HomeMy WebLinkAboutSpecial Council December 19 1995WHATCOM COUNTY COUNCIL
SPECIAL COUNCIL MEETING
WORK SESSION
December 19, 1995
The meeting was called to order at 2:45 p.m. by Acting Council Chair Marlene
Dawson in the Council Committee Room, 311 Grand Avenue.
Also Present: Absent:
Larry Harris None
Alvin Starkenburg
Ken Henderson
Ward Nelson
Barbara Brenner
Robert Imhof
1. DISCUSSION AND POSSIBLE ACTION ON THE PROPOSED DISPOSAL
SITE AGREEMENT WITH RECOMP OF WASHINGTON (AB95 -132E)
A discussion took place regarding clarification of some of the items in the site
agreement. Topics discussed included: processing; separated waste; surcharge; and
constitutionality of the document in relation to Flow Control.
Those speaking included:
Dan Gibson, Council's counsel
Jeff Monsen, Planning & Development Services
Nate Brown, Public Works
Jim Austin, P.S.
Larry McCarter, RDS
Doug Robertson
Ken Bell, RECOMP
Dave Bader
Discussion followed on an executive session and further discussions.
Henderson requested a staff report.
Special Minutes, 12/19/95, Page 1
1 Gibson stated he would be addressing several matters he felt should be addressed
2 in executive session because they relate to problems or concerns with the proposed
3 Disposal Site Agreement. He noted that because the County is in litigation, he
4 recommended an executive session. He said he would only note page numbers, which
5 were pages 5, 7, 8, 9, 10, 11, 13, 16 and 21.
6
7 Starkenburg moved to go into executive session.
8
9 There was discussion on the motion. Doug Robertson and Larry McCarter
10 objected to Council members going into executive session on the basis of lack of
11 reference to a lawsuit in the agreement. They noted litigation must be listed on the
12 agenda.
13
14 Gibson acknowledged the objections. He stated it was clear litigation has been
15 discussed relative to the lawsuit and that settlement of this may well produce settlement
16 of the lawsuit.
17
18 Discussion followed regarding executive session.
19
20 Motion to go into executive session carried 6 -1 with Brenner opposed.
21
22 (Clerk's Note. Council meeting resumed after approximately one -half hour in
23 executive session.)
24
25 Imhof announced the Disposal Site Agreement was discussed in executive session
26 and noted certain items needed to be clarified.
27
28 Gibson referred to page 5, Section 2.3, asking which level this was in reference to.
29 Austin responded by noting that it was intended not to be specific at any particular level
30 since the terms of all disposal site agreements would be substantially identical. The
31 purpose of the language is to establish the circumstances under which a disposal site
32 would be permitted to utilize a subcontractor to fulfill obligations that it has under the
33 contract.
34
35 Gibson then called attention to page 9, Section 3.23(a), requesting Austin's
36 explanation as to the meaning of that section. Austin replied that the County is to be
37 free to make whatever changes it might desire to make after the fifth anniversary of this
38 agreement, whether it be to the Flow Control Ordinance, to the clarifying resolution, the
39 Comprehensive Plan or any other law or local ordinance if, at that time, RECOMP is
40 not meeting the standard applicable to a level II facility.
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Special Minutes, 12/19/95, Page 2
1 Austin noted that if RECOMP is meeting the standard applicable to a level II
2 facility, then Section 3.2.3(b) would be followed. He further explained that if RECOMP
3 is meeting level II requirements at that time, the County would then be free to make a
4 change without incurring any obligation to RECOMP, as long as it meets the
5 requirements of Section 3.2.4.
6
7 Gibson then asked about reasonable good faith determination. Austin stated
8 there would be no claim to be made if the Council were acting reasonably. To the
9 question of who would be determining reasonableness, Austin pointed out there is an
10 arbitration provision in the contract.
11
12 Enforcement of the Flow Control Ordinance was the next topic of discussion
13 (page 10, Section 3.3). Austin noted the contract does not state the standard is not to
14 their satisfaction, noting the provision only requires the County enforce a law it has
15 already adopted.
16
17 Moving to page 16, Gibson inquired of Austin if the County would be liable if the
18 Flow Control Ordinance is not enforced per the contract. Austin replied in the
19 affirmative. Gibson then asked Austin if he had any suggestions regarding another
20 mechanism of enforcement that would satisfy him that this would be enforced without
21 putting the onus entirely on the County. Austin stated he was open to discussion but
22 noted the County and RECOMP both must comply with the law. He had no suggestions.
23 He did state, however, that it was the purpose of this work session to see that there is a
24 mechanism that reasonably assures that the Flow Control Ordinance will be enforced.
25 He noted he would be open to any suggestions in which the County is not involved in
26 that enforcement. The present Flow Control Ordinance is only enforceable by the
27 County.
28
29 Gibson continued to clarify Sections 6.2 and 6.3, pages 11 and 12, regarding
30 threatened or pending suits. Austin replied the County would be subject to damages
31 only if RECOMP were adversely affected.
32
33 Section 10.5(a), page 15, was referred to next. Austin stated that it provides that
34 if RECOMP experiences an increase in its cost of providing service as a consequence of
35 a change in law as that term is defined, it has the right to request the County to permit it
36 to increase the base rate to take into account those increased costs. The County may not
37 be unreasonable in rejecting this request. Gibson then asked how reasonableness is to
38 be determined. Austin replied that the reasonableness would not be determined solely
39 on the basis of whether RECOMP would be incurring an increase in cost but also what
40 effect of passing on that increased cost would have to the County in comparison with
41 other available options. He further noted that no increase would be requested of the
42 County the first five years due solely to any change in law.
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Special Minutes, 12/19/95, Page 3
1 Clarification by Austin followed on RECOMP not meeting the standards for a
2 level II disposal site after five years. He reiterated that if the failure is the result of the
3 County's successful efforts to remove at the source additional recyclable materials at the
4 curb site, the County will be free to make whatever changes in law it desires without any
5 standard of reasonableness applying. This includes changes to the Clarifying Resolution,
6 the Flow Control Ordinance and the Comprehensive Plan without incurring any liability
7 to this contract to RECOMP. He further stated that the one limitation still applying
8 both under Sections 3.2.3(a) and 3.2.4 is that whatever system is maintained in place is
9 one that allows competition.
10
11 He further clarified by stating that if any changes in law are made during the first
12 five years which have a negative impact on RECOMP, then RECOMP is entitled to be
13 compensated for the loss it sustains as a consequence in the change in law.
14
15 Gibson then asked Austin what would be lost if Sections 3.2.3 and 3.2.4(a) would
16 be entirely, eliminated. Austin replied that RECOMP would be subject to have a radical
17 change made in the Flow Control Ordinance.
18
19 Jeff Monsen, Public Works, spoke to the clarification of the resolution. He noted
20 the agreement being discussed today still relies on some assurances that elements of this
21 agreement apply to all disposal sites and relies also on a Clarifying Resolution to make
22 some of those statements. He reviewed the general intention of the resolution.
23
24 Discussion followed. Topics discussed included: recyclable materials;
25 construction debris; and meeting standard requirements.
26
27 (Clerk's Note: As the tape was damaged and no notes were taken, the motion made
28 and the three items that were requested to be clarified were not on record.)
29
30 Motion carried unanimously.
31
32 Dawson moved to go into executive session.
33
34 Motion carried unanimously.
35
36 (Clerk's Note: Council was in executive session for 12 minutes.)
37
38 Imhof announced Dan Gibson would be contacting RECOMP attorneys regarding
39 clarification on a few issues.
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Special Minutes, 12/19/95, Page 4
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The meeting was adjourned at 5:33 p.m.
These minutes were approved by the Council on April 2 , 1996.
ATTEST:
18 Dana Brown - Davis, C506TClerk
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Special Minutes, 12/19/95, Page 5