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:
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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"
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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
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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. - •
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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.
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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_
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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.
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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.
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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.,:
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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_
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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.
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?? 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
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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 ��+�� �
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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
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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.
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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
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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