HomeMy WebLinkAboutReso 118-2001RESOLUTION NO. 118-2001
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION AUTHORIZING THE FIRST AMENDMENT TO
THE PRIMARY RESPONSIBLE PARTY AGREEMENT FOR THE
GIBSON ENVIRONMENTAL SITE REMEDIATION
WHEREAS, staff recommends that the City Council adopt the First Amendment to the
Primary Responsible Party Agreement in order to ensure that the City remains a Cooperating Entity
under the Primary Responsible Party Agreement, as attached hereto as Exhibit A.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San
Francisco that the City Council hereby authorizes the First Amendment to the Primary Responsible
Party Agreement for the Gibson Environmental Site Remediation.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute the
Agreement on behalf of the City of South San Francisco.
I hereby certify that the foregoing Resolution was regularly introduced and adopted by the
City Council of the City of South San Francisco, held on the 14th day of November 2001, by the
following vote:
AYES:
Councilmembers Pedro Gonzalez, Karyl Matsumoto and John R. Penna,
Mayor Pro Tem Eugene R. Mullin and Mayor Joseph A. Fernekes
NOES' None.
ABSTAIN: None.
ABSENT: None.
ATTEST:
City Clerk
EXHIBIT A
FIRST AMENDMENT TO PRP AGREEMENT FOR
THE GIBSON ENVIRONMENTAL SITE IN BAKERSFIELD, CALIFORNIA
This First Amendment to PRP Agreement for the Gibson Environmental Site in
Bakersfield, California (the "First Amendment to Agreement") is effective as of June 6, 2001
(the "Effective Date"), and is by and among the undersigned parties (the "Cooperating Entities").
DEFINITIONS
1. Unless specifically defined in this First Amendment to Agreement, defined terms
shall have the same meaning as in the "PRP Agreement for the Gibson Environmental Site in
Bakersfield, California," effective as of June 1, 2000 (the "Agreement").
RECITALS
2. In June 2000, certain of the Cooperating Entities signed the Agreement, including
Exhibit E thereto, the Joint Defense, Joint Prosecution and Information Sharing Agreement (the
"Joint Defense Agreement"). The Agreement and its Exhibits, including the Joint Defense
Agreement are incorporated herein by this reference.
3. The Cooperating Entities that signed the Agreement in June 2000 have been
cooperatively performing and financing investigative and remedial work at the Site required by
the Order issued by DTSC on November 8, 1999.
4. In April 2001, certain of the Cooperating Entities were invited to contribute to the
performance and funding of the work at the Site required by the Order.
5. The Cooperating Entities wish to amend certain provisions of the Agreement to
facilitate the addition of Cooperating Entities to the Agreement.
6. This First Amendment to Agreement is entered into between and among the
Cooperating Entities to comply with the Order by facilitating the performance of necessary work
at the Site required by the Order in a cooperative and cost-effective manner, and in a manner
consistent with the requirements of CERCLA and the National Contingency Plan.
7. Nothing in this First Amendment to Agreement is intended as or shall constitute
an admission or concession on the part of any of the Cooperating Entities of any liability or
wrongdoing of any kind or an admission or concession on the part of the Cooperating Entities
concerning the merit of lack of merits of DTSC's or any other party's claims regarding
environmental conditions at and around the Site.
AGREEMENT
NOW, THEREFORE, based on the above Definitions and Recitals and in consideration
of the mutual agreements, covenants, and other good and valuable consideration, the receipt of
1 306414.1
which is hereby acknowledged, the Cooperating Entities agree and hereby amend the Agreement
as follows:
8. Contract, Exclusive Benefit. The first sentence of Paragraph 38 of the Agreement
is amended to state:
"The Cooperating Entities agree to be contractually bound by the provisions of the First
Amendment to Agreement, the Agreement and the Joint Defense Agreement, and to
cooperate to effectuate the purposes of the First Amendment to Agreement, the
Agreement and the Joint Defense Agreement."
9. Management Committee.
The first sentence of Paragraph 43.a. of the Agreement is amended to state:
"The Management Committee shall consist of the representatives of at least eight (8) and
no more than twelve (12) of the Cooperating Entities, who are willing to serve and who
are elected by vote of a majority of the allocated percentages of those Cooperating
Entities in compliance with this Agreement."
The last sentence of Paragraph 43.a. of the Agreement is amended to state:
"As soon as possible after the Effective Date of the First Amendment to Agreement an
election shall be held to fill the two new Management Committee vacancies created by
the First Amendment to Agreement plus any other Management Committee vacancies
that exist at the time of such election. Thereafter, open elections for the entire
membership of the Management Committee shall be held every two years, with the first
such open biannual election to be held in December 2002."
10. Cost Accounting, Assessment and Payment Procedures, Site Response Costs.
The last sentence of Paragraph 44.c. of the Agreement is amended to state:
"The Cooperating Entities agree that the $6,000,000 spending cap formerly contained in
the last sentence of Paragraph 44.c. is no longer necessary or appropriate, and that cap is
hereby deleted."
11. Interim Cost Allocation, Relative Volumetric Shares. Paragraph 45.a. of the
Agreement is amended to state:
"The interim cost allocations shall be based on the relative volumetric shares of liquid
wastes and solid wastes of the Cooperating Entities reported on Exhibit A hereto ("May
2001 Interim Allocation Tables"). The May 2001 Interim Allocation Tables shall
supersede the volumetric shares recorded on the SAIC Tables, formerly Exhibit D to the
Agreement. Every reference in this Agreement to the SAIC Tables is hereby amended to
refer to the May 2001 Interim Allocation Tables."
2 306414.1
I2. Interim Cost Allocation, Additional Cooperating Entities. The first two sentences
of Paragraph 45.c. of the Agreement are amended to state:
"In the event the Cooperating Entities approve entry into the Agreement by additional
entities listed on the May 2001 Interim Allocation Tables after the Effective Date of the
First Amendment to Agreement, each such additional entity shall pay its interim cost
allocation percentage share, as a Liquids Cooperating Entity or Soils Cooperating Entity,
or both as the case may be, calculated as set forth in paragraph 45.b., of Common Benefit
Past Costs and Site Response Costs and Administrative Costs incurred pursuant to the
Agreement, plus a late-entry premium to be determined in the discretion of the
Management Committee. At the time of entry of any such additional Cooperating Entity,
the interim cost allocation percentage shares of the Cooperating Entities affected shall be
recalculated from the time of entry forward."
13. A new Paragraph 45.h. is hereby added to the Agreement. Paragraph 45.h. states:
"Refinements to Interim Cost Allocation Percentages. The Cooperating Entities agree
that refinements of interim cost allocation percentages may occur prior to a Final Cost
Allocation under the Agreement only by the consent of eighty-five (85) percent of the
interim cost allocation percentages of the Liquids and Soils Cooperating Entities
participating at the time the vote is taken."
14. A new Paragraph 45.i. is hereby added to the Agreement. Paragraph 45,i. states:
"Adjustments to Future Cash Calls Based on Changes to Interim Cost Allocation
Percentages. Whenever, for any reason (including, without limitation, changes to interim
cost allocation percentages pursuant to Paragraphs 45.c. or 45.h.), it appears that a
Cooperating Entity has paid more than its currently-allocated share of the total assessed
costs under the Agreement, then that Cooperating Entity shall receive a credit against
future assessments until the overpayment has been corrected. Similarly, whenever, it
appears that a Cooperating Entity has paid less than its currently-allocated sham of the
total assessed costs under the Agreement, then that Cooperating Entity pay a surcharge in
the next assessment in an amount equal to the underpayment."
[continued on following page]
3 306414.1
IN WITNESS WHEREOF, the Cooperating Entities hereto enter into this First Amendment to
Agreement. By signing this First Amendment to Agreement, the Cooperating Entities are also
entering into the Agreement and the Joint Defense Agreement. Each person signing this First
Amendment to Agreement represents and warrants that he or she has been duly authorized to
enter into this First Amendment to Agreement, the Agreement and the Joint Defense Agreement
by the company or entity on whose behalf it is indicated that the person is signing.
Dated:
Cooperating Entity:
Name
Title
Address
By:
Designated Representative for Receipt of Notices and Invoices:
(Signature)
(Name)
(Title)
Telephone Number
Facsimile Number
Email Address
4 306414.1
Gibson Environmental Site, Bakersfield, California
September 2001 Interim Volume Table
Solid Waste Generators
Company/Entity
1 CAL TRANS
2 Sears Roebuck and Co.
3 Ultramar, Inc.
4 Pacific Gas & Electric Company
5 Union Oil Company of California
6 Tidelands Oil & Gas Corp.
7 City of Los Angeles
8 Los Angeles MTA
9 Arco Products Co.
10 Tuntex Properties (Sunquest)
11 Pacific Bell
12 Owens-Illinois Inc.
13 City of South San Francisco
14 Valley Crest Landscape
15 Chevron U.S.A.
16 Port of Oakland
17 Southern California Edison
18 Ralphs Grocery Store
19 Pilot Chemical Co.
20 East Valley Water District
21 Church of Jesus Christ of Latter Day
22 IASCO
23 Mid-State Bank
24 Penske Truck Leasing Co., L.P.
25 Anderson Clayton (Producers)
26 Dart Container Corp.
27 Coca-Cola Enterprises
28 Pepsi Cola
29 Johnson & Johnson (Neutrogena)
30 Long Beach School District
31 U-Haul Corp.
32 City of Santa Barbara
33 Kraft (Knudsen)
34 City of Monterey
35 Exxon/Mobil
36 Disneyland
37 The Fresno Bee
38 Greyhound Lines, Inc.
39 Texaco Inc.
40 Baker Hughes
TOTAL
Tonnage
45,733
38,724
36,132
27,018
23,665
7,820
5,752
4,967
4,808
4,520
4,36O
3,976
3,509
3,467
2,919
2,814
2,420
2,399
2,237
2,052
2,005
1,972
1 795
1 786
1 652
1 614
1 610
1 580
1 561
1 552
1 477
1 476
1 447
1 422
1 422
1,419
1,380
1,329
923
652
259,366
Percent
17.633%
14.930%
13.931%
10.417%
9.124%
3.015%
2.218%
1.915%
1.854%
1.743%
1.681%
1.533%
1.353%
1.337%
1.125%
1.085%
0.933%
0.925%
0.862%
0.791%
0.773%
0.760%
0.692%
0.689%
0.637%
0.622%
0.621%
0.609%
0.602%
0.598%
0.569%
0.569%
0.558%
0.548%
0.548%
0.547%
0.532%
0.512%
0.356%
0.251%
100.000%