CITY OF
Rio Dell City Hall RIO
675 Wildwood Avenue DELL
Rio Dell, CA 95562
(707) 764-3532 CALFORNA
cityofriodell.ca.gov
March 7, 2023
TO: Rio Dell City Council
FROM: Kyle Knopp, City Manager
SUBJECT: Discussion and Approval of the Humboldt Waste Management Authority's (HWMA) Joint Powers Agreement and Direction for the Mayor to Execute IT IS RECOMMENDED THAT THE CITY COUNCIL:
1. Discuss and Approve Proposed Amendments to HWMA's Joint Powers Agreement; and
2. Direct the Mayor to Execute the Restated and Amended Agreement
3. Provide Other Direction as Appropriate.
BACKGROUND AND DISCUSSION
At their regular meeting held February 9, 2023, the HWMA Board of Directors unanimously approved proposed amendments to the Humboldt Waste Management Authority's Joint Powers Agreement and established an approval step process for Member Agencies to follow.
HWMA's original Joint Powers Agreement was approved in November 1999 by the cities of Arcata, Blue Lake, Eureka, Ferndale, Rio Dell and the County of Humboldt ("Member Agencies"). The cities of Fortuna and Trinidad are not members of HWMA. The primary purpose of HWMA is to secure and manage long-term agreements related to the disposal of Member Agency's solid waste and assumed responsibility for the closure/post-closure activities of the Cummings Road Landfill, and related specified powers. Members are required to provide "Flow Control" of solid wastes and direct their franchise waste haulers to deliver solid waste to HWMA. HWMA also provides diversion services to its members including hazardous waste disposal, carpet and mattress recycling and other related diversion services.
Over the years, HWMA's Joint Powers Agreement has been amended three times; two amendments were non-substantive and didn't require approval of the Members, and one which was substantive requiring the approval of Member Agencies. With the exception of solid wastes, HWMA does not have Flow Control over other materials such as green waste, curbside collected recyclable or other materials unless specifically designated by a governing body through an agreement or memorandum of understanding.
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In the Fall of 2022, Member Agency governing bodies submitted letters of interest that HWMA act in a regional capacity for managing the processing of curbside collected source separated organics for compliance with SB 1383 (Short Lived Climate Pollution Reduction Act). Because the State mandates compliance responsibility to individual jurisdictions, and local jurisdictions are interested in coordinating regionally, HWMA needs to amend the Joint Powers Agreement to incorporate the necessary powers to secure flow control of source-separated organic wastes to implement the new state mandated waste diversion and material management requirements.
The HWMA Board approved the attached amendments to the Agreement, and requests that the governing body of each Member review and approve the Restated and Amended Agreement.
The amendments will enable HWMA to secure flow control of designated source separated materials at the future discretion of the Member's governing body. Further, this amendment process presented an opportunity to update the Agreement, remove outdated artifacts and provide clarifications to the Agreement beyond the matter of source separated organics.
Approval Process
The HWMA Board of Directors approved the following process to amend the Agreement:
The HWMA Board consider and approve the draft amendments), with no less than 70% of the Directors of the Authority Board voting in support of proposed amendments. (Complete with unanimous support)
HWMA circulates the preliminary approved document to the governing boards of the Members for consideration and approval by no less than 70% of the Member governing boards.
3. Should Members raise any issues during their deliberation and consideration of the proposed amendments, it is requested that written concerns be addressed to HWMA's Executive Director for immediate review and possible HWMA Board reconsideration and revision of the draft amendment.
After confirmation that all Members have received, considered and taken final action, HWMA will circulate a written instrument for execution by the Members.
Once signatures have been received, a final executed copy will then be distributed to the Members.
Attached are two documents containing the proposed amendments, and staff recommends Councilmember and other interested persons to read the "Clean" copy to review the document in its entirety, referring to the "Track Changes" copy to view specific changes. Additionally, below is a detailed bullet list of the revisions, with rational explanations as identified. • Universal formatting revisions - Standardized the mixture of UPPER cased and Capitalized words, and made uniform use of bold headings for improved document readability.
• Spelling corrections throughout the document
• Inserted "Amended and Restated" language, as well as recitals. • Remove artifacts) that were in the original (e.g. Section 6.5 "Possible Future Responsibilities and")
• Inserted missing Section labels (e.g. "Powers" and "Notices") - 30-
• Removed "Financial Assurances" definition as the original purpose for the definition is now an artifact. Originally Members had to provide Financial Assurances when HWMA took out the first $7 million bond to purchase the Transfer Station. That bond, and a subsequent one in 2005, were paid off in 2015 and there are no significant outlying long term debts.
• Addition of the term "Flow Control" and definition
• Addition of the term "Household Hazardous Waste" and definition. HWMA began providing HHW services in 2002 after the County transferred mobile collection responsibility to HWMA. Over the years HWMA constructed, improved and established the Permanent Household Hazardous Waste Collection Facility. • Revised the term "Indenture" to be universal instead of the specific reference to a now- defunct trust used for the now complete construction closure costs of the Cummings Road Landfill.
• Revenue Bonds - expanded to include financing purposes to include "...plant, site existing or planned...leased, and constructed, maintained..." • Updated the term "Solid Waste" per State approved revision in 2019 contained in CA Public Resources Code 40191
• Addition of the term "Source Separated Materials" which are designated to the Authority by an action of the governing member and the HWMA Board of Directors.
Then inserted "Designated Source Separated Materials" where appropriate throughout the document. This broad term is inclusive of any source separated material including organics, recycling, green waste, hazardous waste or other materials to meet State diversion requirements, and the Member Agency retains discretion as to whether to designate to the Authority for management.
• Updated "Transfer Facility" definition
• Technical Assistance Committee - clarification that representatives are comprised of Integrated Waste Management staff of Members of the Authority - not the AB 939 Integrated Waste Management Local Task Force.
• 2.2 "Additions" - Revisions include:
• Heading change to "Member Additions" to better explain the section purpose. • Proposed revision transfers authority to add members by a supermajority action of the HWMA Board of Directors following confirmation of convenances. This revision is consistent with existing Section 8.3 Voting (7) and Section 10 Withdrawal authority.
• Revised to include timeline for prospective members applying so that HWMA can process and prepare/adopt fiscal year budgets and that new Members be assessed prorated share of assets and liabilities
• Section 2.3 - This did not have a heading in the original JPA. "Flow Control" was added to clarify this section's purpose.
• Section 4.3 Board - Added reference to the "Ralph M. Brown Act". • Section 4.6 "Technical Advisory Committee" clarifying edits. This is in addition to existing Section 8.2 "Officers and Committees" provision that the Board of Directors may establish ad hoc, standing, advisory committees at their discretion. • Section 6 - Added Section title "Powers"
Removed the "quarry" reference in original document. There was no "quarry" but an area where soil was removed for daily cover when the landfill was operational.
• Added reference to the timber property purchased by HWMA in 2017. • 6.4 "Noncompetition" - Removed. This provision was specific to a request by the City of Arcata and the now defunct Arcata Community Recycling Center in 1999. Any facility proposed to be developed or operated outside of Hawthorne Street Transfer -31-
Station will require an action by the Board of Directors and concerns/objections could be raised through those processes.
• New Section 6.4 "Possible Future Responsibilities" added "...or expansion to a Regional Agency per PRC 40975". The Regional Agency reference makes the JPA consistent with the approved "2013-2023 Strategic Plan".
7.6 "Insurance" Removed the original section in its entirety along with the detailed language specifying coverage levels. Once the JPA is amended, HWMA will present policy language for adoption into HWMA's Policy Handbook, Section 1000. This will better enable regular review and updating as necessary without requiring amendment of insurance coverage requirements to all Members for approval.
The proposed language provides umbrella verbiage addressing Insurance. • Section 8 "Code of Conduct" replaced with "Bylaws, Officers and Voting" because that what the section actually addresses.
• Section 9 "Term" revised
• Section 11.2 Revenue Bonds - expanded to include "...or other instruments of indebtedness". This will enable long-term or short term loans as necessary. • Section 12 "Amendments" revised to include a clear process for the steps to amend the JPA and voting requirement of Directors and Members.
• Section 14 - added heading "Notices" and removed each of the city/county names/mailing addresses for brevity.
• New Section 22 "Effective Date" for the amended and restated Agreement.
ATTACHMENTS:
1. Proposed HWMA JPA Amendments February 2023 - Clean.
2. Proposed HWMA JPA Amendments February 2023 - Compare.
3. Informational Powerpoint presented to HWMA
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HUMBOLDT WASTE MANAGEMENT
AUTHORITY
AMENDED AND RESTATED
JOINT EXERCISE OF POWERS AGREEMENT
Adopted November 17, 1999
Amended April 8, 2002
Amended July 12, 2012
Amended November 10, 2016
Amended and Restated [date 2023
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HUMBOLDT WASTE MANAGEMENT AUTHORITY
JOINT EXERCISE OF POWERS AGREEMENT
TABLE OF CONTENTS:
SECTION 1. DEFINITIONS. ...1
SECTION 2. FORMATION, MEMBERSHIP
Humboldt Waste Management Authority .......... 4
Member Addition.
Authority Qualifications....
SECTION 3. PURPOSE
3.1 General.
Transfer Facility...
3.3 Landfill Closure and Maintenance.
3.4 Common and Additional Powers
SECTION 4. ORGANIZATION
Composition..
4.2 Principal Office
4.3 Board
4.4 Directors
4.5 Executive Advisory Committee
4.6 Technical and Advisory Committees
SECTION 5. PERSONNEL AND ADMINISTRATION
Employees..
5.2 Executive Director
SECTION 6. POWERS
Facilities. 8
6.2 Approved Power............. 8
6.3 Limitations. 10
6.5 Possible Future Responsibilities and Duties . 10
Individual Member Services... .. 10
6.7 Local Governing Body. ..10
SECTION 7. FINANCE
7.1 Assets, Rights, Debts, Liabilities and Obligations ..10
7.2 Budget. ..11
7.3 Rates. .12
7.4 Financial Audit.
7.5 Indemnity ..12
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7.6 Insurance .12
SECTION 8. BY-LAWS, OFFICERS AND YOTING
Bylaws... 13
8.2 Officers and Committees.. 13
8.3 Voting 13
8.4 Quorum. 14
Disclosure of Closed Session Information 14
SECTION 2. TERM. 14
SECTION 10. WITHDRAWAL .15
SECTION 11. DISSOLUTION
11.1 Assets.... 15
11.2 Revenue Bonds. 15
11.3 Effective.. 16
SECTION 12. AMENDMENTS ...16
SECTION 13. FILING WITH THE SECRETARY OF STATE ..16
SECTION 14. NOTICES... ...17
SECTION 15. SUCCESSORS AND ASSIGNS. ...17
SECTION 16. SEVERABILITY ....17
SECTION 17. SECTION HEADINGS.. ..17
SECTION 18. ARBITRATION. .17
SECTION 19. LAW TO GOVERN. ...18
SECTION 20. ENTIRETY. ..18
SECTION 21. WAIVER .18
SECTION 22. EFFECTIVE DATE ..18
ii
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AMENDED AND RESTATED
HUMBOLDT WASTE MANAGEMENT AUTHORITY
JOINT EXERCISE OF POWERS AGREEMENT
Adopted November 17, 1999
Amended April 8, 2002
Amended June 14, 2002
Amended November 10, 2016
Amended and Restated [date] 2023
This Amended and Restated Joint Powers Agreement of the Humboldt Waste Management Authority is made and entered into pursuant to the provisions of California Government Code Section 6500 et seq., and supersedes the original Joint Powers Agreement first adopted on November 17, 1999, and amended on April 8, 2022, July 12, 2012, and November 10, 2016. This Amended and Restated Joint Powers Agreement ("Agreement") is effective as of 2023.
RECITALS
WHEREAS, the Cities of Arcata, Blue Lake, Eureka, Ferndale, and Rio Dell, and the County of Humboldt in 1999, entered into a Joint Powers Agreement to form the Humboldt Waste Management Authority for purposes of providing coordinated solid waste management services for the member agencies and their communities; and
WHEREAS, the Authority seeks to amend the Joint Powers Agreement to incorporate powers required to implement new state mandated waste diversion and material management requirements;
WHEREAS, the Authority believes it would be desirable and convenient to restate the Joint Powers Agreement in its entirety, including previous amendments, and amend said Joint Powers Agreement as recited herein.
NOW, THEREFORE, based on the mutual covenants, conditions and terms recited herein, vhich are made a material part of this Agreement, the undersigned public agencies, collectivel eferred to herein as the "Members." enter into this Amended and Restated Joint Power Agreement and agree as follows:
AGREEMENT
SECTION 1. DEFINITIONS
For purposes of this Agreement, the following terms have the respective definitions as set forth below:
"ACT" means the California Integrated Waste Management Act of 1989 (California Public Resources Code Sections 40000 et seq.) and all regulations adopted under that legislation, as that legislation and those regulations may be amended from time to time. 1 -36-
"AGREEMENT" means this joint exercise of powers agreement, first adopted on November 17, 1999, and amended on April 8, 2002, July 12, 2012, November 10, 2016, and on the effective date stated above, and as it may be amended in the future from time to time.
"AUTHORITY" means the Humboldt Waste Management Authority a joint exercise of powers authority created by the Members pursuant to this Agreement. "BOARD" means the Board of Directors of The Authority.
"CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act (Public Law No. 96-510, 94 Stat.2767, as amended; 42 U.S.C. § 9601 et seq.). "DESIGNATED SOURCE SEPARATED MATERIAL(S)" means Source Separated Material(s) over which a Member has obtained Flow Control and directs its franchised or contracted collection hauler to deliver to a facility that is owned by, operated by, or under the contractual obligation of the Authority for purposes of processing, recovering, transferring, transforming, energy production, or disposal, as required by the Authority Directors.
"DIRECTOR" means the representative appointee of a Member to the Board. "EXECUTIVE ADVISORY COMMITTEE" means the committee which shall consist of the participating Agency City and County Managers, or their appointees or designees. "EXECUTIVE DIRECTOR" means the person appointed by the Board as the Authority's administrative officer to manage the affairs of the Authority and to implement the policies of the Board.
"FINANCIAL OBLIGATIONS" means Indenture Obligations, Revenue Bonds and any other financial obligations or liabilities incurred by the Authority. "FISCAL YEAR" means the period commencing on each July 1 and ending on the following June 30.
"FLOW CONTROL" means a system by which a Member, through ordinance, regulation or other official directive, compels its franchised or contracted collection haulers) to transport municipal solid waste, recyclables, or other Source Separated Materials) from the place material is generated to a facility that is owned by, operated by, or under the contractual obligation of the Authority for purposes of processing, recovering, transferring, transforming, energy production or disposal.
"INDENTURE" means any indenture that secures a financial obligation of the Authority with revenues of the Authority.
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"INDENTURE OBLIGATIONS" means bonds, parity obligations and similar instruments, including any Revenue Bonds, which evidence obligations of the Authority arising under and in respect of any Indenture.
"GOVERNMENT CODE" means Articles 1, 2 and 4 of Chapter 5 of Division 7 of Title 1 of the California Government Code (California Government Code Sections 6500 et seq.) and all regulations adopted under that legislation, as that legislation and those regulations may be amended from time to time.
"HOUSEHOLD HAZARDOUS WASTE" means those wastes resulting from products purchased by the general public for household use which, because of their quantity, concentration, physical, chemical or infectious characteristics, may pose a substantial known or potential hazard to human health or the environment when improperly treated, disposed or otherwise managed, as defined in the California Public Resources Code § 40141.
"LANDFILL" means the Cummings Road Landfill located at 5755 Cummings Road, Eureka, CA 95501.
"MEMBER" or "MEMBERS" means the City of Arcata, the City of Blue Lake, the City of Eureka, the City of Ferndale, the City of Rio Dell, the County of Humboldt, or any city located wholly or partly within Humboldt County which has joined the Authority pursuant to Section 2.2.
"OUTSTANDING" as of any particular date means (a) with respect to Indenture Obligations, the term shall have the meaning ascribed to it in the Indenture, (b) with respect to Revenue Bonds, means Revenue Bonds issued but not yet defeased or redeemed, and (c) with respect to other financial obligations and liabilities of the Authority, means those other financial obligations and liabilities which have been incurred but not yet paid in accordance with their terms.
"PLEDGE OF REVENUES" means a financial assurance mechanism as defined in 27 California Code of Regulations section 22200(j) by which the Authority promises to make specified, identified future revenues of facilities under its ratemaking control available to pay future postclosure maintenance costs of a solid waste facility. "REVENUE BONDS" means revenue bonds, notes, certificates of participation or any other instruments or evidences of indebtedness issued, executed, or delivered by the Authority from time to time pursuant to the Government Code or any other applicable law in order to finance any facility, plant, site, existing or planned, owned, leased, and constructed, maintained, and/or operated by the Authority, and/or any financial aspects of closed Landfill maintenance.
"SERVICE AREA" means those areas under the jurisdiction of Members from which the Authority receives Solid Waste for processing, transportation, and disposal. If and when any additional cities join the Authority pursuant to Section 2.2.., the Service Area shall also 3 - 38-
include all areas within the joining City or Cities.
"SOLID WASTE" means the type of wastes commonly collected by Members' franchised Solid Waste collectors including putrescible and nonputrescible solid, semisolid and liquid wastes including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition, and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewater, treated or chemically fixed sewage sludge which is not hazardous wastes, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes. Solid Waste does not include 1) hazardous wastes as defined in California Public Resources Code § 40141 or by federal law or regulation, 2) radioactive waste as defined and regulated, or 3) medical waste as defined and regulated, or 4) those Source Separated recyclable or compostable materials intended for collection as part of a Member's collection and/or recycling, reuse, reprocessing franchise. "SOURCE SEPARATED MATERIAL(S)" means materials collected by a Member's franchised or contracted collection hauler that is separated, placed into a container by the generator and specifically intended for separate collection (e.g., curbside collected recyclables, and compostable materials).
"TRANSFER FACILITY" means any facility, plant, site, existing or planned, owned, leased, and constructed, maintained, operated, or used for purposes of performing under this Agreement and includes any future Transfer Facility accessory facilities related thereto, meeting the requirements of a "transfer or processing station" under Section 40200 of the California Public Resources Code, and for the receiving, processing, disposal, recycling and transportation of Solid Waste and the recovery of materials from Solid Waste and Designated Source Separated Material(s), that is owned by the Authority, by a Member, or by a private entity, but in all events is available for use by the Authority or its Members, such that the material is handled by the Authority's transport, processing and disposal system.
SECTION 2. FORMATION, MEMBERSHIP
2.1 Humboldt Waste Management Authority. Pursuant to the Government Code, the Members do hereby create, form and establish the Authority, a public entity to be knowr as the "Humboldt Waste Management Authority", it being understood that the Board shal be entitled to change the Authority's name from time to time if it so chooses. The Authority shall be a public entity separate and distinct from each of the Members.
2.2 Member Additions. Any city or county in Humboldt County may apply to join the Authority as a Member. The prospective Member's application must be received by the Authority no later than January 1 for potential membership beginning with the following Authority Fiscal Year. Membership will be granted only upon the approval of at least 70% of the Directors. Such approval shall not be granted unless and until the jurisdiction shall have: (1) covenanted to direct all Solid Waste and Designated Source Separated Materials) 4 -39-
collected by the jurisdiction (if such jurisdiction provides collection services directly to it constituents) to a Transfer Facility for processing, transportation, and disposal; (2) successfully entered into one or more agreements, satisfactory to the Authority, which direct its franchised or contracted collection haulers) to deliver all Solid Waste and Designated Source Separated Material(s) collected under such franchises) or contracts) to a Transfer Facility for processing, transportation and disposal; or (3) made such other arrangement or covenant acceptable to the Authority for the delivery of Solid Waste to the Transfer Facility. Additionally, new Members will be assessed a prorated share of assets and liabilities held by the Authority such as the undesignated reserve fund and any existing Indenture Obligations.
2.3 Flow Control. It is hereby understood that the intent of the Authority is to require all present and future Members to covenant to take all actions possible to direct Solid Waste and Designated Source Separated Material(s) to a Transfer Facility and to amend or revise any franchise collection agreements at the earliest possible date (which date may be the next renewal date for such franchise collection agreement) to provide the Member with the right to direct all Solid Waste and Designated Source Separated Material(s) collected under any franchise collection agreement to a Transfer Facility as specified by the Authority Directors.
SECTION 3. PURPOSE
3.1 General. The Authority is formed to provide the economic coordination of Solid Waste and Designated Source Separated Material(s) management services and to efficiently and fairly assure against potential adverse effects of past Solid Waste management services within the Service Area. This Agreement is entered into by the Members in order: 1) that they shall jointly request proposals and contract for Solid Waste and Designated Source Separated Materials) processing and disposal services; and 2) that they may jointly develop and fund programs to provide for the: A) siting, permitting, developing, constructing, maintaining, operating or contracting for the construction and/or operation of disposal sites, Transfer Facilities and equipment, materials recovery facilities, waste to energy facilities, and/or Solid Waste landfills; B) preparing of planning documents which meet the requirements of the Act and other state law and regulation; C) disposal, transfer, or processing of materials generated in the incorporated and unincorporated area of the County; and D) planning, implementing and supervising programs which serve all or most jurisdictions, including facilities (household hazardous waste, centralized composting and disposal), special wastes (tires, appliances, and construction/demolition wastes) and recycling market development.
3.2 Transfer Facility. The general purpose may include, but is not limited to, the purpose of providing the economic coordination of processing, transfer and disposal services for Solid Waste and Designated Source Separated Materials) generated within the Service Area, including but not limited to the acquisition, construction, financing, refinancing maintaining, operating, rate setting, rate collection, and regulation of Transfer Facilities. 5 -40-
3.3 Land fill Closure and Maintenance. The general purpose also includes, but is not limited to, establishment of pooled insurance and other financial or other mechanisms to provide, for the safe closure and long term postclosure maintenance of the closed Landfill serving part or all of the Service Area for the general purpose of protecting the health and safety of the public within the Service Area and the specific purpose of protecting the general funds of the Members against any possible "generator" liability under state or federal laws and regulations which might arise if such landfills are not properly closed and maintained. The purposes of the Authority may include ownership and/or management of the Landfill during the final stages of the Landfill's active life, during closure, and thereafter if such is deemed essential, in the discretion of the Board of Directors, for successful accomplishment of the primary purpose of safe closure and postclosure maintenance. This Section excludes all landfills closed prior to July 1, 1996.
3.4 Common and Additional Powers. The Authority's purpose also includes the establishment of the Authority as an independent joint powers entity to enable the Members to jointly exercise the common powers of the Members set forth in Section 3.1 and for the exercise of such additional powers as are conferred under Section 6 or conferred by the Government Code upon all joint powers authorities.
SECTION 4. ORGANIZATION
4.1 Composition. The Authority shall be composed of the City of Arcata, the City of Blue Lake, the City of Eureka, the City of Ferndale, the City of Rio Dell, any city within the Service Area which has joined pursuant to Section 2.2, and the County of Humboldt.
4.2 Prand thoric The principal ot prior ipal c upon giving a least a days viter notice to each Member.
4.3 Board The Authority shall be governed by the Board Of Directors, which shall xercise or oversee the exercise of all powers and authority on behalf of the Authority. Thi Authority Board of Directors shall appoint at its first meeting a chairperson and a vic chairperson. Thereafter at its first meeting in each succeeding fiscal year, the Board shall appoint new officers. The appointment of the chairperson shall rotate among the Members of the Authority.
4.4 Directors.
(a) The Board shall consist of the same number of Directors as the number of Members.
Each Member shall appoint one Director. Upon execution of this Agreement by a Member, the Member shall appoint its representative to the Board and at least one person as an alternate to serve in the case of absence or conflict on the part of the appointed Director. Thereafter, vacancies shall be filled by the appointing Member 6 -41-
within thirty (30) days of the occurrence thereof. Each Director and alternate shall be an elected official of the governing body of the Member that he or she represents.
If a Director or alternate ceases holding any such elected position, he or she shall then cease to serve as a Director or alternate. The Authority and the Board shall be entitled to rely on a written notice from the City Clerk (in the case of city Members) and the Clerk of the Board of Supervisors (in the case of county Members) as conclusive evidence of the appointment and removal of the Directors and/or alternates representing that Member.
(b) Each Director and alternate shall hold office from the first meeting of the Board after appointment by the Member, until his or her successor is selected by the Member that appointed that Director. Each Director and alternate shall serve at the pleasure of the Member that he or she represents and may be removed at any time, without cause, at the sole discretion of that Member.
(c) No compensation shall be received by any Director or alternate unless expressly provided by resolution of the Board.
4.5 Executive Advisory Committee. • There is hereby created an Executive Advisory Committee which shall consist of the Member City and County Managers, or their appointees or designees, to advise the Executive Director as specified below:
Review and recommend an operating and capital budget, and review and comment on Authority goals and objectives.
b) Provide assistance to the Board as requested in the recruitment and selection for the Authority's Executive Director.
The Executive Advisory Committee shall meet as necessary, but not less than annually, and as necessary as called by the Chairperson. The Executive Advisory Committee shal succeeding Fiscal Year, the Executive Advisory Committee shall appoint new officers.
The appointment of the Chairperson shall rotate among the Members of the Authority. A majority of all members of the Executive Advisory Committee shall be present to conduct business of the Executive Committee. The decision of the majority of the Executive Advisory Committee shall constitute the acts of the Committee.
4.6 Technical Advisory Committee. The existing County/City Integrated Waste Management staff comprised of Authority Members is designated to provide technical information for, make recommendations to, and otherwise advise, the Authority on relevant waste management issues.
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SECTION 5. PERSONNEL AND ADMINISTRATION
5.1 Employees. The Authority may have its own employees and/or may contract with a Member agency or firm for the furnishing of any necessary staff services associated with or required by the Authority. All employees shall report to the Executive Director.
Executive Director. The Executive Director shall have all administrative powers necessary to implement Board direction, including purchasing, personnel, and finance powers. The Executive Director shall prepare an annual budget and annual rate schedule for the Board's consideration.
SECTION 6. POWERS
6.1 FACILITIES. The Authority is empowered to acquire, construct, finance, refinance, operate, regulate, set rates for and maintain Transfer Facilities subject, however, to the conditions and restrictions contained in this Agreement. To ensure safe closure and postclosure maintenance of the Landfill, the Authority is empowered to acquire, operate, regulate, set rates for, close and provide postclosure maintenance for the Landfill and all facilities and properties related thereto in the manner required by law.
6.2 Approved Powers. To the full extent permitted by applicable law (including specifically the Act and the Government Code), the Authority is authorized, in its own name, to do all acts necessary or convenient for the exercise of such powers enumerated in the Act or that each Member could exercise separately including, without limitation, any and all of the following:
(a) to sue and be sued in its own name;
(b) to incur and discharge debts, liabilities and obligations; (c) to issue Revenue Bonds, notes, certificates of participation and incur other forms of indebtedness and make associated covenants from time to time, for designated purposes in accordance with all applicable laws for the purpose of raising funds to finance or refinance the acquisition, construction, improvement, renovation, repair, faciation, regulation or maintenance of the Transfer Facility andor related (d) to exercise the power of eminent domain for the acquisition of real and personal property for a Transfer Facility and access thereto or for the acquisition of a Transfer Facility itself;
(e) to acquire, improve, hold, lease and dispose of real and personal property of all types;
(f) to establish rates, tolls, tipping fees, other fees, rentals and other charges in connection with a Transfer Facility, any other facility owned or operated by the 8 -43-
Authority, and any other enterprise which the Authority is empowered by this greement to conduct, as well as any and all services and programs provided and/o mplemented by the Authority, and to include in such rates and charges amount necessary to carry out those purposes described in Section 3 of this Agreement; (g) to require the Members to use all best efforts to direct all Solid Waste and Designated Source Separated Materials) generated within the Members' boundaries that are located within the Service Area to the Authority-specified Transfer Facility. To the extent legally permissible, Members shall:
(1) Direct all Solid Waste collected by Members' franchised garbage collectors to the Transfer Facility. Members shall also direct all other Solid Waste generated by Members to the Transfer Facility; provided, however, this subsection shall not apply to recyclables nor to Solid Waste generated by Members outside the Service Area; and
(2) Obtain and maintain Flow Control over Designated Source Separated Material(s);
(h) to require Members to amend or revise any franchise collection agreements) at the earliest possible date, which shall not be later than the first renewal or extension date or the date of any amendment to such franchise agreement, to provide the Member with the right to direct all Solid Waste and Designated Source Separated Materials) collected by the franchised haulers) to a Transfer Facility. Any Member currently not having the right to direct such materials under its franchise agreements) shall covenant to make such amendment in order to join the Authority;
(i) to contract for the processing, transportation and/or disposal of Solid Waste and Designated Source Separated Material(s) delivered to a Transfer Facility; (i) to make and enter into contracts, including contracts with any Member or non- member entity, and to assume contracts made by any Member relating to the (k) to reimburse the Members for the costs of services provided to the Authority; (1) to hire agents and employees;
(m) to employ or contract for the services of engineers, attorneys, accountants, planners, consultants, fiscal agents and other persons and entities; (n) to apply for and accept grants, advances and contributions; (o) to make plans and conduct studies;
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(p) to coordinate efforts with the established local, regional and state waste management agencies;
(g) to make payments as necessary for closure and postclosure maintenance for the Landfill for the purposes set forth in Section 3.3 of this Agreement and, if the Landfill should become a Superfund site, to seek reimbursement for remediation costs from any person or entity (other than any Member) having a legal responsibility for such costs; and
(r) to provide the financial assurances required by state and federal law for postclosure maintenance of the Landfill, including use of a Pledge Of Revenues based upon any or all of the revenue-producing enterprises owned and/or operated by the Authority.
6.3 Limitations. Such powers shall be exercised subject only to the limitations set forth in this Agreement, applicable law and such restrictions upon the manner of exercising such powers as are imposed by law upon the County of Humboldt in the exercise of similar powers.
6.4 Possible Future Responsibilities. Upon future approval and agreement by all of the Members, the Authority may conduct other related waste management responsibilities and duties, including but not limited to contracting with non-members to accept their Solic Waste at a Transfer Facility or expansion to a Regional Agency, as that term is defined in Public Resource Code § 40975.
6.5 Individual Member Services. Upon approval of the Board and the governing body of a Member, the Authority may contract to provide other related waste management responsibilities and duties, individually for that Member. These contracted services will be paid for solely by the contracting Member.
6.6 Local Governing Body. For the purposes of the Act the Authority will operate as a "Local Government Body" or "Local Governmental Agency" which has the authority to provide Solid Waste and other materials management and handling services.
SECTION 7. FINANCE
7.1 Assets, Rights, Debts, Liabilities and Obligations. (a) Except as provided in subsection (b), (c) and (d) below, the assets, rights, debts, liabilities and obligations of the Authority shall not constitute assets, rights, debts, provided that both the Board and that Member give prior approval to such contract -45-
(b) The Members hereby agree that any defense against claims, as well as the cost of any judgments imposed for claims resulting from actions by the Authority or any of the officers, agents, employees, or contractors of the Authority in relation to the Transfer Facility, any Solid Waste facility owned and/or operated by the Authority or any other enterprise owned and/or operated by the Authority shall be the sole responsibility of the Authority. Such costs shall therefore be paid for ultimately through surcharges uniformly imposed on the rates charged to users of the Transfer Facility.
(c) To the extent that Members are also held jointly and severally liable for such amounts by Government Code Section 895.2, if a Member provides for such defense of itself or the Authority, or pays all or part of such judgment, the Member shall be entitled to reimbursement in full from the Authority, provided the Member obtains prior approval from the Authority. Such reimbursement shall be paid over such time as is necessary for the collection of the corresponding reasonable user surcharges.
(d) If Members are held responsible by third parties for tort or other claims as a result of activities of the Authority, pursuant to Government Code Section 895.2 or state or federal laws applicable to Solid Waste management facilities, and the Authority has ceased to exist and its assets have been fully distributed or consumed, or the Authority has ceased to operate and has no unencumbered assets capable of generating enough revenue to defend against and pay for such claims, each Member shall be entitled to seek reimbursement from the other Members) for the costs of providing the defense against such tort claims or payment of any judgments lawfully imposed in connection therewith to the extent that the amounts paid by the Member exceed that proportion of the total cost which exceeds the ratio of the tonnage of Solid Waste generated within the jurisdiction of the Member, including self-hauled Solid Waste, and processed by the Transfer Facility in the Fiscal Year of the occurrence of the incident giving rise to liability to the total tonnage processed by the Transfer Facility during said Fiscal Year. (e) Obligations for capital expenditures at an approved Transfer Facility shall be included in the service fee for such facility such that only its users contribute toward its capital expenditures. However, all Members shall contribute a reasonable amount toward all of the Authority's costs of administration.
7.2 Budget. A budget for the Authority shall be adopted by the Board for the ensuing Fiscal Year prior to June 30 of each year. The budget shall include sufficient detail to constitute an operating guideline. It shall also include the anticipated sources of funds, and the anticipated expenditures to be made for the operations of the Authority including, but not limited to, the acquisition or construction of a Transfer Facility and any other facility owned and/or operated by the Authority and related site improvements, administration, special projects, maintenance and operating costs. Approval of the budget by the Board shall constitute authority for the Executive Director to expend funds for the purposes outlined in the approved budget, but subject to the availability of funds on hand, provided 11 -46-
that this shall not be construed to limit the power of the Board to modify the budget in whatever manner it deems appropriate and instruct the Executive Director accordingly.
7.3 Rates.
(a) The Board shall establish rates to be charged at the Transfer Facility in amounts sufficient to provide for the efficient operation, including administrative, processing, transportation and disposal costs, to discharge all indebtedness and liabilities (including, without limitation, any Revenue Bonds issued in connection therewith) to insure against future liabilities and of the Members resulting from "generator" status under state and federal laws and regulations relating to landfills experiencing illegal discharges of hazardous substances to the extent that status pertains to Solid Waste generated at any time within the Service Area, and to pay as yet unfounded costs of closure as well as those costs of postclosure maintenance for the Landfill which exceed net revenues from gas recovery and other ongoing Landfill site enterprises, as liability for such costs accrues, and to accommodate the planning and implementation of activities incidental thereto. (b) The Authority shall provide at least thirty (30) days advance written notice to its Members of any intent to increase or decrease rates to be charged at the Transfer Facility. To the extent possible, the Authority shall coordinate the effective date of rate increases or decreases with the annual garbage collection rate setting processes of the Members and other public entities having Solid Waste franchising jurisdiction within the Service Area.
7.4 Financial Audit. There shall be an audit of the accounts and records at least annually as prescribed by Sections 6505 and 6505.5 of the Government Code. The audit shall conform to generally accepted auditing standards. There shall be an annual audit of the services provided, measuring satisfaction with internal and external services.
7.5 Indemnity. The Authority shall indemnify, defend and hold harmless the Members hereto, their officers, officials, employees and volunteers from and against all liability, loss, damage, expense costs (including without limitation costs and fees of litigation), of every nature arising out of the Authority, described herein, or its failure to comply with any of its obligations contained in the Agreement, except such loss or damage which was caused by the sole negligence or willful misconduct of a Member.
7.6 Insurance
(a) The Authority shall maintain general liability insurance, environmental insurance coverage, vehicle insurance coverage and workers compensation relating to its ownership and operation of the Transfer Facilities and properties. (b) The Authority shall, directly or indirectly, maintain liability insurance or self-insurance 12 -47-
relating to its contractual obligations pursuant to this agreement, covering its management, operation and administration of the Transfer Facilities and shall indemnify, protect, defend and hold harmless all other agencies from claims and suit arising for the operations of the Transfer Facilities. The indemnity herein shall includ federal and state statutes and environmental laws directly relating to the operations of the Facilities.
(c) Each Member shall maintain appropriate insurance covering the collection and transport of Solid Waste and Designated Source Separated materials from its jurisdiction to the Transfer Facilities, and shall indemnify, protect, defend and hold harmless the Authority from any and all loses arising therefrom, including losses from violations of federal, state, and local laws.
SECTION 8. BYLAWS, OFFICERS AND VOTING
8.1 Bylaws and Policies. The Board, from time to time, may adopt bylaws and policies for the conduct of the Authority's affairs, provided that they are not inconsistent with this Agreement.
8.2 Officers and Committees. The Board may designate such officers and establish such committees as may be necessary or convenient to conduct the Authority's affairs, and is subject to provisions of the Ralph M. Brown Act (Sections 54950 et seq of the California Government Code) and other applicable laws of the State of California.
8.3 Voting.
(a) Each Director shall have one vote on all matters presented to the Board for a vote. (b) Except as provided in Section 8.3(c), the vote of a majority of the Directors shall constitute the act of the Board.
(0) A poe of venty polent 70% all of the Directors shall be necessary in order to (1) the construction budget for any Authority owned facility; (2) the annual operating budget of the Authority in excess of debt service on Revenue Bonds
(3) the issuance, execution or delivery of Revenue Bonds; (4) any change in a budget exceeding 10% of the total amount of that budget; (5) any amendment to or the termination of this Agreement; 13 -48-
(6) voting rules regarding the approval of contracts between the Authority and any one or more Members (it being understood that all such contracts must be approved pursuant to rules adopted in this manner);
(7) the admission of an additional Member including by means of assignment; (8) the purchase of a new Transfer Facility.
8.4 Quorum. A majority of the Directors shall constitute a quorum for the transaction of business of the Board except that if there is less than a quorum present, any Director who is present or the Executive Director may adjourn any meeting.
8.5 Disclosure of Closed Session Information. Pursuant to Government Code section 54956.96, the Board hereby authorizes each Director of the Board to disclose information received by the Board in closed session only in accordance with this section:
(a) To any alternate Director appointed to the Board by a Member who is attending a properly noticed meeting of the Authority in lieu of the Member's regularly appointed Director to the Board.
(b) All information received by a Member's governing body in closed session related to information presented to the Authority in closed session shall be confidential.
However, a Member's appointed Director or alternate to the Authority Board may disclose intormation obtained in closed session that has direct financial or liability implications for a Member to the following individuals:
(1) Legal counsel for the Member for purposes of obtaining advice on whether the matter has direct financial or liability implications for the Member; and (2) Other officials in the Member's governing body present in a closed session of the Member agency.
(c) Upon adoption of this provision, the governing body of a Member agency, upon advice of its legal counsel, may conduct a closed session in order to receive, discuss, and take action concerning information obtained in a closed session of the Authority pursuant to section 8.5.
SECTION 2. TERM
This Agreement shall continue in full force and effect until amended pursuant to Section 12 or until dissolved pursuant to Section 11 of this Agreement. However, in no event shall the Authority be dissolved until all of the Authority's obligations and liabilities respecting all Revenue Bonds 14 -49-
are satisfied, discharged, or terminated or until the provisions of Section 11.2 are complied with.
SECTION 10. WITHDRAWAL
A participating Member may withdraw upon no less than one year prior written notice to the Authority Board. The withdrawing Member shall continue to be financially responsible for its share of financial obligations and liabilities incurred prior to the withdrawal date. Upon such withdrawal, no withdrawing Member shall be entitled to any distribution or withdrawal of property or funds except as may be agreed to by the Board; however, such Member shall be entitled to participate in the return of surplus money and other surplus personal property upon the completion of the purpose of the Agreement according to the provisions of Section 11.
SECTION 11. DISSOLUTION
11.1 Assets.
(a) Subject to the then-applicable requirements of the Government Code, upon dissolution of the Authority, the assets of the Authority remaining after payment of or adequate provision for all debts, liabilities and obligations of the Authority shall be divided among the Members in accordance with an unanimous agreement among them or, in the absence of such an agreement, in proportion to the total tonnage of Solid Waste and Designated Source Separated Material(s), (inclusive of Solid Waste delivered by self-haulers) each Member caused to be delivered to the Transfer Facility.
(b) To ensure that "adequate provision"' is made for all debts, liabilities and obligations of the Authority upon dissolution, any assets remaining after satisfaction of all debts known to exist as of the time of dissolution shall be placed in a trust account with the Humboldt County Auditor to be held in trust until expiration of the period of postclosure maintenance for the Landfill required by state and federal law. If the
11.2 Revenue Bonds Or Other Instruments Of Indebtedness 15 -50-
(a) If any Revenue Bonds or other instruments of indebtedness are outstanding at the time of dissolution, the Members shall cause to be delivered to the Revenue Bond trustee(s):
(i) an opinion of nationally recognized bond counsel substantially to the effect that such dissolution will not cause the interest on the outstanding Revenue Bonds to be included in gross income for federal income tax purposes; and (ii) evidence from each rating agency then rating the outstanding Revenue Bonds that such dissolution will not adversely affect the rating of such Revenue Bonds.
(b) Approval of any request to dissolve shall not be unreasonably withheld; provided, however, that if any Revenue Bonds are outstanding at the time the request is made or acted upon, financial assurances are made by the Members that will assure continued payment of the Members' share of the outstanding indebtedness which is acceptable to the other Members, the Authority, and the Revenue Bond trustee(s) and their respective counsel. Approval of such financial assurances by an independent financial consultant selected by the Board shall be required.
11.3 Effective. No dissolution shall be effective unless and until the Authority and Members comply with any then-applicable requirements of the Government Code relating to changes in the composition of entities such as the Authority; and if and when they have Revenue Bonds issued by the Authority or other instruments of indebtedness outstanding, comply with all of the terms and conditions of all Revenue Bonds or other instruments of indebtedness and related documentation including, without limitation, indentures, trust agreements, resolutions and letter of credit agreements.
SECTION 12. AMENDMENTS
This Agreement may be amended only after preliminary approval by no less than 70% of the Directors of the Authority Board, and thereafter by written instrument approved by no less than 70% of the governing boards of the Members. Any Amendment shall meet all requirements imposed by the terms or conditions of Revenue Bonds and related documentation, if any, including, without limitation, indentures, trust agreements, resolutions and letter of credit agreements. Notwithstanding the foregoing, no amendment shall require any Member to contribute any funds to the Authority or become directly or contingently liable for any debts, liabilities or obligations of the Authority without the consent of that Member evidenced in a written instrument signed by a duly authorized representative of that Member.
SECTION 13. FILING WITH THE SECRETARY OF STATE
The Executive Director shall file all required notices with the Secretary of State in accordance with California Government Code Sections 6503.5 and 53051, as such may be amended from time to 16 -51-
time.
SECTION 14. NOTICES
All notices which any Member or the Authority may wish to give in connection with this Agreement shall be in writing and shall be served by personal or electronic mail delivery during usual business hours at the principal office of the Member or Authority, to an officer or person apparently in charge of that office, or by depositing the same in the United States mail, postage prepaid, and addressed to the Member or Authority at its principal office, or to such other address as the Authority or Member may designate from time to time by written notice given to the other Members in the manner specified in this Section. Service of notice pursuant to this Section shall be deemed complete on the day of service by personal delivery (but 24 hours after such delivery in the case of notices of special meetings of the Board) or three (3) days after mailing if deposited in the thai be date medio the resphalived by Minen noice to thy Adhity and the Members, SECTION 15. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the permitted successors and assigns of the Members. However, no Member shall assign any of its rights under this Agreement except to a duly formed public entity organized and existing under the laws of the State composition of entities such as the Authority and, if and when they have Revenue Bonds outstanding, in compliance with the terms and conditions of all Revenue Bonds and related documentation including, without limitation, indentures, trust agreements, resolutions and letter of credit agreements.
SECTION 16. SEVERABILITY
Should any part, term or provision of this Agreement be decided by a final judgment of a court or arbitrator to be illegal or in conflict with any law of the State of California or otherwise be unenforceable or ineffectual, the validity of its remaining parts, terms and provisions shall be not be affected.
SECTION 17. SECTION HEADINGS
All section headings contained in this Agreement are for convenience and reference. They are not intended to define or limit the scope of any provision of this Agreement.
SECTION 18. ARBITRATION
All disputes that arise in connection with the interpretation or performance of this Agreement shall 17 -52-
be resolved on an equitable basis by a single arbitrator under the commercial arbitration rules of the American Arbitration Association. The arbitrator's decision shall be final and binding on the Authority, all Members and all former Members involved or affected by the dispute. The Authority, any Member and any former Member that is party to the dispute may enforce any award, order or judgement of the arbitrator in any court of competent jurisdiction.
SECTION 19. LAW TO GOVERN
It is understood and agreed by the parties that the law of the State of California shall govern the rights, obligations, duties and liabilities of the parties to this Agreement and shall govern the interpretation of this Agreement.
SECTION 20. ENTIRETY
The Members agree that this Agreement represents the full and entire agreement between the MEMBERS hereto with respect to matters covered herein. This Agreement supersedes any and all other communications, representations, proposals, understandings or agreements, either written or oral, between the Members hereto with respect to such subject matter.
SECTION 21. WAIVER
A waiver of any breach of any provision of this Agreement shall not constitute or operate as a waiver of any other breach of such provision or of any other provision, nor shall any failure to enforce any provision hereof operate as a waiver of such provision or of any other provision.
SECTION 22. EFFECTIVE DATE
This Amended and Restated Joint Powers Agreement shall become effective at the time 70% of the Members governing boards have duly approved this Amended and Restated Joint Powers Agreement.
IN WITNESS WHEREOF, the Members of the Humboldt Waste Management Authority have approved this Amended and Restated Joint Powers Agreement and execute this Agreement as of the dates written below.
SIGNATURES APPEAR ON FOLLOWING PAGES
18 -53-
HUMBOLDT WASTE MANAGEMENT
AUTHORITY
AMENDED AND RESTATED
JOINT EXERCISE OF POWERS AGREEMENT
(Adopted November 17, 1999,
Amended April 8, 2002
- Amended July 12, 2012
, Amended November 10, 2016)
Amended and Restated [date] 2023
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