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HomeMy WebLinkAboutAGENDA REPORT 1994 0216 CC REG ITEM 11B"s FROM: ITEM 11. �. A G E N D A R E P O R T CITY OF MOORPARK The Honorable City Council Jill R. Myers, Solid Waste Coordinator )12A. r DATE: February 8, 1994 (CC Meeting of February 16, 1994) SUBJECT: Consider the Memorandum of Understanding for a Cooperative Household Hazardous Waste (HHW) Collection Program, Approval of an Agreement for the Provision of Program Services, and Approval of Appropriation and Expenditure Funds. Ealgl; pit" The City Council is being asked to consider approval of an Agreement and Memorandum of Understanding (MOU) for a cooperative household hazardous waste (non - recyclable materials) collection program. The MOU provides for program planning with a one ( 1) year term, and the agreement provides for Chemical Waste's operation of a mobile collection program through June 30, 1995. BACKGROUND Moorpark's Household Hazardous Waste Element (HHWE), adopted in December 1991, states that the City will develop a "comprehensive Household Hazardous Waste (HHW) program which will protect the environment and the general public form the adverse effects of improper handling and disposal of this waste." The development of a regional collection program is identified in the HHWE as a viable way of ensuring that these wastes are properly disposed. In 1993, the Cities of Simi Valley and Thousand Oaks, and the County of Ventura worked together on the development and implementation of a of subregional (mobile) collection program. Moorpark was invited to participate at the start of the program 1992/93 program year but declined. This year, staff has been working with the representatives of the other jurisdictions to amend the existing agreement and MOU to provide for the inclusion of Moorpark. The purpose of the mobile HHW round -up events is to collect household hazardous wastes from residents to ensure proper disposal of the materials. As proposed, the program will utilize an appointment based system. Materials to be accepted include weed killers, household cleaners, pool chemicals, oil -based paint and thinners, solvents, pesticides and fertilizers, auto and furniture polish and varnish, household batteries, and fluorescent light tubes. Materials that will not be a,,cept:ed include radioactive Honorable City Council February 16, 1994 Page 2 waste, medical waste, ammunition, qas or propane cylinders, and commercial /business waste. At the time a resident schedules an appointment, they will be asked to name the items that need to be disposed. Residents will be discouraged from bringing recyclable HHW items such as used motor oil or automotive batteries, as the City provides alternative programs for these materials, including the recently approved Resource Conservation Center (RCC) and certified used oil collection centers. The location of the proposed Moorpark collection event is being evaluated by staff. Staff plans to have the event on City -owned property. In selecting a site, Staff will consider the proximity of the event to residential areas :and access to and from the site. A brochure developed for the previous mobile collection events will be used to publicize the event, in addition to information provided to the local media. The date of the event will be publicized, but the location and times are not provided until a resident schedules an appointment. This will prevent residents from showing up without an appointment. A verification card with the appointment time will sent to the resident, and the resident is required to bring the card to the event. Both the brochure and appointment verification card use graphic and verbiage to list acceptable and unacceptable items (A sample brochure and appointment card has been previously provided to the Council;. Both Simi Valley and Thousand Oaks over - booked previous events key '0-, due to an average "no show" rate of 270. In June 1993, two (2) two day events were conducted. Thousand Oaks had 1,401 residents participate, Simi Valley had 1,264, and the County had a total of 257 participants. Approximately two hundred (200) residents were serviced per hour at each event. The longest wait was thirteen (13) minutes. If a resident had an excessive amount of materials to dispose, a second appointment was scheduled at the time of the call. Appointments were accepted in fifteen minute increments. Based on participation at the Moorpark community clean -up events, staff anticipates that 250 residents will participate in the proposed mobile collection event. Chemical Waste Management Incorporated (CWM) is the contractor providing program operations. As the contractor, CWM is responsible to provide site preparation and clean -up, trained staff (chemist and project manager) , and reports on materials and volumes collected in compliance with AB 9,`). The contractor also carries the insurance for the events. As proposed, residents will drive to the designated unloading area or "hot zone" and remain in the car at all times. The contractor's staff will greet residents, scan materials to ensure that they are acceptable, and unload material from the resident's vehicle. Honorable City Council February 16, 1994 Page 3 According to the Agreement, the Contractor may refuse to accept any restricted materials. The Contractor indicated that they will provide residents with information regarding locations to dispose of the restricted wastes. Another condition of the Agreement requires the contractor to service a resident within fifteen (15) minutes upon entering the site. As stated before, the longest wait (due to the actions of the contractor) was thirteen ( 13 ) minutes in the 1992/93 events. The contractor will move the materials to a packing area away from the vehicle unloading zone, bulk materials, seal drums, attach inventory lists, and prepare the materials for transport. The contractor must clean the site to pre -event conditions or better. The contractor will prepare and submit a post -event report within thirty -days of the event. The report must be prepared consistent with the formats required by the California Integrated Waste Management Board (CIWMB) and the Department of Toxic Substances Control (DTSC). CWM will acquire to necessary permits for each host city prior to the event. Host cities will notify local agencies responsible for fire and emergency response of the date of the proposed event. The County will serve as the liaison to the contractor. County staff will work with the contractor prior to the event to ensure the necessary permits and insurance requirements are provided. County staff will also provide each city with the computer program used to accept appointments. After the events, County staff will confirm disposal amounts and coordinate the contractor's billing. The Agreement, "Scope of Services - Exhibit All identifies the roles of the contractor and sponsors (City), and provides a comprehensive outline for the event including the identification of disposal options for materials collected. Each host city is responsible for accepting and processing appointments prior to their proposed event. At the event, Moorpark staff (Solid Waste Coordinator and Administrative Aide) will check appointment cards, and take names similar to the community clean -up events. A County staff person will also be present at our event. Depending on the location, we may need staff for traffic control assistance. Program Costs The agreement with the HHW contractor ( CWM) stipulates a "cap" that can be charged to the participating entities. The cap is a per unit fee based on loads received, not per participant. A unit is a load containing five (5) gallons or a total weight of fifty (50) pounds of materials. For example, at the June 1993 event, Simi Valley had a total of ,,314 particir) ants, yet they received a total Honorable City Council February 16, 1994 Page 4 1,893 loads. The cap includes fixed costs, such as site preparation and contractor staff provided, and variable costs, such as disposal fees. Not included are the costs to dispose items that are not acceptable yet may be received, such as radioactive waste and mercury based materials. Additionally, each sponsor will separately coordinate with their refuse haulers to dispose or recycle containers brought to the ;ite. �x�ioic a - 5ectio� lI1 (pages 91 and identifies care schedules fol the e�e�ts I is comprised of two components 0 {. i xpd Costs and variablo costs. Fixed costs per event are based on the size of the collection program. As proposed, Moorpark's event (including the unincorporated areas) will service 280 cars (250 from Moorpark and 30 from unincorporated areas). Fixed costs include materials and labor required for site setup; labor and material costs required to operate the receiving area] �er�vnal ro�eG�lYe �� �1���� 111 1 response materials; materials and labor re wired for site knockdown an Clamp, and Ii mirance minlmm cove e. A total fixed cost not to exceed $9,400 to service -ars (S37.60 per car) has been established for Moorpark's event. 14 MN REClWI, ilf fine Tr 11K i r 1 F rAn rmligti f nT 11ir1 inl 0 04A,01,110 arrontp�. Th2 nriiM "OILS dtr uu� uaa" V11 Vi,V^ Honorable City Council February 16, 1994 Page 4 1,893 loads. The cap includes fixed costs, such as site preparation and contractor staff provided, and variable costs, such as disposal fees. Not included are the costs to dispose items that are not acceptable yet may be received, such as radioactive waste and mercury based materials. Additionally, each sponsor will separately coordinate with their refuse haulers to dispose or recycle containers brought to the ;ite. Exhibit A - Section III (pages 41 and 42) of the agreement identifies rate schedules for the events. The per unit fee or cap is comprised of two components - fixed costs and variable costs. Fixed costs per event are based on the size of the collection program. As proposed, Moorpark's event (including the unincorporated areas) will service 280 cars (250 from Moorpark and 30 from unincorporated areas). Fixed costs include materials and labor required for site setup; labor and material costs required to operate the receiving area; personal protective equipment and spill response materials; materials and labor required for site knockdown and clean -up, and insurance minimum coverage. A total fixed cost not to exceed $9,400 to service -are ($37.60 per car) has been established for Moorpark's event. The second component of the per vehicle cap accounts for variable costs based on the disposal, transportation, and labor costs of the materials accepted. The variable costs are not based on the size of the collection event - it is applicable to all sponsors. Based on the contractor's experience conducting the previous events, the contractor agrees that a variable cost per vehicle /unit will not exceed 00.00. Total fees per vehicle for Moorpark's event are not exceed $107.60. Again, the per vehicle fee is determined on the amount of materials brought to the site by each resident. Actual per vehicle variable I �� NAY. � � Conn � coy q W1, W � � the participation percentages. Other costs not included in the per vehicle cap are City staff and contractor provided service options. Such service options include contractor provided security fencing, portable restrooms, and trash disposal. The security fencing option depends on the site selected. Staff will also worked to have the portable restrooms donated. Staff plans to use a franchised hauler for the trash disposalf at a cost to be determined. In an effort to contain costs for participation at the periodic Honorable City Council February 16, 1994 Page 5 For budgeting purposes, staff calculated program costs to be approximately $30,000 to service 250 residents. The total figure accounts for the per vehicle cap for 250 residents ($26,900). The remaining funds ($3,100) plan to be used for staff costs and possible disposal of other wastes. The total figure also accounts for 100 of the residents that may need a second appointment, because a collection event for the non - recyclable HHW materials has not been held in quite a while and we should anticipate receiving some large loads. The County will cover the costs for residents living in the unincorporated areas surrounding Moorpark. Staff proposes appropriating funds from the City's AB 939 Solid Waste Management fund reserves (General Fun,9) to fund this event. CONCLUSION The 1994 cycle of collection events will begin in late April. Thousand Oaks scheduled their event for April 16, 1994. Simi Valley and the County (Point Mugu) tentatively scheduled events in May. Moorpark staff is currently investigating possible sites and plans to schedule an event in late April to correspond with Earth Day activities. The Simi Valley City Council considered the agreement and MOU, and approved it at their January 24, 1994, City Council meeting. The Thousand Oaks City Council considered the agreement and MOU, and approved it at their February 1., 1994, city Council meeting. The County Board of Supervisors will :,consifler this item at its February 15, 1994 meeting. The Moorpark City Attorney has reviewed the Agreement and MOU and provided comments (see attached letter)• The City Attorney's comments were discussed with the ether program sponsors and addressed in the final documents. This item was originally presented to the Public Works, Facilities, and Solid Waste Committee (Councilmembers Montgomery and Wozniak) in September 1993, and staff has provided progress reports on a continuous basis. The Committee has reviewed the agreement and concurs with staff's findings. RECQNMENDATION (Roll Call Vote) The Public Works, Facilities, and Solid Waste Committee (Councilmembers Montgomery and Wozniak) and Staff recommend that the City Council: 1. Approve the Memorandum of Understanding Between the County of Ventura and the Cities of Moorpark, Simi Valley, and Thousand Oaks (Sponsors) for a Cooperative Household Hazardous Waste (HHW) Collection Program, and authorize the Mayor to sign on behalf of the City. Honorable City Counci! February 16, 1994 Page 6 2. Approve the Agreement Between the Chemical Waste Management for the Services, and authorize the Mayer to City. Program Sponsors and Provision of Program sign on behalf of the 3. Appropriate $30,000 From the General Fund Reserves (AB 939 Solid Waste Management Account Reserves) to 01.160.642 for the Program, and approve the expenditure of appropriated Funds. Attachments LAW OFF-I( !_S BuI?KL WILLIAMS SORENSEN VENTURA COUNTY O,FICE Fj I WEST ';" LE � 'F c +)(C 2 IL) PONOEROSA OP-VF -OS ANGELES, CALIF C)R'v'A 90(-)17 7 SUITE CAMARIILO CALIFORNIA 93010 I805) 981 34619 TELEr:OP -E,) I. I ONANGC COUNTY OFFICE 3200 BRISTOL STREET SUITE 640 COSTA MESA CAL :FORMA 92626 1114) 54S 5559 December. 3, 1993 Jill H. Rubin Solid Waste Coordinator City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Dear Jill: BUPKE. NILLIAMS. SOREN5EN 6 GAAP LIGNTON PLAZA 1300 COLLEGE BOULEVARD SUITE 220 OVFRLAND PARK KANSAS 662 O :9131 3396200 WRITER 5 DIRECT DIAL 213 - 236 -2721 OUR FILE NO 01359 -001 BY FAX AND MAIL Re: East Household Hazardous Waste Collection Program By letter dated November 5, 1993, you have requested review of a MOU between Moorpark, Simi Valley, Thousand Oaks and Ventura County (collectively "Sponsors ") and an Agreement between the Sponsors and Chemical Waste Management, Inc. relative to the above - described Program. Preliminarily, I note that neither document is particularly well drafted and that there are inconsistencies between the two documents. Aside from the drafting problems and inconsistencies, my specific comments are noted below. A. MOU 1' 1. Article 3.4.2). I note that the City will have to "take appropriate CEQA actions" even if the Contractor obtains the variances and permits. I fail to understand the purpose of the title, as there is no legal significance to the term memorandum of understanding. A document is either an enforceable contract or it is not. LAX 76130 1 RECEIVFD DEC - 6 1".93 Jill H. Rubin December 3, 1993 Page 2 2. Article 7.1. I note that a CERCLA or other similar action might only be brought against the City. Without a provision whereby the Parties agree to indemnify each Party against liability in excess of its apportioned share, the City would have to bear the defense, and the cost thereof, alone. 3. Exhibit "B ". There is no apparent reason for this exhibit given that execution of the Agreement rather than issuance of a RFP appears to be the next order of business. I do call to your attention that the requirements in the MOU for environmental impairment liability of $2 million aggregate, tail coverage when the insurance need not be written on an occurrence basis and distribution of the insurance certificates have not been incorporated into the Agreement. I also advise you that three years of tail coverage would provide the City with very little protection given the indeterminate statute of limitations under CERCLA. You should also be aware that there are two general types of environmental impairment liability -- first party (e.g., protecting the City's property against a spill) and third party (protecting the City against a spill that damages another person's property). Neither here nor in the Agreement is the type of coverage specified. B. Agreement 1. Article 4.1. I note that the Contractor's warranties are quite limited. (E.g., the Contractor is not required to warrant that the work will comply with all Federal etc. laws etc.; it is only required to warrant that it possesses the necessary capital, equipment, labor and materials.) 2. Article 5, 1st Paragraph. I note that the scope of the indemnification, which extends to "directors, subcontractors and assigns" is considerably broader than the scope of the additional insured, which is limited by Article 4.LO.a to "officers, agents and employees ". I also advise you that the City does not receive indemnification from CERCLA liability by this Agreement. CERCLA imposes liability regardless of fault ( "strict liability "), while the Contractor's liability is herein limited to fault (e.g., "negligence "). I .AX 76130.1 Jill H. Rubin December 3, 1993 Page 3 Finally, I fail to understand what is intended by the parenthetical phrase "(including cost of defense . . . attorney's fees) ", since the Contractor is required by this paragraph to provide the defense and since indemnification includes the "costs of defense" (Civ.Code S 2778). 3. Article 5, 2nd Paragraph. The extent of the City's liability as a Sponsor is subject to interpretation due to the vagaries in this paragraph and in Article 6 (e.g. "each Sponsor ", "SPONSORS, its (sic) ", "the sole responsibility of the SPONSORS ", "SPONSORS "). If each Sponsor is ultimately held liable for the misrepresentations of other Sponsors, then as between the Sponsors, the City's proportionate share of the liability, but not of the costs of the defense, will ultimately be determined in accordance with Article 7.1 of the MOU. You should also be aware that the risk of liability is related to the scope of the warranties, which are broadly written in Article 6. 4. Exhibit A, O�; 1.E.9. (p.6). With reference to a. and f., you should be aware that the greater the degree of involvement that the City has in the Contractor's operation, the greater the risk to the City that it will share liability with the Contractor. With reference to b., a waiver is legally enforceable only to the extent that it satisfies the requirements of the law. Thus, it hardly seems prudent to leave the form and content of the waiver to the discretion of the Contractor. 5. Exhibit A, 0,� 1.H. (p.13). Although the Contractor, unlike the Sponsors, is not providing indemnification for the actions of its subcontractors (Agreement, Art. 5), it is providing indemnification for the actions of its agents (Id.). Thus, I am at a loss to understand .shy in this sub- article "CWM- approved treatment and disposal fiICLlitiesll are disclaimed as subcontractors but not as agents. I'he vagaries- -" of the sub - article are further compounded by the fact that the Contractor "considers" these facilities to be "assignments ". If the courts construe this language to be controlling, then the Sponsors are without indemnification from these facilities, absent appropriate documentation from each facility that r has accepted the The statement that "lawsuits /legal actions in the past five years" are "confidential" is an absurdity, as they are public records. Jill H. Rubin December 3, 1993 Page 4 assignment subject to the terms and conditions of the subject Agreement. 6. Exhibit A, 6 II, Exhibit "F ", E. I fail to understand what is intended by the first sentence of the fourth paragraph. Also with respect to the second sentence of that paragraph, you need to be aware that if the advice is erroneous or misleading, the City could be held liable to anybody that relied upon the advice. If you have any questions regarding my comments, please do not hesitate to contact me. CJK:hsk cc: Steven Kueny, City Manager IAX:76130 1 Very truly yours, CH L J. KAN CI TORNEY, MOORPARK; and BURKE, WILLIAMS & SORENSEN