18-1114_ORANGE, COUNTY OF_Cooperative Agreement COOPERATIVE AGREEMENT BETWEEN
THE CITY OF SAN JUAN CAPISTRANO
AND
THE COUNTY OF ORANGE
REGARDING THE PRIMA DESHECHA LANDFILL
THIS COOPERATIVE AGREEMENT ("Agreement") is entered into on this PI day
of Avew,her , 2018 by and between the City of San Juan Capistrano ("City") and the
County of Orange ("County"), through their respective legislative bodies. The City and County
may be herein referred to individually as a"Party" or collectively as the"Parties."
The Prima Deshecha Landfill ("Landfill")is a Class III municipal solid waste landfill own by the
County and operated by OC Waste & Recycling ("OCWR"). The Landfill site spans portions of
unincorporated Orange County, the City of San Juan Capistrano, and the City of San Clemente.
The Landfill is separated into five "Zones". Zone l is located within San Juan Capistrano city
limits and is currently receiving waste under the Landfill's Solid Waste Facility Permit
("SWFP"),Zones 2 and 3 are for open space, recreational trails and habitat restoration. Zone 4 is
currently undeveloped but reserved for landfilling operations. Zone 5 is for the La Pata Avenue
extension project, which was completed through the landfill property in August 2016.
On November 6, 2001, the Orange County Board of Supervisors'approved Final EIR No. 575
(State Clearinghouse #199041035) for the implementation of the Prima Deshecha General
Development Plan ("GDP"). Thereafter, on June 19, 2007, the Orange County Board of
Supervisors approved Final Supplemental EIR No. 597 for the Second Amendment to the Prima
Deshecha General Development Plan (State Clearinghouse #199041035). The GDP includes a
landfill element and established a landfill design capacity and estimated that Zone 1 would reach
its design capacity in 2019 based on inflow rate assumptions of up to 4,000 tons per day.
However, due to success of state and countywide recycling efforts and with the advancement of
additional recycling initiatives to meet the statewide goal to improve waste reduction, recovery,
and greenhouse gas emissions, actual inflow rates at the Landfill have been considerably less
than estimated as a result, Zone 1 has significant remaining capacity and is not expected to reach
capacity until approximately 2050.
In light of the remaining capacity in Zone 1, the County is seeking to revise the estimated landfill
closure dates previously included in Final EIR No. 575 and Final Supplemental EIR No. 597
from 2019 to the current estimate of 2050 for the Zone 1 landfill development area and from
2067 to, the current estimate of 2102 for the future Zone 4 landfill development area and revise
the Landfill's SWFP so they more accurately reflect current estimates of when the two landfill
development zones will reach their design capacity.
Maximizing the total volume capacity at the Landfill ensures sufficient long term disposal
capacity for Orange County and provides a stable rate structure for the cities and special districts
within the county for future generations. Addendum No. 6 to Final EIR 575 and Addendum No.
2 to Final Supplemental EIR 597 and the accompanying SWFP revision will not result in
increases in the permitted daily tonnage disposal limit, nor expand the Physical Key Design
Parameters of the Landfill which are already authorized under the Landfill's General
Development Plan and SWFP for purposes of landfill disposal operations.
The Parties intend that this Agreement shall be the sole document that comprises the Parties
understanding regarding rights and responsibilities associated with Landfill operations.
Execution of this Agreement shall ultimately result in; (1) The termination of prior agreements
and understandings of the Parties regarding the Landfill as provided in documents such as the
1995 Memorandum of Understanding ("MOU") between City and County and its amendments;
(2) Initiation of required actions by City to rescind the Conditional Use Permit ("CUP") as
provided in City Resolution 95-12-5-1 and its subsequent amendments; (3) The restatement, in
one document, the duties and procedures required to be followed by County to reasonably
mitigate the impacts on City caused by operations at the Landfill; (4) The identification of City
obligations regarding cooperation with County in its efforts to comply with existing and
anticipated legislation and regulation related to landfill operations; and (5) addressing other
financial matters of mutual concern required to fully mitigate the impacts associated with
continuation of landfill operations through build-out of the Landfill.
Although the potential environmental impacts identified for the Landfill have been substantially
avoided or mitigated through the identification and adoption of Project Design Features and
Mitigation Measures (as more specifically described in the Statement of Findings of Fact
approved for the Project), this Agreement is an appropriate means to address additional interests
of the Parties beyond the requirements of the California Environmental Quality Act ("CEQA").
This Agreement shall take effect on the date it is executed by both Parties and shall terminate on
the Closure Date of the Landfill unless otherwise terminated as provided in Section M.
NOW,THEREFORE, THE PARTIES AGREE AS FOLLOWS:
A. Definitions
1. Closure Date: The date upon which the Landfill has met the approved fill design as
depicted in the General Development Plan for the Prima Deshecha Landfill and has
met the requirements found in 40 Code of Federal Regulation (CFR), Part 258,
Subpart F.
2 Disposed Municipal Landfill Waste: Amount of non-exempt waste that is ultimately
disposed of and buried at the Landfill. Tonnage in this category is tracked and
calculated in connection with City's Host Fee as provided in Section G.
3. Diverted Material (also referred to as "Exempt Waste"): Material that is accepted at
the Landfill and not intended for disposal at the Landfill. Examples of diverted
material include but are not limited to ... soil, crushed asphalt, road base, material
recovery facility fines, processed green material, food waste, source separate
organics and other materials that can be beneficially used onsite or processed.
4 Host Fee: An annual amount paid to City for Disposed Municipal Landfill Waste
11114
•
excluding City generated waste.
5. Landfill: The Prima Deshecha Landfill located at 32250 Avenida La Pata, San Juan
Capistrano, CA 92675.
6. Physical Key Design Parameters: The approved landfill design as provided in the
General Development Plan for the Prima Deshecha Landfill and its amendments,
which identify the Landfill's permitted area, design capacity, max elevation,
maximum disturbance limits and waste depth.
7. Project: Landfill operations through build-out as anticipated and analyzed in Final
Environmental Impact Report No. 575 for the Prima Deshecha General Development
Plan, certified by the Orange County Board of Supervisors on November 6, 2001,
and Final Supplemental Environmental Impact Report No. 597 for the Second
Amendment to the Prima Deshecha General Development Plan, certified by the
Orange County Board of Supervisors on June 19, 2007, and SWFP 30-AB-0019,
Addendum No. 6 to Final EIR No. 575/Addendum No.2 to Final Supplemental EIR
No. 597, dated September 27, 2018, and any future environmental documentation for
revised closure dates for Zone 1 and Zone 4 and the corresponding revision to SWFP
30-AB-0019 through build-out.
8. Mitigation Measures: All County actions taken to mitigate impacts caused by
operations at the Landfill including but not limited to efforts taken pursuant to
applicable EIRs, past agreements and payment of host fees and equity payments as
provided this Agreement.
B. Public Health and Safety
County agrees it is responsible for the proper operation, maintenance, and monitoring of the
Landfill. Landfill operations shall be enforced to ensure public health and safety are protected.
County agrees to the following conditions which are provided to achieve the continued
environmentally safe operation of the Landfill.
1. Adherence to State Standards
The Landfill will continue to be operated in conformity with State regulations for a
Class I11 landfill as contained in the applicable Chapters and Sections of the
California Code of Regulations ("CCR"), Title 14, Title 23 and Title 27, and will be
subject to regulatory enforcement actions, fines and/or other sanctions in the event of
nonconformity. Strict adherence to applicable regulatory standards is the legal
responsibility of the Landfill operating entity.
2 Surface and Groundwater Quality
a. Desiltation basins, surface water quality sampling, and hazardous and toxic
materials management procedures will be established and maintained to reduce
nonpoint source pollution discharges to "the maximum extent practicable." All
applicable "Best Management Practices" shall continue to be implemented at the
Landfill.
b. All Surface and Groundwater Hydrology and Water Quality Mitigation Measures
per Prima Final EIR 575 and Supplemental EIR 579shall be followed.
c. The County shall meet all applicable National Pollutant Discharge Elimination
System standards.
3. Methane Collection. Migration and Control Systems
a. Activities at the Landfill shall be conducted under and in compliance with both:
(i) South Coast Air Quality Management District ("SCAQMD") Rule 1150.1; and
(ii)the regulations in CCR Titles 14, 23,and 27.
b. The County will monitor and maintain the peripheral monitoring probes as
required by the Local Enforcement Agency ("LEA") and SCAQMD to detect
lateral gas migration.
c. The County will monitor and maintain a gas collection system per requirements
set forward by SCAQMD and the California Department of Resources Recycling
and Recovery("CalRecycle").
4. Hazardous Waste Exclusion
a. The County will continue operating a load check program as identified in CCR
Titles 14, 23, and 27.
b. Hazardous materials removed shall be stored 'in compliance with State
requirements.
c. County shall defend, indemnify and hold the City harmless regarding hazardous
materials cleanup to the extent permissible by the Comprehensive Environmental
Response, Compensation, and Liability Act ("CERCLA"). This indemnity is
intended to operate as an agreement pursuant to § 107(e) of CERCLA, 42 U.S.0
§9607(e), and California Health and Safety Code § 25364, to defend,protect, hold
harmless and indemnify City from all forms of liability under CERCLA, RCRA,
other statutes or common law from any and all matters addressed in this
subsection, and shall be limited to the extent of City's liability. This provision
shall survive the expiration of the Agreement.
5. Hazardous Material Training
a. The County will ensure that operating personnel are trained in accordance with •
CCR Title 8, section 5192(e)(3)or as otherwise requited by law.
C. Operating Procedures
County will manage Landfill operations in compliance with all applicable law and regulation and
will use Best Management Practices ("BMPs") including:
1. Operational Hours: County will comply with operating hours as set in the Landfill's
Solid Waste Facility Permit;
2. Waste Disposal: Disposal of waste from the general public at the Landfill will be
limited to Orange County residents. Proof of residency or a Waste Disposal
Agreement is required for use of the Landfill. Out-of-County waste will only be
accepted from commercial haulers that have an importation agreement with the
County.
3. Odor and Dust Control: The County will employ BMPs to minimize the impact of
the Landfill caused by odor and dust.
4 Visibility and Landscaping: The County will employ operational practices which
will minimize the visual impact of the existing Landfill. Such practices may include,
use of berms and accelerated front face phasing plans, and strategically placed
landscape material.
5. Closure and Post Closure: County will comply with all applicable Federal and State
standards associated the closure and post closure of the Landfill upon reaching the
approved fill design as depicted in the General Development Plan for the Prima
Deshecha Landfill including but not limited to 40 CFR, Part 258, Subpart F.
D. Access
1. The designated access route for all waste hauling vehicles traveling to the Landfill
through City will be from Interstate 5, via State Highway 74 (Ortega Highway) and
Avenida La Pata unless otherwise modified by mutual agreement of the Parties.
2. The County shall prepare and have ready for periodic distribution a statement
indicating the designated access route. These are to be periodically handed to each
incoming hauler and shall include a map clearly designating the approved access
routes.
E. Road Rehabilitation and Maintenance
The County's responsibility for road rehabilitation and maintenance is satisfied by Section G of
this Agreement. The County has no other obligation.
a
F. Limitation on Volume
I. The Landfill operation will be limited to a maximum daily tonnage as specified in
the SWFP of Disposed Municipal Landfill Waste.
2. The County will continue its existing practice of monitoring daily tonnages using
real time data collected at the fee booths at the Landfill. If the daily tonnage
approaches the permitted daily tonnage limit as specified in the SWFP waste will be
diverted to other landfills within the County's landfill system.
G. Financial Agreement
To compensate City for costs or impacts incurred by City which might be associated with the
Landfill, and not already substantially avoided or mitigated through the identification and
adoption of Project Design Feature and Mitigation Measures (as more specifically described in
the Statement of Findings of Fact found in EIR 575 and EIR 597), County agrees to the
following compensation to the City:
1. Initial Equity Payment: Within 60 days of execution of this Agreement County
agrees to pay City three million dollars ($3,000,000) in funds appropriate for
distribution to the general fund of the City as general mitigation for Landfill impacts.
2. Final Equity Payment: County agrees to pay City three million dollars ($3,000,000)
in funds appropriate for distribution to the general fund of City as general mitigation
for Landfill impacts after the LEA issues the revised SWFP reflecting updated
estimated closure dates for Zone 1 and Zone 4. The amount will be paid within 60
days of the SWFP becoming final. (Note: SWFP shall become final once the Statute
of Limitations has run on the right to challenge or appeal the LEA's issuance of the
revised SWFP.)
3. Host Fee Minimum Guarantee: County agrees to continue Host Fee payments to
City, and commits to pay the greater of either an annual minimum payment of eight
hundred thousand dollars ($800,000) for ten years on a quarterly basis or $1.50 per
ton of Disposed Municipal Landfill Waste, paid in arrears.
4. Host Fee Minimum Guarantee Extension: As consideration for City's renewal of its
Waste Disposal Agreement (WDA) with the County, which is set to expire in 2025,
County agrees to extend its Host Fee payment of eight hundred thousand dollars
($800,000) for and additional five years, as described above.
H. City Obligations
As consideration for the mutual rights and obligations set forth in this Agreement, City agrees to
the following terms:
1. City agrees to cooperate and support County's effort to revise the estimated landfill
closure dates previously included in Final EIR No. 575 and Final Supplemental EIR
No. 597 from 2019 to 2050 for the Zone 1 landfill development area and from 2067
to 2102 for the future Zone 4 landfill development area, as reflected in Addendum
No. 6 to Final EIR 575 and Addendum No. 2 to Final Supplemental EIR 597 and all
future revisions to the closure dates, and accompanying SWFP revisions so they more
accurately reflect current estimates of when the two landfill development zones will
reach their ultimate design capacity as reflected in the Physical Key Design
Parameters.
2. City agrees to cooperate and support County's anticipated effort to initiate concurrent
operations in Zone 1 and Zone 4 to further reduce landfill impacts on surrounding
communities, and City agrees to cooperate with County's anticipated effort to
separate the existing Material Recovery Facility ("MRF") tonnage from landfill
disposal tonnage.
3. City agrees to cooperate with other County initiated changes as long as the proposed
changes do not expand the Landfill's Physical Key Design Parameters or conflict
with this Agreement.
4. City agrees to cooperate and facilitate County's compliance with existing and future
landfill operating and permitting legal and regulatory requirements.
5. If the County is unable to perform a term of this Agreement as a result of either a
successful third party legal challenge or the County's inability to certify an
appropriate environmental document, then the Parties shall enter into good faith
negotiations regarding appropriate substitute performance and/or modification to the
provisions found in Section G of this Agreement.
6. City agrees to rescind all iterations of the 1995 Memorandum of Understanding
between City and County Regarding the Landfill and initiate any required actions
necessary to rescind all iterations of the Condition Use Permit (City Resolution 95-
12-5-1)for the Landfill.
7. The City acknowledges that in order for the County to assist all incorporated cities in
Orange County in meeting the organic waste diversion requirements as specified in
AB 1826. AB 1594 and SB 1383, and future legislation, County may develop
operations such as composting/mulching, single stream organics processing,
anaerobic digestion facilities, renewable energy facilities, or other alternative projects
at the Landfill. if the County proposes the development of these types of facilities at
the Landfill to comply with existing or new legislation, the City agrees to support the
County's efforts. The County will prepare mitigated negative declarations for these
types of facilities to demonstrate CEQA compliance, provided that the County is able
to mitigate all potentially significant environmental impacts associated with these
facilities to a less than significant level. If the development of these types of facilities
at the Landfill cannot be mitigated to a less than significant level, then the County
•
will prepare an Environmental Impact Report that includes necessary mitigation of
identified environmental impacts.
Status of City and Indemnification
I. The City and County desire to leave no doubt as to their respective roles, and that by
entering into this Agreement, City is not thereby becoming an"Arranger" as that term
is used in CERCLA § 107 (a)(3), and that it is the County, not the City, which is
"Arranging For" the disposal of waste in Landfill which may contain hazardous,
toxic, harmful or corrosive substances. County agrees to defend, indemnify and hold
the City harmless from any claims related to the disposal of hazardous, toxic, harmful
or corrosive substances at the Landfill, regardless of their source as set forth in
Section B(4)(c), unless negligently or intentionally disposed of at Landfill by City.
2. Without limiting County's obligations under Section B(4)(c), County agrees to
defend, indemnify and hold City, and its officers, employees and agents harmless for
all claims, injury, death or damage to property resulting solely from the acts or
omissions of the County, its officers, employees, agents for liability arising from any
activity of the County, its officers, employees, agents taken pursuant to the provisions
of this Agreement.
3. City agrees to defend, indemnify and hold County, and its officers, employees and
agents harmless for all claims, injury, death or damage to property resulting solely
from the acts or omissions of the City, its officers, employees, agents for liability 1
arising from any activity of the City, its officers, employees and agents taken
pursuant to the provisions of this Agreement.
4. If the City's negligence combines with the County's negligence to cause injury, the
Parties agree that liability will be apportioned as determined by a court of competent
jurisdiction. Neither Party shall request jury apportionment.
J. Pursuit of Alternative Waste Management Technologies
City agrees to cooperate with County efforts to research, monitor;and consider for
implementation at the Landfill the use of alternative waste management technologies to further
reduce the amount of waste required for disposal at the Landfill.
K. Enforcement/Reporting
1. The County will comply with all applicable Federal, State, and local laws and
regulations.
2. If the Landfill's ownership or operating responsibilities are transferred or assigned to
any other entity or agency, public or private, the County shall ensure that the
obligations identified in this Agreement will also be reassigned so that the terms and
1111 .
conditions of this Agreement shall continue in full force and effect. County agrees to
provide 120 days' notice to City prior to any assignment.
3. City reserves the right to inspect the records of County and the right to audit and re-
compute any amounts deemed payable under this Agreement. Any such audit must
be at City expense and take place within thirty-six (36) months of the close of each of
the fiscal years. Any additional amount deem due to City must be paid within thirty
(30) days following written notice to County by City. This notice shall include a
copy of the audit report.
L. Termination of Memorandum of Understanding, ConditionallUse Permit,and Their
Amendments; Complete Agreement; No Oral Modification
The Parties intend that this Agreement sets forth and contains the entire understanding and
agreement of the Parties related to operations of the Landfill and the Project. City will take all
necessary steps to terminate or rescind all previous landfill related agreements, City Resolutions,
Conditional Use Permits and understandings including but not limited to:
1. The September 12, 1995 Memorandum of Understanding (MOU) between the
County and the City, and all subsequent amendments.
2. The December 5, 1995 Conditional Use Permit (City Resolution 95-12-5-1) (CUP)
between the County and the City, and all subsequent amendments.
No oral statement shall in any manner modify the Agreement, and all changes to the Agreement
must be in writing and signed by both Parties.
M. Miscellaneous Provisions
1. Severability. If any term, provision, covenant, or condition of this Agreement is
ruled invalid, void, or unenforceable by a court of competent jurisdiction, this
Agreement shall nonetheless remain in full force and effect as to all remaining
terms, provisions, covenants, and conditions, to the extent allowable under the
California law.
2. Interpretation and Governing Law. This Agreement and'any related dispute shall be
governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed according to its plain language and fair and
common meaning to achieve the objectives and purposes of the Parties. The rule of
construction to the effect that ambiguities are to be resolved against the drafting
Party shall not be employed in interpreting this Agreement because all Parties have
been adequately represented by counsel.
3. Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this
Agreement.
4. Waiver. The failure of a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure of a Party to exercise
its rights upon the default of the other Party, shall not constitute a waiver of that
Party's right to demand and require, at any time, the other Party's strict compliance
with the terms of this Agreement.
5. Third-Party Beneficiaries. This Agreement is made and entered into for the sole
protection and benefit for the Parties and their successors and assigns. No other
person shall have any right of action based upon any provision of this Agreement.
6. Successors in Interest. The burdens of this Agreement shall be binding upon, and
the benefits of this Agreement shall inure to, all successors in interest to the Parties
to this Agreement.
7. Counterparts. This Agreement may be executed by'"the parties in counterparts,
which counterparts shall be construed together and shall have the same effect as if
all of the parties had executed the same instrument.
8. Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by any Party for the purpose of enforcing, construing, or
determining the validity of any provision of this Agreement shall be filed and
tried in the Superior Court of the State of California, County of Orange. The
Parties waive all provisions of law providing for the filing, removal or change or
venue to any other court.
9. Authority to Execute. Any person or persons executing this Agreement on behalf
of the City or County warrants and represents that he/she has the authority to
execute this Agreement on behalf of his/her entity and to bind that entity to the
performance of its obligations pursuant to this Agreement.
10.Attorneys Fees. In the event of a dispute between City and County concerning
claims arising out of this Agreement, or in any action or proceeding brought to
enforce or interpret any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, each Party shall bear its own attorney fees,
costs and expenses.
Notwithstanding the mutual indemnification obligations set forth in Section I, in
the event of a third party CEQA challenge against County and City, County agrees
to jointly defend (with County's selected attorney) City and County CEQA
findings as long as the Parties interests are aligned and do not conflict. County
shall further indemnify and hold City harmless from any legal fees and costs
awarded to any plaintiff in a third party CEQA challenge where County defended
. I
City under this subsection. City shall be responsible for City's CEQA defense
costs if County and City interests conflict.
11.Notice. All notices, demands, requests or approvals to be given under this
Agreement shall be given in writing and shall be deemed served when delivered
personally or on the third business day after deposit in the United States mail,
postage prepaid, first class mail, addressed as follows:
All notices,demands,requests or approvals to CITY shall be addressed to:
City of San Juan Capistrano
City Manager's Office
32400 Paseo Adelanto
San Juan Capistrano, California 92675
All notices, demands, requests or approvals to COUNTY shall be addressed
to:
Director, OC Waste &Recycling
300 N. Flower Street, Suite 400
Santa Ana, California 92703
12.Termination for Convenience. Either Party may terminate this agreement for
convenience upon 180 days' notice in writing of its intent to terminate the
Agreement. However, if County terminates prior to fulfilling its obligation to pay
the Guaranteed Host Fee as provided in Sections G(3) and G(4), County's
obligation shall survive termination of this Agreement.
SIGNATURE PAGE TO FOLLOW
y i
COUNTY OF ORANGE
//// //;Pie By1:0 � • 4._//'►�Date �7�
Thomas D. Kou rouli., irector,
OC Waste & Recycling
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
Date //3/Z°��
By
Paul M. Albarian, Senior Deputy
CITY OF SAN JUAN C PISTRANO
Date /0 '/€7' By .
• Sieg , City Manager
APPROVED AS TO FORM:
GENERAL COUNSEL
CITY OF SAN JUAN CAPISTRANO,
CALIFORNIA
aS tet e
Date / l (
By .
Jeff Ballinger. City Attorney
ATTEST;
Date ICA 1e 00(€) By , f' „,
M Morris, ' Clerk