomplish the foregoing.
ARTICLE II
II . COUNTY COMMITMENT FOR ECONOMIC BETTERMENT
OF RODEO:.
2 . 1 Special Benefit for Rodeo. Pacific ' s major
investment in the Phased IFMP will produce substantial
additional real property tax revenues to the County. RCA
has expressed its strong belief that the environmental
effects of the Phased IFMP are greatest on Rodeo.
Accordingly, County has agreed to set aside a portion of
those new real property tax revenues specifically to benefit
Rodeo, as follows :
2 . 1 . 1 Amount . County shall set aside the
following proportions of net secured annual additional
General Fund real property tax revenues from the phased IFMP
("County Funds") , as determined by the County Assessor,
exclusively for the benefit of the Rodeo community in
accordance with the provisions of this Article II : (i) 800
of increased real property taxes for Phase I; (ii) 250-o of
the combined increase in real property taxes for Phase I and
Phase II ; and (iii) 200 of the combined increase in real
property taxes for Phase I, Phase II and Phase III . The set
aside for each Phase shall commence upon the County' s actual
receipt of one (1) full year' s installment of increased real
property tax revenues associated with such Phase . The
County shall continue to receive the full amount of real
property tax revenue attributable to current operations at
the Refinery.
2 . 1 . 2 Duration. The duration of the County' s
obligation to set aside County Funds shall be a total of
15 years, commencing with the first year the County receives
a full year of real property tax revenue from commercial
operations for Phase I . At the end of this initial period,
the Parties will discuss in good faith an extension of the
commitment of the County to set aside County Funds in the
manner set forth in this Agreement .
2 . 1 . 3 Method. . County Funds shall be
segregated, and accounted for, separately in the County
Treasury as a special fund not available for expenditure
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except as provided in this Agreement (the "Special Fund") .
County Funds shall be set aside and deposited into the
Special Fund simultaneously with all other real property tax
revenue allocations to other special funds made by County.
County shall notify RCO and Pacific within ten (10) working
days of depositing County Funds into the Special Fund.
2 . 1 .4 Use of Funds . County Funds may be used
for appropriate projects exclusively for the general benefit
to the Rodeo community, subject to compliance with all
applicable agreements and legal requirements . County Funds
may be used for capital or operating expenses for such
projects . It is not the intention of the Parties that
County Funds be used to replace or reduce County financial
support that would otherwise be provided for projects
benefitting Rodeo or for maintaining current levels of
service provided to Rodeo. The categories of uses for which
County Funds may be used ("Approved Categories") shall be :
2 . 1 .4 . 1 Environmental : support for
environmental enhancement projects, including monitoring of
compliance by Pacific with regulatory and contractual
obligations in the implementation of the Phased IFMP;
2 . 1 .4 . 2 Recreational : expansion or
improvement of recreational facilities or programs in Rodeo;
2 . 1 .4 . 3 Economic development : funding
for projects to enhance Rodeo ' s economic vitality, including
support for redevelopment projects;
2 . 1 .4 .4 Community infrastructure:
funding of community infrastructure projects, including
those contemplated in the Redevelopment Plan;
2 . 1 . 4 . 5 Community Services : funding
for community services, such as support for expanded library
service;
2 . 1 .4 . 6 Project Selection/Project
Expenditure Review: Funding for reasonable administrative
expenses of (i) RMAC (as defined. below) incurred in the
selection of projects; (ii) RCO (as defined below) incurred
in the selection of projects in cooperation with RMAC
pursuant to Section 2 . 1 . 6 ; and (iii) review by RCO of
project expenditures, and the financial reports and records
provided for under Section 2 . 1 . 10 . (County Funding for this
category shall not exceed one percent (lo) of County Funds
set aside in the then-current year. )
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2 . 1 . 5 Combination of Funds from Other
Sources . The Parties shall seek and encourage that County
Funds be directed to projects which could maximize
resources, such as by combination of County Funds with
(i) City or Pacific contributions to the separately
established Rodeo Community Fund; or (ii) other funds that
are or may become available from the County, Redevelopment
Agency or other agencies .
2 . 1 . 6 Administration of Funds . County Funds
shall be maintained in the County Treasury in the Special
Fund, and shall be disbursed only for Funded Projects, as
defined below. Except as expressly provided in
Section 2 . 1 .4 . 6 above, and 2 . 1 . 10 below, County, RMAC (as
defined below) and RCO (as defined below) shall not charge
an administration fee for any of their respective activities
undertaken pursuant to this Agreement .
2 . 1 . 7 Rodeo Municipal Advisory Council . A
Municipal Advisory Council, ( "RMAC") has been formed. RMAC
has seven (7) directors (the "Directors") , which Directors
serve staggered terms . The current Directors shall fulfill
their terms . Thereafter, the Directors will be selected so
that four of them are appointed (as provided below) and
three are elected (as provided below) . Three directors
shall be elected at large from resident voters of Rodeo.
The remaining four will be appointed by the Board of
Supervisors solely from a list of Nominees (all of whom
shall be resident voters of Rodeo) submitted by Rodeo
Community Organization ("RCO" ) (a private non-profit
foundation) . The Board shall act on such nominations within
thirty (30) days after submission. If RCO fails timely to
submit nominations within thirty (30) days after due notice,
the Board of Supervisors may appoint other resident voters
to fill those positions . In the event a Director nominated
by RCO vacates her or his office, RCO shall nominate and,
within thirty (30) days of receiving such nomination, the
Board shall approve a Director to serve the remainder of the
term for the vacated seat .
2 . 1 . 8 Selection of Funded Projects . The Parties
recognize that RMAC and RCO each will have important
responsibilities for selecting projects of benefit for the
Rodeo Community and will have separate funding sources and
other parameters for project selection. RMAC will be
soliciting and reviewing projects to be funded by County
Funds; RCO will be doing the same for projects to be funded
by RCO funds . To avoid unnecessary duplication of effort
and to maximize resources, RMAC and RCO shall endeavor to
coordinate their project solicitation, review and selection
processes to the maximum extent feasible . If, through their
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respective selection processes, RCO and RMAC identify
projects that could be more effectively funded by sources
available to the other, or through a combination of funds
available to each, RCO or RMAC, as applicable, shall advise
the other of such projects and shall cooperate to maximize
resources as set forth in Section 2 . 1 . 5 . Solicitation from
the Rodeo community as a whole of suggestions and proposals
for projects that may be designated to receive County Funds
shall be conducted through public meetings and other
appropriate means . Based upon a review of community
suggestions and RCO ' s recommendations, RMAC shall notify the
Board regarding (i) appropriate projects it has designated
to receive funding by County Funds ( "Funded Projects" ) ; and
(ii) the order and manner in which RMAC recommends Funded
Projects to be implemented.
2 . 1 . 9 Board Approval of Funded Projects . Within
thirty (30) days after receiving RMAC' s submission of Funded
Projects, the Board shall take action on the list of Funded
Projects . The Board may approve or disapprove any Funded
Project . If the Board disapprovesa recommended project,
however, it shall within seven (7) working days communicate
in writing to RMAC an explanation of the reasons for such
disapproval . Thereafter, the RMAC may resubmit such a
project to the Board, with modifications to respond to the
Board' s concerns, or may submit other possible substitute
Funded Projects as appropriate . In the event that funding
is not sufficient to support all Funded Projects, the Board
shall determine the order and manner in which Funded
Projects are implemented, after consideration of the
recommendations previously provided by RMAC.
2 . 1 . 10 Implementation of Funded Projects .
County shall supervise implementation of Funded Projects
(e .g. , construction contracts) unless the Board delegates
supervision of such contracts based upon the recommendation
of RMAC. County shall disburse funds for Funded Projects
promptly upon receipt of appropriate documentation. Actual
and necessary project costs (including, for example, actual
administrative and engineering costs) may be charged to the
Special Fund if specifically approved by the Board in
connection with approving Funded Projects pursuant to
Section 2 . 1 . 9 . No portion of the County Funds shall be used
to pay general administrative overhead or staffing costs of
County. County shall on an annual basis, provide to RMAC
and RCO a written report with respect to the Special Fund
and each Funded Project approved by the Board specifying
fund balances, additions and withdrawals, and costs incurred
for (i) actual County disbursements, staffing and other
administrative costs; and (ii) all other sums charged
against the Special Fund. On reasonable notice, each of the
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Parties may review financial and accounting records
concerning the Special Fund and Funded Projects in the
possession of any of the other Parties .
2 . 1 . 11 Resolution of Disputes about Funds .
If there .is a dispute involving RCO, Pacific, County or RMAC
relating to County Funds or the disbursement thereof, the
parties to the dispute ("Disputing Parties" ) shall attempt
to resolve the dispute by informal discussion. In the event
a dispute cannot be resolved in this manner within thirty
(30) calendar days, the Disputing Parties shall endeavor to
settle the dispute by mediation. In any such mediation, the
Disputing Parties may utilize an independent neutral
professional (such as an accountant) to assist in their
understanding of the issues in dispute, and to facilitate
resolution.
ARTICLE III
III . COMMITMENTS OF PACIFIC.
3 . 1 Pursue Phased IFMP. Pacific agrees to pursue
the Phased IFMP and to cooperate with County and RCA in
implementing this Agreement and in securing the health,
safety and economic benefits for the Rodeo community
provided herein.
3 . 2 Additional Contribution to RCO. After
extensive consultation with the County, and to provide
additional incentive for the County to enter into and
perform this Agreement, Pacific has agreed to make
additional contributions to the Rodeo Community Fund to be
administered by RCO for the benefit of the Rodeo community
as a whole, as follows : (a) $10, 000 upon commencement of
commercial operations of Phase I, and $10, 000 at the end of
the first year of such commercial operations; (b) an amount
equal to l00 of the sales tax received by the City of
Hercules attributable to the construction of Phase II, upon
commencement of commercial operations of Phase II, and an
equal amount at the end of the first year of such
operations; and (c) an amount equal to 100 of the sales tax
received by the City of Hercules attributable to the
construction of Phase III, upon the commencement of
commercial operations of Phase III, and an equal amount at
the end of the first year of such operations . It is
currently estimated that the total of all such additional
contributions would be approximately $400, 000 for all three
Phases .
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ARTICLE IV
IV. COMMITMENTS OF RCA.
4 . 1 Cooperation with IFMP. RCA agrees to
cooperate in the implementation of this Agreement and to
support implementation of the Phased IFMP consistent with
this Agreement .
ARTICLE V
V. GOOD FAITH COOPERATION.
5 . 1 Good Faith Cooperation. Recognizing that this
Agreement is intended to provide the basis for an improved
long-term relationship among Pacific, the Rodeo community
and the County, the Parties to this Agreement as
organizations agree not to take positions inconsistent with
the terms of this Agreement and to exercise care in raising
issues that may be contentious by first attempting to meet
and resolve such issues with others, including others that
are not parties to this Agreement, in good faith. The
Parties to this Agreement agree to act in good faith in all
matters relating to the implementation, interpretation and
execution of this Agreement . Nothing in this Agreement
shall be construed to abridge the rights of any individual
to freedom of speech.
ARTICLE VI
VI . COMPLIANCE WITH LAW.
6 . 1 Compliance with Law. This Agreement shall not
be construed to require the County to take any action,
except in strict accordance with all applicable laws,
including for example the California Environmental Quality
Act and the Ralph M. Brown Act .
ARTICLE VII
VII . GENERAL PROVISIONS.
7 . 1 No Attorneys Fees and Costs . In the event of
a dispute over this Agreement, each party to such dispute
shall bear its own attorneys fees, costs and expenses . No
suing non-party will be entitled to any fees, costs or
expenses .
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7 . 2 No Monetary Damages . The sole remedy of any
Party to this Agreement shall be to compel the other to
perform its obligations, by way of injunction or otherwise .
No Party, nor RCO or RMAC, shall be entitled to recover any
monetary damages from any other Party, RCO or RMAC.
7 . 3 Compliance with Law. The Parties are acting
in good faith, and intend all the actions contemplated by
the Agreement to be carried out in strict accordance with
all legal requirements .
7 .4 Sole and Final Agreement ; No Oral
Modifications . Except as otherwise specifically provided
herein, this Agreement (including the documents attached as
exhibits hereto and incorporated by reference herein) is
intended to be and is the complete, exclusive, entire and
final expression of the Parties ' agreement with respect to
the subject matter hereof . As such, this Agreement
supersedes and fully and completely extinguishes any prior
understandings or agreements between the Parties to this
Agreement, whether oral or written, express or implied.
Except as otherwise specifically stated in this Agreement,
no addition to, modification or cancellation of, or waiver
of any of the foregoing provisions shall be binding upon any
Party to this Agreement unless made in writing and signed by
each of the Parties to this Agreement . Notwithstanding the
foregoing, no Party to this Agreement shall be prevented
hereby from entering into contracts, agreements or
understandings with any other person or entity that are
consistent with, and do not supersede or otherwise modify,
this Agreement .
7 . 5 Warranty of Authority. By executing this
Agreement, each of the undersigned Parties to this Agreement
covenants, warrants, and represents that he, she or it is
fully authorized to enter into this Agreement and carry out
the obligations on behalf of the person or entity for whom
he or she is signing.
7 . 6 Notices . Except as otherwise specifically set
forth herein, all notices or other communications
specifically required or permitted to be given under this
Agreement shall be in writing and personally delivered or
sent by certified mail, return receipt requested and postage
prepaid, or sent by reputable overnight courier (such as
Federal Express) , or by telefacsimile with confirmation by
overnight courier or U.S . Postal Service the following day,
to the following:
If to RCA to:
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Leonard Miglio
President
Rodeo Citizens Association
873 Fourth Street
Rodeo, CA 94572
With a copy to:
Mark Weinberger, Esq.
Shute, Mihaly & Weinberger
396 Hayes Street
San Francisco, CA 94102
If to County, to:
County Administrator
Contra Costa County
651 Pine Street
Martinez, CA 94553
With a copy to:
County Counsel
Contra Costa County
Office of County Counsel
651 Pine Street
Martinez, CA 94553
If to Pacific, to:
Joseph E. Sparano
Chairman and Chief Executive Officer
Pacific Refining Company
180 East Ocean Blvd. , Suite 800
Long Beach, CA 90802
Judy K. Moore, Esq.
Counsel
Pacific Refining Company
180 East Ocean Blvd. , Suite 800
Long Beach, CA 90802
With a copy to:
Zane O. Gresham, Esq.
Morrison & Foerster
345 California Street
San Francisco, CA 94104
A notice shall be effective on the date of personal
delivery or telefacsimile transmission, if personally
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delivered or transmitted before 5 : 00 p.m. , otherwise on the
day following personal delivery or telecopy transmission, or
two (2) business days following the date the notice is
postmarked, if mailed, or on the day following delivery to
the overnight courier, if sent by overnight courier. Any
Party to this Agreement may change the person, address or
telecopier number to which notices are to be given to it by
giving notice of such change in the manner set forth above
for giving notice .
7 . 7 No Third Party Beneficiary. Except as
provided in Section 7 . 8 , this Agreement is intended solely
for the benefit of the Parties to this Agreement and shall
not be construed to create any rights in any other person or
entity.
7 . 8 Substitution of RCO as Party. The Parties
contemplate that, when formed, RCO shall be substituted for
RCA as a party to this Agreement . By its duly authorized
execution of a counterpart of this Agreement, RCO shall
obtain all the general rights and duties of the original
Parties, and the specific rights and obligations specified
herein.
7 . 9 Execution in Counterparts . This Agreement may
be executed in ,any number of counterparts, each of which
shall be deemed to be an original and all of which together
shall be deemed to be one and the same instrument .
7 . 10 Time of the Essence . Time is of the essence
of this Agreement (including its exhibits) and each and
every term and provision hereof .
7 . 11 Interpretation; Governing Law. This
Agreement shall be interpreted, and the rights and the
duties of the Parties shall be determined, in accordance
with the laws of the State of California, as applied to
contracts entered into and performed (or capable of
performance) in California by California persons or
entities .
. 7 . 12 Headings; Cross-References; Exhibits . The
headings and captions used in this Agreement are for
convenience and ease of reference only and shall not be used
to construe, interpret, expand or limit the terms of this
Agreement . All cross-references in this Agreement, unless
specifically directed to another agreement or document,
shall refer to provisions in this Agreement and shall not be
deemed to be references to any other agreements or
documents . Each of the exhibits attached to this Agreement
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is hereby incorporated into this Agreement by this
reference .
7 . 13 No Duress . This Agreement is executed
voluntarily by each of the Parties to this Agreement,
without any duress or undue influence on the part of, or on
behalf of, any of them. Each of the Parties to this
Agreement has read and fully understands the meaning of each
provision of this Agreement and has relied on the
independent advice and representation of legal counsel in
entering into this Agreement .
7 . 14 Successors and Assigns . The terms and
conditions of this Agreement shall be binding upon, and
inure to the benefit of, the Parties to this Agreement and
their respective successors and assigns .
7 . 15 Effective Date; Suspension of Obligations of
County. Pacific and RCA acknowledge that a major factor in
and material consideration for the County to enter into this
Agreement is the execution and performance of an agreement
among Pacific, RCA and the City of Hercules under which the
City would be obligated to contribute to RCO the same
proportion of the City' s net annual additional general fund
real property tax revenue from Phased IFMP as the County is
undertaking to set aside under Section 2 . 1 . 1 . Accordingly:
7 . 15 . 1 This Agreement shall become effective
when the City, Pacific and RCA execute such an agreement .
7 . 15 . 2 In the event that in any particular
year the City does not contribute to RCO the amounts
provided under such agreement in accordance with such
agreement, then County' s obligation to set aside funds under
Section 2 . 1 . 1 shall be reduced proportionately to City' s
failure so to contribute .
7 . 15 . 3 In the event RCA, Pacific and City do
not enter into such an agreement by December 31, 1994 , then,
as soon as reasonably practicable, the Parties shall meet
and confer to determine the extent to which the terms and
provisions of this Agreement can be accomplished. At that
time, the Parties may enter further agreements or modify
provisions of this Agreement as may be necessary or
appropriate to accomplish the purposes of this Agreement .
If after such consultation the Parties do not reach further
agreement, any of the Parties shall have the right to
terminate this Agreement .
7 . 15 . 4 Nothing in this Agreement shall be
construed to limit the right of the County to assist RCA or
14
RCO to enforce any of their respective rights under the
agreement among RCA, Pacific and the City of Hercules .
15
IN WITNESS WHEREOF, the Parties to this Agreement
have caused this Agreement to be duly executed in their
respective names by one of their respective officers or
representatives on the dates indicated below.
Date : December 1994 RODEO CITIZENS ASSOCIATION
By �J
/ A/:4
Its :—
Date :
ts :_Date : December 1994 COUNTY OF CO lz� COSTA AND
BOARD OF S ERV SORS OF
COUNT OF O COS
By:
Its
Date : December 1994 PACIFIC REFINING COMPANY
a California general partnership
Its : cr
APPROVED AS 70 FORM
(LEGAL DEPT.)
APPROVED AS TO FORM:
Date: December 1994 By: a
Victo J. Westman
County Counsel
County of Contra Costa and
Board of Supervisors
County of Contra Costa
Date : December1994 By: '
Mark Weinberger
Shute, Mihaly and Weinberger
Attorneys for
Rodeo Citizens Association
"1
Date : December 1994
By:
ane`-tS. Gresham
Morrison & Foerster
Attorneys for
Real Party in Interest
Pacific Refining Company
339235.ag5 [17558/31
EXHIBIT A
DEFINITION OF IFMP PHASES
I . Phase I of the IFMP.
Phase I will consist of the minimum modification of
existing facilities necessary to allow production of
approximately the same amount of gasoline currently
produced at Refinery, but which will meet CARB
standards .
A. Phase I New Units .
• Dehexanizer Unit
• Isomerization Unit
• Preflash Column
• Hydrogen and Steam Plant (one unit)
• Flare Improvements, including, (i) a new
enclosed flare designed to handle ordinary
daily operational needs for combustion of
excess refinery gases; (ii) additional
equipment to improve the recycling and
recompression of excess gases to minimize
flare activity; and (iii) additional
equipment to improve removal of liquid from
the flare system.
B. Phase I Upgrades .
• Fire Protection Measures : Additional
connection to the EBMUD water system to
provide a second source of fire water and
additional fire water pumping capacity and
additional monitors and hydrants along the
fenceline .
• Naphtha Hydrotreater
• Electrical System
• Fuel Gas System
• Instrument and Plant Air system
• Nitrogen System
• Process Piping Modification
• Cooling Water System
A-1
•
II . Phase II of the IFMP.
Phase II will consist of the minimum additional
modifications of then-existing Refinery facilities
necessary for production of reformulated diesel fuels
that comply with CARB standards .
A. Phase II New Units .
• Diesel Hydrotreater
• Vacuum column
• Gas Oil Hydrotreater
• Cogeneration Plant
• Fuel Gas Treating Unit
• Sour Water Stripper
• SRU
• Tanks
• Vapor Recovery System
• Cooling Tower and Cooling Water
Distribution System
• Computerized Control System
• Hydrogen and Steam Plant (one unit)
B . Phase II Upgrades .
• Wastewater Treatment Unit
• Utility Systems
III . Phase III of the IFMP.
Phase III will consist of additional modifications of
then-existing Refinery facilities to increase the
yield of reformulated fuels per barrel of crude
processed.
A. Phase III New Units .
• Alkylation Unit (including Butadiene
Hydrogenation Unit)
• Fluidized Catalytic Cracking Unit
• Product Treating Unit
• Fuel Gas Treating Unit
• Tanks
• Hydrogen and Steam Plant (one unit)
B . Phase III Upgrades .
• Additional Fire Protection Equipment
• Steam and Boiler Feed Water System (steam
lines will be extended to process equipment)
A-2
• Additional Sulfur Recovery Capacity (as
appropriate to remove/recover any incremental
sulfur from the� Phase III process units)
• Utility Systems
• Additional Flare Improvements
• Computerized Control System for Phase III
equipment
339235.ag5 [17558/31
A-3