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Home My WebLink About2002-079 . , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . , . , RESOLUTION NO. 2002-79 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE FIRST AMENDMENT TO THE WASTE DISPOSAL AGREEMENT BETWEEN THE COUNTY OF SAN BERNARDINO AND THE CITY OF SAN BERNARDINO BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor is hereby authorized and directed to execute, on behalf of said City, the First Amendment to the Waste Disposal Agreement between the County of San Bernardino and the City of San Bernardino, a copy of which is attached hereto, marked Exhibit "A", and incorporated herein by reference as fully as though set forth at length. SECTION 2. The authorization to execute the above referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. 11/ 11/ 11/ //I //I //I //I III //I January 23, 2002 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~ 2002-79 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE FIRST AMENDMENT TO THE WASTE DISPOSAL AGREEMENT BETWEEN THE COUNTY OF SAN BERNARDINO AND THE CITY OF SAN BERNARDINO I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j oint regular meeting thereof, held on the 4th , 2002, by the March day of following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x LIEN x MCGINNIS x x DERRY SUAREZ x ANDERSON x MCCAMMACK x ~b.~ Rac I G. Clark, City Clerk The foregoing resolution is hereby ,2002. ,5"'1 day of Approved as to Form and legal content: JAMES F. PENMAN, City Attorney By: L 7-.f~ (J January 23, 2002 AMENDMENT No.1 TO WASTE DISPOSAL AGREEMENT On December 16, 1997, the City of San Bemardino ("City") and the County of San Bernardino ("County") entered into a Waste Disposal Agreement (the "Waste Disposal Agreement") which is hereby amended as of this 19th day of March, 2002 ("Amendment No.1"). Recitals A. On March 27, 2001 the County entered into a Solid Waste Operations Contract ("Operations Contract") with Bumec Waste Industries, Inc. ("Contractor"). During each fiscal year during the term of the Operations Contract, the Contractor has the right and the obligation to dispose of at least 250,000 but not more than 300,000 tons of solid waste to the Disposal System. In Amendment No.4 to the Operations Contract, entered into on March 5, 2002 the amount of solid waste to be delivered for disposal in the Disposal System from March 19, 2002 to and through June 30, 2002 is at least 20,830 but not more than 150,000 tons of solid waste. B. The solid waste which may be delivered to the Disposal System by the Contractor is defined in Article 19 of the Operations Contract as solid waste that is: (i) allowed to be disposed of in the Disposal System pursuant to federal, state and local law; (ii) not being delivered to the Disposal System as of the date of the Operations Contract; (iii) being processed at the West Valley Material Recovery Facility or the Robert A. Nelson Transfer Station; and (iv) delivered to the Disposal System in transfer trailers. Such solid waste is referred to as the "Article 19 Solid Waste." C. The amount to be paid to the County by the Contractor for the disposal of Article 19 Solid Waste is $20.50 per ton, to be adjusted for Cost of living increases in the same percentage amount as the actual change made to the per ton disposal fee Gharged by the County to Cities whiGh have a Waste Disposal Agreement ("WON') with the County pursuant to the "Calculafion for Escalation" contained in Section 4.2 (B) of the WDA. Such per ton disposal fee is referred to as the "Article 19 Disposal Fee." D. The current Contract Rate payable by City to County for the disposal of solid waste under the Waste Disposal Agreement is higher than the Article 19 Disposal Fee. E. City contends that absent agreement by the Cities to the contrary, Section 3.5(A) of the Waste Disposal Agreement prohibits the County from allowing the disposal of Article 19 Waste at the Article 19 Disposal Fee unless the County 1 8303v1 024537/004317 AGMT makes available to the City a Contract Rate equal to the Article 19 Disposal Fee. The County disputes this contention. F, Notwithstanding their dispute, the County and City agree that there will be benefits to the Disposal System and accordingly to the County, as the owner/operator of the Disposal System, and to the City, as a user of the Disposal System, of accepting Article 19 Solid Waste for disposal in the Disposal System, Accordingly, on the terms provided herein, both City and County agree relative to the acceptance of Article 19 Solid Waste to a limited waiver of their respective rights and further, the County agrees to share a portion of such Article 19 Disposal Fee (the "Article 19 City Fee") with each city that entered into a Waste Disposal Agreement, including City ("WDA Cities"), G. The purpose of this Amendment No, 1 is to acknowledge that: (i) City agrees to waive its right under the provisions of Section 3.5(A) hereof with respect to the Operations Contract, including the right of the County to accept Article 19 Solid Waste on payment of Article 19 Disposal Fee without being required to offer to City to adjust the current or future Contract Rate to equal the Article 19 Disposal Fee; (ii) County agrees to waive any right it may have to accept Article 19 Solid Waste except as provided herein; and (Iii) that the County and City agree on the method of calculating and sharing with City its share from the receipt of the Article 19 Disposal Fee, as described herein, This Amendment No.1 shall become effective only if and when all WDA Cities, including City, have adopted and executed a counterpart of this Amendment No. 1 without modifications and the County has adopted and executed each counterpart of this Amendment No, 1. Attached as Exhibit A is a list of WDA Cities and their respective share of Article 19 City Fee. H. Pursuant to Amendment No, 4 to the Operations Contract, the County must mail notice to Contractor on or before March 19, 2002 of its decision to cancel the right .of Contractor to deliver Article 19 Solid Waste to the Disposal System. If the County fails to take such action by such date (absent a further amendment of the Operations Contract to extend such date) then Contractor's ri9hts to dispose of Article 19 Solid Waste in the Disposal System become effective. NOW THEREFORE, in consideration of the forgoing recitals and the following covenants and promises the parties agree as follows: 1, Limited Waiver of Citv's Richts Under Waste Deliverv Acreement and Richt of Countv to Accept Article 19 Solid Waste, The parties agree that, for the term of the Operations Contract (including any extensions of term currently contained in the Operations Contract) the County may accept Article 19 Solid Waste from Contractor for disposal in the Disposal System in the amount of at least 250,000 but not more than 300,000 tons of solid waste to the Disposal System and for the period of March 19, 2002 to and through June 30, 2002, in 2 8303v1 024537/004317 AGMT the amount of at least 20,830 but not more than 150,000 tons of solid waste. Upon payment of the Article 19 City Fee and satisfaction of the other requirements of the Operations Contract and of this Amendment No.1, the County will not be required to offer City a Contract Rate equal to the Article 19 Disposal Fee in accordance with Section 3,5{A) of the Solid Waste Agreement. provided that such acceptance of Article 19 Solid Waste will not impair the rights of the WDA Cities under the provisions of Section 3.5(B) of the Solid Waste Agreement. 2. Limited Waiver of County's Riahts Under Waste Delivery Aareement and Riaht of Countv to Acceot Article 19 Solid Waste. The parties agree that. for the term of the Operations Contract (including any extensions of term currently contained in the Operations Contract) the County agrees to accept Article 19 Solid Waste from Contractor for disposal in the Disposal System only in the amounts specified in paragraph 1 of this Amendment and only upon payment of the Article 19 City Fee and satisfaction of the other requirements of the Operations Contract and of this Amendment No.1. 3. Calculation of Net Per Ton Article 19 Disoosal Fee, For purposes if this Amendment, the Net Per Ton Article 19 Disposal Fee shall consist of the Article 19 Disposal Fee, then in effect, under the terms of the Operations Contract, less the following payments: (i) the amount of the required payment to Contractor for disposing of such Article 19 Solid Waste then in effect under the terms of the Operations Contract; (ii) the other specified payments to governmental agencies in the amounts then required (including any newly required payment or any payment made in substitution of an identified payment); and (iii) the amounts representing the allocation of costs for closure, postclosure maintenance and construction of addition disposal capacity (in the amounts set forth on Exhibit "S", SUGh amounts to be adjusted for Cost of Living increases in the same percentage amount as the actual change made to the per ton disposal fee charged by the County to Cities which have a Waste Disposal Agreement ('WDA") with the County pursuant to the "Calculation for Escalation" contained in Section 4.2(B) of the WDA), Formula: Article 19 Disoosal Fee Less Payment under Operations Contract to Contractor Payment to California Integrated Waste Management Board Payment to Local Enforcement Agency Payment to the City of Fontana 3 8303v1 024537/004317 AGMT Any other payment required to be made to local, State or Federal Agencies relative to the disposal of solid waste or fees collected relative to such disposal. Allocation of costs for Closure and Postclosure Allocation for costs of construction of Additional Capacity Equals Net Per Ton Article 19 Disposal Fee. . The parties acknowledge that the County currently owes $2,00 per ton to the City of Rialto, as adjusted by the Cost of Living Index, but is not obligated to make any out of pocket payment of such amount until its Credit For Prepayment is exhausted, an event expected to occur in approximately 2009, at which time such payment will be applicable to the calculation of the Net Per Ton Article 19 Disposal Fee, Exhibit 8, attached hereto sets forth the calculation of the Net Per Ton Article 19 Disposal Fee in effect as of the date hereof. 4. Allocation of Article 19 Citv Fee, In consideration of the agreements of the City hereunder, the County will pay to the WDA Cities, in the aggregate, 50% of the Net Per Ton Article 19 Disposal Fee for each ton of Article 19 Solid Waste accepted for disposal at the Disposal System. Such fee is referred to herein as the "Article 19 City Fee", The remaining 50% of the Net Per Ton Article 19 Disposal Fee is being retained by the County. The Article 19 City Fee may be used by each City as it shall deem appropriate, in its sole discretion. The Article 19 City Fee shall be further allocated among each of the WDA Cities on the basis of two separate criteria: (i) 50% of the Article 19 City Fee shall be divided equally among the WDA Cities, without regard for any other criteria; and (Ii) 50% of the Article 19 City Fee shall be divided among the WDA Cities based on population, on a per capita basis, as published by the California Department of Finance, as of each May 1, each year during the term of the WDA, The allocation of the Article 19 City Fee among each WDA Cities for fiscal year 2001-02 is set forth in Exhibit "A," attached hereto and made a part hereof. For illustration purposes only, Exhibit A assumes an Article 19 City Fee of $1,000,000. The City's share of the Article 19 City Fee shall be paid to City in quarterly payments, within forty five (45) days after the end of the calendar quarter (I.e., March, June, September and December); provided that the payment for the fiscal year 2001-02 shall be paid in full on or before August 15, 2002, 4 8303v1 024537/004317 AGMT 5. Effective Date, This Amendment shall be effective if and only when all cities listed on Exhibit wAw have adopted and executed a counterpart of this Amendment No.1 and such amendment has been adopted and executed by the County. In all events, the conditions in the forgoing sentence necessary for this Amendment No. 1 to be effective shall occur on or before March 19, 2002, otherwise this Amendment No. 1 shall be null and void and without any effect whatsoever, 6, No other amendments. Except as modified in this Amendment No.1 (or in any prior amendment) all other terms and conditions of the Waste Disposal Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year set forth below, COUNTY OF SAN BERNARDINO CITY . f Supervisors Date: MAR 1 9 2002 SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD J":-<":~"'~'~:-:':',':""", RENE~-B~TIAN.;p "\ _ Clerk of tlie,.B08rd~t:$$ervisors . -." -', "'\~~':~.~ \ , 11(" ,.' / ~:'[J '", ""c.... '-'_.: " cf; ,,-.o-,:;.'.{::".,,~I MAA 1 <<" .. . .........:u~~QP . " .. "','.' ~ .. ~~.- . . ;..,,- Date:' Approved as to'form: Date: .3-JI-cp- 5 8303v1 024537/004317 AGMT <Xl ... <Xl ... '" 0 ~ <Xl It') ~ 0 '" '" '" ~ 8 0 ... ... '" <Xl ~ ... ... '" ~ '" ... '" iil ci M M M ci N .,; -<i M ,..: ~ ;! ~ .,; ci '" '" '" <Xl '" g '" ... '" It') '" :il >. 0 '" 0 '" '" ~ "!. '" ... '" It') '" '" C l- uS uS uS N .,.; 0 ~ g ~ m .n 05 .,.; g m 0 '" ... '" '" ~ ... ... ... <Xl ... ... ... 8l ~ ~ 81 ... ... ~ :::l 0. <Xl ... <Xl ... '" 0 ~ <Xl It') ~ 0 '" '" '" ~ 0 c: .~ 0 ... ... '" <Xl ~ ... ... 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C) J: J: if: lJ) I- 5 >- C1l '> ci ,..: N M -<i .,; ~ '" ,..: N M -<i .,; <0 ,..: cO ci 0 ~ ~ ~ ~ ~ ~ '" . co . . Exhibit "B" NET PER TON ARTICLE 19 DISPOSAL FEE AS OF THE DATE HEREOF Article 19 Disposal Fee Less: Payment under Operations Contract to Contractor Payment to Califomia Integrated Waste Management Board Payment to Local Enforcement Agency Payment to the City of Fontana Any other payment required to be made to local, State or Federal agencies relative to the disposal of solid waste Or fees collected relative to such disposal Allocation of costs for closure and postclosure Allocation of costs for construction of additional capacity Net per ton Article 19 Disposal Fee "Article 19 City Fee" consisting of 50% of the Net Per Ton Article 19 Disposal Fee 8303v1 024537/004317 AGMT $20.50 $ 6.50 $1,34 $ 0,78 $ 2.07 $0.00 $0.34 $ 2.10 $7.37 $3.685