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HomeMy WebLinkAboutReso 1994-17368 RESOLUTION NO. 17368 A RESOLUTION OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE 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 Diego 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 may be composed of most of the cities in the County of San Diego ("Cities"); and, WHEREAS, the Board had tendered to the Cities an agreement 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 had 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 provided, among other things, 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 had 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 Agreement 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, Resolution No. 17368 Page 2 WHEREAS, the County had 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, WHEREAS, the Chula Vista City Council felt 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 have signed the Second Amended Interim Agreement; and, WHEREAS, because of the coercion of the penalty surcharge, City Council, pursuant to the provisions of Resolution No. 17233, adopted August 27, 1993, authorized and directed the execution of the Second Amended Interim Agreement solely for the purpose of avoiding the penalty surcharge but did so under duress and protest, and did not intend, by the adoption of said Resolution No. 17233, 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, at the time Council approved Resolution No. 17233, Harmon and Eckis had 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 provided 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, at the time Council approved Resolution No. 17233, Board was aware of the Harmon/Eckis Opinion and had not objected to its provisions, and had 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 by approvind the Second Amended Interim Agreement, the City was, in part, relying on the Harmon/Eckis Opinion as a representation of the County in taking its action authorized by Resolution No. 17233, r-- and in the absence of such representation/opinion, City would not even be willing to Resolution No. 17368 Page 3 take the risks of joining the Interim Commission under protest as herein authorized; and, WHEREAS, City, with the understanding that they were joining under protest, was relying on the representation that the following matters ("Representations re Priority") 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, 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, relied 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 ("Representation re Host Fee"); and, WHEREAS, since the passage of Resolution 17233 and Chula Vista's joining the Interim Commission under protest, the County has tendered yet another amendment referred to by the County as the "Third Amendment" to the Second Amended Interim Agreement, by which (1) cities which had not yet joined could do so without penalty by January 21, 1994; (2) incorporates the Eckis/Harmon Opinion into the formal agreement; and (3) defers until governance determination, the threat of the illegal and unconscionable surcharge on trash which a city may have not yet committed for disposal at County landfills beyond the first 50% of their flow; and, WHEREAS, the City of Chula Vista, in the adoption of this resolution, remains under the threat of coercion that failure to approve the Third Amendment, or a substantially similar version thereof, will constitute a basis for the reimposition of the surcharge on their trash flow, and adopts this resolution in reliance on the Representations re Priority and Representation re Host Fees set forth above, Resolution No. 17368 Page 4 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 as amended by the Third Amendment, 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, under duress and without its voluntary consent, the Mayor to execute, upon presentation by the County or preparation by the City Attorney, an amendment of the Second Amended Interim Agreement which ~ does the following: (1) Amends Section 2.1 to read: "This Interim Agreement shall take effect as of June 22, 1993, by, between and among the COUNTY and any of the Cities listed on Attachment A as have executed this document on or before January 21, 1994." (2) Adds Subsection (c) to Section 3.8 to read: "All flow commitments made by a member agency shall revert to that member agency on May 31, 1994, if that city has not agreed to the permanent form of governance, unless by that date a majority of the Interim Commission has recommended and the County has issued the solid waste facility bonding described in Section 3.8(a)(1) of the Agreement; in which event, only that flow committed to the the Interim Commission shall revert to such city." (3) Section 1.4 is added to Part I to read: "Notwithstanding Section 1.2.a., a surcharge will not be charged on the uncommitted second fifty percent of the wastestream which is disposed of at County landfills by cities that have ~" signed the Interim Agreement at least until May 31, 1994." Resolution No. 17368 Page 5 SECTION 4. The City continues to retain its right to assert and litigate the invalidity of the provision of the Second Amended Interim Agreement even as same may be modified by this action, and does hereby protest any attempt to impose said surcharge. SECTION 5. City Council reappoints Councilmember Jerry Rindone as the City's representative to the Interim Commission, and Councilman Bob Fox as the City's alternate representative to the Interim Commission. SECTION 6. The City Attorney continues to be relieved from any duty to opine that the Second Amended Interim Agreement is a legally binding and a valid obligation of the City. To the extent same may be necessary to comply with the contract, City will determine if alternate counsel is available to issue such opinion. Bruce M. Boogaard City Attorney Resolution No. 17368 Page 6 PASSED, APPROVED and ADOPTED by the City Council of the City of Chula Vista, California, this 18th day of January, 1994, by the following vote: YES: Councilmembers: Fox, Horton, Rindone, Nader NOES: Councilmembers: Moore 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. 17368 was duly passed, approved, and adopted by the City Council at a meeting of the Chula Vista City Council held on the 18th day of January, 1994. Executed this 18th day of January, 1994. Z - Beverly/~. Authelet, City Cler