HomeMy WebLinkAbout1993-11-02; City Council; 12450; AWARD CONTRACT FOR 1993-1994 REMOVAL OF HAZARDOUS WASTES FROM VARIOUS CITY-OWNED PROPERTIESAB # /< +y'i TITLE: t:NA,RD coma FOR 1993-1994
MTG. 1 wW93 REMOVAL OF HAZARDOUS WASTS FROM
DEPT. U&M VARIOUS CITY-OWNED PROPERTIES
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C1"Y OF CARLSBAD - AGEp'7A BILL '
RECOMMENDED ACTION:
Adopt Resolution No. ??*J% accepting bids and awarding annual contr:
estimated amount of $36,580 for the removal of hazardous wastes from var
owned properties to Hazardous Waste Disposal Specialists of Carlsbad, Cal accordance with the provisions cf Cc;ln:rsci No, U/M 93-9.
lTEM EXPLANATION:
Hazardous wastes generated by City departments and collected or obtained th
enforcement and illegal dumping activities are stored in an approved facility a
Maintenance facility. In compliance with federal, state and county regulatioi
hazardous wastes must be removed from City property and disposed of on a
cycle by a licensed hazardous waste management staff or organization. Sinct
do not have the required training and licenses, transport and disposal of hazarc has been provided by contracrors. The present contract for hazardous waste tr2
disposal has expired.
A Request for Proposal was sent to several vendors requesting bids for the
hazardous wastes generated through City operations or obtained though law el action or illegal dumping. Three bids were received for the identificatic
transport and disposal of hazardous wastes.
Each bid was comprised of a fixed base bid, plus a per drum disposal fee f
types of wastes. Staff evaluated the bids based on the average generation last
Based on staffs evaluation, the low bid was submitted by Hazardous Was
Specialists of Carlsbad. The results are displayed in Exhibit 2.
Contract documents are on file in the City Clerks office.
FISCAL IMPACT:
The estimated annual amount of this contract is $36,580. The unencumbere
the Mechanical Maintenance Hazardous Waste Disposal Account is $38,765.
is part of the Central Garage Internal Service Fund, those hazardous wastes 5
departments other than the Central Garage will be covered by this annual c
the costs being charged back to the user department.
EXHIBITS:
1. Resolution No. 93-dYf
2. Bid Comparison
3. Agreement Documents
4. Hazardous Disposal Specialists Bid
5. Customer References
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RESOLUTION NO. 93-298
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSE CALIFORNIA, ACCEPTING BIDS AND AUTHORIZING EXECUTION C
CONTRACT FOR THE REMOVAL OF HAZARDOUS WASTES, CONTR NO. U/M 93-9
WHEREAS, bids have been received by the City of Carlsbad, Cd
the removal of hazardous wastes in accordance with Contract No. U/M 93-9
WHEREAS, the lowest responsive bid received for this service wa
by Hazardous Waste Disposal of Carlsbad, California, with an estimated total
$36,580; and
WHEREAS, funds are available in the Mechanical Maintenance E
completion of this service.
NOW THEREFORE, be it resolved by the City Council of Carlsbac
as follows:
1.
2.
The above recitations are true and correct.
The bid by Hazardous Waste Disposal of Carlsbad, Califc
1993-94 removal of hazardous wastes, Contract No. U
hereby accepted and the Mayor and City Clerk are hereb!
to execute a contract therefore.
PASSED, APPROVED ANB ADOPTED by the City Council of
day of 2 Carlsbad, California, at its regular meeting held on the
1993, by the following vote, to wit:
2nd
AYES:
NOS: None
Council Members Lewis, Stanton, Nygaard, Finnil
Hazardous Waste Removal Contract Bid Comparison
1992- 93 Hazardous Waste
Genera tion American Processing Disposal Specialists Alternat
Base bid N/A $14,176 $16,030
Asst. Fees NIA $360 included
Steam Rack Waste 28 drums $10,416 $6,160
Used Oil Filters 5 drums $930 $475
Solvent based Paint 29 drums $8,120 $7,975
Water-based Paint 27 drums $7,290 $5,940
Total Estimated Annual Cost $41,892 $36,580
Assumesgeneration at 1992-93 levels.
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REMOVAL OF HAZARDOUS WASTE
THIS AGREEMENT, made and entered into this 4th day of NOVEMBER , 1993,
between the CITY OF CARLSBAD, California, a municipal corporation, hereinafter referrt
"City", and Hazardous Disposal Specialists, Inc., hereinafter referred to as "Contractor".
WITNESSETH
WHEREAS, the City does find that the proposal tendered by the Contractor for rei
hazardous waste, including the furnishing of all labor, services, materials and equipmen
responsible proposal and of high standards:
WHEREAS, the City of Carlsbad does further find and determine that it would be in
interest of the City that said proposal be accepted and the contract be awarded to the Co:
NOW, THEREFORE, for and in consideration of the mutual covenants and promis
parties hereto and upon the express terms and conditions hereinafter set forth, it is agree1
between them, and each with the other, as follows:
1, This agreement shall consist of and include the following documents attache
as Exhibits A, B, C and D, and incorporated by reference herein:
A. Bid Proposal
B. Client Listing
C. Statement of Financial Responsibility
D. List of Waste Generation Sites
All agreement documents are intended to cooperate and be coordinated so tha
called for and any one not mentioned in the other or vice versa, is to be executed the :
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mentioned in all contract documents.
2. The said Contractor agrees to furnish all tools, equipment, apparatus, facilities,
services and materials to remove hazardous material on a quarterly basis according to the prc
submitted and accepted as in all agreement documents hereinabove referred. It is understoc
agreed that all said labor, services, materials and equipment shall be furnished and saic
performed and completed by the Contractor as an independent Contractor, subject to the ins1
and approval of the City acting through its Assistant Utilities/Maintenance Director or desi
representative. The Contractor shall assume all risks for loss of or damage of tools or equ
owned/rented by the Contractor.
3. The Contractor, prior to commencing work under this agreement, shall 1
to the Assistant Utilities/Maintenance Director and have accepted and approved, a listin1
materials that will be used. With this listing will be a legible copy of the Material Safety Dal
(MSDS) for each product that requires a MSDS. The listing must be corrected with revised
as appropriate, and submitted to the Assistant Ul%ties/Maintenance Director for accepta
approval prior to a material being changed,
4. The Contractor shall provide the City of Carlsbad with appropriate hazardoi
manifests for materials that are removed and show chain of custody to the final destinati
The Contractor shall obtain and pay for a City of Carlsbad business licen?
time of signing of this Contract. The business license must be maintained for the duratic
Contract.
6.
5.
The Contractor shall comply with all Federal, State, County, and City
Ordinances and Regulations, including Workers' Compensation and Immigration Refom
Act of 1986.
7. Contractor's employees shall be required to be clean and neat in appear
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wear identification. Contractor will be required to submit verification that employees have the
to work in the United States. Contractor shall perform all obligations in a good professiona
lawful manner, provide competent and sober personnel, efficient and clean equipment, and s
the City in courteous, helpful and impartial manner. The Contractor shall remove any
employees for justifiable cause upon the request of the City.
8. Once a year after the fist year of this agreement (but not retroactively),
written request by the contractor and approval by the Assistant Utilities/Maintenance Dhectc
annual sum shall be subject to change in accordance with the Consumer Price Index, San
as published by the U.S Department of Labor, based on one-half of the percentage change
index from January 1st of each year of the contract.
9. The Contractor agrees to commence the work provided herein immediate1
the completion of the execution of this agreement and the delivery to Contractor of an el
copy thereof and to continue in a due and diligent worker-like manner and without inten
This agreement shall extend for a period of one (1) year from the date hereof. The Utili1
Maintenance Director may extend this contract for three (3) additional one (1) year peno
total contract period of four (4) years, upon satisfactory performance.
10. Insurance. Contractor shall procure and maintain for the duration of the
insurance against claims for injuries to persons or damage to property which may arise frc
connection with the performance of the work hereunder by the Contractor, his
representatives, employees or subcontractors. Said insurance shall meet the City's p
insurance as stated in Resolution No. 91-403.
(A) COVERAGES AND LIMITS - Contractor shall maintain the types of cover;
minimum limits indicated herein:
1. Comprehensive General Liabilitv Insurance:
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$1,000,000 combined skgle Ldt per ~cu~ence f8y bad@ WUry and PI1
damage. If the policy has an aggregate ut, a separate aggregate h the an
specified shall be established for the risks for which the City or its agents, off
employees are additional insured.
2. Automobile Liabilitv Insurance:
$1,000,000 combined single limit per accident for bodily injury and pi
damage.
performance of the contract, used onsite or offsite, whether owned, non-0%
hired, and whether scheduled or non-scheduled. The auto insurance certifica
In addition, the auto policy must cover any vehicle used
state the coverage is for "any auto" and cannot be limited in any manner,
3. Workers Compensation and Employers' Liability Insurance:
Workers' Compensation limits as required by the Labor Code of the 5
California and Employers' Liability limits of $1,000,000 per incident. V
compensation offered by the State Compensation Insurance Fund is accep
the City.
4. Hazardous Waste Haulers Insurance:
$1,000,000 combined single limit per occurrence for bodily injury and 7
damage. If the policy has an aggregate limit, a separate aggregate in the
specified shall be established for the risks for which the City or its agents,
or employees are additional insured.
ADDITIONAL PROVISIONS - Contractor shall ensure that the policies of i~
required under this agreement contain, or are endorsed to contain, the following pr
General Liability, Automobile Liability and Hazardous Waste Haulers Coverages:
(B)
1. The City, its officials, employees and volunteers are to be covered as a
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insured as respects: liability arising out of activities performed by or on beh
the Contractor; products and completed operations of the contractor; pre
owned, leased, hired or borrowed by the contractor. The coverage shall cont:
special limitations on the scope of protection afforded to the City, its ofl
employees or volunteers.
The Contractois insurance coverage shall be primary insurance as respects thc
its officials, employees and volunteers. Any insurance or self-insurance main
by the City, its officials, employees or volunteers shall be in excess
contractois insurance and shall not contribute with it.
Any failure to comply with reporting provisions of the policies shall not
coverage provided to the City, its officials, employees, or volunteers.
Coverage shall state that the contractois insurance shall apply separately,
insured against whom claim is made or suit is brought, except with respec]
limits of the insureis liability.
Contractor' insurance policies shall be endorsed to provide the City thirty daq
of cancellation.
Indemnification. Contractor shall assume the defense of, pay all expc
defense, and indemnify and hold harmless the City, and its officers and en
from all claims, loss, damage, injury and liability of everykind, nat
description, directly or indirectly arising from or in connection with the perf
of the Contractor or work; or from any failure or alleged failure of Cont
comply with any applicable law, rules or regulations including those rc
safety and health; except for loss or damage which was caused solely by i
2.
3.
4.
5.
11.
negligence of the City; and from any and all claims, loss, damages, ir
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liability, howsoever the same may be caused, resulting directly or indirectly fro
nature of the work covered by the Contract, unless the loss or damage was c
solely by the active negligence of the City. The expenses of defense include a1
and expenses including attorneys fees for litigation, arbitration, or other G
resolution method.
12. This agreement may be terminated by either party by giving thirty (30) days' 1
notice to the other, and this agreement shall terminate forthwith thirty (30) days foUohg f
such notice is given.
13. In the event that any of the provisions of this agreement are violated
contractor, the City may terminate the agreement by serving written notice upon the Contr
its intention to terminate such agreement and, unless within ten (10) days after the service
notice violation shall cease, the agreement shall, upon the expiration of said ten (10) day
and terminate. As to violations of the provisions of this agreement which cannot be rem'
corrected within ten (10) days, said agreement shall, at the option of the City, cease and tc
upon the given of like notice. In the event of any such termination for any of the reas01
mentioned, the City may take over the work in progress and prosecute the same to comp
agreement or otherwise for the amount and at the expense of the Contractor.
14. All performance (which includes services, materials, supplies and ec
furnished or utilized in the performance of this agreement, and workmanship in the perf
of services) shall be subject to inspection by the City at all times during the term of the as
The Contractor shall provide adequate cooperation to any inspector assigned by the City
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b. If any services performed hereunder are not in conformity witl
specifications and requirements of this agreement the City shall have the right to requirl
Contractor to perform the services in conformity with said specifications and requirements
additional increase in total contTactual amount. When the services to be performed are oj
nature that the difference cannot be corrected, the City shall have the right to (1) requi:
Contractor immediately to take all necessary steps to ensure future performance of the sew
conformity with requirements of the agreement and (2) reduce the contractual price to refll
reduced value of the services performed. In the event the Contractor fails to perform the SI
promptly or to take necessary steps to ensure future performance of the service in confod
the specifications and requirement of the agreement, the City shall have the right either
agreement or to otherwise have the services performed in conformity with the agr
specifications and charge to the contractor any cost occasioned to the City that is directly
to the performance of such services, or (2) terminate this agreement for default.
15. The Contractor shall perform the services provided for herein in Contract0
way as an independent Contractor and pursuit of Contractox's independent calling, and nc
employee of City. Contractor shall be under control of the City only as to the resu
accomplished but shall consult with the City as provided for this agreement. The Contrac
independent Contractor of the City. The payment made to the Contractor pursuant to this
shall be the full and complete compensation to which Contractor is entitled pursuanl
contract. The City shall not make any federal or state tax withholding on behalf of the co
The City shall not be required to pay any workers' compensation insurance on beha
Contractor. The Contractor agrees to indemnify the City for any tax, retirement con
payment which the City may be required to make on behalf of Contractor or any em
Contractor for work done under his agreement. The Contractor shall be aware of the reqi
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of the Immigration Reform and Control Act of 1986 (8 U.S.C. Sec. 1101-1525) and shall cc
with those requirements, including, but not limited to verifying the eligibility for employm
all agents, employees, subcontractors, and consultants that are included in this agreement.
Except for the manufacturers’ factory warranties, the Contractor disclai-
warranties with respect to materials supplied hereunder and further disclaims any and all 11
for failure to perform or delay in performance hereunder where the same is due in whole or
to any cause beyond Contractois reasonable control, such as, but not limited to, fire,
earthquake, lightning, strike or other labor difficulty.
16.
17. This agreement or any part thereof shall not be assigned by Contractor with0
written consent of City.
18. This agreement may be amended or modified only by written agreement si:
both parties, and failure on the part of either party to enforce any provision of this agreemt
not be construed as a waiver if the right to compel enforcement of such provision or pro’
The Conuactor shall be aware of the requirements of the Immigration ref
Control Act of 1986 and shall comply with those requirements, including but not li
verifying the eligibility form employment of all agents, employees, sub-contractors and cO’
that are included in this agreement.
19.
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20. Fees shall be paid the Contractor according to information detailed in propc
Exhibit A. Payment of fees shall be with thuty (30) days after receipt of invoice for service:
Contractor.
IN WITNESS WHEREOF, the parties hereto have executed this agreement in the di
year first above written.
CONTRACTOR
APPROVED AS TO FORM:
ATTEST: llJZdLL6- RONALD R. BALL, City Attorney
City Clerk By&oL
Karen J. Hirata //. 4*5 3 Deputy City Attorney
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REQUEST FOR PROPOSAL
ANNUAL. CONTMCI' FOR REMOVAL OF HAZARDOUS WASTE
FROM THE CITY OF CARISBAD
PURPOSE:
This contract is to remove on a routine basis hazardous waste generated by varioi
departments. It is also to provide a means for the removal of hazardous and toxic
which might inadvertently appear due to the illegal dumping or from actions ass
dth the Police or the Fire Department.
Should the need arise the City of Carlsbad will require that a licensed hazardou,
,transporter report to a designated site in the case of emergency to remove UI
hazardous wastes.
POLICY:
It is the policy of the City of Carlsbad to be in compliance with all Federal, Cot
State regulations regarding the removal and storage of hazardous waste. As suc
be required for the routine removal on a ninety day cycle, hazardous waste iter
are generated by City departments associated with accomplishing their assigned
PROPOSAL I:
1. The lump sum cost for the annual removal of the liquids in the API separa
Safety Center, 2480 Impala Drive is $1,850.00/quater X 4 = $7,4oOto'
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A.
B.
C.
Assume the waste stream has been qualified.
Assume the volume is 1500 gallons and there are no solids.
Assume that MSDS sheets are available for all chemicals which mighi
into the floor drain system which flows into the API separator.
Assume liquids are recyclable at DeMenno/Kerdon. D.
State the annual lump sum cost for qualification of the waste stream from
separator is $ -8- HDS, I nc, w i 1 1 pay annua 1 fee.
State Yes or No if this qualification fee will be required for each emptying of
separator: No
Any con&tiom apply? No change in generating process.
State the annual lump sum cost for removal of the liquids from the 1,OOC
sand and grease separator at the Service Center. $ 1,680.00/load x 4 = !
State the qualification fee for the waste stream derived from the sand anc
separator $ -8-
2.
3.
4.
5.
6. State yes or no whether this qualification fee will be required for each cle
the sand and grease separator No, same as #3 ,
State the lump sum cost for the removal of solids which might accumulat
sand and grease separator $ 275.00/ load x 4. = $1 ,lOO.OO/yea r .
A.
B.
7.
Assume that solids are 10% of the 1,000 gallon sand and grease SI
Assume that no MSDS sheets are available for materials in the sum1
these materials will contain petroleum by-products associated with
cleaning of automotive engines.
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8. State the lump sum cost of removal of each drum of wastes generated fro1
trench of the steam clean pit and residue from the car wash f
$ 220.00
A. Assume the residues from the steam clean trench contain petroleu
products associated with steam cleaning automotive engines.
Assume there are no MSDS sheets available for this material.
Assume the slids from the car wash facility contain some petrolei
products associated with residues which have been washed from ve'
B.
C.
9. State the lump sum cost for the transportation and disposal of each drum
filters generated by the auto shop $ 95.00
A. Assume these filters have been used for the following fluids: Enp
diesel fuel, gasoline, engine coolant containing glycol.
B.
C.
Assume MSDS sheets are available for all of the fluids named abov
Assume that the glycol-containing filters are separate from the oil
filters.
10. State the lump sum cost for the removal of a solvent-base paint a 405 Oak
either per gallon, or per drum $ 275.00 - (per drum) (per gallon).
State the lump sum cost for removal of residues from water-borne paints at
6 5" sol ids
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Avenue, with per gallon, or per drum $ 220.0.0. (perdrum) (pe
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SECITON 11:
These are additional services that might be required, and this fee schedule is not par
bid evaluation.
1. State the per hour rate an conditions that might apply for the r(
collection and disposal of unidentified hazardous
ms: Inr - can.on a Der iob ~s(s.rwirl~ routrne Wp of UL
various locations. Any analytical required is billed at cos
the time a Haz Cat Test will suffice E subsequent transporta
disposal can be performed at a fraction of the cost of a typ response. This is if we have a reasonable amount of time to
waste (3-5 days). My experience is that most bf the time an
It day be desira6le for the City of Carlsbad to have hazardous waste
conducted on a quarterly basis. It is anticipated that this instzuctio
be no longer than one hour in length, per session, per quarter. I
terms and conditions that would apply for this
*.
2.
At this time HDS, Inc. does not offer such training.
3. State the terms and conditions that would apply for the rt~~-~al anc
of unidentified hazardous waste which might be found in the ha:
waste storage area, the Safety Center, 2480 Impal:
Haz Cat Testing,transportation & disposal at very competi
pricing on a per job basis.
f.(cont)response situation is nothins more than classification. t
Immediate pick-up is available. How\ disposal of waste.
when the cost goes up substantially.
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SECITON III.
These are materials which might be required, and these prices are not part of 1
evaluation.
1. State the price each or in quantity for Dot overpack
$
State the price each or in quantity for DOT transportation 2.
$ 17 H Open Top Metal $30.00/drum (delF3ered)
3. State the price each or in quantity for MSDS three ring
$
State the price per pound or per bag or by quantity for lab packing 1
$
Name the item and state the prke and quantity for labels and placa
are required for the safe storage and transportation of hazardou:
4.
5.
$ .$ $
Shipping labels 15 placards for truck are provided.
2531-8 State Street Dennis Lynch
Name Address
Carlsbad, CA 92008
City, State, Zip Code
P?9? 5532 PresJdent Title Telephone
Hazardous Disposal Specialists, 8/25/93
Date Inc. Company
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I HWardous Disposal Specialists, 1
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2531-B State Street, Carlsbad, CA 92008 Phone: 619-434-8532 * Fax: 61
CUSTOMER REFERENCES
CCXPOSITZ OPTICS INCO2PORATED
9617 Distribution Ave.
%an Diega, CA 92121
i 619 j 586-6000
Mr. Carl Houston
SUMITOMG METAL MINING
4055 Calle Platina
Oceanside, CA 92056
(019; 941-4500
Mr. Flick Keeley
SAN DIEGO TROLLEY, INC.
1255 Imperial Ave., Suite 900
San Diego, CA 92101
(619) 595-4934
Mr. Carnell Butler
AMERON STEEL FABRICATION CORP.
13032 Slover Avenue
Fontana, CA 92335
Xr. Mark Ward
ROBINSON PREZIOSO INC.
10950 Dale Street
Stanton, CA 90680
(714) 821-4800
Mr. Ken Becker
SUPERIOR INDUSTRIES
7500 Jaodley Avenue
Van Nuys, CA 91406
(818) 781-.4-973 Mr. Carl Baswto
SWIFT ADHESIVES
2600 south Garfield Avenue
Los Angeles, CA 90040
(213) 726-1039
Mr. chuck McCaughn
(714) 822-1280
TOXI-LAB INCORPORATED
2 Goodyear
Irvrne, CA 92718
(800) 854-0277 X7915
Ms. Lorna Gamboa
I'IU V I I 24 J.L..l.> I," .. 0 HHLHKUUUs Ulbl'U>HL Yi'L ILL. I-OIY-~J~-U~JL 0
2750 Roosevelt Street - Carlsl
ARTHUR D, EAST
L- ' CERTIFIED PUBLIC ACCOUNTANT
(6 I'
FA
-& V
Hovrmbrr 13/ 1993
Tor Haeardour Disposal Bpeoialists Incr.:
WE have aoinpiled the aoaompanying statement of assets, liabili
and aapitrl arising from cash transaations-income tax basi HAZARDOUB DISPOSAL BPECIALISTS INC. of Lteptember 31, 1993 ant
related 8tatement of Revenues collected an& expense8 paid-ii barrirr for the month then ended, in aooordano8 with atai amtabli6hed by the American rnatitute of certified Pi Aaaouaesats.
astatements infomation that is the representation 91: manage1 We have not audited or reviewed the aaaompanyiag firm statement and, aecordingly, do not express an opinion 01: any form of assurance on them.
Them finandal ataternents were prepared on the basis of awaou the Corporation uses for inaome tax purposesr whioh aomproheneivo baeie of aaaounting other than generally aaa rcrcrounting prinaipler.
A crampilatian ir limited to pruenting in tho form of fina:
---
k J?2zd
Arthur b. Ea8k Certified ~ublio Aaaountant
J
11 * 13 IYU
lYUV 3 yd
1-013-4J4-033L ' =b RHLHKUUU3 U1~ri~3t-l~ jrc
mzAttr>ous DIsPO~AL SPECIALISTS, INC IncQme Statement For the Period Ended October 31, 1993
1 Month Ended 7 Months End€ oct. 31, 1993 PCt Qct. 31, 19s
44,222.05 100,OO $ 379,963. f
L /'
Revenue
0. bo- ( 331.I
Sales $ Raturns and Allowances 0.00
Total Revenue 44,222.05 100.00 379,632. (
Transportat ion 4 , 277.30 9.67 70,873. Disposal 28,083.65 63.51 218,493.
Cod of Sale5
0.00 983 Labwork * 0.00
Total Cast of Sales 32,360.95 73.18 290,356 *
Gross Profit 11,869.10 26.82 89,276
Operating Expenses 3,26%. 78 7.39 57,345.
Net Income (Loss) $ 8,592.32 -19.4: $ a
Operating Income 8,592.32 29.43 31,930.
L-
.- -
See Accompanying Accountant's Compilation Report
11:20 No.
Nov ib"" HkZRRDOUS DISPOSkL SPE TELd-619-434-8532
HAZARDOUS DISPOSAL SPECIALISTS, INC Income Statement For the Period Ended June 30, 1993
-.
3 Months Ended 3 Months Ended Yun. 30, 1993 Pct Jun. 30, 1993
CI-----------L II.L*YY*C w--w--mw-*m-w"
Revenue Sales $ 169,471.09 100.20 $ 169 t 471. OS
( 331.N
--------*I-*-
( 331,OO) ( 0,20) ------------- ------ Returns and Allowances
Total Revenue 169,140.09 100.00 169,140.05
Cost of Sales Transportation 29,822.55 17.63 29,822 e 5E Disposal 79,379.92 46.93 79,379.9; Labwork 938.81 0.56 938.83 ------"------ ------ -------------
Total Cost of Sales 110,141.28 65.12 110,l,41*2E ------------- ---I-- -------------
Gross Profit 58,998.81 34.88 58,998.81
Operating Expenges 24,197.55 14.31 24,197.55
Operating Income 34 , 8O1+26 20 e 58 34,801.21
------------- ----.-I c------------
------------- ------ ------------- -
34,8O1.% ===e========: 34,801.26 20.58 $
--I-.#.-&--- ,-,,------EEP =mx==nmn
_- Net Income (Lass) $
/
See Accompanying Accountantrs Compilation Report
11 .LU NO.
NoV YYJ H44dflKUUUS UlSYUbHL bYk It -blY-434-83SL w
HAZARDOUS DISPOSAL SPECIALISTS, XNC Balance Sheet June 30, 1993
c
Assets
current Assets cash in Bank $ 2 , 645.12
Loan Stockholder 27,440.80
----I--------
Total Current Assets $ 30,
Fixed Assets Fixtures and Equipment 3,458.13
-e-----------
Total Fixed Assets 3,
Other Assets Deposits 125.00 Convenent Not To Compete 22,500.00 Axtort i zation (7,5OA .OO) Znvestments 6,225.00 -------------
Total Other Assets 21
54
-.I-.Id-..
==E===!
Total Assets $
.-.'
d,
See Accompanying Accountant's Compilation Report
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CITY OF WBAD HAZARDOUS WASTE GENERATION SITES
e 405 Oak Avenue Street and Facility Maintenance
e 2075 Las Palmas Community Development
e 2480 Impala Fleet Maintenance
e 2560 Orion Way Safety & Service Center
various other locations throughout the City (illegal dumping)
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*
All of the TSD facilities utilized by
HAZARDOUS DISPOSAL SPECIALISTS
are fully permitted and insured to handle your specific waste.
American Resource Recovery
Chemical Waste Management, hc.
Essex Waste Management
Gibson Oil
Liquid Waste Management
Noms Environmental Services
Petroleum Recycling Corp.
Statewide Environmental Services
U.S. Ecology
AlI of the Transporters represented by
HAZARDOUS DISPOSAL SPECIALISTS
carry full hazardous waste transporter insurance and
have excellent safety records.
American Processing Co.
Bee J Enterprise Services
Jemicon Inc.
KVS Transportation
Tri State Motor Transit
For additional infodon, please contact OUT office HAZARDOUS DISPOSAL SPECIALISTS
(619) 434-8532 Fax (619) 434-8417
0 0 Hazardous Waste Removal Contract Bid Comparison
1992-93 Hazardous Waste
Generation American Processing Disposal Specialists Alternai
Base bid N/A $14,776 $16,030
Asst. Fees N/A $360 included
Steam Rack Waste 28 drums $10,416 $6,160 Used Oil Filters 5 drums $930 $475
Solvent based Paint 29 drums $8,120 $7,975
Water - based Paint 27 drums $7,290 $5,940
Total Estimated Annual Cost $41, $92 $36,580
Assumes generation at 1992 -93 levels.
( e 0 0
D DWIGHT \
TRACY R RIC
W SCOTT V
JAMES H
THE LAW OFFICES OF D. DWIGHT WORDEN
A PROFESSIONAL COR PO RAT1 ON TERRY I 740 LOMAS SANTA FE DRIVE SUITE 102 CRYSTAL CR
MICHAEL HAE SOLANA BEACH CALIFORNIA 92075
i6191 755 6604 - 16191 459 7979
FAX 16191 755 5198
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:. 7 r"'
All Cities in the County of San Diego, City Manags
and City Attorneys
MEMORANDUM 5
-T TO :
FROM : D, Dwight Worden, Esq., Special Counsel city of CY
Vista
DATE : August 17, 1993
RE : Chula Vista Lawsuit Challenging County 50 Percent
Waste Penalty Surcharge Fee
Enclosed for each City is a courtesy copy of the above- referenced Petition and Complaint which has been filed by tl
City of Chula Vista. As you can see from a review of the
Petition/Complaint, this action challenges the 50 percent
!!economic risk surcharge'! fee, which the lawsuit calls the f
percent penalty surcharge, imposed by the County on all sol: waste sent to County facilities from cities that have not s: the Interim Waste Agreement and joined the Interim Waste
Commission.
The subject matter of this litigation may be of intere
your city, and your city may determine that it has an inter
participating in the case, or that its interests are affect
the litigation.
participate in the litigation in support of the position of
City of Chula Vista, in support of the position of the Coun
in support of an independent position, Chula Vista would be
to stipulate to your intervention.
determines that its interest is affected such that it wish€
participate in the litigation. If that is your determinati
will take the appropriate action to include you in the case
If your city determines that it wishes to
Please let us know as soon as possible if your city
DL/CITCAD22.100
s 0 0
All San Diego County C. August 17,
Pi
we do not hear from you, we will assume that you have determ that your interest is not affected and that you do not wish participate at this time.
with you further upon request.
I would be happy to discuss any aspects of this litigat
Sincerely,
LAW OFFICES OF D. DWIGHT WORDE A Professional Corporation
.* r -
c
D. Dwight Worden, Special Counsel City of Chula Vista
DDW: dl
Enclosure
DL/CITCAD22.100
CITY OF CHULA VISTA
P1 ai nti ff (s)
vs .
COUNTY OF SAN DIEGO
Defendant (s)
Case No.: 667609
NOTICE OF CASE ASSIGh
(Local Rules; Division II, Rules 1.3 8
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OB 6 3 2 3 % KENNETH E. MART D. DWIGHT WORDEN, ESQ. - State Bar No.
SOLANA BEACH, CA 92075 AUG 11 199
By: JOANNE ALOSI. Attorneys For: PETITIONER/PLAINTIFF BUSINESS
CIn-'. -l *L.- P',Wr,(y LAW OFFICES OF D. DWIGHT WORDEN, A.P.C.
740 LOMAS SANTA FE DRIVE, SUITE 102
(619) 755-6604
CITY OF CHULA VISTA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN DIEGO 1
CITY OF CHULA VISTA, a ) Case NO. 66yQ;og
municipal corporation, 1-
) NOTICE OF COMMENCE
Petitioner/Plaintiff, ) ACTION [PUBLIC RESOUI
) §21167.5]
) 1
v.
COUNTY OF gAp3 DIEGO, a ) governmental entity, BOARD OF ) SUPERVISORS OF COUNTY OF SAN ) DIEGO, its legislative body: ) DOES 1 through 25, inclusive, )
Respondents/Defendants. ) )
ROES 1 through 50, inclusive, )
Real Parties-In-Interest.
1
1
) 1 1
DL/CIJCAD1.289
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PLEASE TAKE NOTICE that the above-referenced action
on August 11, 1993. The action seeks to restrain, en
invalidate the County's 50 percent penalty surcharge impo:
solid waste generated in cities which have not signed the
Interim Waste Agreement. The action alleges CEQA violatic
forth in the Petition, challenges the findings and evidenc
penalty surcharge, seeks declaratory relief on a r
theories, and seeks a temporary restraining order, pr
injunction. You will be hearing from us with regard to 5
the action.
Respectfully submitted,
LAW OFFICES OF D. DWIGHT 1 + DATED:
By :
D .- Dwl-ghf Worden, Attorneys for Petitioner/' CITY OF CHULA VISTA
DLXITCAD1.289 -1-
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LPERIOR COURT OF CALIFOmIA, COUNTY OF sm DIEGO
TITLE OF CASE (Abbreviated) CITY OF CHULA VISTA,
.
1
et al. v. COUNTY OF SAN DIEGO, ET AL.
ATTORNEY (S) NAME ADDRESS TELEPHONE
D. DWIGHT WORDEN, ESQUIRE (619) 755-6604
LAW OFFICES OF D. DWIGHT WORDEN
740 Lomas Santa Fe Drive, Suite 102
Solana Beach California 92075
ATTORNEY (S) FOR: HEARING DATE-TIME-DEPT
Petitioner/Plaintiff,
CITY OF CHULA VISTA
A Professional Corporation
FOR COURT us]
QP Q KENNETH E. MAFi CCrk rf tL- e,,.,,,,if
AUG I1 19:
BUS1 NESS BY: JOANNE ALOSI.
CASE NUMBER
66766
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D. DWIGHT WORDEN, ESQ. - State Bar No. QP LAW OFFICES OF D. DWIGHT WORDEN, A.P.C. 6 3 2 3 6 c KENNETH E. m~
740 LOMAS SANTA FE DRIVE, SUITE 102
SOLANA BEACH, CA 92075
(619) 755-6604
CI@ rnf 'k- ".,.mrj,
BUG 11 19:
By: JOANNE ALOSI. Attorneys For: PETITIONER/PLBINTIFF BUS1 NESS
CITY OF CHULA VISTA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN DIEGO
CITY OF cmm VISTA, a ) Case NO. 6GyC339 municipal corporation, 1
REQUE ) PETITIONERS ' Petitioner/Plaintiff, ) PREPARATION OF THE
) [PUBLIC RESOURCE!
V. ) §21167.6(a)]
) COUNTY OF sm DIEGO, a )
governmental entity, BOARD OF )
DIEGO, its legislative body: )
DOES 1 through 25, inclusive, )
Respondents/Defendants. )
SUPERVISORS OF COUNTY OF SAN )
)
) 1
1 Real Parties-In-Interest. 1
)
ROES 1 through 50, inclusive, )
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Petitioner/Plaintiff in the above-captioned matt
requests that Respondents/Defendants prepare the recoi
above matter.
DATED: ?hi )g? Respectfully submitted,
LAW OFFICES OF D. DWIGHT 1
OQ-,,f LQ By :
D. Dwigh Worden,
Attorneys for Petitioner/:
CITY OF CHULA VISTA
-
DL/CITCADI ,290 -1-
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
TITLE OF CASE (Abbreviated) CITY OF CHUM VISTA,
et al. v. COUNTY OF SAN DIEGO, ET AL.
ATTORNEY (S) NAME ADDRESS TELEPHONE
D. DWIGHT WORDEN, ESQUIRE (619) 755-6604
LAW OFFICES OF D. DWIGHT WORDEN
A Professional Corporation
740 Lomas Santa Fe Drive, Suite 102
Solana Beach California 92075
ATTORNEY (S) FOR: HEARING DATE-TIME-DEPT
Petitioner/Plaintiff,
CITY OF CHULA VISTA
FOR COURT USE
QP c KENNETHE.MAR Clerk ,-f thy ri+no+
AUG 1 1 19!
BUSINESS By: JOANNE ALOY
CASE NUMBER
667Gf
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D. DWIGHT WORDEN, ESQ. - State Bar No. 63236
LAW OFFICES OF D. DWIGHT WORDEN, A.P.C.
740 LOMAS SANTA FE DRIVE, SUITE 102 OB
Attorneys For: PETITIONER/PLAINTIFF AUG11 1
By: JOANNE ALO
BUS1 N E!
SOMA BEACH, CA 92075 c KENNETHEM
Clerk nf tkrr **$* (619) 755-6604
CITY OF CHULA VISTA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN DIEGO
CITY OF CHULA VISTA, a ) Case No. 667609 municipal corporation, 1 w ) PETITION FOR Petitioner/Plaintiff, ) TRADITIONAL MANDAM
) VIOLATION OF CEQA (: V. ) CODE I21168.5; CODE C
15 1085) : COMPLA:
COUNTY OF SAN DIEGO, a ) DECLARATORY RELIEF (
'
governmental entity, BOARD OF ) PROC. § 1060) , SUPERVISORS OF COUNTY OF SAN ) TEMPORARYRESTRAINING
DIEGO, its legislative body; ) PRELIMINARY INJUNCTIC
DOES 1 through 25, inclusive, ) 1
1
)
1 Real Parties-In-Interest. 1
1
Respondents/Defendanks. )
ROES 1 through 50, inclusive, )
DL/CITCAD1.285
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Petitioner and Plaintiff alleges:
I.
INTRODUCTORY ALLEGATIONS
Parties and Capacities.
1. Petitioner/Plaintiff CITY OF CHULA VISTA (herei
to as IIPETITIONER CITY!! for convenience) is, and at
herein mentioned was, a municipal corporation duly orgi
existing pursuant to the constitution and laws of the
California located within the County of San Diego.
2. Respondent/Defendant COUNTY - OF SAN D'
Respondent/Defendant BOARD OF SUPERVISORS OF COUNTY OF
(collectively herein referred to as "RESPONDENT SAN I
convenience) are, and at all times herein mentio
respectively, a political subdivision of the State of
duly organized and existing pursuant to the constitutic
of the State of California, and the duly elected I
governing body thereof, which, acting in its official
took the actions herein challenged.
3. The true names and capacities of Respondents,
identified as DOES 1 through 25, inclusive, are 1
PETITIONER CITY. PETITIONER CITY is informed and be
thereon alleges that Respondents/Defendants DOES 1 t
inclusive, are individuals and/or agencies with permi
jurisdiction and control over the matters at issu
proceeding, and/or who otherwise claim an interest in t
PETITIONER CITY will seek leave to add the true
capacities of said DOE Respondents/Defendants when tl
ascertained.
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4. PETITIONER CITY alleges that Respondents/Defenc
each of them, (hereinafter sometimes referred to collec
ffRespondentsf') were at all times herein mentioned tb
servants, employees, and representatives of each of the
Respondents/Defendants, and in doing the acts herein a1
at all times acting within the purpose, course, and sco
agency, service, and representation, and with the
permission, and ratification of each of the
Respondents/Defendants.
5. The true names and capacities of Real Parties-I
ROES 1 through 50, inclusive, are unknown to PETIT14
PETITIONER CITY is informed and believes and thereon a1
Real Parties-In-Interest ROES 1 through 50, inclusive, a:
by the relief sought in this action or otherwise claim i
in the matters at issue in this action. PETITIONER CIT'
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leave to amend this Petition/Complaint to state the trul
capacities of such ROE Real Parties-In-Interest when t'
ascertained.
6. PETITIONER CITY alleges that the Real
Interest, and each of them, (herein referred to collc
"Real Parties") were at all times herein mentioned 1
servants, employees, and representatives of each of th
Real Parties-In-Interest, and in doing the acts herein z
at all times acting within the purpose, course, and sc
agency, service, and representation, and with tl-
permission, and ratification of each of the remaining Rc
unless expressly stated otherwise in this Petition an(
///
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The County Solid Waste System -- Backqround.
7. RESPONDENT SAN DIEGO operates, and has operate1
years, a County Solid Waste Disposal System comprised, c
of five landfills currently open and operational,
landfills, and various related and ancillary facilities
Historically, each city in the County (with the
of the new CITY OF SANTEE) contracted with a waste hauli
or companies for solid waste collection services w
jurisdiction of each respective city, and upon pi
contracted waste hauler would deliver the solid waste
more of the County solid waste facilities (except the C.
Diego which operates its own system, although the City of
does utilize County facilities to some extent).
approximately the 1980s, the system operated smoothly anc
effective manner, with no shortage of disposal facilitie
rates charged to Cities and other system users with a t
well below $10 per ton.
8.
9. Through tipping fees collected at the entr
landfill or other facility PETITIONER CITY and other
users of the system have financed and paid for thc
landfills and other system facilities and, as such, have
these facilities. RESPONDENT SAN DIEGO has collected su
fees in its Solid Waste Enterprise Fund.
10. Beginning in the 1980s the demands on the '
increased dramatically as a result of rapid population
other factors. At the same time it became more difficul
finance, and open new landfill and other disposal facilj
28///
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result of increasing environmental standards, increased
from local neighborhoods, and other factors.
11. In or about the early 1980s, RESPONDENT
proposed a controversial trash incineration and recycli
to be located at the San Marcos Landfill and to be op
funded as part of the County solid waste system (the Nc
Resource Recovery Associates llNCRRA1l Project). The NCF
generated substantial opposition from North County (
citizens groups and the proposed $350 million pr
eventually, in response to opposition and litigation, n
elimination of the incineration component and the F
continued only with the recycling component. As a r
total projected cost of the project dropped from $350
approximately $140 million, including financing costs.
SAN DIEGO was unwilling to totally abandon the project
and, instead, made certain financial and other comm
underwrite the modified NCRRA recycling project
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substantial current obligations on the County ' Sc I
Enterprise Fund, including, but not limited to:
A. Entering into a "put or pay11 COI
guaranteeing that RESPONDENT SAN DIEGO would pay
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minimum deliver of 350,000 tons of solid waste per
whether or not sufficient tonnage was actually avai
B. Establishing a separate account (the
County Reserve Account) within the Solid Waste Ente
Fund and granting the NCRRA project a lien and
claim" on all funds in that account for the NCRRA
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project, and precluding RESPONDENT SAN DIEGO from
said funds for any other purpose;
C. Entering into an agreement that req
RESPONDENT SAN DIEGO to control a minimum of 300,000
of waste and which requires RESPONDENT SAN DIEGO to
substantial additional money depositstothe North C
Reserve Account unless the County controls a minim
600,000 tons of waste, and which requires fu
substantial money deposits to the North County Re
Account if the amount of County-wide solid waste
below 1.2 million tons annually. As to cities
waste the above llcontrolll requirements are met on
there is a long-term flow control agreement or commi
by the cities. Further, RESPONDENT SAN DIEGO is re1
of all of these obligations to the NCRRA project
can llcontrolll more than 1.2 million tons of solid
by long-term flow control agreement or by lonc
ordinance enforceable against the cities; and
D. Pledging the solid waste generated i:
unincorporated area of the County to the proje
ordinance so that such waste is not availab:
underwrite other projects.
12. Separate and apart from the controversial NCRl
during the 1980s, RESPONDENT SAN DIEGO and its (
identified a need for other additional solid waste .
including expansion of the San Marcos Landfill, a
transfer stations, a new North County landfill, a new S
landfill, improvements to the Sycamore Landfill, and ii
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to the Otay Landfill. The estimated total cost for tk
projects, including land acquisition, environmental
development and permitting, and construction was est
approximately $300 million. Because of the commitmen
NCRRA project set out above RESPONDENT SAN DIEGO had 1
alternate means to finance and underwrite these other p
13. On or about 1989, RESPONDENT SAN DIEGO first p
all cities in the County that they each sign a flc
agreement irrevocably committing their solid waste fl
County for a period of 30 years. This proposal from RESP
DIEGO was in response to the position of those North Cou
who opposed the NCRRA Project that they would refuse to
solid waste to RESPONDENT SAN DIEGO if the NCRRA Proje
financial obligations were part of the system. Importa
early agreement contained a provision that the tipping fc
would not exceed the cost of running the system. RESP
1 DIEGO contended that it needed control of all cities' was
to underwrite the NCRRA Project and to finance the ot
facilities mentioned above. There was no "economic risk
or penalty fee provision in this agreement. None of
agreed to sign this initial flow control agreement.
14. On or about 1990, RESPONDENT SAN DIEGO sent
flow control agreement to the cities again asking that
sign the agreement. This proposed agreement, for the j
contained a provision that any city which did not sig
control commitment would be subject to a penalty of 50
the then existing tipping fee, per ton, for one yea
subject to a 100 percent penalty thereafter if it
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Continue using the County's facilities,
this agreement.
None of the Citi
15. On or about May 1993, RESPONDENT SAN DIEGO
another modified version of the flow control agreeme
cities to pledge only 50 percent of their waste flow unti:
1993. This agreement also contained a provision that any
did not commit 100 percent of its waste by December 1, 15
be subject to a penalty of up to 50 percent of the ex:
fee, This agreement, entitled "Interim Agreement" was 1
to all of the cities in the County for their signat
effectiveness of this flow control agreement was exprt
contingent upon its signature by all the cities. Only th
signed this agreement, with all of the other cities eithc
to sign or attaching substantial conditions.
16. On or about June 1, 1993, RESPONDENT SAN D
modified the proposed flow control agreement and sent tk
agreement to all of the cities asking that - each cit;
agreement. A true copy of this agreement is attached
incorporated herein by this reference as Exhibit A. Thi:
contains the 50 percent penalty language for non-signi
but does not require the signature of all cities. Thc
provides, inter alia, that cities which do not sign 1
1993, will pay a flat 50 percent per ton surcharge,
''economic risk surcharge. I!
17. As of the date of filing of this action, som
the County have signed the latest proposed agreement
cities, including PETITIONER CITY, have not signed the
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The 50 Percent Penalty -- Backqround.
18. As noted above, RESPONDENT SAN DIEGO'S initial E
obtain long-term flow control commitments from all citi
County was unsuccessful: Not a single city accepted the
proposals. PETITIONER CITY is informed and believes an
alleges that after this refusal, by way of threat and
inducement intended to force all cities to sign the long-
Control agreement, RESPONDENT SAN DIEGO proposed and insj
imposition of a penalty fee on all solid waste generated
signing cities. The brief history of this penalty propc
A. As a result of its commitments to NCRRA a;
forth above, RESPONDENT SAN DIEGO believed it
compelled to undertake efforts to gain control ove:
waste flow in the County. Imposition of a penalty f
those cities refusing to make a long-term flow commi.
was an important component of the County's approacl
B. In or about 1990, RESPONDENT SAN DIEGO
proposed imposition of a penalty on non-signing citi
up to 50 percent of the then existing tipping fee.
C. On or about May 18, 1993, RESPONDENT SAN
amended its Solid Waste Fee Resolution (Resolutio
77) to authorize the imposition of a penalty of up
percent of the then existing tipping fee to be impos
solid waste from cities not signing the flow cc
agreement.
D. On or about June 29, 1993, RESPONDENT SAN
for the first time acted to impose a penalty by fL
amending its Solid Waste Fee Resolution specifyin5
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the amount of the penalty would be a flat 50 percel
the then existing per ton tipping fee, that it T
apply to all solid waste from non-signatory cities
that collection of the penalty would commence Augur
1993. RESPONDENT SAN DIEGO purported to find this ac
exempt from environmental review.
E. On or about July 20, 1993, RESPONDENT SAN
took further action purporting to adopt an addit
basis for exemption from environmental review re1
back to its June 29, 1993, action.
Opposition and Exhaustion of Remedies by PETITIONE
19. PETITIONER CITY objected to the long-term fl
commitment requested by RESPONDENT SAN DIEGO (Exhibit P
inter alia, it exposes PETITIONER CITY’S residents I
citizens to long-term rate increases without control.
CITY exhausted its administrative remedies prior to commc
action through a number of actions, including, but not :
submission of a letter to the County BOARD OF SUPERVI
June 29, 1993, and through the testimony, on the
representatives of PETITIONER CITY at the June 29, 199’
20, 1993, Board hearings on this topic. PETITIONER C
complied with Government Code section 66024 (b) (2) by
required demand, a true copy of which is attached heretc
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B. PETITIONER CITY has also made its opposition to -
surcharge known to the Interim Waste Commission, and ha:
the Interim Waste Commission recommend that RESPONDE”
repeal and rescind the penalty fee proposal.
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20. On or about August 5, 1993, PETITIONER CITY is
and believes and thereon alleges that the Interim Waste C
voted to recommend to RESPONDENT SAN DIEGO that, at least
31, 1994, the County Solid Waste System be operated on i
you gott basis. PETITIONER CITY is further informed anc
and thereon alleges that, in light of its commitmenl
Interim Waste Commission, RESPONDENT SAN DIEGO will a
recommendation. Under a "pay as you go'' system as endor
Commission, tipping fees will be set in an amount suffici
the solid waste system on an ongoing basis and there F
economic risk to this system from non-signing cities
system's facilities which was the only basis artic
RESPONDENT SAN DIEGO when it imposed the 50 percei
surcharge. The alleged basis for the surcharge no lonc
21. Notwithstanding, since August 1, 1993, RESP
DIEGO has been collecting the 50 percent penalty surche
of its landfills on all solid waste from non-signing c
all small users, and has been making a charging bookket
as to commercial haulers who will be billed for the SI
the end of each month.
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11.
FIRST CAUSE OF ACTION FOR VIOLATION OF
CALIFORNIA ENVIRONMENTAL OUALITY ACT
(PUB. RES. CODE 8 21168.5; C.C.P 5 1085):
WRIT OF TRADITIONAL MANDAMUS
22, PETITIONER CITY refers to and incorporates he]
reference paragraphs 1 through 21 of this Petition/Com
23. At all times herein mentioned RESPONDENT SB
charged, inter alia, with the duty under the
Environmental Quality Act (rtCEQArl), to prepare, or (
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prepared, an initial study and either a (1) negative dec
or (2) mitigated negative declaration; or (3) EIR
approving the amendments to the Solid Waste Fee F
(Resolution No. 77) adopted on June 29, and July 20, 199:
for imposition of the 50 percent penalty fee, refer]
RESPONDENT SAN DIEGO as the "Economic Risk Surcharge1' an(
to herein as the 1150 percent penalty surcharge. I! The ame'
the fee resolution were llprojectsll within the meaning o
Rather than prepare the required initial study 24.
upon that initial study, the proper negative declaration,
negative declaration, or EIR, disclosing and anal
environmental impacts of its actions, RESPONDENT SAN DIE
claimed that the 50 percent penalty surcharge project a
on June 29, 1993, was exempt from CEQA pursuant to 14
Code of Regulations section 15273.
25. In approving said project, RESPONDENT SAN DIEC
CEQA in that said project does not qualify for exemptic
to 14 California Code of Regulations section 15273, inti
that!
A. The penalty fee will be used, at least in
to fund capital projects for the expansion of the (
Solid Waste System and, therefore, the exemptj
section 15273 does not apply.
B. RESPONDENT SAN DIEGO failed to make fi
required by section 15273 supporting the c
exemption, and the findings that were made are arb
and capricious and not supported by substantial e\
in the record.
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C. The 50 percent penalty surcharge is
necessary nor intended to meet operating exper
reserve needs, or other legitimate expenses of the Cc
solid waste system but is, instead, intended to
general revenue raising device and a penalty to :
cities to sign long-term flow control agreements.
such, the project does not qualify for the exemptif
section 15273.
D. The 50 percent penalty surcharge is illega
all of the other reasons stated in
Petition/Complaint .
E. The 50 percent penalty surcharge may
significant environmental effects as set fort
paragraph 26 below.
26. PETITIONER CITY further alleges that the !
penalty surcharge project may have a significant imp:
environment, and an EIR was and is required before sa
project may be implemented, in that:
A. Imposition of the 50 percent penalty surc
will substantially increase the costs of dispos
County facilities to non-signing cities. As a rc
solid waste haulers from such cities, inc!
independent private parties, franchisees,
professional contract haulers, will be more like
drive greater distances to dispose of solid waste i
County facilities thereby avoiding payment o
penalty. In this respect the penalty fee projec.
foreseeably cause a significant increase in truc
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other traffic, with resultant significant impacts or
pollution, energy consumption, and traffic congest
all of which should have been addressed in an EIR.
B. Imposition of the 50 percent penalty surd
will increase the likelihood that littering and ill
dumping will occur as those seeking to dispose of :
waste seek to avoid payment of the surcharge.
illegal dumping is reasonably foreseeable and the iml
thereof should have been addressed in an EIR.
C. The non-uniform nature of the fee (non-si
cities will pay 150 percent per ton of the fee charg
signing cities for exactly the same services) will k
in San Diego County which has heretofore always j
uniform fee structure. Particularly in light 0:
requirement of the penalty fee program that RESPC
SAN T)IEGO can charge a 50 percent penalty on all
waste in each load, even if only a portion of a
waste load actually came from a non-signing city,
reasonably foreseeable that franchisees, professi
and private haulers will be forced to buy addii
equipment, to institute additional procedures
separation of waste, to institute additional truck
and to alter existing routes, with attendan-
pollution, energy consumption, economic, and t:
related impacts, all of which will be significai
order to avoid or minimize payment of the penalty
///
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direct and indirect or cumulative impacts
implementation of the 50 percent penalty surc:
project should have been addressed in an EIR.
27. RESPONDENT SAN DIEGO's action of July
purporting to adopt an additional finding and exemption
the action previously taken on June 29, 1993, was illec
violation of CEQA, inter alia, because:
A. The 50 percent penalty surcharge proTect
not qualify for the exemption claimed under 14 Calif
Code of Regulations section 15061 in that it cann
seen with certainty that there is no possibility thi
imposition of the 50 percent penalty surcharge may
a significant effect on the environment. Tc
contrary, as noted above, it is reasonably forese
that imposition of the 50 percent penalty surc
program will have a significant effect on
environment.
B. RESPONDENT SAN DIEGO acted in violation c
and in violation of CEQA by attempting to 2
retroactively, on July 20, 1993, a finding of exer
pursuant to section 15061 for an action which had a:
been taken on June 29, 1993, in reliance upon a dif:
claim of exemption.
C. RESPONDENT SAN DIEGO failed to adopt 1,
adequate findings for its claim of exemption pursu,
section 15061, and those findings that were adopt(
arbitrary and capricious and not supported by subst
evidence in the record.
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28. At all times herein mentioned RESPONDENT SAN
the authority, opportunity, and ability to comply
obligations under CEQA but RESPONDENT SAN DIEGO has re:
continues to refuse, to comply with its obligations unde
said laws.
29. PETITIONER CITY has exhausted any and all admi
remedies precedent to the filing of this action and has
the administrative level the theories and objections se
this cause of action-
30. The filing of this Petition - for Writ of T
Mandamus is necessary and proper in this case in that
CITY has no other adequate remedy at law in that the la
no means to compel RESPONDENT SAN DIEGO to comply with
under CEQA except by Writ of Mandate.
31. PETITIONER CITY is beneficially interest€
issuance of the requested Writ and has standing to pro:
action in that PETITIONER CITY and its residents, busir
taxpayers will be subject to 'the proposed 50 perce
surcharge herein challenged and will suffer the enviror
financial consequences thereof.
32. RESPONDENT SAN DIEGO'S failure to comply with
forth above constitutes a prejudicial abuse of discret:
RESPONDENT SAN DIEGO failed to proceed in the manner 1
law, its actions are not supported by adequate findin<
findings that were made, if any, are arbitrary and cap:
not supported by substantial evidence. As a result,
Mandate should issue setting aside and annulling RES1
DIEGO's decisions of June 29, 1993, and July 20, 1993,
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aside the 50 percent penalty surcharge project unless
RESPONDENT SAN DIEGO complies with CEQA as herein allegc
The actions of RESPONDENT SAN DIEGO herein corn
were arbitrary and capricious and PETITIONER CITY is el
recover its attorneys' fees pursuant to Government Coc
33.
800.
111.
SECOND CAUSE OF ACTION FOR DECLARATORY
RELIEF (C.C.P. 5 1060)
PETITIONER CITY refers to and incorporates her<
reference paragraphs 1 through 33 of its Petition/Compl
34.
35. A dispute has arisen and now exists between
CITY and RESPONDENT SAN DIEGO with respect to their
rights and duties relating to the 50 percent penalty
PETITIONER CITY contends that the 50 percent penalty su
illegal and unenforceable, inter alia, for all of the -
reasons :
A. Violation of Government Code section f
PETITIONER CITY contends that the 50 percent PE
surcharge is in violation of Government Code sf
66016 in that:
i. RESPONDENT SAN DIEGO failed to makc
the required data available to the public ai
least 10 days prior to its June 29, 1993
meeting;
ii. The 50 percent penalty surcharg
exceeds the amount required to provide soli
waste handling services;
///
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iii. There is no provision in the penalty
fee proposal requiring that excess revenues be
used to reduce the amount of the fee as
required by the statute;
iv. RESPONDENT SAN DIEGO failed to make
findings necessary to support the penalty fee,
and the findings that were made are not
supported by substantial evidence in the
record ;
v. RESPONDENT SAN DIEGO improperly
interpreted the Integrated Solid Waste
Management Act in general, and Public
Resources Code section 41901 in particular, by
concluding that the provisions of section
66016 of the Government Code did not apply tc
the 50 percent penalty surcharge:
vi. The "economic risk11 basis whick
RESPONDENT SAN DIEGO relied upon in imposinc
the penalty and which RESPONDENT SAN DIEGC
contended supported the 50 percent penalt]
surcharge does not exist under a "pay as yo1
go" system as recommended by the COMMISSION
Under a pay as you go system there is nc
economic risk arising from non-signing cities
use of system facilities since such citie
will pay the full cost of such use throug
tipping fees.
///
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B. Violation of Federal and State Due Proce:
Law. PETITIONER CITY contends that RESPONDENT
DIEGOIS imposition of the 50 percent penalty surd
was adopted and imposed in violation of the due prc
rights of PETITIONER CITY under the federal and I
constitutions in that:
i. The purpose of the 50 percent
penalty surcharge is not a legitimate
government objective in that the purpose was
and is to force cities to - sign long-term flow
control agreements, to hamper competition, and
to create a monopoly in RESPONDENT SAN DIEGO,
with respect to solid waste disposal. The 50
percent penalty was not set and imposed to
meet any legitimate financial concern. As a
result, the 50 percent penalty surcharge is ir;
violation of the substantive due process
rights of PETITIONER CITY.
ii. To the extent that imposition of 2
special charge to non-waste committing citiez
for use of the County system might under some
circumstances be a legitimate government
objective, the process used by RESPONDENT SAb
DIEGO in this case was arbitrary anc
unreasonable and, thereby, in violation oj
PETITIONER CITY'S federal and statc
substantive and procedural due process right:
in that, inter alia:
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(a) the amount of the fee bears
no reasonable relationship to any
need of the solid waste system:
(b) the amount of the fee was
arbitrarily and capriciously
selected by RESPONDENT SAN DIEGO,
and was not based upon any objective
criteria or studies;
(c) PETITIONER CITY did not
have a fair opportunity to
participate in the decision making
process or to review and be heard
regarding an objective basis for the
fee;
(d) there is no rational
llnexus" between any legitimate
objective to be achieved by
imposition of the penalty, the
amount of the penalty, or the means
utilized to impose the penalty, as
required by law.
Violation of Federal and State Equal Protc
Laws. PETITIONER CITY contends that the 50 pi
penalty surcharge was imposed in violation of its fl
and state equal protection of the law guarantees,
alia, in that:
C.
i. RESPONDENT SAN DIEGO has arbitraril
and capriciously placed users of the Count
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solid waste system into two separate
I1classifications, 'I (a) those who sign flow
control agreements (the Interim Waste
Agreement) and who will pay a lesser fee: and
(b) those who do not sign the flow control
agreements and will pay an augmented fee.
There is no rational basis for this arbitrary
classification.
ii. RESPONDENT SAN DIEGO is arbitrarily
and unreasonably treating the two above-
referenced categories in a substantially
different manner by charging substantially
different fees for identical services provided
at the same cost.
iii. Within the category of non-signers
RESPONDENT SAN DIEGO is treating individuals
and entities in an arbitrary and capriciouz
manner in that:
a. The City of San Diego is a
city in the County and has, and will
continue to, dispose of solid waste
in County facilities yet the City of
San Diego is singled out and treated
differently from all other non-
signing cities in that the City of
San Diego is arbitrarily exempted
from the 50 percent penalty
surcharge.
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b. Those cities subject to
the 50 percent penalty surcharge
which are serviced by waste haulers
which also service cities not
subject to the penalty are
arbitrarily and unreasonably treated
differently from other cities
subject to the penalty as a result
of the requirement for waste
separation and its attendant costs
and impacts imposed only on some of
the penalized cities.
D. Violation of Federal Anti-Trust
PETITIONER CITY contends that the 50 percent pe
surcharge is in violation of federal anti-trust
inter alia, in that:
i. The purpose and intent of - RESPONDENT
SAN DIEGO in imposing the penalty surcharge
was and is to further creation of a monopoly
in RESPONDENT SAN DIEGO with respect to solid
waste handling.
ii. The 50 percent penalty is anti-
competitive in that it forces a long-tern
commitment of solid waste to the County, ir
lieu of other disposal alternatives, therebl
hampering competition.
iii. PETITIONER CITY is informed anc
believes and thereon alleges that the 5(
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percent penalty surcharge is a restraint of
trade not imposed pursuant to clearly
articulated and affirmatively expressed state
policies, nor imposed pursuant to policies
actively supervised by the state itself so as
to be exempt from anti-trust regulation.
E. Violation of the Commerce Clause of the UI
States Constitution. PETITIONER CITY contends
RESPONDENT SAN DIEGO's imposition of the 50 pe
penalty surcharge is in violation of the Commerce c
of the United States Constitution, inter alia, in
i. Solid waste is a commodity in
commerce.
ii. PETITIONER CITY and others have the
right under the Commerce Clause to free trade
with respect to their solid waste and have the
right to ship, transport, and dispose of that
solid waste in the free market without undue
restriction of those rights. Imposition of
the 50 percent penalty surcharge imposes ar
undue burden on these free commerce rights.
iii. The 50 percent penalty surchargc
imposes undue burdens on the rights of citie!
and others to ship and transport solid wastc
across city, county, and state lines.
///
///
///
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F. Violation of Proposition 13's Special
Limitations. PETITIONER CITY contends that
imposition of the 50 percent penalty surcharge j
violation of California's Proposition 23
Constitution, Article XIII(B)), inter alia, in tha
The amount of the penalty is not set
to offset actual costs incurred by the Solid
Waste System, but will generate revenues in
excess of actual costs. As such, the penalty
is a tax and not a fee for service.
i.
ii. The penalty fees will be placed in a
special, restricted fund (the County Solid
Waste Enterprise Fund) and therefore the
penalty fee program constitutes a '*special
tax" within the meaning of Article XIII(B) .
iii. The 50 percent penalty surcharge was
imposed without two-thirds voter approval.
G. Violation of County Plans and Poli
PETITIONER CITY contends that the 50 percent PC
Surcharge was imposed in violation of county F
regulations, and policies, inter alia, in that:
i. The penalty was imposed in violatior
of the County Solid Waste Management Plar
(COSWMP) in that the COSWMP does not authorizc
or call for the imposition of such penalties,
The penalty was imposed in violatioi
of applicable County Board of Supervisor2
Policies calling for uniformity, equity, an(
ii.
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cost efficiency in the Solid Waste Fee
structure.
iii. The penalty was imposed in violation
of County Board policy mandating that the
Board not impose unnecessary or unreasonable
restrictions on cities which will interfere
with their ability to carry out their
responsibilities for solid waste management.
iv- The penalty was imposed in violation
of County policies and plans which require
that the County solid waste system be operated
in the most cost efficient and productive
manner.
v. The penalty was imposed in violatior
of the written opinion of RESPONDENT SAE
DIEGO'S County Counsel opining that the Count1
cannot prohibit the use of its landfills - bq
residents of cities, yet the penalty is such :
significant imposition on use as to equate tc
an exclusion of non-signing cities and theii
residents.
H. Other Violations of PETITIONER CITY'S R:
PETITIONER CITY contends that the imposition of t
percent penalty surcharge was further in violation
rights of PETITIONER CITY, inter alia, in that:
i. The 50 percent penalty surcharge ir
arbitrary and unreasonable in thak i<
authorizes the County to impose the penalty o
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an entire load of solid waste, even if some of
that load is from a city that has signed the
Interim Waste Agreement.
I. Violation of Reaional Welfare. PETITIONER
contends that the imposition of the 50 percent pel
surcharge was and is in violation of the regional gel
welfare. PETITIONER CITY contends that RESPONDE":
DIEGO had certain duties before said Respondents 1
impose the 50 percent penalty, inter alia, to:
i. Identify and document the regional
impacts of the 50 percent penalty program on
neighboring jurisdictions, including
PETITIONER CITY:
ii. Identify all feasible mitigation
measures and project alternatives that would
reduce or alleviate any identified adverse
spillover impacts:
iii. Determine, in good faith and based
upon substantial evidence in the record,
whether or not the 50 percent penalt]
reasonablt represented a surcharge
accommodation of the competing regiona:
interests affected: and
iv. Not impose the penalty i.
unreasonable spillover impacts would occur.
36. PETITIONER CITY is informed and believes i
alleges that RESPONDENT SAN DIEGO disputes each and e'
foregoing contentions and contends to the contrary as tc
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PETITIONER CITY is further informed and believes anc
alleges that RESPONDENT SAN IDIEGO contends that the 5
penalty surcharge is legal and proper in all respects.
37. A declaration of this Court setting forth th
duties, and responsibilities of the parties is necessar
time so that the parties may know how to proceed with I
these important solid waste matters.
38. A final determination on the legality of tl-
surcharge is needed to restore stability to the system s
parties can reliably plan for their future solid waste 1
IV.
THIRD CAUSE OF ACTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
39. PETITIONER CITY refers to and incorporates hen
reference paragraphs 1 through 38 of its Petition/Compl
Unless and until Respondents and Real Parties-I
are enjoined and restrained as herein requested, PETIT]
its residents , businesses , the taxpayers it represent
public generally, will suffer irreparable injury in
Respondents and Real Parties are proceeding to collr
percent penalty surcharge thereby forcing cities , wast
and others to make irreversible commitments and there
adverse environmental, economic, and other impacts
alleged, none of which can be fully cured after the fa
of which can be adequately compensated by money damage
40.
41. If a temporary restraining order and
injunction are issued as herein requested, Respondents
///
///
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Parties-In-Interest will not suffer any irreparable injur
and the balance of hardships is in favor of issuing the
restraining order and preliminary injunction as herein :
WHEREFORE, PETITIONER CITY prays for judgment as fc
1. For a Writ of Traditional Mandamus setting
annulling RESPONDENT SAN DIEGO's decision to impose the
penalty surcharge as a violation of CEQA.
2. For a declaration and order of this Court decl
the 50 percent penalty surcharge is unconstitutional,,il
unenforceable for the reasons set forth in the second
action of this Petition and Complaint.
3. For a temporary restraining order and p
injunction, restraining and enjoining Respondents and Re;
In-Interest and their agents, officers, employees, and
working in concert with them, from proceeding to implemer
or collect the 50 percent penalty surcharge.
4. For attorneys' fees pursuant to Government Cc
800.
5. For costs of suit.
6. For such other and further relief as the coui
proper.
DATED: $/I I /fi Respectfully submit1
LAW OFFICES OF D. DW
A Professional Corpc o.@ h By : D. DWIGH WORDEN,
Special Counsel for PETITIONER CITY
DLICITCAD~ -285 - 27 -
, TO ESOLGT T&'\ ~ '\.
.. .- #? 0 1
APPROVED BY STEER?NG COMKITTEE, 11 May .-ended for Signature by Any or All Ci-
Page 1
XGREEKENCP BY, BETWEEN AND AXOHG THE COWNTY OF-SW DIEGO
BWD rpge.CIICIEs UP THE: corny
ES'PBBLISHING 239 INTERIH SOHID 'KBsrPr COmSSION BWD PROVYDXNG FOR TEX DZSPOSAL OF SOLID RXSTE
(YLNTmIK AG-1')
This Agreement .(TNTERIM AGRFmXNT (I) I is entered into between and among the County of Sm Diego (lfCOU"X*t) an$ gg
Cities within the COUNTY, for the purpose of providing a CQEE
flow of solid waste that swes as a basis for the COUNTY to i
bonds to finance me expansion zmd/or closure 'of the San Na
c.=n nutually p-icipate in dealhg with regionzl salid % matters; and to develop a permknent cpvernance axthority to
with regional solid waste nztters that will proiilote the long
health and safety of the residents of --e COUNTY and the Citj
NOW, therefore, the undersigned COUNTY znd Cities (collecti\
'*Member Agencies") agree to partriCip2te in good faith in
performance of this INTEElDf AG-, anci to act in .z manner conforns to the spiritr intent and general premises of -&is LN?
P,GRE=, and in accordance with the following: .
1-0 KEX8ERSHIP
1-1 Corn Membership. 'Pa be _;I signatary af this IF AGR3"mT and participate as a full nember of the In1 commission, the COUNTY is conzctitthg 100% of its Accepteble 1 - flow in accordance with the provisions of Pzrt 3 of this dom
1.2 To be a si&nztory of this INTLE ACRE
and participate as a full member or' the Interim Commission,
city is committing at least SO%, and may cornmitug to loo%, o
Acceptable Waste flov in accordance with the provisions or^ P
of this document,
A member city comdtthg at least 50% of its Accep - Waste flow at the the of signing this document may, until Dec
I, 1993, deliver more thm its committed Acceptable Waste corny facility an6 such additional waste shall not be subje the Economic Risk Surchmge set forth in this document at fa
City MenbershiD.
a-
. section 3-6, subsection 8-
I'
-
- -
i c e.
APPROVED BY* STEERING COMMITTEE. 11 May I Amended for Signature by Any or All Cit
Page 2
.-- .._. ~.~ ..-. -. b- On or before ~S~~i$~~~, a member city may fil written addend-, in a form accepmTe-to the Interim Commissi
committing Acceptable Waste in addition to that committed Section 1.2 (a) to the Interim Comnission; on the terms set fc
in Section 3-10,
1.3 City of San Diepo Membershit,* Based on the City of Diego's unique role b regional waste management issues, the C
of S& Diego may participake as an ex-of f icio nan-voting membei
the Interim Codssion. The COUNTY will negotiate a sepa agr'eement with the City of San Diego which reflects the City of I
Diego's unique role , in regional waste management issues. agreement will be brought before the Commission for review comment prior to adoption.
L
2.0 EFPECTrPE DmE, TERM
2.2 Term, Except as otherwise-provided b Part 3 of this INT
AGREEMENT concerning the comdtnen'k and disposal of Accept Waste, the term of the MTERJ3 AGEE-T shall expire Qn Nay
1994, unless sooner tenninated by creation of a perma
governance entity pursuant to Section e.S(c).
3-0 COHHITEENT OF SOLID RASTG FLOW
AUD DISPOSaL OBXJ~GATION
3.1 Title. This Part of the INTERIM dGREEMENT shall be know
the ItFlow Control Covenant."
3.2 Commitment of Acceptable Waste. To the extent allowed by
each Member Agency agrees that the portion of its Acceptable A designated in the execution section of this document shal
delivered to the facility that the COUNTY reasonably design2 For parposes of this agreement, a 50% commitment constitutes tonnage commitment for the respective Cities as set fort Exhibit **A", until adjusted by the Interim Codssion. The Ini
codssian may review the tonnage mmitamt and revise
apportionment.
2
6 6
APPROVm BY STEERING COMMITTEE, 11 May 1
&ended for Signature by Any or All Cit
Page 3
3.3 Acceptable- Waste Def hed.
a. llAcceptable Waste" is garbage, refuse, waste and ot .matter which is legally acceptable at a Class 111 landfill pursu to California CQde of Regulations Title 23 f Subchapter 15 or ur
such laws or regulations as aze in effect at the the of dispc which is generated within its respective jurisdiction which,
?&e COUNTY, consists of the unincorporated area. Excepts ws
generated by a State or Federal governmental entity unless Member Agency has exercised control over such. waste and chooses commit it; or waste generated by .any person and transportec
,disposed of by or qn behalf of a self hauler hauling less thar
tons per month.
Each Member Agency shall have the right, without pen&
to recycle (as defined at Public Resource Code S 40180) any s(
waste {as defined at Public Resources Code S 40191) by any mt
selected by the Mmer Agency and any such recycled laaterial SI be excluded from the conmibent otherwise made to the COUNT! this Flow Control Covenant- However, if the residue of recycling process which can legally be disposed of at a Class landfill exceeds five percent (5%) of such recycled material,
precess residua shall be. returned to the System for disposal ~n
exempted by the COUNTY.
3.4 Enforcement of Plow Control. To the extent allowable by each Member Agency shall establish, implement and carry out a w
flow enforcement progran which is suffkient to assure compli with the Flow Control Covenant. This program may include to extent necessary and appropriate h the circumstances, but s
j not be limited to, (I) licensing, permitting or franchi haulers (on an exclusive or nonexclusive basis}, upon the condi
of compliance with the Flow Control Covenant, (2) adoE ordinances or resolutions requiring compliance with the Control Covemnt, and (3) taking enforcement actions under such license, pdt, franchise, ordinance or resolution. Dj
municipal collection of Acceptable Waste shall not be reg
hereunder unless all other zvailable means and methods of enfm
the Flow Control Covenant have been unsuccessful. If any eve]
circumstance (including without- limitation a change or ad1
interpretakion of applicable law) impairs or 'precludes conpl:
with the Flow Control Covenant by the means or methods then 3 employed by the affected party, such party shall hplc
alternative or substitute means and methods to enable 1 lawfully satisfy the terms and conditions of the Flow Co
covenant. If a change or interpretation in applicdljle law im
or precludes either party from complying with the Flow co
b.
3
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APPROVED BY STEEXLNG COMMITTEE, 11 ~ay : Amended for Signature by Any or All Ci'
Page 4
Covenant by any means, such pay shall use its best efforts
the extent practicable afid subject to indemificatian by COUNTY, to effectuate executive, legislative or judicial chang or relief fron the applicability of such law so as to enable lawfully to resume conpliance with the Flow Control Covenm soon as possible f ollowkng such change or bltespretatior applicable law. ' Compliance by the. affected party with
obligations under this paragraph shall be deemed sufficient satisfy the its obligation to enforce the Flow Control Covena
a, Power 50 Exercise Fl-ow Control,
Each Member Agency represents that it has the ri powgir and authority under existing applicable law to enter i comply with, bple-ment and enforce the Flow Control Covenant- party shall 'use good faith and best efforts to preserve, prc
and defend its right and power to ents into, comply FC hplement and enforce the Flow Conbol Covenant in accord
(including any lawsuits by or against such party, whethe plaintiff or defendant) by any person based upon breacl
I
.
herewith against any challmge mereto, legal or otha
* contract, violation of law or any other theory. '
b. ConsisteacV of Aweements.
As soon as practicable after the E€fective Date, licenses, permits, contracts, agreements, leases, franch: ordinances and resolutions of the affected party which are lawl
in effect with or pertaining to any person relating to or affec
. Acceptable Waste shall; if and to the extent necessary, be amc
to provide explicitly that tbe affected party shall have the : . - without material restriction to direct the delivery of codtted Acceptable. Waste in- accordance with the Flow Co!
Covenant, On and -after the Effective Date, the. affected : shall not enter into, issue or adopt any license, permit, cant
materially inconsistent with the FLOW control Covenant.
3.5 CCXSHTYts Disposal Oblic_mtian. In a manner that is econau
fiscally sound ind reasonably protects the envkonment, the C agrees to dispose of the Acceptable Waste difected by M Agencies to the COUNTY under th-is Flow Control Covenant.
* agreement, lease, franchise, ordinance 01 ZeSQlUtiQn WhiC
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APPROVED BY STEWNG COMMITTEE, 11 May 1 mended for Signature by Bny or All Cit
Page 5 .
3,6 The COUNTY may only chakge a M-er Agc
for the disposition of Acceptable Waste by hposhg a fee ir
amount that does not exceed the COUNTY'S cost for proaiding :
disposal* A11 revenye, including interest earned thereon, f
disposal charges shall be placed in the Solid Waste Enterpkise f
used only for solid waste purposes.
a, Tip Fee to Hembe+ Bqencsv. The Tip Fee charged by
COUNTY for the disposal of Acceptable Waste within the System SI be sufficient to fund the reasonable and necessary costs
operation, management and financing of the System, includ solid waste ,facility closure and post closure' costs, solid wd
facility and nitigation fees - For- the disposal of Acceptable y4
Shall charge a Tip Fee for waste delivered from a Member Agenc
Disposal Charge-?-
the corn shall charge all sources in the-unincwrpozated =ea,
(I) Solid xaste Facilftv Fee,
(a) To the extent allowed by law, the COuNm s
charge a- Facility Fee for waste delivered processing or disposal to a system facility.
COUNTY shall pay-over the collected Facility FE the City or COUNTY in the case of unincorporated area in whose jurisdiction facility fs located to compensate the hos member for the reoccurring impacts of having facility within its jurisdiction. The Facilitl
shall initially be set at an asilount equivalen the appropriate percentage for the facility (as described below) I as that percentage of the Fee in effect ~n January I, 1993. Thereafter,
Facility Fee shall be adjusted automatically
concurrently with any increase in the Tip FeE an amount equal to the percentage increase ir
Tip Fee but not greater than five percent (57
the then current Facility Fee, whichever is 1f
(b) Facility types and percentage of the Tip Fee* (In effect on January 1, 1993) :
0 Landfill = 10% of Tip Fee ($2.80)
0 fixed Solid Waste Material Recovery Faci
0 Transfer Station = 5% of Tip Fee ($1:40)
*For the purpose of the calculation in this section, the Tip Fee does not include the
Facility Fee or -e Mitiyation Fee.
= 7.5% of Tip Fee ($2-10)
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- APPROVED BY STEERLNG COMMITTEE, I1 May 1'
Amended for Signature by Any or All cit
Page 6
(c) If a jurisdiction has more than: one
Facility at-the same location, or contiguous location, it would receive the higher of the
applicable Facility Fees, but not more than one Facility Fee.
(a) The Facility Fee €or all future facilities shall be the Facility Fee for that
adjustments as described in subsection (I),
above.
type facility as of January I, 1993 with
2. atbation Fee.
(a) To the extent allowed by law and commenc July 1, 1993, the COUNTY shall impose a Mitigal
Fee for waste delivere6 to a system facility.
Mitigation Fee shall be in an agount that is j . percent (5%) of the Tip Fee in effect on Januar
1993, Thereafter, the Mitigation Fee shall adjusted automatically and concurrently with increase in the Tip Fee, by an mount equal to percentage increase'in the Tip Fee or an mount greater than five percent (5%) of the then cur Mitigation Fee, whichever 2s less.
(b) Mitigation Fee funds shall only be used
specific projects that come& a documented in arising from -a system facility. Any city or
COUNTY for the unincorporated area may apply tc COUNTY 'for a share of the Mitigation Fee fu Mitigation Fee funds shall not be used fc
mitigation measure which is required for compli
with the California Environmental Quality Ac any other regulatory process. Moreover, any ME Agency which is receiving a.Facility Fee f
particular facility will not be eligible to rec Mitigation Fee funds for that same facility-
. b, Economic Risk Snrcharqe.
(1) To the extent allowed by law, in ord- to of'fse increased costs to the system and account for
deposited Wto the system, COUNTY may impose an EGO: Risk Surcharge for the disposal of Acceptable Waste a non-signatory source or from a Member Agency in e of the portion of Acceptable Waste committed unde: Flow Control Covenant.
economic risks created by non-comitted waste 1
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APPROVD BY STEERING COWTTEE, 1l.May 1
Amended for Signature by Any or ~1~1 cit
.. . Page 7
.?-....-. ..-..+--. (2) From w 8.XvIXO ... C 1, 1993 to 3i.i 1,. 1994 the-surcha
. effect at the time of the transaction, excluding
Solid Waste Facility Fee and the Mitigation Fee., if E
TIE criteria used to establish the ECOXIO~~C E:
Surcharge include but are not limited to: capi charges, . the increased depletion rate of landf capacity and timing effects. . Economic Risk Surchz
funds shall only be used to pay for the costs of . operation, managenent and 'finkncing of the 'dispc
3.7 Protection of Flow- Controi Covenant. 'If any challenge- ra:
. issues comon tu the Member Agencies under this Flow Coni . Covenant, the COONTY-through the Solid Waste Enterprise Fund SI
indemnify and hold bannless the affected party from the reason;
costs, fees and expenses properly allocable to defending such r.
and power.
.shall .not *cegd fifty per&e*'''''(50%) of ae tfip F~~
system-
' 3.8 Exy, hation and Reversion of Flow Control Cave-llant,
a. miration. This Flow Control Covenant shall expir the first of any of the following to occur:
NO sand Issue- (11 AS to all members, on 'May 3 I, I unless the COUNTY first relies on the Flow Cor Covenant h~ issuing bonds to' finance the San Ma facility 'expansion and/or closure and to prc financing for . other solid waste' projects in approximate amount of:$60 to $100 million;
(2) - ' bation of Term of Band, As to all members
the COUNTY tbely issues the bonds described -above,
Flow Control Covenant shall expire upon the expiratil
the term of such bonds- or upon the refinancing of
boids,. but h no event later than 20 years from the of the original bond issuance- .
(3) -proper Charqe. As to affected members, ij
COUNTY imposes on a Member Agency a fee' that ir consistent with this Flow Control Covenant and aft
days written notice from the Interim Commission, C
_fails to adjust The fee so as to be itl compliance
this Flow Control Covenant and fails.to refund.or a credit for any over-charges;
.
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APPROVED BY STEERING COMMtTTEE, II Kay I -ended for Signature by Any or All Cit
Page 8 .
(4) Failure 'Po Dhbase, k to affected nembeys, if COUNTY is unable to dispose of all of the commft
Acceptable Waste from the member' and after 60 1 written notice from the Interim Commission county fz
to dispose of such waste; or .
(s) ~eaal'~~~possibilitv. AS to affected members, if
law precludes a member 'from directing the flow
Acceptable Waste to the COUNTY.
b, Reversioa. I
(1) TO Hemere upon expiration. of the F~OW coit
Covenant to the COWTY, the member's commitment of j shall revert to the colnmitthg me-.;
(2) TO Interim Commission, In 'the event that permanent governance entity- is not established' pur51
to Section 4.5 (c) any flow committed to the Inti comnissian shall be retained by the Commission, allowed by law, otherwise to the Member AgehCy-
(3) To Permanat Entftv- If a permanent govern
entity acceptable to the Interim omm mission. established pursuant to Section 4.5 (c) I the. me& conmitnent of €low shall be assigned to that perma entity on .the terms specified in the document' crea
the permanent entity- '
3.3 Continuation of Interim Commission. .Notwithstanding Scc
2.'2. hereof, the Interim Comnission established in Part 4 s . continue to exist so long as is necessary to accomplish
p"rP0ses of Part 3.
3.10 Flow 'Commitment to Interim Commission. Flow commitment tc Interim Commission shall be subject to the foliowing covenant
the Member Agencies:
&e codtment shall be for the same term of the inj codtment .made -to the COUNTY .'
b- The COUNTY shall dispose of the condtment to the In1
Colnmission without surcharge until May 31; 1994.
c. In the event that a pernanent governance. entit established pursuant to Section 4,5(C), the flow comnitted ti
Interkm Commission shall be assigned to khat entity- .In,the'i that' such an entity is not established, the Interim Commi:
shall retain the commitment, .- *.
a.
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APPROVED BY STEERING CO&TTEE, ii May I Amended for Signature by my 01: ~ll cit
Page 9
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3.11 Alleqation of Breach- In the event that a M&.er Age
alleges that another Member Agency has breached any part of 1 Part 3 or Section 4.6 the dispute shall be submitted to the fnte . ComxLssion; the determination ,of the Interim Commission sl
constitute a rebuttable presumption of compliance with or breac:
such part or.section.
4,O.ESTBBLISHKEXT OF Interk'CommissLon
4.1 Establishment - There is hereby established the Ikt
Compission to accomplish the purposes set fort+ herein,
4.2 composition, The 'Interim Commission shall consist of'
Supervisor; one commissioner from each member city who shall
mayor or councilperson: and one ex-of f icio commissioner from
City of San Diego who shall be a .nayor or councilper
Canmissioners shall be appointed by their respedive gover
bodies which may also appoint an alternate commissioner-
4.3 Procednres, The fnterh Commission shall be subject tc
Ralph M. Brown Act (Gov- Code S$ 54950 & sea,) and shall E regulations to govern its internal operation,
a, A Chairperson and Vice-Chairperson shall be chosen Q
Interin Conmission.
b. The Commission shall meet at least once each month 01
Commission's established regular meeting .. date,
Special meetings may be called at me request of j
commissioners with a minhun of 72 hours notice to all ma
of the Inter& Commission-
d. A majority of the commissioners shall constitu quorum.
e- Acthns shall be determined by a majority vote 0:
commissioners, ' based on one vote per Member ' Agency,.
Interim Commission may amend this' document to esta
procedures for a Wei'gfited Vote. I'
4.4 SCaff for fnterim CamxLssion. The COUNTY agrees to pr . such County administrative staff as requested by the Ir
Commission- The Interim Commission nay request assistance frc
'
commissioner from the County of Sah Diego who shall h
..
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.staffs of the members.
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.. APPROVED BY'STEEXING COMMITTEE, 11 May 1
Amended for .Signature -by Any or All Cit page 10
..
4.5 Rule of Interim Commission..
a. pdyice. The Interim Commission shall provide advice
the Board of Supervisors of .the CO13NTy on the following mati
that concen solid waste f acflities , operation, rates
financing: capital projects in excess of $50,000, dispc alternatives if the San Marcos -site is closed, other dispc options, outside-county disposal, intra-county trznsf er of sc waste and Tip Fees.
b, Notice and Opportunity to Advise. Before coqsideri:
solid waste matter listed 2n Section 4.5 (a) I the COUNTY 3
provide to the Interin Conmission a full staff report on each sc
waste matter to be addressed by the COUNTY'S Board of Supervisc in sufficient time for the Interim Commission to. consider matter on the agenda of the Interim Commission's regular'meet:
The COUNTY is not required to comply with this proqess whey
emergency condition must be addressed and there is insuffic. tine. for complignce. In the event of such emergency, the CO'
shall provide a staff report to dn Executive Committee appointe
the Interim.Commission.
cI Develop Permanent Governance Entity. The Int
' Commission shall consider alternative organizational structu
including a joint powers agreement, for exerting a unified ef
to accomp'lish regional, solid waste objectives, No later. thar
31, 1994,' the Interim Conmission shall develop a perma
strength,in pursuing their interests in disposing of soli'd wa
(1) Shall include all participating cities ' and
COUNTY ;
(2) Shall be empowered to contract for solid % processing and disposal; and
(3) May be &powered t5 (a) take,over and operats CpTJNTY facilities, (b) create :new facilities and
contract with outside providers;
d. Acceptable Waste DimasBl. The I-nterh Commission s
provide for disposal of Acceptable -Waste flow .committed tc Interkm Commission. 2
I
governance entity designed to maxbiize the members' cgllec
. The permanenk governance entity:
.. 10.
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APPROVED BY STEERING COMMITTEE, 11 May 1
Anended for Signature by Any or All Cit Page I1
4.6 Attainincr Sub-Resional Disposal Objectives- During the t
of this WTEEUX AG-REEMENT, the COUNTY and the other Member Agenc
agree t
a. Process- To plan and implement the objective
providing facilities to meet the waste disposal needs of
various sub-ragims of the County of San Diego, witk unreasonably impacting another sub-region j;n an adverse Tnanr my dispute shall be resolved by the Interim Commission accordance with Section 3.11-
b. North. Coantv Disposal Option. The County will use,
best efforts to provide a North County disposal option.
G. Waiver of Geoeaphic Obiect5.o-n- On condition that
covenants 'set forth in Sectidn 4.6 (a) and (b) are being perfon
not to object, on the basis of geographic origin, to the dkec
of Acceptable Vaste to any facility.
I
5-0 MISCET.T,ANEOUS PROVISIONS
5.1 Rithdrawal.
a, Procedure. IS any Member Agency requests to with
from this INTERIM AGREEMENT, the Interim Commission shall calcu the impact on the system of such agency's withdrawal takei
conjunction with all other menbers desiring to withdraw, and s thereafter formulate, in negotiation with all such agencies, z
of final terms and conditions for early withdzawal which
become effective upon approval of the Interim Codssion,
b. LWttltfo-n on.Ri%hdzawal Chaxcfes/Penalties. Thcre s
be no charge or penalty imposed on the withdrawing Member Aqenc
. the reason for withdrawal is the expiration of the Flaw Cor Covenant as to the withdrawing member.
section 5.1 shall survive as long as the Interim Cod! survives.
5,2 Noticesc All notices, dmands or requests pursuant to INTERIM AGREEMENT shall. be in writing; All notices, demand
c. Smxival- Notw5thstanding Section 2-2 hereof,
requests to be- sent to any member shaXl be deemed to have
properly given or served:
a- On the date of actual personal service; or .-
11
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APPROVED BY STEEXING CoMTTEE, 11 May I!
Amended for- Signature by Any or All Citd
Page 12
b. On the date actually received, if deposited in the Uni*
States mail, addressed to such party at the address of the Ma,
Agency’s regular meeting chwers, OY the^ address designated the Member, postage prepaid, registered or certified, and w return receipt requested.
5.3 Non-Severabiliky- In the event that a substantive provis
of this mER13M AGIEEMENT shall be determined to be hval
illegal, or unenforceable in any respect, the parties hereto sh negotiate in good faith such amendnents, modifications,
supplements .to this INTW Am or such other apprupri action as shall, to the maximum extent practicable in light of 6
determination, hiplatent and give effect to the intentions of
parties.as reflected herein. If negotiations in good faith fa the INTER3cM AGELEEMENT, including the Flow Control Covenant,
terminated..
5.4 Waiver of Breach- No breach of any provision herein can
waived unless h writing. Waiver of any one breach of
breach of me same or other provision hereof.
5.5 All Parties hereto shall have the right to corn< any action at law or equity, including specific performance, remedy a breach of the terms herein, provided that neither P: shall have the right to terminate this Agreement except as prov: herein.
third p; 5.6 No Third Part=v xkrhts. There are no
beneficiaries of this Agreement- No action may be commencei
enforce this Agreement, except by a Member Agency.
5.7 counterparts, This document shall be executed
counterparts -
I
provision herein shall not be deemed to be a waiver of any ot
Remedies,
12
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APPROVED. BY STEERING COMMITTEE, I1 May 1 mended for Signature by Any or All Cit . Page 13
IN WITNESS WHEREOF, the parties have signed this INTE
AGREEMENT as of the dates set forth-
COUNTY OF SAN DIEGO committing 100% of its
Acceptable Waste flow Date: Date:
CITY OF LA MESA comaittinq - % of its
Acceptable Waste flow.
By: By:
ATTEST: ATTEST : S~PERVISOR MAYOR
CLERK CITY CLERK
CITY OF kA€XSBAD'. CITY OF LEMON GROVE .committing - %. of its
Acceptable Waste flow,
' Date:
..
-* - By:'
' M&YOR ' . .. ATTEST: *
' CITY CLERK
CITY OF CEULA VISTA committing - % of its codttihg % of its
Acceptable Waste flow- Acceptable Waste .. flow. Date: - Date:
CITY Of NATIONAL CITY
MAYOR
BY: By:
ATTEST: ATTEST:
MAY 0,R
.. CITY. CLERR CITY cLE;RK
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APPROVED BY STEERING COMMITTEE, I1 Nay 1
Anended for Signature by Any or All Cit
Page 14
CITY OF CORONADO
Acceptable tvhste flow- Date: Date:
CITY OF OCEANSIDE
Acceptable Waste flow-
committing - % of its committing 0 of its
By: By: -
MAYOR MAYOR ATTEST: ATTEST:
CITY CLERK CITY CLERK
CITY OF DEL MAR crm OF POWAY committing % of its committing - % of its - Acceptable Waste flow.
Date: Date:
By: By:
ATTEST: ATTEST:
CITY CLERK CITY CLERK
Acceptable Waste flow,
MXYOR MAYOR
-
- CITY OF EL WON CITY OF sm MARCOS
committing - % of its committing % of its
Acceptable Waste flow- Date : Date: Acceptable Ete flow.
By: By: - MAYOR MAYOR ATTEST: ATTEST:
CITY CLERK CITY CLERK
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APPROVED BY STEERING COIQEITTEE, 11 May 3
Amended for Signature by Any or All cit
Page 15
\ CITY OF ENCINITAS CITY OF SANTEE
committing - 25 of its
Acceptable Waste flow. Date: Date: b
committing - % of its Acceptable Waste flow.
By: By: MAYOR MAYOR
ATTEST : A!IKFEST : _-
CITY CLEFX crm cmF!x
crn OF ESCONDIDO
Acceptable Waste flow. Date: Date :
CITY OF SOLANA BEMX
Acceptable Waste flow- committing - 8 of its committing - % of its
By: By: MAYOR . MiIYOR
ATTEST: ATTEST:
CITY CLEXK . CITY CLERK
CITY OF LMPERIAL BEACH crTy OF VISTA
Acceptable Waste flow. Date : Date:
. committing - % of its couttag - % of its
Acceptable Waste flow-
By: By :
ATTEST : ATTEST: MAYOR * MAYOR
e- CITY CLERK CITY CLERK
15
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0. K' . .;*'
',
.. ATIA- '#agE
CITY mjTbSTREN5 'Comm"
..
Member Aaencv Waste Tons
Chu'La Vista Oceanside 80,450
' Escondido. 65 f 566
52,430
44,028
38,149 .
. 34,065
.82,399 ..
. El Cajon.
Vista carlsbad National City Encinitas 32 I a44 'La Mesa . 31,399
. 31,269 Santec ??oway .26 f 371
San Marcos 24,854
15 f 767
15,503 Coronado Lenon Grove 14 t 327.
Solana Beach 7,663'
600,000
. Imperial Beach
Del Mar 2.875
* Calculation utilizes July 1992 population figures a:
approved by SANDAG
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L * It.= -.e a 0-
, c, I 0 DWIGHTm
TRACY R AlCl w scorr WI
THE LAW OFFICES OF
JAMES H
D. DWIGHT WORDEN
A
740 LOMAS SANTA FE DRIVE. SUITE 102
SOLANA BEACH. CALIFORNIA 92075
16191 755-6604 - 16191 859-7979
FAX 16191 755-5198
PROF E 5 S IO NAL C 0 R PO RAT1 0 N
TERRY N
CRYSTAL CRA
July 13, 1993
I
Board of Supervisors San Diego County County Administration Center
1600 Pacific Highway San Diego, CA 92101
Re: Board Action June 29, 1993, Amendins And Increasinc
Solid Waste Fee Resolution No. 77 (Aqenda Item 41)
Demand For Backup Information Resardins Economic R
Surcharqe
Dear Members of the Board:
Pursuant to Government Code section 66024(b)(2), a dema
respectfully made for copies of all documents upon which you
Board based its action of June 29, increasing the soli Waste Disposal Fee and, in particular, copies of all documen which the Board relied upon in imposing the 50% penalty sure for cities that do not sign the Solid Waste Participation Agreements.
agenda packet for June 29, 1993, and do not need additional
copies of these materials.
data, calculations, or other documents that relate to the
increase in fees, particularly the economic risk surcharge,
please identify them to me at your earliest convenience. I be happy to come to the County and pick them up or copy the]
to pay reasonable copying charges. If all of the documents relied upon by the Board were included in the Board packet,
please so advise.
1993,
I am in receipt of a complete copy of the Board's backL
If there are additional studies,
DL/ClTCADZ0.179
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0 ,u . .e 1[
:'e *.7
.7.. . __ .c:y 73,
i :i
..-:', I.++ /-
.?:> ; +,'.*
d. -,?I Board of Supervis
July 13, I 7 Pa?
.L * .L . .5 -.. .-* ...
?-.
:3
1.appreciate your prompt assistance.
Sincerely,
LAW OFFICES OF D. DWIGHT WORDEN
A Professional Corporation
/ p)/ el $& /L
"D. Dwight Warden I./ 1 I
DDW: dl c: Lari Sheehan, Office of the CA0 Bill Worrell, Department of Public Works Scott Peters, Deputy County Counsel Clerk of the Board of Supervisors
Ron Ball, Carlsbad City Attorney
Bruce Boogaard, Chula Vista City Attorney Dan Hentschke, Oceanside City Attorney
Dictated by writer; signed and mailed in his absence to avoit
delay.
DL/CITCADZO. 179
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