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HomeMy WebLinkAbout2006/08/22 Item 22 COUNCIL AGENDA STATEMENT Item 2 z.. Meeting Date 8/22/06 ITEM TITLE: SECOND AMENDMENT TO THE AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF THE OTAY LANDFILL Deputy City Attorney IIIW\G City AttorneyO .yY\, (4/5ths Vote: _ No~) SUBMITTED BY: REVIEWED BY: The Agreement between the County of San Diego and the City of Chula Vista regarding jurisdiction over and operation of the Otay Landfill contains certain provisions requiring the County to participate in the City's approval of General Plan Amendments affecting the landfill buffer area. The City and County agree these provisions should be removed. RECOMMENDATION: That City Council adopt the resolution: 1 Finding that the recommended amendment is not subject to the California Environmenta/ Quality Act because it is not a project that has potential for causing a significant effect on the environment. 2. Adopting and authorizing the Mayor to execute the agreement entitled Second Amendment to Agreement Between the County of San Diego and the City of Chu/a Vista Regarding Jurisdiction Over and Operation of Otay Landfill, removing subparagraphs 6(b) and (c), and paragraph 14 from the original agreement. BOARDS/COMMISSION: N/A DISCUSSION: On May 15, 1996, and as amended on April 4, 1998, the Agreement Between the County of San Diego and the City of Chu/a Vista Regarding Jurisdiction Over and Operation of Otay Landfill ("Agreement") was entered into (Attachment A). That Agreement dealt with measures to protect the ongoing operation of the Otay Landfill, while at the same time allowing land adjacent to the Otay Landfill to be annexed to the City of Chula Vista ("City"). One of the measures was the establishment of a 1 ,OOO-foot Otay Landfill Buffer Area ("Buffer Area") around the landfill. Within this Buffer Area, the City agreed to amend its General Plan to disallow residential land use, while allowing uses compatible with the operations of the landfill. The City complied with this provision of the Agreement. 22-1 Page 2, Item 2-~ Meeting Date 8/22/06 Subsection 6(b) of the Agreement requires the City to consult with the County of San Diego ("County") in writing if a General Plan Amendment ("GPA") is filed concerning the Buffer Area. The County is required to respond within 60 days, advising the City whether the proposed GPA is compatible with the landfill. Subsection 6(c) of the Agreement provides that in the event the City adopts a GPA allowing uses that the County has advised are incompatible with the landfill, the City will have breached the Agreement, and will be subject to special remedies set forth in paragraph 14 Paragraph 14's remedies amend (to the detriment of the City) the allocation of property taxes set forth in that certain Property Tax Transfer Agreement, entered into between the City and County concurrently with the Agreement. Consistent with subsection 6(b), on March 2, 2005 the County Board of Supervisors found that a proposed amendment to the City's General Plan that would apply residential land use designations within the Buffer Area would be incompatible with the landfill, and authorized the County Chief Administrative Officer to sign the County's written communication advising the City of the incompatibility Subsequently, the developer who proposed the GPA questioned the validity of subsections 6(b) and (c), and paragraph 14 of the Agreement. County and City reexamined these provisions and agreed that they should be deleted from the Agreement in order to make the Agreement legally enforceable. Removing subparagraph 6(b) will not preclude the County from commenting on any proposed GPA pertaining to the Landfill Buffer. Deleting subparagraph 6(c) and paragraph 14 will, however, eliminate the possibility of penalizing the City if it amends its General Plan in a manner the County deems incompatible with the operation of the landfill. City Geographical Information System ("GIS") records indicate that no City Council Member owns property within 500 feet of the Otay Landfill. ENVIRONMENTAL STATUS. Pursuant to California Code of Regulations Title 14, Chapter 3 Article 20, Section 15378(b )(5), the recommended amendment is not subject to the California Environmental Quality Act because it is not a project that has potential for causing a significant effect on the environment. FISCAL IMPACT: There is no fiscal impact from the recommended action. This action would result in no expenditures of funds, require no additional staff and will have no impact on the General Fund. 22-2 Page 3, Item l--t- Meeting Date 8/22/06 Attachments: Attachment A - Agreement Between the County of San Diego and the City of Chula Vista Regarding Jurisdiction Over and Operation of Otay Landfill, dated May 15, 1996. Attachment B - Second Amendment to Agreement Between the County of San Diego and the City of Chula Vista Regarding Jurisdiction Over and Operation of Otay Landfill. J:\Attorney\MichaeISh\Otay Landfill Agenda 22-3 "j . ' ,. ,. ~) ) ) " " 016001 AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF OTAY LANDFILL This agreement is entered into as. of the I~~ay of ~, 1996, by and between the County of San Diego, a political subdivision of th~ State of California (hereinafter "County") and the City of chula Vista, a municipal corporation of the State 'of California (hereinafter "Chula Vista"), with reference to the following: RECITALS A. The County and Chula Vista have jointly plaIUled and approved the development. of that project known as "Otay Ranch" on properties which lie generally easterly of Chula Vista's current easterly territorial boundary. In cOIUlection therewith, Chula Vista desires to amend its Sphere of Influence ("SOP'). This will require approval by the Local Agency Formation Commission of the county of San Diego ("LAFCO"). Chula Vista also desires to annex territory within the SOI. B. Pursuant to Revenue and Taxation Code Section 99', the County and Chula Vista have negotiated and, contemporaneously with this Agreement, are entering into an agreement entitled, "Agreement Between County of San Diego and City of chula Vista Regarding Terms Of otay Ranch Annexations To Chula Vista Including property Tax Transfer-Agreement" (hereinafter, the "Property Tax Transfer Agreement"). The Property Tax Transfer Agreement is on file with the Co'tns~861erk of the. Board. of Supervisors as Document No. ~'. . c. The County owns and. operates a solid waste landfill facility, composed of both (1) a portion which consists of approximately 265 acres lying within-the territorial limits of Chula Vista (the "Otay Sanitary Landfill"), and (2) the Otay Annex Sanitary Landfill, which is adjacent and consists of approximately 251 acres lying in the unincorporated territory of the County. The landfill facility is described and shown in the "otay Landfill Project Description" which is attached as "Exhibit A" hereto, and is hereinafter referred to as the "Landfill." The property owned by the County, on which the Landfill is operated, is shown on "Exhibit B" hereto and more particularly described on "Exhibit 0" he.reto, and is hereinafter refe::::::ed ~las'-t;he.,..\ "Landfill Property". , "'''''0 Gt:, \ D. The County and Chula vista each rea:;o...;.jliCle~he' b~eQt;s' . to the citizens of Chula Vista and of the Co1]nty_whlch ri~l-G \-(5) result from the continued operation of the Landfill by the County, and they both desire to ensure and facilitate such . continued operation ~otwithstanding any expansion,,()~ ~."SOI -0',];:(' 'I approvals of annexat~ons of nea!~:'!:4lands to ChUl<;\~, \l ~~'!-~0 ~ - '-- .~ t. .) 2 . end, the parties desire to detach from Chula Vista that portion of the Landfill Property which is currently within Chula Vista's territorial limits. E. Under California Law, the. County is generally not subject to regulation by Chula Vista in operation of County facilities on land which the County owns within the territorial boundaries of chula Vista; however, in the event that any portion of the Landfill remains or becomes included within Chula Vist~ls territorial limits, Public Resources Code Section 49400 requires the County to obtain the COnsent of Chula Vista's City Council for the acquisition and operation of the Landfill, and Public Resources Code Section 50000.5 prohibits the establishment or operation of a solid waste facility unless the city or county in which the site is located makes a finding that the establishment or expansion is consistent with the general plan of the city or county. WHEREFORE, the County and Chula Vista represent and agree as follows: AGREEHENT ) 1. County Position Reaardinq Sohere of Influence and Annexation. The County supports the amendment of Chula Vista's SOI to include that territory shown as "Sphere of Influence Area" on "Exhibit C" hereto~ so long as the Landfill Property remains designated as a "Special study Area." The County will formally communicate its position of support to LAFCO. The County further will not oppose annexation of any land within the sor territory shown as "Annexation Area'" on "Exhibit C" to Chula Vista, provided that the first sucb annexation is part of a reorganization which includes the detachment referred to in Section 2 below. These duties of the County shall in no way affect the discretion or voting of any members of LAFco which are also members of County's Board of Supervisors. 2, Detachment ofOtav Sanitary Landfill From Chula Vista. Chula Vista has filed an application with LAFco for the detaChment of the otay Sanitary Landfill property from Chula Vista, so that all of the Landfill Property will be located in the unincorporated area of the County. Chula Vista shall diligently and in good faith pursue said detachment proposal with the first application it files with LAFCC to annex any part of the otay Ranch property to Chula Vista. The County agrees to fully cooperate in good faith with Chula Vista to enable completion of said detachment, and to defend and indemnify Chula Vista for any litigation which may be Commenced to challenge said detachment solely on the grounds of allegedly inadequate environmental review. 3. Consent For Operation ~~ndfill. The following ) 3 " provisions of this Section 3 are applicable only during such time that any part of the Landfill. Property remains included within Chula Vista's corporate boundaries, and shall again become applicable at any tiJlle that all or any part of the Landfill Property, shall in the future be annexed to Chula Vista without the prior written approval of the County's Board of Supervisors: (a) Chula Vista hereby grants its consent to the operation of the Landfill, pursuant to Public Resources Code Sectidh 49400. Said consent includes the existing as well as the ultimate use, development and expansion of the Landfill as shown and described in "Exhibit A" hereto. (b) Chula vista further finds that the establishment and operation of the Landfill, including the ultimate use, development and expansion of the Landfill as shown in "Exhibit A" hereto; are consistent with the Chu1a Vista general plan. ) (e) Chula vista agrees that, except with the prior written approval of the County's Board or Supervisors, said consent and said finding of consistency shall remain in effect throughout the term of this Agreement. If either is withdrawn, rescinded, revised or amended with regard to the otay Sanitary Landfill prior to the date the detachment referred to in Section 2 becomes effective, Chula Vista shall be liable to County for any loss or damages resulting therefrom. If either is withdrawn, rescinded, revised, or.. amended with regard to any of the Landfill Property after any of the Landfill Property has been annexed to Chula Vista following the date of this Agreement, the Special Remedies provided at Section 14 shall apply. (d) Chula Vista further agrees and represents that, having given said consent and finding of consistency, no Conditional Use Permit or other permit or approval is or will be required from Chula vista for the continued operation of the Landfill as shown on "Exhibit A." -4. Imposition of Fees Upon. or Annexation or Reoulation of Landfill Property. ) (a) In the event that Chula Vista adopts any toll, "host fee" or other !ee or charga upon the establish:nent or operation of the Landfill, it shall immediately and no less than monthly, transmit to County all amounts collected thereby. (b) The Special Remedies provided at Section 14 of this Agreement shall apply if any portion of the Landfill . ,property is annexed to Chula Vista after the date of this Agreement without the priof2w8itten approval of the County's ) 4 ., Board of Supervisors. The Special Remedies provided at Section 14 shall not, however, apply in the instance of an annexation of any portion of the Landfill Property resUlting from state legislation if thechula Vista city .Council has expressed formal written opposition to the legislation. The Special Remedies provided at Section 14 of this Agreement shall also apply if, at an~ time when any portion of the Landfill Propertv is within Chula.Vista's jllr1Sdlct1on. Chula Vista amends or repeals its. general plan in such a way that the es 1shmen :or expans10 ecomes inconsistent with the general plan, or adopts or imposes any zo~ing, land use or other regulation or requirement (other than one covered by paragraph (a) of'this Section) upon, and which adversely affects, the op~ration of the Landfill. i"'~4- 5. Landfill Access streets. (a) Chula Vista agrees. to maintain in good condition throughout the term of this"Agreement the following streets which serve as access tb the Landfill: otay Valley Road, from I-80S to otay Rio Road; and Maxwell Road, from otay Valley Road to the Landfill For pUrposes of this. paragraph (a), "good condition" shall mean reasonable driving condition substantially equal to other -roads within Chula. Vista of a similar age and construction. but not less than an operable condition so as to facilitate such access by trash hauling vehicles. Said streets .may he closed temporarily for required maintenance or repair work, provided that, unless otherwise approved by County's Director of Public Works in advance and in writing, such closure shall not occur:more than once in any six month period and shall not be, for mora than seven days at a time. (h) Chula Vista further. agrees that, if it should ever impose upon said streets weight or other restrictions more severe than are stated in Chapter 5 of Division 15 of the -Vehicle Code, or if it should change the classifications of said streets as shown in its general plan circulation element on the date of this Agreement, then the Special Remedies provided for in Section 14 of this Agreement shall apply, unless such restrictions or change in ~lassification is approved in advance by County's Board of Supervisors. (c) chula Vista further agrees that if it should ever adopt Or impose any tolls or other fees or charges for the use of said streets upon trash trucks or other vehicles using said streets for access to the Landfill, it will immediately pay to County, no less frequentiy than monthly, all amounts collected thereby. 22-7 -)-- ., 5 " 6. Landfill BUffer Area. ) (a) Chula Vista shall commence, diligently and in good faith purs~e, and complete within 730 days after the date this Agreement is entered into, proceedings to revise its general plan, zoning and other applicable land use regulations so that no residential land uses are permitted within that area identified as "Village 2" in the ota-y Ranch General Development Plan (adopted by Chula Vista on October 15, 1993) and also within the otay Landfill Buffer Area as described in "Exhibit B'.' and shown on "Exhibit 0" hereto and all uses permitted are compatible with the use and ' operation of the Landfill. Chula Vista's failure to do so shall constitute a breach of this Agreement for which the Special Remedies specified' at Section 14 shall apply, except that the remedy of payment of closure costs (Section 14(c)) shall only apply if a court of competent juriSdiction orders the closure'of the Landfill based upon such incompatibility. Prior to holding any hearings on such general plan amendment, Chula vista shall consult with County by written communication to COUnty's Chief Administrative Officer and County agrees that it's Board of Supervisors will respond within 60 days, advising Chula Vista whether the proposed general plan amendment is compatible with the Landfill. The County agrees to fully cooperate in good faith with Chula Vista to enable completion of said general plan amendment. This 730 days shall be extended to compensate, daY-for-day, for the amount of time during which a court of competent jurisdiction, in a suit brought by a party other than ~hula Vista, has issued an order or judgment prohibiting Chula Vista from proceeding with said proceedings. In the event Chula Vista adopts such a general plan amendment, which is subsequently invalidated by court order, Chula Vista shall immediately recommence general plan amendment proceedings within said area, completing them and applying compatible land use designations within two years of the date of the court order. ) -(b) During the term of this Agreement, if a general plan amendment is filed applicable to any of the area shown as "otay Landfill Buffer Area" on Exhibit "0" hereto, Chula vista shall consult with the County by written communication to Co\mty's Chief Administrative Officer p=ior to holding any hearings on such general plan amendment. The County agrees that its Board of Supervisors will respond within 60 days, advising Chula vista whether the proposed general plan amendment is compatible with the Landfill. (e) In the event that Chula vista adopts into its general plan applicable to any of the area shown as "otay Landfill Buffer Area" on "Exhibit D"2f.s>jfeto, provisions which the 7\ ~~J 6 ) County's Board of Superviso~s has advised are incompatible with the Landfill, shall constitute a breach of this Agreement for which the remedies. specified at Section 14 shall apply, except that the: remedy 9f payment of ciosure costs (Section 14(c)) sha~l only apply if a court of competent jUrisdiction o~ders the closure of the Landfill based upon s~ch in~ompatibility. .Ho~ever~ a general plan amendment wh~ch allows. only.th~ cont~nuat~on of developed land uses which are in existence within the incorporated ,. portion of said buffer area on the. date of-this Agreement shall not constitute a breach.of.this Agreement. (d) If Chula Vista adopts a general plan amendment. applicabie to any o.f the- area sho~ as the "otay Land.fill Buffer Area" on Exhibit 0 attached hereto that permits Uses which the County's, Board; of Sllpervisors has advised are COmpatible with the Landfill,.the County and chula Vista shall share equally in the defense of any litigation which is brought challenging County's operation of the Landfill as being inconsistent with such general plan amendment. This obligation to share in the defense shall not obligate Chula Vista to pay any damages awarded as a result of such litigation; however, the County and Chula Vista shall share equally in payment of any award of attorneys' fees. (e) Within 30 days after the date this Agreement is approved by both parties, the County's Board of Supervisors will advise Chula Vista in writing as to which of Chula Vista's-existing nqn-residential general plan land Use designations permit Uses Which are, in County's opinion, compatible with the Landfill. (f). As a condition precedent to annexation only and not as a commitment to perform, landowners in Villages 2 and 3 and Planning Area 18B of the Otay Ranch General Development Plan are expected to grant to County "Landfill NUisance :Easements" substantially in' the form attached as "Exhibit E" hereto, covering ~ll land which is both within said Villages and Planning Area and also with:;n the area shown as "Otay l'.andfill BUffer Area" on "Exhibit Oil hereto. All of said easements shall be signed, notarized and deliVered to County prior to the time of LAFCO approval of any annexation of property within otay Ranch to Chula Vista. In the event that said easement~ have not been so. g=antad to the County by said time, Chula Vista agrees to withdraw any application for annexation which is pending and agrees not to complete or take any further action in furtherance of SUch annexation. Failure by Chula Vista to comply with the provisions of this paragraph shall constitute a breach of this Agreement for which the Special Remedies specified at Section 14 shall apply.r 22-9 .'3" :;...., " ) ) ., 1 , 7., Transpo~ation of Bu:nAsh Material: Chula Vista agrees not to ~nterfere ~n any way w~th the use of ~ts street system for transportation. of any burn ash material.being delivered to the Landfill from any site, without limitation as to amount or point of origin, provided that applicable state and federal laws are complied with. 8. Conversion of Landfill To other Users). In the event that the. County determines to cease use of the Landfill and convert the use of the Landfill Property to other uses, the County shall first consult with Chula Vista regarding the new uses. Consultation shall be accomplished as foilows: the County shall deliver written notice of its intention to convert the use of the Landfill Property to other uses to Chula Vista's City Manager at least 120 days prior to taking any action which commits the County to any particular new use. Chula Vista's City Council shall provide its written.' recoliunendations to the County if any, within said. 120 days. . The County shall in good faith ' take Chula Vista's recommendations into consideration in' its deliberations, and the use{s) to which the Landfill Property is converted shall be compatible with a closed landfill. 9. Retained Riqhts To Review and Comment. Each party retains its rights as provided by any applicable law to review and comment upon a project proposed by the other. Such review and comment by Chula Vista of any.of county's proposed uses, alterations or expansions of the ~ndfill shall not be considered a breach of this Agreement provided that it does not in effect rescind, modify or contradict the'consent and finding given by Section 3 above. 10. otav Vallev Road Widenina.. Chula Vista shall cause the completion of the otay Valley ROad Widening Project, as described in more detail in "Exhibit F" hereto. Upon completion of this proj~ct, the County shall pay Chula vista a share of the project costs, as follows: The County's share shall be $327,000.00. This amount shall be paid in equal annual installments. of $65,400.00 per year, fOr five years, the first installment being due on or before either June 30, 1997 or 90 days after completion of tIle project, whichever is later, and subsequent installments being due on June 30 each year. Sai~ payment shall be the sole contribution from the County for this project, and Chula Vista shall not impose any other assessment, charge or fee upon the County or its agenciss in relation to this proj~ct. 11. Hazardous Waste Facilitv Taxes and User Fees. In the event that, following detachment from Chula Vista of the otay Sanitary Landfill, a hazardous waste processing or transfer facility operates on a portion of that property, being operated by a for-prOfit business, and the County imposes a tax or user fee pursuant to Health and Safety Code Section 25173.5 upon such operation, the County shall paY22h~bF Vista 50 per cent of all o )" -, '(I."! v ) 8 ~ taxes or user fees in fact collected from that business. 12. County's Present Landfill Plans. The County represents' to Chula Vista' that it currently plans to use the Landfill Property only for the development, use and operation of the Landfill as shown on plans and permits which have been approved or for which expansion applications-have been filed' prior to th~ date of this Agreement. 13. Propertv Tax Transfer Aqreement. This Agreement is contingent upon and shall only become effective if the County and Chula Vista'also contemporaneously approve-the Property Tax Transfer Agreement. 14. Special Remedies For Certain Breaches. The continued operation of the Landfill without limitation, restriction or interference is of the essence in' the making and performance of this agreement. The County and Chula. Vista agree that, in the event of a breach of a provision of this Agreement which expressly provides that Special Remedies pursuant to this Section shall apply, the County will incur damage, the amount of which is extremely impractical and difficult to determine, and lieu of such actual damages, the following Special Remedies shall apply: (a) The allocation of property tax pursuant to Section 2.B of ,the Property TaX Transfer Agreement shall be changed so that the base revenue and the annual tax increment, includ;in<1 revenue for both the County and any special districts from which property is detached, shall be allocated 59 per cent to the County and 41 per cent to Chula vista. This change shall be effected by the County's AUditor Upon receipt of a resolution adopted pursuant to paragraph (b) of Section 15. Chula Vista shall pay to the County, within 180 days of written demand therefor accompanied by a certified copy-of said resolution, an amount which equals the difference between the property tax received by Chula Vista pursuant to the Property Tax Transfer Agreement for all years subsequent to the date of this Agreement and the amount which Chula Vista would have -received if the allocation of property tax had been changed to 59 per cent to the County and 41 per cent to Chula Vista upon the commencement of operation of the Property Tax Transfer Agreement, together with interest at the thirtY-day London !nterbanking Offe=~d Rate (LIBOR) i~ effect cn the date of adoption of the resolution referred to in paragraph (b) of Section 15. Said interest rate shall be applied as follows: For each fiscal year (July 1 through June 30) during any portion of which this Agreement has been in effect, the total amount of difference in property tax (as described above) shall be computed as of June 30 of that fiscal year, and interest at said rate on said total amount shall be deemed earned and2~Yin to accrue as of the January ",,:) "~:..iJ 9 ~ 1 of each such until the date paragraph. (b) The total amount of funds which have been, transferred to Chula Vista pursuant to Section 2,. C of the Property Tax Transfer Agreement, together wi~ ,interest computed at the thirty-day London lriterbanking' Offered Rat,e (LIBOR) i.1i effect on the date' of adoption of the resolution referred"to in p~ragraph (b) of Section 15~ Said, interest, shall be deemed earned and begin to accru~'as of the date of payment by County of each transfer p"Ylllent, and shall-continue:to accrue until the date of repaYlllent by Chula Vista to the County. Such repaymel;lt shall be lIIade within ~ao- days of receipt by Chula vista of a resolution adop:tea pUrsuant to paragraph (I;l) of Se<;:tlon 15. of't.hif? 'Agreelllent. Transfer payments reqilired by Section ;2.C of the Property Tax Transfer Agreement for'alI years following the date of the breach shall not be made and shall ba retained by the County.' -- fiscal year; and payment is made shali continue to accrue to County pur~uant to this ~) (c) In the event that the, Co~nty determines that the action by Chula vista which constitutes a breach of this Agreement for which this Agreement specifies that this Special Remedy is applicable, has the effect of ~~ing continued operation of the Landfill infeasible or'impracticable, it may determine that it is necessary to close the, Landfill. In that, event, chula Vista shall PaY all of the County's costs associated with such closure, including, but not limited to, the following: design and construction of a final cover system, design and construction of drainage structures, design and implementation of a landscaping plan,- monitoring and management of groundwater, landfill gas, and leachate, inspection and maintenance activities, and consulting, environmental, legal, and administrative costs associated with closure. The amount of closure costs payable shall be reduced by any amounts which are contained in the closure fund which the County maintains for the Landfill as of the date of the breach which causes the closure. ) 15. Procedures For Enforcinq Breach. Except in cases where closure of the Landfill has been ordered by a court, prior to effectuating any of the Special Remedies for breach of this Agreement specified at Section 14, the County shall complete the following procedures: (a) The County shall first2~ide Chula Vista with written 29" ".. ..... o' 10 ". notice that a breach. has occurred, specifying the facts constituting the breach, and shall provide a reasonable amount of time (to be specified in the notice) for Chula Vista to cure the breach. Said notice shall clearly reference this Agreement, state that the alleged violation could cause the Special Remedies for" breach herein provided and repeat.said Special Remedies in the notice. Said notice shall be provided to both the City Manager and the City Attorney of Chula Vista. l (b) County's Board of Supervisors shall consider the matter at a proceeding at which Chula Vista is provided notice and a reasonable opportunity to be heard. If the Board reasonably determin~s that a breach of this Agreement has occurred to which these Special Remedies apply, it shall adopt a resolution in which the Board: determines that a breach of this Agreement has occurred for which this Agreement specifies that these Special Remedies are applicable: states the factual circumstances SUPPorting that determination: directs the Auditor to make the change referred to in paragraph (a) of Section 14 for all subsequent fiscal Years: and, pursuant to paragraph (b) of Section 14, demands repayment of prior tranSfer payments and directs that future transfer payments not be made. 16. JUdicial Review. chula Vista shall have the right to seek judicial review of the County's determination that a breach of this Agreemel1t has Occurred, except where closure of the Landfi11 has been ordered by a court. In any such action, the parties agree that the standard of jUdicial review shall be the "substantial evidence" standard, whereby the County's determination shall be upheld if it is supported by substantial evidence in the record before the County. In any action in which the County's determination that a breach of this Agreement requires closure of the Landfill is reviewed by a court, except where closure of the Landfill has been ordered by a court, the parties agree that the County's determination shall be reviewed by the" court exercising its independent jUdgment. ~7. Force Maieure. No violation or breach of this Agreement shall be deemed to have occurred if caused by an event or act that is beyond the control ofChula" Vista, such as an Act of God, natural disaster (inClUding, but not limited to, a flood, fire, dam inundation, ~arthquake, landslide or subsidence). riot, rebellion, or civi+ strife. . 18. Entire Aoreement. This Agreement and the Property Tax Transfer Agreement set forth the entire agreement between the County and chula Vista contemplated by them regarding this matter, and sUpersede any and all prior or contemporaneous agreements, understandings or representations, In particular, any existing Conditional Use Pe~~!~~) issued by chula Vista, 'M." ".-:Y )' " '11 " including No. PCC-72-l, are deemed terminated ah~ unnecessary for the continued operation of the-Landfill, based'upon the consent and findings granted by Chula Vista in this Agreement and the detachment of all Landfill Property frOm chula Vista's territory required by this Agreement. 19. Partial Invaliditv. If any material covenant, term condition or provision d~ this Agreement is held invalid, void or unenforceable by final order or judgment of a court of. competent jurisdiction, the remainder of., this agreement shall nevertheless remain valid and enforceable. 20. Addresses. Unless otherwise herein indicated, any written cOlDJllupica tii::m required to be" gi venby this Agreement shall be delivered,personally or by first ~lass mail, addressed as follows: To the County: Chief Administ~ative Officer County of San Diego 1600 Pacific Highway San Diego, CA 92101-3472 To the City: City Manager city of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 21. Assiqnment of Riohts. Chula Vista acknowledges that County may determine to transfer ownership, operation, or maintenance of the Landfill to a Solid Waste Authority or other successor agency', and County may in connection therewith assign to such successor agency. any or all of its rights, but not its obligations, Under this Agreement. 22. Recision. Modification and Termination. Either the County or Chula Vista may rescind its approval of this Agreement at any time prior to the date for which LAFCO has scheduled the cOIl1lllencement of a hearing on the first annexation to which the Property Tax Transfer Agreement relates, provided that the Property Tax Transfer Agreement is rescinded at the same time. Thereafter, no amendment, mOdification, recision or termination of this Agreement or any provision thereof shall be valid or binding unleSs it be in writing and approved by both the County's Board of Supervisors and Chula Vista's city Council. This Agreement shall terminate upon closure of the Landfill (except that the parties shall thereafter comply with Section B) or after fifty years, or upon the date that the Property Tax Transfer Agreement terminates pursuant to its terms, whichever is earlier. COUNTY OF SAN DIEGO f~ ,\. VilA/I-- CITY OF CHULA VISTA By Sh~~nT 22-14 By -.-' :-----... 1"1'(.111(1'::' J. ro::..;.lL.:d,'l.I ____ CI'~rk of the Board of Supervisors ^ppnm:ED :~,~ !,1 ;::~.,.; ~1'.,.! I ".AO "'PU RESOLUTION NO 2006-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SECOND AMENDMENT TO THE AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF THE OTA Y LANDFILL WHEREAS, On May 15, 1996, and as amended on April 4, 1998, the Agreement Between the County of San Diego and the City of Chula Vista Regarding Jurisdiction Over and Operation ofOtay Landfill ("Agreement") was entered into; and WHEREAS, the Agreement dealt with measures to protect the ongoing operation of the Otay Landfill, while at the same time allowing land adjacent to the Otay Landfill to be annexed to the City of Chula Vista; and WHEREAS, one of the measures was the establishment of a 1,000-foot Otay Landfill Buffer Area ("Buffer Area") around the landfill; and WHEREAS, within the Buffer Area, the City of Chula Vista agreed to amend its General Plan to disallow residential land use, while allowing uses compatible with the operations of the landfill; and WHEREAS, subsection 6(b) of the Agreement requires the City of Chula Vista to consult with the County of San Diego in writing if a General Plan Amendment is filed concerning the Buffer Area; and WHEREAS, the County of San Diego is required to respond within 60 days, advising the City of Chula Vista whether the proposed General Plan Amendment is compatible with the landfill, and WHEREAS, subsection 6(c) of the Agreement provides that in the event the City of Chula Vista adopts a General Plan Amendment allowing uses that the County of San Diego has advised are incompatible with the landfill, the City of Chula Vista will have breached the Agreement, and will be subject to special remedies set forth in paragraph 14; and WHEREAS, paragraph 14's remedies amend (to the detriment of the City) the allocation of property taxes set forth in that certain Property Tax Transfer Agreement, entered into between the City and County concurrently with the Agreement; and WHEREAS, consistent with subsection 6(b), on March 2, 2005 the County of San Diego Board of Supervisors found that a proposed amendment to the City's General Plan that would apply residential land use designations within the Buffer Area would be incompatible with the 22-15 landfill, and authorized the Chief Administrative Officer to sign the County's written communication advising the City of the incompatibility; and WHEREAS, the developer who proposed the General Plan Amendment questioned the validity of subsections 6(b) and (c), and paragraph 14, and the County and City reexamined these provisions and agreed that they should be deleted from the Agreement in order to make the Agreement legally enforceable; and WHEREAS, removing subparagraph 6(b) will not preclude the County from commenting on any proposed General Plan Amendment pertaining to the Landfill Buffer. Deleting subparagraph 6(c) and paragraph 14 will, however, eliminate the possibility of penalizing the City if it amends its General Plan in a manner the County deems incompatible with the operation of the landfill, and WHEREAS, pursuant to California Code of Regulations Title 14, Chapter 3 Article 20, Section 15378(b)(5), the recommended amendment is not subject to the California Environmental Quality Act because it is not a project that has potential for causing a significant effect on the environment. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve a Second Amendment to the Agreement between the County of San Diego and the City of Chula Vista Regarding Jurisdiction Over and Operation of Otay Landfill and authorizes the Mayor to execute the same. Presented by Approved as to form by Michael J Shirey Deputy City Attorney III a~ Y1t~~~ Ann Moore City Attorney J:\Attorney/MichaelSh/Otay Landfill Reso 22-16 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL CA. 1/1( .~~_ Ann Moore City Attorney Dated: 8/16/06 Second Amendment to the Agreement with the County of San Diego Regarding Jurisdiction Over and Operation of the Otay Landfill 22-17 SECOND AMENDMENT TO AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF OTAY LANDFILL This SECOND AMENDMENT is entered into as of this day of , 2006, by and between the parties hereto, with reference to the following facts: RECITALS A. The County of San Diego, a political subdivision of the State of California (hereinafter "County"), and the City ofChula Vista, a municipal corporation of the State of California (hereinafter "City") entered into that certain Agreement between the County of San Diego and the City ofChula Vista regarding jurisdiction over and operation of Otay Landfill as of May 15, 1996 (the "Agreement). B. The County and city wish to amend the Agreement as authorized by Paragraph 22 thereof. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1 Subparagraphs 6(b) and (c), and paragraph 14 are deleted and deemed void ab initio, as if they never existed, and shall have no force and effect whatsoever. 2. Except as amended by the First Amendment, and this Second Amendment, the Agreement shall remain in full force and effect. 22-18 SIGNATURE PAGE TO THE SECOND AMENDMENT TO AGREEMENT BETWEEN THE COUNTY OF SAN DIEGO AND THE CITY OF CHULA VISTA REGARDING JURISDICTION OVER AND OPERATION OF OTA Y LANDFILL City of Chula Vista County of San Diego By' Stephen C. Padilla Mayor By' Thomas J Pastuszka Clerk of the Board of Supervisors Date: Date; ATTEST Susan Bigelow, City Clerk Approved as to form by' Approved as to form bY' Arm Moore, City Attorney C. Ellen Pilsecker, Senior Deputy County Counsel l:\Attomey\MichaeISh\Otay Landfill 2nd Amend.doc 22-19