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Home My WebLink AboutUtilities 2013-01-22 Item 2E - Interlocal Agreement - Solid Waste with King County (Amended and Restated)City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Utilities Committee FROM: Bob Giberson, Public Works Director BY: Frank Iriarte, Deputy Public Works Director DATE: January 18, 2013 SUBJECT: Solid Waste Interlocal Agreement Amended and Restated Agreement ISSUE Approve the Amended and Restated Solid Waste Interlocal Agreement. BACKGROUND Since the late 1980's, 37 cities, including Tukwila, have been participating in the cooperative management of the King County Solid Waste System through interlocal agreements (ILAs) that expire in June, 2028. Agreements require significant updating to reflect changes in policy, Federal and State environmental statutes, and conditions of the solid waste transfer system. Recognizing the need to update the current 40 -year ILA, the Metropolitan Solid Waste Advisory Committee (MSWMAC) began collaborating with King County Solid Waste Division in 2010 to amend the ILA. Despite success in reaching consensus in many areas, negotiations stalled over environmental liability issues. In October 2012, City and County Negotiating Teams were formed to restart discussions and negotiate new ILA language. The teams built upon areas of agreement reached by the MSWMAC ILA Drafting Committee and used guiding principles from Sound Cities Association (SCA) and agreed to by King County Executive Dow Constantine. After intensive negotiations, City and County teams successfully reached consensus on a new ILA (Attachment A). DISCUSSION The new amended and restated ILA provides greater accountability, collaboration, transparency, and addresses the long -term requirements of the solid waste system including the establishment of a deliberate process to deal with future environmental liabilities. Significant improvements of the amended and restated ILA include: • ILA extension by 12.5 years, from June 2028 through December 2040. The extension allows longer term financing of at least 20 years for critical capital projects and provides long -term stability and certainty to the solid waste system. Other contract terms were considered, but the negotiated term strikes a balance between not extending the current ILA and realizing lower financing costs (but significantly higher disposal rates in the short term), and extending the agreement for a much longer term, realizing lower rates but paying significantly more interest over time. • An updated Liability Section that protects City and County general funds from environmental liability. As part of the update, a protocol was established for setting aside and subsequent distribution of disposal rates to pay for environmental liabilities of the parties. The protocol allows the use of disposal rates to: (1) obtain and maintain insurance coverage for solid waste system related environmental liability and (2) establish and maintain a reserve fund to help pay the parties' environmental liabilities not already covered by system rates or insurance. WAPW Eng`` PROJECTStSolid WastelinfoMemo -SW ILA -012213 UC gLdoc 19 INFORMATIONAL MEMO Page 2 The updated Liability Section also contains a provision to pursue Federal and /or State grants to pay for or remediate environmental liabilities. In the event grant, insurance, and reserve funds are insufficient to completely satisfy the environmental liabilities of the ILA parties, then a financial plan including a disposal rate schedule will be established to help pay for the remaining environmental liabilities. • A comprehensive dispute resolution process that includes non - binding mediation. • An expanded role for cities in system planning, including long -term disposal alternatives and establishing financial policies. Cities through their membership with MSWMAC, will advise the King County Executive and Council, King County Solid Waste Division, and other entities as appropriate on matters pertaining to solid waste management. More detailed information on the Amended and Restated Solid Waste Interlocal Agreement is provided in Attachment B (Frequently Asked Questions) and Attachment C (new ILA Term Sheet). Attachment D is a non - binding statement of interest request from the King County Solid Waste Division. The statement of interest request merely assists the County in their planning efforts. The City can sign and forward the non - binding statement of interest after the January 28, 2013 Committee of the Whole meeting, subject to Council and Mayor's approval. Each City is requested to act on the new ILA by April 30, 2013 in order to develop financial policies that will inform the 2015/16 rate period and other planning initiatives. Given the significant improvements contained in the new ILA, approval of the attached Amended and Restated Solid Waste Interlocal Agreement is highly recommended. FINANCIAL IMPACT If and when environmental liabilities arise, the protocol established in the new Amended and Restated Solid Waste Interlocal Agreement protects the City's general fund to the greatest extent feasible. RECOMMENDATION Council is being asked to approve the new Amended and Restated Solid Waste Interlocal Agreement and consider this item at the January 28, 2013 Committee of the Whole meeting and subsequent February 4, 2013 Regular Council Meeting. Attachments: Attachment A - Amended and Restated Solid Waste Interlocal Agreement Attachment B - Frequently Asked Questions Attachment C - ILA Term Sheet Attachment D - Non - Binding Statement of Interest W\PW EngIPROJECTS\Solid WastelInfoMemo- SWILA- 012213 UC gl.doc 20 Attachment A AMENDED AND RESTATED SOLID WASTE INTERLOCAL AGREEMENT This Amended and Restated Solid Waste Interlocal Agreement ( "Agreement ") is entered into between King County, a political subdivision ofthe State of Washington and the City of , a municipal corporation ofthe State of Washington, hereinafter referred to as "County" and "City" respectively. Collectively, the County and the City are referred to as the "Parties." This Agreement has been authorized by the legislative body of each jurisdiction pursuant to formal action as designated below: King County: Ordinance No. City: PREAMBLE A. This Agreement is entered into pursuant to chapter 39.34 RCW for the purpose of extending, restating and amending the Solid Waste lnterlocal Agreement between the Parties originally entered into in (the ``Original Agreement "). The Original Agreement provided for the cooperative management of Solid Waste in King County for a term of forty (40) years, through June 30, 2028. The Original Agreement is superseded by this Amended and Restated Agreement, as of the effective date of this Agreement. This Amended and Restated Agreement is effective for an additional twelve (12) years through December 31, 2040. B. The Parties intend to continue to cooperatively manage Solid Waste and to work collaboratively to maintain and periodically update the existing King County - 1 - 21 Comprehensive Solid Waste Management Plan (Comprehensive Plan) adopted pursuant to chapter 70.95 RCW. C. The Parties continue to support the established goals of Waste Prevention and Recycling as incorporated in the Comprehensive Solid Waste Management Plan, and to meet or surpass applicable environmental standards with regard to the Solid Waste System. D. The County and the Cities agree that System - related costs, including environmental liabilities, should be funded by System revenues which include but are not limited to insurance proceeds, grants and rates; L. The County, as the service provider, is in the best position to steward funds System revenues that the County and the Cities intend to be available to pay for environmental liabilities; and F. The County and the Cities recognize that at the time this Agreement goes into effect, it is impossible to know what the ultimate environmental liabilities could be; nevertheless, the County and the Cities wish to designate in this Agreement a protocol for the designation and distribution of funding for potential future environmental liabilities in order to protect the general funds of the County and the Cities. G. The County began renting the Cedar Hills Landfill from the State of Washington in 1960 and began using it for Disposal of Solid Waste in 1964. The County acquired ownership of the Cedar Hills Landfill from the State in 1992. The Cedar Hills Landfill remains an asset owned by the County. H. The Parties expect that the Cedar Hills Landfill will be at capacity and closed at some date during the term of this Agreement, after which time all Solid Waste under this Agreement will need to be disposed of through alternate means, as determined by the - 2 - 22 Cities and the County through amendments to the Comprehensive Solid Waste Management Plan. The County currently estimates the useful life of the Cedar Hills Landfill will extend through 2025. It is possible that this useful life could be extended, or shortened, by System management decisions or factors beyond the control of the Parties. The County intends to charge rent for the use of the Cedar Hills Landfill for so long as the System uses this general fund asset and the Parties seek to clarify terms relative to the calculation of the associated rent. J. The County and Cities participating in the System have worked collaboratively for several years to develop a plan for the replacement or upgrading of a series of transfer stations. The Parties acknowledge that these transfer station improvements, as they may be modified from time -to -time, will benefit Cities that are part of the System and the County. The Parties have determined that the extension of the term of the Original Agreement by twelve (12) years as accomplished by this Agreement is appropriate in order to facilitate the long -term financing of transfer station improvements and to mitigate rate impacts of such financing. K. The Parties have further determined that in order to equitably allocate the benefit to all System Users from the transfer station improvements, different customer classes may be established by the County to ensure System Users do not pay a disproportionate share of the cost of these improvements as a result of a decision by a city not to extend the term of the Original Agreement. L. The Parties have further determined it is appropriate to strengthen and formalize the advisory role of the Cities regarding System operations. 23 The Parties agree as follows: I. DEFINITIONS For purposes of this Agreement the following definitions shall apply: "Cedar Hills Landfill" means the landfill owned and operated by the County located in southeast King County. "Cities" refers to all Cities that have signed an Amended and Restated Solid Waste Interlocal Agreement in substantially identical form to this Agreement. "Comprehensive Solid Waste Management Plan" or "Comprehensive Plan" means the Comprehensive Solid Waste Management Plan, as approved and amended from time to time, for the System, as required by chapter 70.95.080 RCW. "County" means King County, a Charter County and political subdivision of the State of Washington. "Disposal" means the final treatment, utilization, processing, deposition, or incineration of Solid Waste but shall not include Waste Prevention or Recycling as defined herein. 24 "Disposal Rates" means the fee charged by the County to System Users to cover all costs of the System consistent with this Agreement, all state, federal and local laws governing solid waste and the Solid Waste Comprehensive Plan. "Divert" means to direct or permit the directing of Solid Waste to Disposal sites other than the Disposal site(s) designated by King County. "Energy /Resource Recovery" means the recovery of energy in a usable form from mass burning or refuse- derived fuel incineration, pyrolysis or any other means of using the heat of combustion of Solid Waste that involves high temperature (above 1,200 degrees F) processing. (chapter 173.350.100 WAC). "Landfill" means a Disposal facility or part of a facility at which Solid Waste is placed in or on land and which is not a land treatment facility. "Metropolitan Solid Waste Advisory Committee" or "MSWAC" means the advisory committee composed of city representatives, established pursuant to Section IX of this Agreement. "Moderate Risk Waste" means waste that is limited to conditionally exempt small quantity generator waste and household hazardous waste as those terms are defined in chapter 173 -350 WAC, as amended. 25 "Original Agreement" means the Solid Waste lnterlocal Agreement first entered into by and between the Parties, which is amended and restated by this Agreement. "Original Agreements" means collectively all such agreements between Cities and the County in substantially the same form as the Original Agreement. "Parties" means collectively the County and the City or Cities. "Recycling" as defined in chapter 70.95.030 RCW, as amended, means transforming or remanufactu•ing waste materials into usable or marketable materials for use other than landfill Disposal or incineration. "Regional Policy Committee" means the Regional Policy Committee created pursuant to approval of the County voters in 1993, the composition and responsibilities of which are prescribed in King County Charter Section 270 and chapter 1.24 King County Code, as they now exist or hereafter may be amended. "Solid Waste" means all putrescible and nonputrescible solid and semisolid wastes including but not limited to garbage, rubbish, ashes, industrial wastes, swill, commercial waste, sewage sludge, demolition and construction wastes, abandoned vehicles or parts thereof, contaminated soils and contaminated dredged materials, discarded commodities and recyclable materials, but shall not include dangerous, hazardous, or extremely hazardous waste as those terms are defined in chapter 173 -303 WAC, as amended; and shall further not include those - 6 - 26 wastes excluded from the regulations established in chapter 173 -350 WAC, more specifically identified in Section 173- 350 -020 WAC. "Solid Waste Advisory Committee" or "SWAC" means the inter - disciplinary advisory forum or its successor created by the King County Code pursuant to chapter 70.95.165 RCW. "System" includes King County's Solid Waste facilities used to manage Solid Wastes which includes but is not limited to transfer stations, drop boxes, landfills, recycling systems and facilities, energy and resource recovery facilities and processing facilities as authorized by chapter 36.58.040 RCW and as established pursuant to the approved King County Comprehensive Solid Waste Management Plan. "System User" or "System Users" means Cities and any person utilizing the County's System for Solid Waste handling, Recycling or Disposal. "Waste Prevention" means reducing the amount or type of waste generated. Waste Prevention shall not include reduction of already - generated waste through energy recovery, incineration, or otherwise. 11. PURPOSE The purpose of this Agreement is to foster transparency and cooperation between the Parties and to establish the respective responsibilities of the Parties in a Solid Waste management System, including but not limited to, planning, Waste Prevention, Recycling, and Disposal.. - 7 - 27 III. DURATION This Agreement shall become effective as of through December 31, 2040. IV. APPROVAL , and shall remain in effect This Agreement will be approved and filed in accordance with chapter 39.34 RCW. V. RENEGOTIATION TO FURTHER EXTEND TERM OF AGREEMENT 5.1 The Parties recognize that System Users benefit from Tong -term Disposal arrangements, both in terms of predictability of System costs and operations, and the likelihood that more cost competitive rates can be achieved with longer -term Disposal contracts as compared to shorter -term contracts. To that end, at least seven (7) years before the date that the County projects that the Cedar Hills Landfill will close, or prior to the end of this Agreement, whichever is sooner, the County will engage with MSWAC and the Solid Waste Advisory Committee, among others, to seek their advice and input on the Disposal alternatives to be used after closure of the Cedar Hills Landfill, associated changes to the System, estimated costs associated with the recommended Disposal alternatives, and amendments to the Comprehensive Solid Waste Management Plan necessary to support these changes. Concurrently, the Parties will meet to negotiate an extension of the term of the Agreement for the purpose of facilitating the long -term Disposal of Solid Waste after closure of the Cedar Hills Landfill. Nothing in this Agreement shall require the Parties to reach agreement on an extension of the term of this Agreement. lithe Parties fail to reach agreement on an extension, the Dispute Resolution provisions of Section X111 do not apply, and this Agreement shall remain unchanged. - 8 - 28 5.2 Notwithstanding any other provision in this Agreement to the contrary, the Parties may, pursuant to mutual written agreement, modify or amend any provision of this Agreement at any time during the term of said Agreement. VI. GENERAL OBLIGATIONS OF PARTIES 6.1 King Countv 6.1.a Management. The County agrees to provide Solid Waste management services, as specified in this Section, for Solid Waste generated and collected within the City, except waste eliminated through Waste Prevention or waste recycling activities. The County agrees to dispose of or designate Disposal sites for all Solid Waste and Moderate Risk Waste generated and /or collected within the corporate limits of the City which is delivered to the System in accordance with all applicable Federal, State and local environmental health laws, rules, or regulations, as those laws are described in Subsection 8.5.a. The County shall maintain records as necessary to fulfill obligations under this Agreement. 6.1.b Planning. The County shall serve as the planning authority for Solid Waste and Moderate Risk Waste under this Agreement but shall not be responsible for planning for any other waste or have any other planning responsibility under this Agreement. 6.1.c Operation. King County shall be or shall designate or authorize the operating authority for transfer, processing and Disposal facilities, including public landfills and other facilities, consistent with the adopted Comprehensive Plan as well as closure and post - closure responsibilities for landfills which are or were operated by the County. - 9 - 29 6.1.d Collection Service. The County shall not provide Solid Waste collection services within the corporate limits of the City, unless permitted by law and agreed to by both Parties. 6.1.e Support and Assistance. The County shall provide support and technical assistance to the City consistent with the Comprehensive Solid Waste Management Plan for a Waste Prevention and Recycling program. Such support may include the award of grants to support programs with System benefits. The County shall develop educational materials related to Waste Prevention and Recycling and strategies for maximizing the usefulness of the educational materials and will make these available to the City for its use. Although the County will not be required to provide a particular level of support or fund any City activities related to Waste Prevention and Recycling, the County intends to move forward aggressively to promote Waste Prevention and Recycling. 6.1.f Forecast. The County shall develop Solid Waste stream forecasts in connection with System operations as part of the comprehensive planning process in accordance with Article XI. 6.1 .g Facilities and Services. The County shall provide facilities and services pursuant to the Comprehensive Solid Waste Management Plan and the Solid Waste Transfer and Waste Management plan as adopted and County Solid Waste stream forecasts. 6.1.h Financial Policies. The County will maintain financial policies to guide the System's operations and investments. The policies shall be consistent with this Agreement and shall address debt issuance, rate stabilization, cost containment, reserves, asset ownership and use and other financial issues. The County shall primarily use long term bonds to finance transfer System improvements. The policies shall be developed and /or revised through - 10 - 30 discussion with MSWAC, the Regional Policy Committee, the County Executive and the County Council. Such policies shall be codified at the same time as the Comprehensive Plan updates, but may be adopted from time to time as appropriate outside the Comprehensive Plan process. 6.2 City 6.2.a Collection. The City, an entity designated by the City or such other entity as is authorized by state law shall serve as operating authority for Solid Waste collection services provided within the City's corporate limits. 6.2.b Disposal. The City shall cause to be delivered to the County's System for Disposal all such Solid Waste and Moderate Risk Waste which is authorized to be delivered to the System in accordance with all applicable Federal, State and local environmental health laws, rules or regulations and is generated and /or collected within the corporate limits ofthe City and shall authorize the County to designate Disposal sites for the Disposal of all such Solid Waste and Moderate Risk Waste generated or collected within the corporate limits ofthe City, except for Solid Waste which is eliminated through Waste Prevention or waste Recycling activities consistent with the Comprehensive Solid Waste Management Plan. No Solid Waste generated or collected within the City may be Diverted from the designated Disposal sites without County approval. 6.3 JOINT RESPONSIBILITIES. 6.3.a Consistent with the Parties' overall commitment to ongoing communication and coordination, the Parties will endeavor to notify and coordinate with each other on the development of any City or County plan, facility, contract, dispute, or other Solid Waste issue that could have potential significant impacts on the County, the System, or the City or Cities. 31 6.3.b The Parties, together with other Cities, will coordinate on the development of emergency plans related to Solid Waste, including but not limited to debris management. VII. COUNTY SHALL SET DISPOSAL RATES AND OPERATING RULES FOR DISPOSAL: USE OF SYSTEM REVENUES 7.1 In establishing Disposal Rates for System Users, the County shall consult with MSWAC consistent with Section IX. The County may adopt and amend by ordinance rates necessary to recover all costs of the System including but not limited to operations and maintenance, costs for handling, processing and Disposal of Solid Waste, siting, design and construction of facility upgrades or new facilities, Recycling, education and mitigation, planning, Waste Prevention, reserve funds, financing, defense and payment of claims, insurance, System liabilities including environmental releases, monitoring and closure of landfills which are or were operated by the County, property acquisition, grants to cities, and administrative functions necessary to support the System and Solid Waste handling services during emergencies as established by local, state and federal agencies or for any other lawful solid waste purpose, and in accordance with chapter 43.09.210 RCW. Revenues from Disposal rates shall be used only for such purposes. The County shall establish classes of customers for Solid Waste management services and by ordinance shall establish rates for classes of customers. 7.2. It is understood and agreed that System costs include payments to the County general fund for Disposal of Solid Waste at the Cedar Hills Landfill calculated in accordance with this Section 7.2, and that such rental payments shall be established based on use valuations provided to the County by an independent -third party Member, Appraisal Institute (MAI) certified appraiser selected by the County in consultation with MSWAC. 32 7.2.a A use valuation shall be prepared consistent with MAI accepted principles for the purpose of quantifying the value to the System of the use of Cedar Hills Landfill for Disposal of Solid Waste over a specified period of time (the valuation period). The County shall establish a schedule of annual use charges for the System's use of the Cedar Hills Landfill which shall not exceed the most recent use valuation. Prior to establishing the schedule of annual use charges, the County shall seek review and comment as to both the use valuation and the proposed payment schedule from MSWAC. Upon request, the County will share with and explain to MSWAC the information the appraiser requests for purposes of developing the appraiser's recommendation. 7.2.b Use valuations and the underlying schedule of use charges shall be updated if there are significant changes in Cedar Hills Landfill capacity as a result of opening new Disposal areas and as determined by revisions to the existing Cedar Hills Regional Landfill Site Development Plan; in that event, an updated appraisal will be performed in compliance with MAI accepted principles. Otherwise, a reappraisal will not occur. Assuming a revision in the schedule of use charges occurs based on a revised appraisal, the resulting use charges shall be applied beginning in the subsequent rate period. 7.2.c The County general fund shall not charge use fees or receive other consideration from the System for the System's use of any transfer station property in use as of the effective date of this Agreement. The County further agrees that the County general fund may not receive payments from the System for use of assets to the extent those assets are acquired with System revenues. As required by chapter 43.09.210 RCW, the System's use of assets acquired with the use of other separate County funds (e.g., the Roads Fund, or other funds) 13 - 33 will be subject to use charges; similarly, the System will charge other County funds for use of System property. VIII. LIABILITY 8.1 Non - Environmental Liability Arising Out -of- County Operations. Except as provided in this Section, Sections 8.5 and 8.6, the County shall indemnify and hold harmless the City and shall have the right and duty to defend the City through the County's attorneys against any and all claims arising out of the County's operations during the term of this Agreement and settle such claims, provided that all fees, costs, and expenses incurred by the County thereby are System costs which may be satisfied from Disposal Rates as provided in Section VII herein. In providing such defense of the City, the County shall exercise good faith in such defense or settlement so as to protect the City's interest. For purposes of this Section "claims arising out of the County's operations" shall mean claims arising out of the ownership, control, or maintenance of the System, but shall not include claims arising out of the City's operation of motor vehicles in connection with the System or other activities under the control of the City which may be incidental to the County's operation. The provisions of this Section shall not apply to claims arising out of the sole negligence or intentional acts of the City. The provisions of this Section shall survive for claims brought within three (3) years past the term of this Agreement established under Section 111. 8.2 Cooperation. In the event the County acts to defend the City against a claim under Section 8.1, the City shall cooperate with the County. 8.3 Officers, Agents, and Employees. For purposes of this Section VIII, references to City or County shall be deemed to include the officers, employees and agents of either Party, - 14 - 34 acting within the scope of their authority. Transporters or generators of waste who are not officers or employees of the City or County are not included as agents of the City or County for purposes of this Section. 8.4 Each Party by mutual negotiation hereby waives, with respect to the other Party only, any immunity that would otherwise be available against such claims under the Industrial Insurance provisions of Title 51 RCW. 8.5 Unacceptable Waste 8.5.a All waste generated or collected from within the corporate limits of the City which is delivered to the System for Disposal shall be in compliance with the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.) (RCRA), chapters 70.95 and 70.105 RCW, King County Code Title 10, King County Board of Health Rules and Regulations, the Solid Waste Division operating rules, and all other Federal, State and local environmental health laws, rules or regulations that impose restrictions or requirements on the type of waste that may be delivered to the System, as they now exist or are hereafter adopted or amended. 8.5.b For purposes of this Agreement, the City shall be deemed to have complied with the requirements of Subsection 8.5.a if it has adopted an ordinance requiring waste delivered to the System for Disposal to meet the laws, rules, or regulations specified in Subsection 8.5.a. however, nothing in this Agreement is intended to relieve the City from any obligation or liability it may have under the laws mentioned in Subsection 8.5.a arising out of the City's actions other than adopting, enforcing, or requiring compliance with said ordinance, such as liability, ifany exists, of the City as a transporter or generator for improper transport or Disposal of regulated dangerous waste. Any environmental liability the City may have for - 15 - 35 releases of pollutants or hazardous or dangerous substances or wastes to the environment is dealt with under Sections 8.6 and 8.7. 8.5.c The City shall hold harmless, indemnify and defend the County for any property damages or personal injury caused solely by the City's failure to adopt an ordinance under Subsection 8.5.b. In the event the City acts to defend the County under this Subsection, the County shall cooperate with the City. 8.5.d The City shall make best efforts to include language in its contracts, franchise agreements, or licenses for the collection of Solid Waste within the City that allow for enforcement by the City against the collection contractor, franchisee or licensee for violations of the laws, rules, or regulations in Subsection 8.5.a. The requirements of this Subsection 8.5.d shall apply to the City's first collection contract, franchise, or license that becomes effective or is amended after the effective date of this Agreement. 8.5.d.i If waste is delivered to the System in violation of the laws, rules, or regulations in Subsection 8.5.a, before requiring the City to take any action under Subsection 8.5.d.ii, the County will make reasonable efforts to determine the parties' responsible for the violation and will work with those parties to correct the violation, consistent with applicable waste clearance and acceptance rules, permit obligations, and any other legal requirements. 8.5.d.ii Lithe violation is not corrected under Subsection 8.5.d.i and waste is determined by the County to have been generated or collected from within the corporate limits of the City, the County shall provide the City with written notice of the violation. Upon such notice, the City shall take immediate steps to remedy the violation and prevent similar future violations to the reasonable satisfaction of the County which may include but not be - 16 - 36 limited to removing the waste and disposing of it in an approved facility; provided that nothing in this Subsection 8.5.d.ii shall obligate the City to handle regulated dangerous waste, as defined in WAC 173- 351- 200(1)(b)(i), and nothing in this Subsection shall relieve the City of any obligation it may have apart from this Agreement to handle regulated dangerous waste. If, in good faith, the City disagrees with the County regarding the violation, such dispute shall be resolved between the Parties using the Dispute Resolution process in Section X1I or, if immediate action is required to avoid an imminent threat to public health, safety or the environment, in King County Superior Court. Each Party shall be responsible for its own attorneys' fees and costs. Failure of the City to take the steps requested by the County pending Superior Court resolution shall not be deemed a violation of this Agreement; provided, however, that this shall not release the City for damages or Toss to the County arising out of the failure to take such steps lithe Court finds a City violation of the requirements to comply with applicable laws set forth in Subsection 8.5.a. 8.6 Environmental Liability. 8.6.a Neither the County nor the City holds harmless or indemnifies the other with regard to any liability arising under 42 U.S.C. § 9601 -9675 (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA) or as hereafter amended or pursuant to chapter 70.105D RCW (MTCA) or as hereafter amended and any state legislation imposing liability for System - related cleanup of contaminated property from the release of pollutants or hazardous or dangerous substances and /or damages resulting from property contaminated from the release of pollutants or hazardous or dangerous substances ( "Environmental Liabilities "). 17 - 37 8.6.b Nothing in this Agreement is intended to create new Environmental Liability nor release any third -party from Environmental Liability. Rather, the intent is to protect the general funds of the Parties to this Agreement by ensuring that, consistent with best business practices, an adequate portion of Disposal Rates being collected from the System Users are set aside and accessible in a fair and equitable manner to pay the respective County and City's Environmental Liabilities. 8.6.c The purpose of this Subsection is to establish a protocol for the setting aside, and subsequent distribution of, Disposal Rates intended to pay for Environmental Liabilities ofthe Parties, if and when such liabilities should arise, in order to safeguard the Parties' general funds. To do so, the County shall: 8.6.c.i Use Disposal Rates to obtain and maintain, to the extent commercially available under reasonable terms, insurance coverage for System - related Environmental Liability that names the City as an Additional Insured. The County shall establish the adequacy, amount and availability of such insurance in consultation with MSWAC. Any insurance policy in effect on the termination date of this Agreement with a term that extends past the termination date shall be maintained until the end ofthe policy term. 8.6.c.ii Use Disposal Rates to establish and maintain a reserve fund to help pay the Parties' Environmental Liabilities not already covered by System rates or insurance maintained under Subsection 8.6.c.i above ( "Environmental Reserve Fund "). The County shall establish the adequacy ofthe Environmental Reserve Fund in consultation with MSWAC and consistent with the financial policies described in Article VI. The County shall retain the Environmental Reserve Fund for a minimum of 30 years following the closure ofthe Cedar Hills Landfill (the "Retention Period "). During the Retention Period, the Environmental Reserve Fund - 18 - 38 shall be used solely for the purposes for which it was established under this Agreement. Unless otherwise required by law, at the end of the Retention Period, the County and Cities shall agree as to the disbursement of any amounts remaining in the Environmental Reserve Fund. If unable to agree, the County and City agree to submit disbursement to mediation and if unsuccessful to binding arbitration in a manner similar to Section 39.34.180 RCW to the extent permitted by law. 8.6.c.iii Pursue state or federal grant funds, such as grants from the Local Model Toxics Control Account under chapter 70.105D.070(3) RCW and chapter 173 -322 WAC, or other state or federal funds as may be available and appropriate to pay for or remediate such Environmental Liabilities. 8.6.d If the funds available under Subsections 8.6.c.i -iii are not adequate to completely satisfy the Environmental Liabilities of the Parties to this Agreement then to the extent feasible and permitted by law, the County will establish a financial plan including a rate schedule to help pay for the County and City's remaining Environmental Liabilities in consultation with MSWAC. 8.6.e The County and the City shall act reasonably and quickly to utilize funds collected or set aside through the means specified in Subsections 8.6.c.i -iii and 8.6.d to conduct or finance response or clean -up activities in order to limit the County and City's exposure, or in order to comply with a consent decree, administrative or other legal order. The County shall notify the City within 30 days of any use of the reserve fund established in 8.6.c.iii. 8.6.f In any federal or state regulatory proceeding, and in any action for contribution, money expended by the County from the funds established in Subsections 8.6.c.i -iii and 8.6.d. to pay the costs of remedial investigation, cleanup, response or other action required - 19 - 39 pursuant to a state or federal laws or regulations shall be considered by the Parties to have been expended on behalf and for the benefit of the County and the Cities. 8.6.g In the event that the funds established as specified in Subsections 8.6.c.i -iii and 8.6.d are insufficient to cover the entirety of the County and Cities' collective Environmental Liabilities, the funds described therein shall be equitably allocated between the County and Cities to satisfy their Environmental Liabilities. Factors to be considered in determining "equitably allocated" may include the size of each Party's System User base and the amount of rates paid by that System User base into the funds, and the amount of the Solid Waste generated by the Parties' respective System Users. Neither the County nor the Cities shall receive a benefit exceeding their Environmental Liabilities. 8.7 The County shall not charge or seek to recover from the City any costs or expenses for which the County indemnified the State of Washington in Exhibit A to the Quitclaim Deed from the State to the County for the Cedar Hills Landfill, dated February 24, 1993, to the extent such costs are not included in System costs. IX. CITY ADVISORY COMMITTEE 9.1 There is hereby created an advisory committee comprised of representatives from cities, which shall be known as the Metropolitan Solid Waste Advisory Committee ( "MSWAC "). The City may designate a representative and alternates) to serve on MSWAC. MSWAC shall elect a chair and vice -chair and shall adopt bylaws to guide its deliberations. The members of MSWAC shall serve at the pleasure of their appointing bodies and shall receive no compensation from the County. - 20 - 40 9.2 MSWAC is the forum through which the Parties together with other cities participating in the System intend to discuss and seek to resolve System issues and concerns. MSWAC shall assume the following advisory responsibilities: 9.2.a Advise the King County Council, the King County Executive, Solid Waste Advisory Committee, and other jurisdictions as appropriate, on all policy aspects of Solid Waste management and planning; 9.2.b Consult with and advise the County on technical issues related to Solid Waste management and planning; 9.2.c Assist in the development of alternatives and recommendations for the Comprehensive Solid Waste Management Plan and other plans governing the future of the System, and facilitate a review and /or approval of the Comprehensive Solid Waste Management Plan by each jurisdiction; 9.2.d Assist in the development of proposed interlocal Agreements between King County and cities for planning, Waste Prevention and Recycling, and waste stream control; 9.2.e Review and comment on Disposal Rate proposals and County financial policies; 9.2.f Review and comment on status reports on Waste Prevention, Recycling, energy /resources recovery, and System operations with inter jurisdictional impact; 9.2.g Promote information exchange and interaction between waste generators, cities, recyclers, and the County with respect to its planned and operated Disposal Systems; 9.2.h Provide coordination opportunities among the Solid Waste Advisory Committee, the Regional Policy Committee, the County, cities, private waste haulers, and recyclers: - 21 - 41 9.2.i Assist cities in recognizing municipal Solid Waste responsibilities, including collection and Recycling, and effectively carrying out those responsibilities; and 9.2.j Provide input on such disputes as MSWAC deems appropriate. 9.3 The County shall assume the following responsibilities with respect to MSWAC; 9.3.a The County shall provide staff support to MSWAC; 9.3.b In consultation with the chair of MSWAC, the County shall notify all cities and their designated MSWAC representatives and alternates of the MSWAC meeting times, locations and meeting agendas. Notification by electronic mail or regular mail shall meet the requirements of this Subsection; 9.3.e The County will consider and respond on a timely basis to questions and issues posed by MS WAC regarding the System, and will seek to resolve those issues in collaboration with the Cities. Such issues shall include but are not limited to development of efficient and accountable billing practices; and 9.3.d. The County shall provide all information and supporting documentation and analyses as reasonably requested by MSWAC for MSWAC to perform the duties and functions described in Section 9.2. X. FORUM INTERLOCAL AGREEMENT 10.1 As of the effective date of this Agreement, the Forum Interlocal Agreement and Addendujta to Solid Waste Interlocal Agreement and Forum Interlocal Agreement by and between the City and County continue through June 30, 2028. After 2028 responsibilities assigned to the Forum shall be assigned to the Regional Policy Committee. The Parties agree that Solid Waste System policies and plans shall continue to be deemed regional countywide policies - 22 - 42 and plans that shall be referred to the Regional Policy Committee for review consistent with King County Charter Section 270.30 and chapter 1.24 King County Code. Xl. COMPREHENSIVE SOLID WASTE MANAGEMENT PLAN 11.1 King County is designated to prepare the Comprehensive Solid Waste Management Plan (Comprehensive Plan) and this plan shall include the City's Solid Waste Management Comprehensive Plan pursuant to chapter 70.95.080(3) RCW. 11.2 The Comprehensive Plan shall be reviewed and any necessary revisions proposed. The County shall consult with MSWAC to determine when revisions are necessary. King County shall provide services and build facilities in accordance with the adopted Comprehensive Plan. 1 1.3 The Comprehensive Plans will promote Waste Prevention and Recycling in accordance with Washington State Solid Waste management priorities pursuant to chapter 70.95 RCW, at a minimum. 11.4 The Comprehensive Plans will be prepared in accordance with chapter 70.95 RCW and Solid Waste planning guidelines developed by the Department of Ecology. The plan shall include, but not be limited to: 11.4.a Descriptions of and policies regarding management practices and facilities required for handling all waste types; 1.4.b Schedules and responsibilities for implementing policies; I I.4.c Policies concerning waste reduction, Recycling, Energy and Resource Recovery, collection, transfer, long -haul transport, Disposal, enforcement and administration; and - 23 - 43 1 1.4.d Operational plan for the elements discussed in Item c above. 11.5 The cost of preparation by King County of the Comprehensive Plan will be considered a cost of the System and financed out of the rate base. 11.6 The Comprehensive Plans will be "adopted" within the meaning of this Agreement when the following has occurred: 11.6.a The Comprehensive Plan is approved by the King County Council; and 1 1,6.b The Comprehensive Plan is approved by cities representing three - quarters of the population of the incorporated population of jurisdictions that are parties to the Forum Interlocal Agreement. In calculating the three - quarters, the calculations shall consider only those incorporated jurisdictions taking formal action to approve or disapprove the Comprehensive Plan within 120 days of receipt of the Plan. The 120 -day time period shall begin to run from receipt by an incorporated jurisdiction of the Forum's recommendation on the Comprehensive Plan, or, lithe Forum is unable to make a recommendation, upon receipt of the Comprehensive Plan from the Forum without recommendation. 1 1.7 Should the Comprehensive Plan be approved by the King County Council, but not receive approval of three- quarters of the cities acting on the Comprehensive Plan, and should King County and the cities be unable to resolve their disagreement, then the Comprehensive Plan shall be referred to the State Department of Ecology and the State Department of Ecology will resolve any disputes regarding Comprehensive Plan adoption and adequacy by approving or disapproving the Comprehensive Plan or any part thereof. 11.8 King County shall determine which cities are affected by any proposed amendment to the Comprehensive Plan. If any City disagrees with such determination, then the City can request that the Forum determine whether or not the City is affected. Such - 24 - 44 determination shall be made by a two - thirds majority vote of all representative members of the Forum. 11.9 Should King County and the affected jurisdictions be unable to agree on amendments to the Comprehensive Plan, then the proposed amendments shall be referred to the Department of Ecology to resolve any disputes regarding such amendments. 1 1.10 Should there be any impasse between the Parties regarding Comprehensive Plan adoption, adequacy, or consistency or inconsistency or whether any permits or programs adopted or proposed are consistent with the Comprehensive Plan, then the Department of Ecology shall resolve said disputes. XII. MITIGATION 12.1 The County will design, construct and operate Solid Waste facilities in a manner to mitigate their impact on host Cities and neighboring communities pursuant to applicable law and regulations. 12.2 The Parties recognize that Solid Waste facilities are regional facilities. The County further recognizes that host Cities and neighboring communities may sustain impacts which can include but are not limited to local infrastructure, odor, traffic into and out of Solid Waste facilities, noise and litter. 12.3 Collaboration in Environmental Review. h1 the event the County is the sole or co- Lead Agency, then prior to making a threshold determination under the State Environmental Policy Act (SEPA), the County will provide a copy of the SEPA environmental checklist, if any, and proposed SEPA threshold determination to any identifiable Host City (as defined below) and adjacent or neighboring city that is signatory to the Agreement and that may be affected by the - 25 - 45 project ( "Neighboring City ") and seek their input. For any facility for which the County prepares an Environmental Impact Statement (EIS), the County will meet with any identified potential Host City (as defined below) and any Neighboring City to seek input on the scope of the EIS and appropriate methodologies and assumptions in preparing the analyses supporting the EIS. I-lowever, nothing in this Section shall limit or impair the County's ability to timely complete the environmental review process. 12.4 Collaboration in Project Permitting. If a new or reconstructed Solid Waste facility is proposed to be built within the boundaries of the City ( "Host City ") and the project requires one or more "project permits" as defined in chapter 36.70B.020(4) RCW from the Host City, before submitting its first application for any of the project permits, the County will meet with the 1-Iost City and any Neighboring City, to seek input. IIowever, nothing in this Section shall limit or impair the County's ability to timely submit applications for or receive permits, nor waive any permit processing or appeal timelines. 12.5 Separately, the County and the City recognize that in accordance with 36.58.080 RCW, a city is authorized to charge the County to mitigate impacts directly attributable to a County -owned Solid Waste facility. The County acknowledges that such direct costs include wear and tear on infrastructure including roads. To the extent that the City establishes that such charges are reasonably necessary to mitigate such impacts, payments to cover such impacts may only be expended only to mitigate such impacts and are System costs. If the City believes that it is entitled to mitigation under this Agreement, the City may request that the County undertake a technical analysis regarding the extent of impacts authorized for mitigation. Upon receiving_such a request, the County, in coordination with the City and any necessary technical consultants, will develop any analysis that is reasonable and appropriate to identify impacts. The cost for such - 26 - 46 analysis is a System cost. The City and County will work cooperatively to determine the appropriate mitigation payments and will document any agreement in a Memorandum of Agreement. If the City and the County cannot agree on mitigation payments, the dispute resolution process under chapter 36.58.080 RCW will apply rather than the dispute resolution process under Section XII of the Agreement. XIII. DISPUTE RESOLUTION 13.1 Unless otherwise expressly stated, the terms of this Section XIII shall apply to disputes arising under this Agreement. 13.2 Initial Meeting. 13.2.a Either Party shall give notice to the other in writing of a dispute involving this Agreement. 13.2.b Within ten (10) business days of receiving or issuing such notice, the County shall send an email notice to all Cities. 13.2.c Within ten (10) business days of receiving the County's notice under Subsection 13.2.b, a City shall notify the County in writing or email if it wishes to participate in the Dispute Resolution process. 13.2.d Within not less than twenty -one (2I) days nor more than thirty (30) days of the date of the initial notice of dispute issued under Subsection 13.2.a, the County shall schedule a time for staff from the County and any City requesting to participate in the dispute resolution process ( "Participating City ") to meet (the "initial meeting "). The County shall endeavor to set such initial meeting a time and place convenient to all Participating Cities and to the County. - 27 - 47 13.3 Executives' Meeting. 13.3.a if the dispute is not resolved within sixty (60) days ofthe initial meeting, then within seven (7) days of expiration of the sixty (60) -day period, the County shall send an email notice to all Participating Cities that the dispute was not resolved and that a meeting of the County Executive, or his /her designee and the chief executive officer(s) of each Participating City, or the designees of each Participating City (an "executives' meeting ") shall be scheduled to attempt to resolve the dispute. It is provided, however, that the County and the Participating Cities may mutually agree to extend the sixty (60) -day period for an additional fifteen (15) days if they believe further progress may be made in resolving the dispute, in which case, the County's obligation to send its email notice to the Participating Cities under this Subsection that the dispute was not resolved shall be within seven (7) days of the end of the extension. Likewise, the County and the Participating Cities may mutually conclude prior to the expiration of the sixty (60) -day period that further progress is not likely in resolving the dispute at this level, in which case, the County shall send its email notice that the dispute was not resolved within seven (7) days of the date that the County and the Participating Cities mutually concluded that further progress is not likely in resolving the dispute. 13.3.b Within seven (7) days of receiving the County's notice under Subsection 1 3.3.a each Participating City shall notify the County in writing or email if it wishes to participate in the executives' meeting. 13.3.c Within not less than twenty -one (21) days nor more than thirty (30) days of the date ofthe notice of the executives' meeting issued under Subsection 13.3.a, the County shall schedule a time for the executives' meeting. The County shall endeavor to set such - 28 - 48 executives' meeting a time and place convenient to all Participating Cities that provided notice under Subsection 13.3.b and to the County. 13.4. Non - Binding Mediation. 13.4.a If the dispute is not resolved within thirty (30) days of the executives' meeting, then any Participating City that was Party to the executives' meeting or the County may refer the matter to non- binding meditation by sending written notice within thirty -five (35) days of the initial executives' meeting to all Parties to such meeting. 13.4.b Within seven (7) days of receiving or issuing notice that a matter will be referred to non- binding mediation, the County shall send an email notice to all Participating Cities that provided notice under Subsection 13.3.b informing them of the referral. 13.4.c Within seven (7) days of receiving the County's notice under Subsection 13.4.b, each Participating City shall notify the County in writing if it wishes to participate in the non - binding mediation. 13.4.d The mediator will be selected in the following manner: The City(ies) electing to participate in the mediation shall propose a mediator and the County shall propose a mediator; in the event the mediators are not the same person, the two mediators shall select a third mediator who shall mediate the dispute. Alternately, the City(ies) participating in the mediation and the County may agree to select a mediator through a mediation service mutually acceptable to the Parties. The Parties to the mediation shall share equally in the costs charged by the mediator or mediation service. For purposes of allocating costs of the mediator or mediation service, all Cities participating in the mediation will be considered one Party. 13.5 Superior Court. Any Party, after participating in the non - binding mediation, may commence an action in King County Superior Court after one hundred e - 29 - ighty (1 80) days from 49 the commencement of the mediation, in order to resolve an issue that has not by then been resolved through non - binding mediation, unless all Parties to the mediation agree to an earlier date for ending the mediation. 13.6 Unless this Section XIII does not apply to a dispute, then the Parties agree that they may not seek relief under this Agreement in a court of law or equity unless and until each of the procedural steps set forth in this Section XIII have been exhausted, provided, that if any applicable statute of limitations will or may run during the time that may be required to exhaust the procedural steps in this Section XIII, a Party may file suit to preserve a cause of action while the Dispute Resolution process continues. The Parties agree that, if necessary and Wallowed by the court, they will seek a stay of any such suit while the Dispute Resolution process is completed. lithe dispute is resolved through the Dispute Resolution process, the Parties agree to dismiss the lawsuit, including all claims, counterclaims, and cross - claims, with prejudice and without costs to any Party. XIV. FORCE MAJEURE The Parties are not liable for failure to perform pursuant to the terms of this Agreement when failure to perform was due to an unforeseeable event beyond the control of either Party ( "force majeure "). The term "force majeure" shall include, without limitation by the following enumeration: acts of nature, acts of civil or military authorities, terrorism, fire, accidents, shutdowns for purpose of emergency repairs, industrial, civil or public disturbances, or labor disputes, causing the inability to perform the requirements of this Agreement, if either Party is rendered unable, wholly or in part, by a force majeure event to perform or comply with any obligation or condition of this Agreement, upon giving notice and reasonably full particulars to - 30 - 50 the other Party, such obligation or condition shall be suspended only for the time and to the extent practicable to restore normal operations. XV. MERGER This Agreement merges and supersedes all prior negotiations, representation and /or agreements between the Parties relating to the subject matter of this Agreement and constitutes the entire contract between the Parties [except with regard to the provisions of the Forum Interlocal Agreement]; provided that nothing in Section XV supersedes or amends any indemnification obligation that may be in effect pursuant to a contract between the Parties other than the Original Agreement; and further provided that nothing in this Agreement supersedes, amends or modifies in any way any permit or approval applicable to the System or the County's operation of the System within the jurisdiction of the City. XVI. WAIVER No waiver by either Party of any term or condition of this Agreement shall be deemed or construed to constitute a waiver of any other term or condition or of any subsequent breach whether of the same or a different provision of this Agreement. XVII. THIRD PARTY BENEFICIARY This Agreement is not entered into with the intent that it shall benefit any other entity or person except those expressly described herein, and no other such person or entity shall be entitled to be treated as a third -party beneficiary of this Agreement. - 31 - 51 XVIII. SURVIVABILITY Except as provided in Section 8.1, 8.2, 8.3, Section 8.6.c, except 8.6.ciii and Section 8.6d, no obligations in this Agreement survive past the expiration date as established in Section III. XIX. NOTICE Except as otherwise provided in this Agreement, a notice required to be provided under the terms of this Agreement shall be delivered by certified mail, return receipt requested or by personal service to the following person: For the City: - 32 - 52 For the County: Director King County Solid Waste Division 201 South Jackson Street, Suite 701 Seattle, Washington 98104 IN WITNESS WHEREOF, this Agreement has been executed by each Party on the date set forth below: CITY of KING COUNTY (Mayor /City Manager) King County Executive Date Date Clerk- Attest Clerk- Attest Approved as to form and legality Approved as to form and legality City Attorney King County Deputy Prosecuting Attorney Date Date 53 Attachment B Amended and Restated Solid Waste Interlocal Agreement between King County and Cities Frequently Asked Questions 1. What is the timeframe for Cities to adopt the new ILA? By mid -2014 the Solid Waste Division will propose rates for the 2015/16 rate period. Financial policies developed in collaboration with the Metropolitan Solid Waste Advisory Committee will inform the rate study. To allow sufficient time to develop those policies and complete the rate study, the County needs each City to act on the ILA by April 30, 2013. 2. What is the purpose of the non - binding statement of interest? The County is asking each City to provide a non - binding statement of interest that indicates likely participation in the new ILA by January 31, 2013. This information will be helpful to the County as it moves forward with a variety of planning efforts, including updating the Draft Comprehensive Solid Waste Management Plan. 3. What are the capital project financing needs in 2013 and 2014? Presently, the division has $75 million in Bond Anticipation Notes (BANs) that will expire on February 28, 2012. Those BANs will be converted to long -term bonds. Later in 2013, an additional $13 million will be required for anticipated capital project expenditures. In 2014, it is anticipated that $35 million will be needed. 4. How does City participation in the new ILA affect capital project financing? Financing for transfer system capital improvements will be primarily by long -term bonds. Ensuring adequate revenue to repay the bonds is critical and that revenue is directly dependent on City participation in the system. If enough cities sign the extended ILA, the County will issue bonds of 20 years or longer (out to 2040), which will mean lower per ton fees. Conversely, if cities do not choose to extend the ILA, bonds will only be issued out to 2028, which will increase rates. A mix of longer and shorter bonds may be possible if some cities extend the ILA and others do not. 5. What are the implications for a City that chooses not to sign the new ILA? Cities that choose to remain with the original ILA that expires in 2028 will pay rates that include the additional amount needed to pay for the shorter bonds. The additional amount will be in the range of $7 to $9 per ton. Cities that choose to remain with the original ILA will also not receive the benefits of the new ILA, including those related to potential environmental liability. 6. How long do cities have to adopt the new ILA? In order to move forward with development of financial policies that will inform the 2015/16 rate period and other planning efforts, the County needs each City by April 30, 2013 to decide whether to sign the new ILA. 7. How would insurance coverage and liability reserves be established? The insurance coverage and liability reserves provided for under the new ILA would be established based on what is commercially available and determined appropriate in consultation with the Metropolitan Solid Waste Advisory Committee (MSWAC - note that the name of this committee changes in the new ILA from the Metropolitan Solid Waste Management Advisory Committee or MSWMAC). King County Solid Waste Division December 21, 2012 54 Amended and Restated Solid Waste Interlocal Agreement between King County and Cities Frequently Asked Questions 8. Does this ILA lock Cities into the current Transfer System Plan? No. In the new ILA the County commits to provide facilities and services pursuant to adopted plans. The ILA also acknowledges that plans for transfer station improvements may be modified. 9. How does the ILA relate to the comprehensive solid waste management plan? The ILA provides a framework for Cities and the County to work collaboratively to maintain and update the comprehensive solid waste management plan and for adoption of the plan. Specific policies, plans, and strategies are not included in the ILA. 10. What about disposal after Cedar Hills closes? The ILA provides a framework for Cities and the County to plan for disposal post -Cedar Hills. At least seven years before the date that the landfill is projected to close, the County will seek advice and input from MSWAC and others on disposal alternatives. 11. Does the new ILA address Cedar Hills landfill rent? The ILA establishes a clear process for rent for Cedar Hills, limiting when rental payments can be changed, requiring a certified appraisal process be followed, and seeking review and comment from the Cities. It clearly states that the solid waste system shall not pay rent to the general fund for use of other county properties for transfer stations. 12. What if my City has more questions about this new ILA? If you have any questions or would like to schedule a briefing, please call or email Pat McLaughlin at 206 - 296 -4385 or pat.mclaughlin@kingcounty.gov. King County Solid Waste Division December 21, 2012 55 Attachment C Amended and Restated Solid Waste Interlocal Agreement between King County and Cities ILA Term Sheet • Accountability • Transparency • Durability: address long -term needs • Simplicity Part I: Contract Term, Capital Financing, and Ability to Terminate Agreement in Advance Contract Term ILA is extended 12.5 years, through December 2040. As ofJune 2012, there would be 28.5 years remaining on the contract. Bond Term How long could the financing term be for bonds funding the Transfer Station improvement plan? 20 to 28 years, depending on when each series of bonds to finance the transfer station projects is issued. Disposal Fees (tonnage rates) Significantly lower cost per ton is possible as compared to the "no extension" option The longer the term, the higher the total price paid for the improvements (more interest paid). Negotiated ILA Extension An ILA extension is likely to be necessary at some point during the term of the amended ILA in order to accommodate a cost - effective long -term disposal solution after Cedar Hills closes. The ILA will include language describing the parties' intent to enter into negotiations to extend the ILA before Cedar Hills closes, but after such time as the region has made a decision on the long -term disposal option; that decision will require amending the Comprehensive Solid Waste Management Plan (CSWMP). The parties could choose to begin the negotiations before ratification of the CSWMP amendment is complete. The amended ILA cannot compel either party to agree to a future extension of the term. If Cedar Hills closes on schedule (2025), what happens if the ILA is not The County would have to provide disposal at another location for 15 years (2025 through 2040). The City will continue to be part of the County system during that time. This is a relatively short time period and as a result the assumption is that costs would likely be considerably more expensive than disposal at Cedar Hills. extended again? Early Termination Will cities have the ability to terminate the ILA early? No. If a city has the ability to terminate the ILA early, the County will, in exchange, need to be able to recoup from that city, at a minimum, all the debt service costs associated with the terminating city's share of the transfer station system upgrades. Not included because the cost of prepaying debt service for a city's share of transfer station system improvements is likely to be so expensive that no city would choose King County Solid Waste Division Page 1 of 5 December 21, 2012 56 Amended and Restated Solid Waste Interlocal Agreement between King County and Cities ILA Term Sheet King County Solid Waste Division Page 2 of 5 December 21, 2012 57 to exercise this option. It would imply the city would prepay for a 50 -year asset after a few years, and the terminating city would not be assured of having access to the system assets after leaving. What if some cities don't agree to extend the !LA? Non- extending cities would be in a different customer class than extending cities. Non- extending cities would be charged rates to ensure their portion of transfer station debt is fully repaid by June 2028. As a result, their rates would be $7 -$9 per ton higher than for cities extending the ILA. Part 2: Governance Cities Advisory Committee The Cities advisory committee (MSWMAC) is memorialized within the ILA as the Metropolitan Solid Waste Advisory Committee (MSWAC). Its structure and operations are no longer controlled by County Code. It has the same composition, same rules as today: • Each city may appoint a delegate and alternates to MSWAC. • MSWAC retains its existing responsibilities. • MSWAC will elect a chair and vice - chair, and adopt its own bylaws. • MSWAC will be staffed by the County. • MSWAC remains an advisory body. It will coordinate with the Solid Waste Advisory Committee (SWAC) and provide advice to SWAC as it deems appropriate. MSWAC will also provide recommendations to the County Executive, County Council, and other entities. The County agrees to consider and respond on a timely basis to questions and issues from MSWAC, including but not limited to development of efficient and accountable billing practices. Regional Policy Committee (RPC) The role of the RPC is not affected by the amended and restated ILA. The RPC will retain its current charter role in acting on Comprehensive Solid Waste Management Plan (CSWMP) amendments and financial policies. Its existing responsibilities as the Solid Waste Interlocal Forum will continue through the end of the current ILA in June 2028. After 2028 those responsibilities will go to the RPC. Part 3: Comprehensive Solid Waste Management Plan Process The CSWMP is reviewed and amended as needed. Several years before the Cedar Hills Landfill closes, the CSWMP will be amended to include language defining the regional disposal option. The ILA will confirm current practice that the County Council acts to approve the CSWMP subject to ratification, in the same way that Countywide Planning Policies are now first approved by the County and then subject to ratification. The County will act after seeking input from MSWAC, among others. Once the County action is effective, the ratification period would run for 120 days. King County Solid Waste Division Page 2 of 5 December 21, 2012 57 Amended and Restated Solid Waste Interlocal Agreement between King County and Cities ILA Term Sheet Ratification Requirement The current ILA requires that jurisdictions representing 75% of the contract city population must approve CSWMP changes. The 75% is determined based on those cities taking a position. The negotiating team considered modifying the ratification requirement. Because of the difficulties of administering two different ratification processes if some cities extend and others do not the current process was left unchanged. It has been used several times over the term of the agreement without significant problems. Part 4: Other Issues Parties Obligations to Communicate The parties will endeavor to notify each other in the event of the development of any plan, contract, dispute, use of environmental liability funds or other solid waste issue that could have potential significant impacts on the City and /or Cities, the County and /or the regional solid waste system. Emergency Planning The County and the cities will coordinate on the development of emergency plans related to solid waste, including but not limited to debris management. Grants The ILA will include a provision confirming that grants to cities in support of programs that benefit the Solid Waste system are a permissible use of system revenues. Mitigation The ILA will acknowledge that solid waste facilities are regional facilities and host cities and neighboring cities may sustain impacts for which there are three types of mitigation: 1. When new facilities are sited, or existing facilities are reconstructed, mitigation will be determined with advance input from host communities and neighboring cities, and per state law. The County will collaborate with potential host cities and neighboring cities in advance of both the environmental review and permitting processes, including seeking advance input from such cities as to potential impacts that should be addressed in scoping of environmental studies /documents, or in developing permit applications. 2. With respect to existing facilities, the County will continue the full range of operational mitigation activities required under law (odor and noise control, maintenance, litter cleanup, etc.). 3. The ILA will recognize the rights of cities to charge the County for direct impacts from operations consistent with State law (RCW 36.58.080). Cities that believe they are entitled to such mitigation may request the County undertake technical studies to determine the extent of such impacts; the County will undertake analysis it determines is reasonable and appropriate. The costs of such studies will be System costs. Dispute resolution would occur per the state statute provision, rather than the ILA dispute resolution provisions. Cities retain their full regulatory authority with respect to design, construction or operation of facilities within their jurisdiction. King County Solid Waste Division Page 3 of 5 December 21, 2012 58 Amended and Restated Solid Waste Interlocal Agreement between King County and Cities ILA Term Sheet Cedar Hills Landfill Rent The ILA will acknowledge that rent is charged to the Division for use of the Cedar The County began leasing the Hills Landfill, and clarify how the rent will be determined. Cedar Hills Landfill from the The County will continue to charge the Solid Waste System rent for use of the Cedar state in 1960 at a time when Hills Landfill. The Landfill is a General Fund asset. the solid waste function was The ILA will ensure that Landfill rent will be based on third party professional still part of County General valuations using accepted MAI valuation principles. Cities will have input into the Fund operations. Throughout selection of the appraiser and will have an opportunity to review and comment on the '60s, `70s and into the data inputs provided by the System to the appraiser for purposes of conducting the '80s, the solid waste system was operated as part of the appraisal. General Fund through a mix The December 2011 appraisal setting the rent value for the period from 2013 of County General Fund through 2025 (the current estimated end of the Landfill's useful life) will be adjusted monies and solid waste fees. downward to ensure that the System is not charged for Landfill capacity that was In 1983, the County formally included and paid for by the System per the previous (2004) appraisal. The same began the effort to transform adjustment will be made with respect to any future appraisal. the solid waste system from a General Fund operation to The ILA will define a clear process by which the value of Cedar Hills to the Division, and the associated rent, may be revalued during the Agreement, and will ensure a self - sustaining utility engagement of MSWAC in that process. enterprise, fully funded from Rent costs are an operating cost to the Division that will be incorporated into solid system revenues-- primarily waste rates. MSWAC will have input on all rate proposals, as well as the specific tipping fees charged at the schedule of rent payments derived from the new appraisal. Cedar Hills Landfill. The The County will commit to not charge General Fund rent for any transfer station Landfill was acquired by the property now in use, and will not charge General Fund rent for assets acquired in General Fund from the state in 1992 and remains a the future solely from System revenues. Assets owned by other County funds (e.g., the Roads Division, or other funds) will be subject to rent (and vice versa). Any General Fund asset. The revenue generated from System owned assets will be treated as revenues of the General Fund began charging the Division for the use of this asset in 2004. System. Financial Policies The County will develop financial policies to guide the Division's operations and investments. The policies will address debt issuance, cost containment, reserves, asset ownership and use, and other financial issues. The policies will be developed through discussion with MSWAC, RPC, the County Executive and the County Council. Such policies will periodically be codified at the same time as CSWMP updates, but may be adopted from time to time as appropriate outside the CSWMP update cycle. Dispute Resolution The ILA will replace the current dispute resolution provisions involving State DOE (State DOE is not willing to serve the role ascribed to it in the current ILA) with more standard provisions, similar to those used in other multi -party County ILAs. In event of a dispute, the first step will be for staff from the parties to meet. lithe issue is not resolved, then the City Manager /Administrator from the city(ies) and the County Executive will meet. If the issue is still not resolved, non - binding mediation may be pursued if any party so chooses, prior to pursuing formal legal action. All cities will be notified of disputes at each step, and may join the dispute if they so choose. Costs of mediation will be split, with the cities (all those participating in the matter) paying half of the costs and the County paying half of the costs. King County Solid Waste Division Page 4 of 5 December 21, 2012 59 Amended and Restated Solid Waste Interlocal Agreement between King County and Cities ILA Term Sheet Liability SCA Principles as agreed to by Executive Constantine form the basis for the Environmental Liability section. The County and the Cities agree that System - related costs, including environmental liabilities, should be funded by System revenues which include but are not limited to insurance proceeds, grants and rates. A protocol for payment of liabilities if and when they arise is established including: • Insurance, if commercially available with cities as additional insured • Any reserves established for environmental liability shall survive for 30 years after the closure of the Cedar Hills Landfill. • Grants to the extent available • Developing a financial plan including a rate schedule in consultation with MSWAC Specific language is included indicating it is the intent of the parties to protect their general funds from Environmental Liabilities to the greatest extent feasible. Severability Team agreed not to include a severability section. Effect is that in the event one section of the contract is found to be invalid the Parties will need to meet to discuss how to remedy the issue Survivability No obligations of the agreement shall survive the expiration of the contract except portions of the liability section including: • A three year obligation for tort related operational liability • Any insurance in effect at the end of the agreement shall continue for the term of the policy • Reserve fund is retained for 30 years following Cedar Hills closure Flow Control Language in Section 6.2 is simplified to state "The City shall cause to be delivered to the County disposal system..." It does not specify what means the City shall use to accomplish this. County Commitment to Transfer Station Plan Section 6.1.g is amended to state "The County shall provide facilities and services pursuant to the Comprehensive Solid Waste Management Plan and the Solid Waste Transfer and Waste Management Plan as adopted..." Long -Term Bonds Section 6.1.f includes "The County shall primarily use long term bonds to finance transfer system improvements." This recognizes that in the past these improvements have been partially funded by cash. This section also includes a commitment to develop, through discussions with MSWAC, financial policies. King County Solid Waste Division Page 5 of 5 December 21, 2012 60 Attachment D L.41 King County Department of Natural Resources and Parks Solid Waste Division December 28, 2012 TO: The Honorable Jim Haggerton, Mayor City of Tukwila RE: Request for Non - Binding Statement of Interest in signing an Amended and Restated Solid Waste Interlocal Agreement by January 31, 2013 We are requesting a non - binding statement from each City as to whether you are interested in signing the Amended and Restated Solid Waste Interlocal Agreement. To accomplish this, we are asking that a representative of the City complete the form below, indicating which option best reflects the City's position at this time, and email it to me by close of business January 31, 2013. Again, this is non - binding, but will assist the County in planning. Please respond by completing the information below: City of Tukwila Non - Binding Statement of Interest with Respect to Entering into the Amended and Restated Solid Waste Interlocal Agreement. It is likely that my City will sign the Amended and Restated Solid Waste Interlocal Agreement. It is not likely that my City will sign the Amended and Restated Solid Waste Interlocal Agreement. My Name/Title: Date: If you have any questions about the attached materials, please call or email me at 206 - 296 -4385 or pat .mclaughlin@kingcounty.gov. cc: David Cline, City Manager, City of Tukwila Frank Iriarte, Deputy Public Works Director, City of Tukwila Deanna Dawson, Executive Director, Suburban Cities Association Diane Carlson, Director of Regional Initiatives, King County Executive Office Christie True, Director, Department of Natural Resources & Parks (DNRP) Kevin Kiernan, Assistant Division Director, Solid Waste Division (SWD), DNRP Diane Yates, Intergovernmental Liaison, SWD, DNRP 61