HomeMy WebLinkAboutReso 1993-17233 RESOLUTION NO. 17233
A RESOLUTION OF THE CITY OF CHULA VISTA APPROVING THE
SECOND AMENDED SOLID WASTE INTERIM AGREEMENT IN RELIANCE
ON CERTAIN REPRESENTATIONS AND OPINIONS OF THE COUNTY,
UNDER PROTEST AND WITH FULL RESERVATION OF RIGHTS TO
SEEK A JUDICIAL DETERMINATION THAT SAID AGREEMENT IS
ILLEGAL AND THAT CITY'S CONSENT WAS OBTAINED UNDER
DURESS
WHEREAS, the Board of Supervisors ("Board") of San Die9o County ("County")
has resolved that authority over the operation of the Solid Waste Enterprise
System should be turned over to an entity which is yet to be established but
which shall be composed of most of the cities in the County of San Diego
("Cities"); and,
WHEREAS, the Board has tendered to the Cities an a9reement entitled
"Agreement By, Between and Among the County of San Diego and the Cities of the
County Establishing an Interim Solid Waste Commission and Providing for the
Disposal of Solid Waste ('Interim Agreement')" which title is preceded by the
notation "Approved by Steering Committee, 11 May 1993, Amended for Signature by
Any or All Cities" which agreement is herein referred to as the "First Amended
Interim Agreement"; and,
WHEREAS, the Board has thereafter tendered an amendment by letter from the
Office of the County Counsel dated July 28, 1993 and signed by Lloyd Harmon,
County Counsel ("Harmon"), and Steve Eckis, City Attorney, City of Poway
("Eckis"), to the First Amended Interim Agreement, which amendment is entitled,
and shall herein be referred to as the "Second Amendment to Interim Agreement";
and,
WHEREAS, the Second Amendment to Interim Agreement provides, among other
thin9s, that the County will not issue the bond financing referenced in the
Interim Agreement, as amended, prior to June 1, 1994 without the majority vote
of the members of the Interim Commission; and,
WHEREAS, the Board has approved, by its resolution dated August 25, 1993,
the inclusion of the Second Amendment to Interim Agreement in the First Amended
Interim Agreement; and,
WHEREAS, the First Amended Interim A9reement as amended by the Second
Amendment shall, by reading same together, hereinafter be referred to as, and
shall constitute, the Second Amended Interim Agreement; and,
WHEREAS, the County has threatened to, and in fact has imposed, as a
punitive sanction in order to coerce the consent of the Cities in general, and
the City of Chula Vista in particular, to the Second Amended Interim Agreement,
a surcharge on the tipping fee charged for dumping trash generated by residents
and citizens of those Cities whose councils have refused to sign for such period
of time that they continue to refuse to sign; and,
Resolution No. 17233
Page 2
WHEREAS, the Chula Vista City Council feels coerced to consent to the terms
of the Second Amended Interim Agreement to avoid the economic pressure of the
penalty surcharge that the County is unfairly imposing on its residents and
citizens; and,
WHEREAS, in the absence of the penalty surcharge, the City of Chula Vista
would not sign the agreement; and,
WHEREAS, because of the coercion of the penalty surcharge, City Council
will herewith authorize and direct the execution of the agreement solely for the
purpose of avoiding the penalty surcharge but does so under duress and protest,
and does not intend, by the adoption of this resolution, to surrender or waive
any and all rights City may have to continue to legally challenge the validity
or legality of such agreement, or to subsequently assert as a defense thereto the
economic coercion of the County upon the City and Cities; and,
WHEREAS, Harmon and Eckis opined ("Harmon/Eckis Opinion") for the benefit
of the Cities, including the City of Chula Vista, in a letter opinion dated July
28, 1993, signed by both of them and distributed to the Cities, that the Second
Amended Interim Agreement provides the City can object to the form of the
permanent governance structure that will control the County's Solid Waste System
("Permanent Governance"), and unless the City has agreed to the Permanent
Governance by May 1, 1994, the City's flow shall revert to the City unless
certain described bonding has issued upon the recommendation of the Interim
Commission; and,
WHEREAS, Board is aware of the Harmon/Eckis Opinion and has not objected
to its provisions, and has in fact, by representations made by their members,
induced Cities to rely on same in order to secure their signature to the Second
Amended Interim Agreement; and,
WHEREAS, in joining under protest, the City is, in part, relying on the
Harmon/Eckis Opinion as a representation of the County in taking its action
herein authorized, and in the absence of such representation/opinion, City would
not even be willing to take the risks of joining the Interim Commission under
protest as herein authorized; and,
WHEREAS, City, with the understanding that they are joining under protest,
is relying on the representation that the following matters will be given the
highest level of priority as per the amended agreement:
A} Alternative forms of permanent governance will be comprehensively reviewed
and impartially analyzed; and,
B) A full range of subregional disposal alternatives will be explored and
considered; and,
C) The operation of existing facilities including NCRRA will be examined and
considered for modification or termination; and,
D) Tipping fees and their uniformity will be reviewed; and,
........ T T II
Resolution No. 17233
Page 3
E) Host agencies such as Chula Vista and San Marcos will be paid facility
fees defined in the Interim Agreement; and,
F) Affected agencies such as Santee will be paid mitigation fees defined in
the Interim Agreement; and,
WHEREAS, City, in joining under protest, is relying on the representation
of the County, also contained in the Second Amended Interim Agreement, that Chula
Vista will receive the Host Fee for the Otay Landfill;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY
FIND, DETERMINE, ORDER AND RESOLVE AS FOLLOWS:
SECTION 1. The City Council does hereby object to the terms, risks and
provisions of the Second Amended Interim Agreement, but due to
the economic duress to execute same to avoid the continued
imposition of the penalty surcharge on the dumping at the
County landfills of trash generated within Chula Vista, does
take the following action under duress and protest and does
not intend hereby to surrender or waive any and all rights
City may have to continue to legally challenge the validity or
legality of such agreement, or to subsequently assert as a
defense thereto the economic coercion of the County upon the
City and Cities.
SECTION 2. The City Council does hereby authorize and direct the Mayor to
execute same prior to close of business August 27, 1993.
SECTION 3. Pursuant to the discretion vested in the City by the Second
Amended Interim Agreement, the City does hereby commit only
fifty {504) of its Acceptable Waste Flow to the County at this
time.
SECTION 4. Although not made a condition of approval of the Second
Amended Interim Agreement or a condition of joinder of the
Interim Commission, the City does not waive its right to
assert and litigate the invalidity of the provision of the
agreement requiring the City to pay a surcharge that may be
imposed on any trash that remains uncommitted to the County in
excess of 504, and does hereby protest any attempt to impose
said surcharge.
SECTION 5. City Council appoints Councilmember Jerry Rindone as the
City's representative to the Interim Commission, and Mayor Tim
Nader as the City's alternate representative to the Interim
Commission.
Resolution No. 17233
Page 4
SECTION 6. City Council relieves the City Attorney from any duty to opine
that the Second Amended Interim Agreement is legally binding
and a valid obligation of the City. To the extent same may be
necessary to comply with the contract, City will determine i f
alternate counsel is available to issue such opinion.
Presented and Approve ' s to form by:
but wi/~h6ut the recomme !a ion
~ru/ce M. Boogaard i/ ~
City Attorney .If:
Resolution No. 17233
Page 5
PASSED, APPROVED and ADOPTED by the City Council of the City of Chula
Vista, California, this 27th day of August, 1993, by the following vote:
YES: Councilmembers: Fox, Moore, Rindone, Nader
NOES: Councilmembers: Horton
ABSENT: Councilmembers: None
ABSTAIN: Councilmembers: None
Tim Nader, Mayor
ATTEST:
Beverly{A. Authelet, City Clerk
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
I, Beverly A. Authelet, City Clerk of the City of Chula Vista, California, do
hereby certify that the foregoing Resolution No. 17233 was duly passed, approved,
and adopted by the City Council at a Special Council meeting held on the 27th day
of August, 1993.
Executed this 27th day of August, 1993.
Beverly A' Authelet, City Clerk