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Item 8 - Status Report on Participation Agreement/Solid Waste � AGENDA REPORT `��� ��� W,�r CITY OF POWAY �'F M.,.,,, �.w �-4 cm' rN rxe co�d TO: Honorable Mayor and Members of the City Council FROM: James L. Bowersox, City Man��J `) INITIATED BY: Alan D. Archibald, Director of Public Services - DATE: November 17, 1992 SIISJECT: Status Report on "Participation Agreement"/Solid Waste BACRGROUND The Cali•fornia lntegrated Waste Management Act of 1989 (AB 939) requires cities and counties to develop County-wide integrated waste management plans to address solid waste disposal including recycling, resource recovery, composting and source reductions. Many of the alternative approaches to land filling, such as the San Marcos Recycling Center, are capital intensive. To support financing such facilities, the County must be able to guarantee delivery of a consistent volume of solid waste. The - proposed vehicle, to ensure such guarantees, is the subject "Participation Agreement, Exhibit A. Cities have tentatively agreed to such an agreement only if a greater authority in the decision-making process is given to the cities . To address this need, a Solid Waste Commission will be established to review and approve the County' s Solid Waste Capital Improvement Program and Financing Plan and other major policy and program activities . The Commission will be made up of representatives from the County and each city that signs the agreement. The Commission would also make reeommendations to the Board of Supervisors regarding the solid waste budget and tipping fee increases . FINDINGS The draft Participation Agreement will be submitted to the SANDAG Board, acting as the AB 939 Task Force, at the November 20th meeting. The agreement will then be presented to the County Board of Supervisors at the December 8th meeting. Pending approval, the agreement will then be distributed to each City and sent back to the SANDAG Board for their ap roval at the December 18th meetin . ACTION: 1 of 18 "�OV 1 "r t9°2 i7�i�'] 8 Status of "Partici ation A reement"-Solid Waste Page November 17, 1992 A key ingredient to the decision-makinq process is a special audit of the County' s Solid Waste Enterprise Fund. The audit will be completed by December 22nd. Based upon preliminary information, the tipping fee for County landfills will increase from $28 per ton in FY1992-3, to about $90 per ton in FY1993-94 . This estimated increase anticipates that every city will enter into a participation agreement with the County. Should a City not enter into the agreement by February 15, 1993, a 50� surcharge will be assessed for each ton of solid waste disposed of at County landfills. The surcharge may be a higher percentage in future years . The term of the participation agreement is 20 years, with a five-year escape clause notice. FISCAL IMPACT Since the solid waste within Poway is collected by private companies, the tipping fee increases will be passed on to their customers through rate increases. The City currently collects license fees from each hauler that funds staff expenses on solid waste issues . With the establishment of an exclusive franchise, effective January 1, 1995, the franchise fee will fund the City' s solid waste management and AB 939 compliance efforts . ENVIRONMENTAL REVZEW This status report is not subject to C.E.Q.A. review. DISTRIBUTION Standard distribution. RECOMMENDATION This report is for Council ' s information. It is recommended that the report be received and filed. A subsequent report will be prepared for Council discussion and direction prior to the December 18th SANDAG meeting in order to give the City' s SANDAG representative direction prior to taking action on this agreement. JLB:ADA:pq Attachments (1) -- Exhibit A: "Participation Agreement" 2 of �s �nU 1 7 1992 ITEi�7 3 It� Oa '9? 12:a6 $619 87ti 2636 CO SD SOLID 19STE +-» PO���AY '�100: '0'?0 November 3 , 1992 AGREEMENT ggTWEEN THE CITY OF ANB COUNTY OF SAN DIEGO CONCERNING DELIVERY OF' SOLID WASTE TO COUNTY FACILITIES AND THE ESTABLISH?SENT OF THE SAN DIEGO COUNTY SOLID WASTE COMMISSION ("Participation'� Agreement) I_ Parties. This Agreement ("Aqreement") , entered into this day of , 1992, between the City of a munici al corporation of the State of California, °cit " p San Die o ° �. ( Y ) and the Caunty of g ( County ) , is made with reference to the Yollowing facts: ZI . Recitals. A. The California lntegrated waste Management Act of 1989 (Pub.Res.Code 40000-ff) caused cities and counties in California to address solid waste disposal through methods other than primarily iandfillinq, as was done in the past. Many of the al:e^iate integrated solin waste methods use more capital-intensive _ approaches, such as recycling, resource recovery, and composting; nnd B- To support financing Eor the Solid waste Manaqement System (°County System") , the County System must be able to guarantee deiivery of consistent amounts of solid vaste. The vehicle to ensure such guarantees is the Participation Agreement; and C. County owns and contracts with and may in the future own and/or contract with various solid vaste facilities such as latidfills, resouzce recovery, transfer and composting fncilities ("County Facilities") ; and D- Residents of City ("Ratepayers") , including both individual, business and public entities (including the City itself) , qenerate various forms of waste material, including solid waste ("City Solid waste") ; and E. City has let a Pranchise or made other arrangements for the collection and disposal of its solid waste; and F. County agrees to accept that portion oP city Solid waste which is legally acceptable at a Class III L3ndfi1l (CCR 'citle la ; Title 22 ; Subchapter 15, Title 23) under such laws or regulations as are in effect at the time of disposal (��Acceptable waste") at such of County' s Facilities that County shall direct according to the terms herein contained; and 3 of 18 N�V 1 ? 1992 ITL��'� � 11 0_l '92 12 d6 $6t9 9i� :636 CO SD SOLID R"STE --» PO���d'i faJ005� 02U Now, therefore, the parties hereto agree as folloNS: III . Aqreement. A_ City ' s Duty. City shall require City vehicles and solid waste collectors, haulers and/or transporters and others involved in the transpert of solid waste ( "C011ector") operating within its ,�ur: s3iction to dispose of Acceptable Waste qenerated within the City limits and any residue from recycling of Acceptable waste at such County Facilities as County sha1J. desiqnate pursuant �o section III.B_ 3 _ , below, and City shall enforce these requirements_ In addition, City shall require its solid c+aste Collector to the extent it may lawfully do so, to pay the County's disposal fee ("'Pippir.g Fee") for same_ l. Exception for Recycling Activities. For the purposes of this Agreement, recyclable materials (as designated in the county code) can be delivered by the City or the County to a recyclinq facility located within the County (other than a County Facility) for purposes of recycling. Hovever, any residue resulting from recycling activities which cun legaliy be disposed of at a Class III Landfill shall be di5posed of as directed by Count�, pursuant to Section IIZ .B 3 . , below. 3�s add�t2otsa� mar}tets �ctir x�GY�la3�l� ;:�a�er2;i�t�s �aeco�ie 'ayaslab3:'e, Y.he C_o�3ssn;e�s A1a1r;;sugge�C �he ,G'r�uFS�.F C�c�l� de7�2t}q teayCla2ile ma�:erz,als �e 31U,8iic3"ed: to �eflect: tha �addS.X.2dii�' z' -- ' . . ,.. ,. . . _ ._ ,..�_ ._�y°tak�le..matarsals : 2 . Conditions to City's Duty. City agrees to participate in qood faith in the Solid waste Commission ("COmmission'�) discussed in Section IIS . B. B. of this Agreement. 3 . Reqional Waste Stream_ City shall not object to receipt of Accepr,,ble Waste at any County Facility based on geographic origin oT that waste. B. County ' s Duties . 1. Exemption of Signatory Cities from Mandatory Source Separation Requirements. A� t3ie� requ�s��aE,��",Gi `u t�;� CFF.. �L:.... ' } �tra—ra�esie� •`�=�-n e€ ��}s �=fee�`ettt--�i�y—a� Count�y�shall enter into good faith negotiations on modification or exemption from any existing or Luture County ordinance, ins-trument or policy mandating the source separation of recyclable materiaLs Yrom wasta delivered to County Facilities. - • 2 4 of 18 a;!�V 1 7 1992 � 1�h'd � 11 '01�9? 12: ]i '�'613 9i; 2636 CO SD SOLID R'SiE --- P01Vd7' I�'006 '0?0 �= — — --�--— ---...-. -- — — --- — Such negotiation shall take into account the County's existing and planned recycling faca.lities. City and its collector shall further be excused from the payment of any outstanding surcharges (specified by the Mandatory Recycling Ordinance) incurred during any period of ti.me in Which it may have been out of compliance vith such iequirements prior to this Agreement. 2 . Acceptance of Solid Waste. County shall, durinq the term oY this Agreement, provide suffieient capacity to allow, and shall allow, the disposal of all Ac:ceptable Waste generated in City at a permitted Counr_y Facility or such other facility as County may direct pursuant to Section III. B. 3 . , below. , a. Effect of Inability to Obtain Permits. Notwithstanding Section I2I . S. 2 , if the County is unable to obtain permits for nev or expanded faciliti.es, the County shall continue to accept City Acceptable Waste on a�� pZQ:zra�E3 basis with Acceptable 3�7aste from the unincorporated area of"'the County. County shall inform Solid Waste Commission of all attempts to expand or site new solid waste disposal facilities, so that if the County, after qood faith ef£orts to do so, is unable to obtaia pe�a:its �or such Pacilities, all cities sha11 be provided . maximum possible notice. Nothing in this eontract shall be cor�strued as obiigating any agency, including the County oT San Diego and its Board of Supervisors or a City, to qrant a perr.�it for a =clid waste facility. b. Effect of Loss of Pertnits. Notuithstandinq Section III. B. 2 _ , if a County Facility shall be ordered closed by a regulatory agency, and if other County Facilitie5 are also affected by the closure order to such an extent as to result in insuEficient wastz treatr.ment and/or disposal capacity system wide, the County shall continue to accept City Acceptable Waste on a�eqtta-� .g�pa:���t� basis with Acceptable ivaste from the unincorporated area of"�the�'County. In allocating t2�e remaining treatment and/or disposal capacity at County eacilities unaffected by such closure order, County shall gi��e rirst consideration to the treatment\disposal of waste qenerated by signatories to Participation Aqreements. If no capacity is available, County shall have no duty to provide capacity. 5 of 18 3 �v�U 1 7 1992 �T���n � 17 0� 9'! 1?:-{b $"9 9iJ ?636 CO SD SOLID �*"�Te --- PO��'.il �100i OCO 3 . Maintenance of Subregional Landfill Locations. The County shall, to the extent leqally possible, maintain a system of landfills and other County Facilities in the north, east and southern parts of the County. In the event of a treatment or disposal capacity shortfall in one or more of these regions, use of county Facilities shall not be denied to any city on the basis of its qeographical location; provided, however, that County will accord first preference in this regard to signatory Cities and shall direct signatory City' s Acceptable Waste to the nearest, or othexvise most cost effective and appropriate county Facility. 4• New Technologj,es. County agrees to participate in good faith in the Solid Waste Commission "Commission" discussed in Section ZII _ H_ 8 . of this Agreement. County further aqrees to participate with the CommiSSion in reviev of new teEhnologies on an on-going basis, to determine their cost effectiveness and environmental safety. 5. Tipping Fee Charge. a. Tipping Fee to City. The Tipping Fee charged by the County for the disposal ot City Acceptable Waste vithin the County system shall r,c.�t exceed an amount necessary to raise sufficient revenue to iund the reasonable and necessary costs for management of th� County System. Such costs, reviewable by the City, include, but are not limited to, operations, maintenance and moniY_orinq of currently operating and non-operating landfills, Sta�e and locally imposed reserves for development of replacement facilities and closure of non-operating facilities, solid waste facility fez, nitigation fee, recycling proqrams, household hazardeus waste orograms, and development of new County Facilities for the safe and sanitary manaqement of solid wastes. b. other County Facility Tipning Fees. The Tipping Fee charged by the County ior the disposal of City Acceptable Waste at similar types of county Facilities shall be the same as charged for soli3 t�aste generated from the unincorporated area of the County. In addition, Tipping Fees for County Facilities accepting similar types of waste (mixed municipal waste, green waste, tires) shall be the same regardless of location_ 4 6 of 18 ��'f 1 7 199� �T��° � li;uJ '9Y 1:: 19 ^p619 9i� ?636 CO SD SOLID 195TE � - PO��:�1 �j. 005�0?0 �"" -- -- --- '--• 6. Solid Waste Faci.lity Fee Any signatory City, the County, or the Cit}• of San Diego in vhich a County Facility is located shall be paid a solid Waste Facility Fee ('�Facility Fee" or "Fee") for each ton of waste delivered for processing at such County Facility. The Fee shall izitially be set at an amount equivalent to the appropriate percentaqe Por the facility type (as described below) , as that parcentaqe of the Tipping F2e in efPect on January 1, 1993 . Thereafter, the Facility Fee shdll be adjusted automaticclly and concurrently vith any increase in the Tipping Fee, by an amount equal to the percentaqe increase in the Tipping Fee or an amount not greater than five percent ($) of the current Facility Fee, whichever is less. F'acility types and pereentage of the Tipping Fee* (In effect on 1/1/93) ; o ' Landfill = l0� of Tipping Fee ($2 _80) o Mixed Solid Waste Material Recovery Facility = 7 .5$ of Tippinq Fes ($2 , 10) o Transfer Station = S�. of Tipping Fee (51. 40) *For the purpose of this calculation, the Tipping Fee does not include the Solid Waste Faeility Fee or the Mitigation F'ee. - If a jurisdiction has more than one County solid waste iacility at the same location, or �+��-++.�_� �p�„�i�,�q�s location, it would receive the higher of the applicable Fees, "but not more than one Fee. rhe Fee for all future facilities shall be the Fee Yor that type facility as of January 1, 1993 uith adjustments as described above. 7 . Mitigation Fee. The County agrees to collect as part of the Tipping ree a Mitigation Fee whxch is five percent (56) of the Tipping Fee i� ef�`��� Qrr ,7anuazx>T„� �,`3��R T ` '3"s`g�ter`, th� �'1?ac17,,ir�y ��e�shai.3s. �E ad7us�'ed automa��S�,�1�r a�d �oAL��,�ently tV`sth;�y.in:cT�ase :',Ln.�he Tipn�.ng:;;#�ee,„ ;??y' �usr�ciat3a#'�„ �gu�1 '�?,r•'�h,� pqrcentaae incr�ane..;:�� the i.xppitig� Fee aae�°a� a,i¢�cutit �hat gredc�er ��,an Ezve, Percezit ��,j ,;of, t.�ie current.;'�acsl3ty Fe�,;;� �7r.�cfi?��7'sr se 3ess, ,' ' Th� County or any si9natory City may apply foz the Mitigation Fee Fwhi�i; satx�t-�i� �o� a .�p�Ci�Tt r'�2�cr�a� '�,aF cp��,'ecfr ,� dacuDler+�ed:.impact aai�z7�g ,trom a�Y �,4�lrF s+as�,� fa�l„it�r„r and ,not '��¢i�i atso7s �throu 2s �QA ,c�;�.air c1'C11��' ,�_... ... . .,. 9 . g . .. . . , ��r�l��&s. Any signatory Citji o'r' the couiity s,�F�'icli is receiving� a SoI�i3 Waste Facility Fee for a particular County Pacility would not be eligible to apply for a Mitigation Fee for that same County Facility. The application process shall be cietermined by the Commission. 5 • 7 of 18 vnV i 7 1992 17�t�" `� 11 �0� �9e' 1? 50 'b'6' � 9iJ ?636 CO SD SOLID W'°TE ��- PO��'.�I' �009 0:0 8 • Solid Waste Commission. a. Creation and Membership. There is hereby created the San Diego County Solid Waste Commission ("Commission") . The Commission shall consist of one member from the County of San Diego and one member from eaeh Signatory City ("Member Aqencies") The County member shall be a me.mber oT the Board of Supervisors and the Cities members shall be members oi their res�ective City Councils_ All Commission Members and iilte�t�,kes shall be appointed by their respective governing bodies �ka me}�a�se a��e} a�-a��e��xa�e-� ae� ' �'��'��• � �Ie�ted. t?�'���`i�.l representative of the City of San Diego may serve as an ex-officio non-voting member. b. Powers. The Commission shall have the following puwers: (1) To review and approve the major policy areas and major proqram activities related to the Regional So1id Waste System and the Solid Waste Enterprise Fund (examol.es grovided in Attachment 1) _ (2) To review and approve the Capital Tmprovement Plan and Financing Plan related to the regional solid wa;te system and the Solid Waste Enterprise Fund (examples provi3ed ir� ACtachnent 1) , (3) To reviex and make recommendations to the County Board of Supervisors regarding thee�.nnual Work Plan, Budget, 'Pipping Fee increases and matters specified by this Aqreement. (Attachment II provides examples of issues that wi11 not come before the Commission) . Other issues may be brought before the Commission for their review and recommenda*_ion by a reques� of three Commission Members (c+hich is the same process tha� sets the dispute resolution process into motion) . c_ Vote The Commission shall vote on all items on the basis of one vote per Member Agency �c�loxls , sha,Xl 'b.e d�'e"erm7,Aeci by a ma.�er��y a� th�se. �+eml�s�rs px!�sen�E: �, �_._ ,. - �.,.,. . , ��t,� :.:: �-�€ �� three Mer�e=' Agencie� '=equest`� a weig2ited '"vote after voting on any particular item, then in that event a new weighted vote, which will be final and binding, shall be taken. The weighted vote procc-ss (dispute resolution) is set forth below. 6 8 of 18 ��V 1 7 1992 1�YC�'�° � 17.�Oi '9'1 lZ.�i $619 9i� 2636 CO SD SOLiD ���STE +—� PU��'.�1- �.o010�OZ0 .— ^ �-- — -- — — ^ d. Dispute Resolution. When a veighted vote (based on population) is taken, the vote of not less than one-third (1/3) of the Member Agencies, representing not less than fifty-one percent (52�) of tY,e total. weighted vote of the Member Agencies shall be required to supersede the original action. If the ueighted vote feils, action determined by the oriqinal vote shall stand. when the weiqhted vote is taken there shall be a total of one hundred votes. Each Member Agency shall have that number of votes determined by the apportionment Toi'muld, set iortk: in Attachment III, provided that each Member Agency sha11 have at least one vote, no Member Agency shall have more thar� 4o votes and there shall be no fractionaJ. vote. e. Meetings. The Commission shall meet at least tyfi2ce-�a year - -'-' - 4 -'�--z.. e��.. f. Financial Statement & Management Audit. The County shall provide to the Conuuission an annual financial statement oP the Solid Waste Enterpri-:e Fund and a menagement audit on a schedule as determined by the Commission_ g. No Authority to Breach Countv contrac� The parties aqree that no power granted to the Conmission shall be interpreted to authorize the Commis�aion to cause a breach or default by the County under any contract, agreement or obligation (including, but not limited to tha Solid waste Enterprise Fund Resolution) regarding solid waste or the Solid Waste Enterprise Fund. 9 . Solid Waste Management Committee. The County agrees to forr„ a Soli3 Waste ,!anage�ent Committee ("Management Committee") consisting of the County and a11 signatory Cities for the purpose of providing staff revieu of material being forwarded to the Commission_ The Manngement Committee shall have one member or alternate Prom the County and Yrom each signatory City which member shall be the Chier. Administrator or C�:�,�r Manaqer _ p, regre.Seit�atzYe'�.a� �h� ,C���r` e�'_Sa�fi}'�ee�q �nay 6�r,"ire a�.,an ex;o�F1�i'o . . _ . , . _. ; • - ,. ._ .. .�. .. .. . -. . .,.. , ...:, non=vot�zng �aieniher.,: 7 9 of 18 r—�;r ��U 1 7 1992 �_� �:e-� 3 1.1. 0� •92 12:51 $"g 9 i J 2636 CO SD SOLID !''�T'c +�- PO�F.{1 �',i 01 i 0'�C lo_ xon-Signatory Jurisdictions. County agrees to assess a surcharge on solid waste from anx jurisdiction which does not sign a Participation Agreem�nt by Ma=,�h'`;� €e�a��.5, 1gg3 . The surcharge shall be fiFty percent (50',) of'the current Tipping Fee Por the first year. After that time, the Commission shall determine �� the surcharge 3s �� Tti� �u��z�yre�e F�;� �xa�x p�,ss�i���e bu� zx��teaa;�ls a zae��oc� ta ofEs�t; � y .+;r'*�r��e3 �csws ka ":�,'e� 81'S�em a'F'ic� aCepuht .`Po.� aity econamic �isks as:e��sc� iay �he ��n�+S��Ma�pr�*; Juri.s�i'x�tion�.. The surcha=ge'skiall only be�usefl to�pay for the costs of E2ie manaqement of the County System. After �ase� 1 ��-�5, 1993 tha Solid Waste Commission shall determine un$e= vhat conditions other cities shall be allowed to sign a Participation Agreement. 11. Equal Treatment of Signatories ' waste. County sha11 treat all Acceptable waste subject to participation agreements equally, regardless of its origin. Shou13 t}�e County contract for the treatment and/or disposal of waste in facilities located outside of its jurisdiction, all slgnatories to such agreements shall be allowed access a ' ' �� RIi �, ,p2'o r,a�;3 faass.S. to such facllities. The Commission shall assi��. "in Ehe identification of such out-of-county facility sites, should they prove necessary_ If at anytime there is determined to be a lack of c:apacity in the County System, signatory cities will hav� the right to the capacity on the same basis as the� unincorporatec; areas and ahead of non-signatory cities. � �- Agreements with Other Cities If, after a City has siqned the Participatior. Aqreement, another city neqotiates clauses or ag'r•eements advantageous to itself, those Cities that have already�signed wil'1 be offered the opportunity to amend their Participation Aqreement to in clude the new clauses to the extent applicable. � • -' " wz12 aeqo�3,ata � s�pa7Cate,I+Iti't�Ut A ct A ��,,:Cou�ity �� .'x �esmen� ;:ai�.t� :the c2ty a�.S�n AfeSo�`ti?h�,C11., s�7C3.I b�:}sre�t�gli� 3��fp�2 ��,_ Co�a:s,sian £qr .review. . �- Term_ The term of this agreement is tcrenty (20) years, unless terminated beforehand, as provided below_ 8 lo of 18 N�V 1 7 �992 1���': � Li� U1-5Y 16:33 "(3`6i9 9i1 :636 CO SD SOLiD 41`S7E + + PUR'.�1 ��..�'00�- OlY ^ "— — --�- — -�'��— --' -- '— 1_ Automatic Reneval Provision This Agreement shall be automaCically rer�ewed for a period of one year on the first day of tha first January af[er the efPective date, and on the first day oP each January thereaiter unless written notice of nonrenewal ls served by the City on the County at least 90 days prior to said date or written natice of nonrettemal is servxd by the County on the City at least 60 days prior to said date. Under no circumstances shall a no*_ice op renewal to either party be required to effectuate the automatic renewal of this Agreement. Tf either paTty serves notice of intent in any year not to renew this Agreement, this Agreement shall remain in effQCt for the balance of the period remaining on the term since the original execution or the last renewal of this ngreement as the case may be. E. Termination_ 1_ Early Termination. City shall ttave the right, upon five (5) years ' advanee vritten notice to the County, to te7�minate this Agreement. 2 . Buyout Cost For Early Termination_ _ If a City desires to terminate this Agreement prior to expiration of the 20 year term, the Commission shall determine the conditions and the buyout cost to keep the County System Prom erperiencing any negative fiscal impact. ��ta,Coicm�issson sda��..chose ' _ .:. . _ . 3n 1nde�ieYider�ti?�arcsul::tra�� to�tletermfne the aast,s: : �u ..,.. .� .� ... ..., _.. IV. Zndemnity. A. Hold Ha1^ncless. The County shall defend, indemnify and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, costs and expense (including, witnout limitation, attorneys' fees) resulting from or arising out of the disposal at a County Facility of Acceptable waste qenerated �y tne City or c�rithin the CiLy limits when disposal is in accordance c+ith the applicable rules and requlations at the County Facility. county's indemnification shall include any and all costs, expenses, attorneys ' fees and liability incurred by the City, and its officers, whether the same proceed to ju3gement or not. Further, County at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees, excapt as such lawsuit arises specifically from negligence of city, its oYficers, agents, or employees. This indemnity shall not apply in cases of lawsuits or other actions taken under CERCLA (a2 U.S .C. - 1901 et seq. ) , RCRA (42 U.S .C. - 6901 et_ seq. ) , or similar Stat� Laws. 9 n 11 of 18 `?n'� i 7 199� x:�-��� 11 QA�9: 16.39 3�6" 97� 2636 GO SD SOLID it�p�^ � � pp'.i.��' �UOS�OlY ?? B. Limitations on Ongoing Responsibility for New Sites. City shall not be held liable for costs associated with County Facilities brought into the system after termination of this Ayreement, provided City does not, in any way, use, inYluence, permit, or interact with such new site in future. V. Miscellaneous. A. xotices. All notices, demands or requests pursuant to this Agreement shail be in Writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United StateS mail, addressed to such party, postage prepaid, registered or �:ertified, uith return receipt requested, at the addresses identifled adjacent to the signatures of the parties represented. B. Entitlement to Subsequent Notices. xo notice to, or demand on, the parties for notice of an event not herein legally required to be given shall in itself create the right in the parties to any other notice or demand• in the same, similar or other circumstance_ C. Entire Agreement. This Agreement, together vith any other written uocument reTerred to or contemplated herein, emhodies the entire Agreement and understanding between the parties relating to the subject matter hereto. D_ Capacity of Parties. Each signatory �arrants that it has legal authority to enter into this Agreement. E. Modificdtion. Amendments, modifications, and craivers to this Agreement shall Le mutually agreed to in writing by the Parties and approved by their respective legislative bodies. F. counterparts. This Agreement may be executed in more than one counterpart, each of which sha11 be deemed to be an original but all of which, when taken together shall constitute but one instrument. 10 LZ of 18 ti�V 1 7 1992 I�V�Jn � 11 �0�-9: i6: i0 $S13 9i1 26J6 CO SD SOiiD �FSiE - - PU�c.ql_ _ Cd006-01? G. Non-Severability. In the event that a substantive provision of this Agreement shall be determined to be invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in qood faith and agree to such amendmants, modifications, or supplements to this Agreement or such other appropriate action as shall, to the maximum extent practicable in light of such determination, implement and give etfect to the intentions of the parties as reElected herein_ H. Headinqs. The captions and headings in this Aqreement are for convenience only and shall not define or limit the provisions hereof. I. Waiver. No course of dealing or failure or delay, nor the eingle failure or delay, or the partial exercise oP any right, power or privilege, on the part of the parties shall operate as a waiver of any rights herein contained. The makinq or the acceptance of a payment by either party vith knowledge of the existence of a breach shall not operate or be eonstrued to operate as a waiver of any such breaeh. ' J. Remedies. All Parties hereto shall have the right to commence any ection , at 1aw or equity, including specific performance, in order to remedy a breach of the terms herein, provided that neither Partv shall have the right to terminate this Agreement except as provided in Section III .E hereof. K. Other Agreements. This Agreement shall not be deemed to amend or alter the terms of other agreements, vhether existinq or approved in the future, between City and County, except as provided herein. �. Exclusion of the City of San Diego Tne terms and conditions of this agreement exclude the City oi San Diego unless specifically addressed herein. 11 �nV 1 7 1992 ��+�� � 13 of 18 :1�0+ '9? 16. 11 $6'^ 9i: :6J6 CC SD SOL;D tiYS'F + � P011.a] �OOi� G'.2 Ix wITNESS WfiEREOF, the City and County have signed this agreement as of the date first set forth above. CITY OF , MAYOR A'PTEST: ,CZTY CLERK COUNTY OF SAN DIEGO By: Title_ lw\Par.Agr 11/03/92 1z ^ynV � ? 1992 ���a.� ? 14 of 18 l � € � ���qZ H! o � ��-V 4 a � � u �Y��� � � y~"gr_� � � �'d g� ° o aA n ` w ! � � ° ' � � < m E -- N d � a � � ` p " . . 3 .. . u .. - oWt ° _ - F � k : 1R :° " � x = � � �s � � y j o a E L c R �'"'$ z °a 4 � " o'V w� Q F � 23 �- H � 3 � , �� gs� FW _'___ _ a o — N N N � (� b C H � �i �N� - � � J � u Yp �' � V �i .� Y u�i �J5 a< r`S H 9� O Vu � x�.�. �u F d� � >M .+ -� ° E9 - _ u � �y d.. ' n a`o ' �°� 5 � F o ' N °� ' �E ' gp ��" - ^ Y S.. o K.. S Y u '' `y F �. �8 y�"�: " �E � � a»A.� n' - `3 5 °'3gken'�' � € � �aF " - adEgSg� . � �q „ �a o-�$ _ �E�g�; E �� ' e� � � �� °g ` fr ° �.L. �� �� c V -'� ° 2 E+ , £'_ _ '. � Q Q.O O EVVV E=O� EPE _ ] B � �n� Y C V , � Yq �n i rr f: v 8 ,�� ju pi'Y 0¢ O N�OnO q �� O 8 � - QY o 0 dg" o `> 5 i � , �g E ,_ o o¢ o _ o � � ' � > n o = Q 15 of 18 vnV 1 7 7ggp 1TE��A ? ii 0-i/92 :6.{? '�F'� 9%1 ?636 CO $D SOLID t}°TE �-- PU��.�1" �U09 O1? SAN DIEGO REGIONAL SOLID WA3TE COMMZSSION WEIGHTED VOTE FORMULA - Based on January 1, 1992 Population Member A4enCV Poolation Percent Wei hted Vote Ccuzty oi San Diego 419, 988 28. 91� 29** Ctiula Vista 141, 778 5 _76$� 10+* Oceanside 138 , 469 9 _ 53%, 9 E�:condido 112 , 851 7 . 77% 8�+ El Cajon 90, 241 6. 21� 6 Vista 75,780 5.22$ 5 Carlsbad 65, 661 4 .52o a National City 58, 632 4 _ 04� 4 Encinitas 56, 530 3 . 89$ 4** La Mesa 54 , 043 3 _ 72E 4** Santee 53 , 653 3 .71� a** Pociay 45, 389 3 . 12� 3 San Marcos 42,778 2 . 94a S}* Zmperial Beach 27 , 138 1. 87a 2** Coronado 26, 683 1. 8a� 2** Lemon Grove 24, 660 1.70$ . 1 Solana Eseach 13, 18° 0. 91$ 1* pel Mar 4 983 0. 34% 1* 1, 452 , 646 100. 00� lU0 * Agencies gaining full vote by boosting fractioas thar. are less than one. ** Agencies gaining full vote based upon highest fraction. Nnv 1 7 1992 i�'E�:� 3 16 of 18 Ill, Z'1 92 19:05 $ti1.9 97; '�636 CO SU SOLIU ��ST�' �. . . PU��.;1' �'gJOLti. Ot7 � ATTACHMENT II THE FOLLOWING LIST DEPICTS AREAS THE COMMISSION WILL N�i'C Uk:AL wITH: PRIOR COUNTY OBLIGATIONS o State Surcharges o Committed Reserves (If needed) o Debt Service 0 on-Going Contracts o Items Required by Law or Regulation i.e. Load Check Closure Reserves . o Litigation AUTHORTZIi EOND SALE MICRO MANAGEMEPJT ISSUES i.e. Personnel issues - hirinq/firing, qrievan�e:; J Administrative support Maintenance at Landfills Day-to-day operations Selection/Hiring consultants* Purchase supplies *Management Committee provided opportun�ty to par.ticipate in selection process �-t i� of ia Nov i 7 ,s9z I�Er" s � • .r. .. r.a a ., ...ya.r..'�tn� . � µ.. ' .. �....._�uv.... �_..u+. .i a 1r �.Y.. � '�i'Py""'..^'�r!{x,� '�,,''Yf"«P-."y �. � <.. 1'�«'�,�_ ..�`�a4.a.,. .�,'.._ -.°�_. s' , crrY oF rowAY �ox�,xnvM .- xa.� �, � � z particularly if that means no neqative fiscal impact over the balance of the 20-year term or longer. I am advised by other city attorneys that other cities in the County will still vigorously oppose this Participation Agreement for these policy reasons. LEGAL DISCUSSION• It is our opinion that the following paragraphs do not provide necessary protection to the City: 1. Section IV A. Indemnitv. In this section the County purports to indemnify the City for damages resulting from disposal at a County facility. However, the indemnification is provided only to the extent that "acceptable waste" is deposited by the City and completely excludes CERCLA (hazardous waste) liability. , 2. Section III B 8. Solid Waste Commission. This section establishes a Solid Waste Commission which apparently has broad powers and consists of one member from the County and one member from each signatory city. However, paragraph 8 b(3) makes clear that the County and not the Commission will set the tipping fees, and paragraph 8 g makes clear that the Commission can exercise no power which would cause the County to breach or default any contract or obligation it has regarding solid waste. These provisions would appear to leave the County firmly in control of the costs and fees to be incurred in the use of County solid waste facilities. 3. �ection IIZ B 6 and 7 Facilitv and Mitigation Fees. As noted above these two sections create fees which will be collected as a part of the tipping fee which have no apparent basis in state law. The practical effect of these fees is to increase the tipping fee and therefore the cost of trash service to Poway residents. It is possible, if not likely, that these fees are not lawful. R�F O1bIIbIII�TDATION• Although this office concludes that it would be lawful for the City to enter into the subject agreement, we believe that the agreement may obligate the City's residents to higher solid waste removal costs in the future than would be incurred if alternative ,— and less expensive means of solid waste disposal are developed 2 of 3 NOV 171992 ITEM 8