Resolution and Ordinance of the City Council of the City of Livingston Establishing Rates for Solid Waste Service Fees.

Meeting Date: March 19, 2013

Meeting Agenda Item # 2. Resolution and Ordinance of the City Council of the City of Livingston Establishing Rates for Solid Waste Service Fees.

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Note from TheGardeningSnail. The Stuff below is just another copy of the Stuff Above: just run through a program that converts Image to Text. So if there are any textual goofs, gaffs, or gremlins…sorry bout that. I also took the liberty of fiddling with some of the “paragraph breaks” just to make it a little easier to read. But it’s the same information as contained above.

STAFF REPORT

AGENDA ITEM: Resolution and Ordinance of the City Council of the City of Livingston Establishing Rates for Solid Waste Service Fees.

MEETING DATE: March 19, 2013

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PREPARED BY: Jose Antonio Ramirez, City Manager

REVIEWED BY: Jose Antonio Ramirez, City Manager

RECOMMENDATION:

Staff recommends that the City Council take the following actions:

1. Open Public Hearing;

2. Close Public Hearing and determine whether a majority protest exists. If no majority protest exists, continue to recommendations 3 and 4 below;

3. Adopt Resolution 2013-7, establishing rates for solid waste services fees; and

4. Waive first reading and introduce Ordinance No. 603, establishing rates for solid waste service fees.

BACKGROUND:

City of Livingston determined to undertake a rate study to analyze the revenue requirements and the rate structure that should be adopted to proportionately allocate the costs of providing solid waste service to its solid waste customers.

The rate study was prepared by Hansford Economic Consulting Inc., and has been on file at Livingston City Hall since February I, 2013. The rate study determined that a rate increase is warranted because the existing solid waste system revenues are, and will be, insufficient to cover current and projected operations and maintenance costs of the City’s solid waste program.

In order to determine the appropriate rates that City customers would pay, the City Council also decided to competitively bid the residential and commercial solid waste and auxiliary services.

The City issued a request for proposals on July 2, 2012. The City of Livingston held a mandatory pre-bidders conference on August 6, 2012 and had seven interested parties in attendance.

By the August 15, 2012 deadline, the City of Livingston received written proposals from four waste haulers (Turlock Scavengers, Gilton Solid Waste Management Inc., Mid Valley Disposal and Sunset Waste Systems). The proposals were taken into consideration by Hansford Economic Consulting Inc.

Staff developed a matrix incorporating all pertinent information from all the haulers and provided it to City Council, the Stakeholders Committee and the rate consultant. The Stakeholders Committee and a couple of Council Members took the time to tour the above-mentioned waste haulers and hear presentations.

On November 6, 2012, after hearing presentations from the interested waste haulers, the City Council selected Gilton Solid Waste Management Inc. to administer all aspects of solid waste services in the City. Gilton Solid Waste Management will assist the City in monitoring the City’s waste to ensure compliance with goals set by the State of California Department of Resources Recycling and Recovery (CalRecycle) and AB 939, SB 1016 legislative mandates.

With the rate analysis done and the solid waste hauler selected, the City had all the information needed to set the rates that would cover the cost of providing solid waste collection services.

ANALYSIS

In 1996, California voters approved Proposition 218, the "Right to Vote on Taxes Act," which added Articles X Ill C and XIIID to the California Constitution. Since its adoption, various court cases in 2005 and 2006, most notably Bighorn-Desert View Water Agency v. Verjil; Richmond v. Shasta Community Services District; and the Howard Jarvis Taxpayers Association v. City of Fresno, extended the application of Proposition 218 from general taxes and assessments to utility user fees provided by public agencies (i.e., sewer, water and waste collection, etc.).

Although there is an argument that solid waste collection service fees ("Solid Waste Service Fees" or "Service Fees") within the City of Livingston are not subject to Proposition 218 because the services are provided by a private solid waste hauler and not the City, the City Council and the City Manager have decided to follow the process detailed by Proposition 218 in order to promote transparency and involvement by City property owners and customers.

The rate study, which was done to study appropriate rates and to satisfy Proposition 218, determined that existing solid waste system revenues are, and will be, insufficient to cover current and projected operations and maintenance costs of the City’s solid waste system (the "System").

The study determined that increases to the schedule of rates for the City’s Service Fees are necessary for a five-year period to generate revenues sufficient to cover the City’s ongoing costs of the System’s operations, maintenance, and capital facilities.

Since the City must generate revenues in an amount sufficient to cover the City’s ongoing costs of the System’s operations, maintenance, and capital facilities, the City Council determined to initiate the Proposition 218 process.

California Constitution article XIII D, section 6 ("Article XIII D") requires that prior to imposing any increase to the Service Fees, the City shall provide written notice (the "Notice") by mail of the proposed increases to the Service Fees.

Notices are to be sent to the record owner of each parcel upon which the increases to the Service Fees are proposed for imposition, and any tenant directly liable for payment of such Service Fees, the amount of the rates for the Service Fees proposed to be imposed on each parcel, the basis upon which the rates for the Service Fees were calculated, and the reason for the rate increases to the Service Fees.

The Notice must also indicate the date, time and location of a public hearing (the "Hearing") on the proposed rate increases to the Service Fees. Pursuant to Article Xlll D, such

Notice is required to be provided to the affected property owners and any tenant directly liable for the payment of the Service Fees not less than forty-five days prior to the Hearing on the proposed rates.

On February I, 2013, the City provided the Notice to the affected prope1ty owners and tenants of the proposed rate increases to the Service Fees in compliance with Article XIII D, which indicated that the

Hearing is to be held on March 19, 2013. At this hearing, the Council will listen to staffs analysis regarding the rates being proposed, listen to testimony and take any other written protests prior to the close of the public hearing. After the close of the public hearing, the Council will determine whether a majority protests exists.

If a majority protest does not exist, the Council is free to adopt the new rates.

The City Council is presented with both a Resolution and an Ordinance establishing the new rates. The City Council decided to do all rate increases by ordinances, however, since Livingston Municipal Code section 8-2-43 requires that solid waste collection rates be set by resolution, the Council is being asked to adopt both in order to comply with all intentions and requirements.

Further, since a previous Merced Superior Court case involving the increase of water rates required that the Ordinance be adopted by two-thirds of the City Council, the Council has agreed that all increases should receive the two-thirds vote.

There is an argument regarding this vote requirement and the adoption process that the Court required, however, the Council has expressed its wishes to hold itself to a high standard and only impose higher rates that are adequate and that most of the City Council agrees on. Both the attached Resolution and Ordinance will require a two-thirds vote.

Although the rates are being established by a Resolution and an Ordinance, the intent is to have both establish rates at the same time. Since ordinances require two readings and a 30-day wait period after adoption for the rates to be effective, the attached Resolution indicates that the approval of the Solid Waste Service Fees under the Resolution are contingent on the adoption of Ordinance , and shall be in effect on May 3, 2013.

ATTACHMENTS:

l. Resolution 2013-7, establishing rates for solid waste service fees

2. Ordinance No. 603, establishing rates for solid waste service fees

3. Proposition 218 Notification Letters

RESOLUTION NO. 2013-7

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON ESTABLISHING RATES FOR SOLID WASTE SERVICE FEES

WHEREAS, in 1996, California voters approved Proposition 218, the "Right to Vote on Taxes Act," which added Articles X111C and XI liD to the California Constitution; and

WHEREAS, various court cases in 2005 and 2006, most notably Bighorn-Desert View Water Agency v. Vetji/; Richmond v. Shasta Community Services District; and the Howard Jarvis Taxpayers Association v. City of Fresno, extended the application of Proposition 218 from general taxes and assessments to utility user fees (i.e. sewer, water and waste collection, etc.); and

WHEREAS, although there is an argument that solid waste collection service fees ("Solid Waste Service Fees" or "Service Fees") within the City of Livingston are not subject to Proposition 218 because the services are provided by a private solid waste hauler and not the City, the City Council and the City Manager have decided to follow the process detailed by Proposition 218 in order to promote transparency and involvement by City property owners and customers. Accordingly, the City does not waive its right to conduct Solid Waste Service Fee increases without following the Proposition 218 procedures; and

WHEREAS, the City of Livingston determined to undertake a rate study to analyze the revenue requirements, and the rate structure that should be adopted to proportionately allocate the costs of providing solid waste service to its solid waste customers. The rate study was prepared by Hansford Economic Consulting Inc., and has been on file at Livingston City Hall since the notices to property owners and customers were sent out on February 1, 2013; and

WHEREAS, the City of Livingston determined it was also necessary to issue a request for proposals ("RFP") for solid waste collection services in order to pass on the lowest rates possible. The City issued an RFP on July 2, 2012. The City received four proposals to the RFP which provided information useful in the rate study; and

WHEREAS, the City of Livingston intends to contract with Gilton Solid Waste Management Inc., ("Gilton") for solid waste collection services. Gilton offered the lowest rates for solid waste collection services; and

WHEREAS, the rate study determined that existing solid waste system revenues are, and will be, insufficient to cover current and projected operations and maintenance costs of the City’s solid waste system (the "System"); and

WHEREAS, the City must generate revenues in an amount sufficient to cover the City’s ongoing costs of the System’s operations, maintenance, and capital facilities; and

WHEREAS, the rate study determined that increases to the schedule of rates for the City’s solid waste service fees, ("Service Fees") are necessary for a five-year period to generate revenues sufficient to cover the City’s ongoing costs of the System’s operations, maintenance, and capital facilities; and

WHEREAS, the revenues derived from the proposed Service Fees will not exceed the funds required to provide the solid waste services and shall be used exclusively for the System; and

WHEREAS, the amount of the proposed Service Fees will not exceed the proportional cost of the service attributable to each parcel upon which they are proposed for imposition; and

WHEREAS, the proposed Service Fees will not be imposed on a parcel unless the solid waste services are actually used by, or immediately available to, the owner of the parcel; and

WHEREAS, California Constitution article XIII D, section 6 ("Article XIII D") requires that prior to imposing any increase to the Service Fees, the City shall provide written notice (the "Notice") by mail of the proposed increases to the Service Fees to the record owner of each parcel upon which the rate increases to the Service Fees are proposed for imposition, and any tenant directly liable for payment of such Service Fees, the amount of the rates for the Service Fees proposed to be imposed on each parcel, the basis upon which the rates for the Service Fees were calculated, the reason for the rate increases to the Service Fees, and the date time and location of a public hearing (the "Hearing") on the proposed rate increases to the Service Fees; and

WHEREAS, pursuant to Article XIII D such Notice is required to be provided to the affected property owners and any tenant directly liable for the payment of the Service Fees not less than forty-five days prior to the Hearing on the proposed rates; and

WHEREAS, on February 1, 2013, the City provided the Notice to the affected property owners and tenants of the proposed rate increases to the Service Fees in compliance with Article XIII D; and

WHEREAS, the Hearing was held March 19, 2013; and

WHEREAS, at the Hearing, the City Council heard and considered all oral testimony, written materials, and written protests concerning the establishment and imposition of the proposed rate increases to the Service Fees; and

WHEREAS, upon close of the Hearing, the City did not receive written protests against the establishment and imposition of the proposed rate increases to the Service Fees from a majority of the affected property owners and tenants directly liable for the payment of the Service Fees; and

WHEREAS, Livingston Municipal Code section 8-2-43 requires that "monthly customer collection charges for single-family units, multi-family units, commercial units, industrial units, institutional units and Government units shall be set by Resolution of the City Council"; and

WHEREAS, this Resolution and Ordinance No. 603 shall supersede all other previous resolutions and ordinances that may conflict with, or be contrary to, this Resolution and Ordinance No. 603 respecting the rates for Service Fees described more particularly herein.

NOW, THEREFORE, the City Council of the City of Livingston resolves as follows:

1. Recitals. The City Council of the City of Livingston finds and determines that the foregoing Recitals are true and correct and incorporates the Recitals herein.

2. Solid Waste Service Fee Adjustment and Effective Date. The City Council of the City of Livingston does hereby approve the Solid Waste Service Fees set forth in the attached Exhibit A.

The Solid Waste Service Fees are also being adjusted by Ordinance No. 603, which is set to have its first reading on March 19, 2013, and its second reading and adoption on April 2, 2013. If adopted, Ordinance 603 will take effect on May 3, 2013. The approval of the Solid Waste Service

Fees set forth in Exhibit A of this Resolution shall be contingent on the adoption of Ordinance No. 600 and shall be in effect on May 3, 2013.

The City Council hereby authorizes and directs the City Manager to implement and take all actions necessary to effectuate the rates for the Service Fees set forth herein

3. CEQA: The approval of this Resolution is not a project within the meaning of the California Environmental Quality Act (Public Resources Code§§ 21000 et seq., "CEQA," and 14 Cal. Code Reg.§§ 15000 et seq., "CEQA Guidelines"). Further, pursuant to CEQA Guidelines section 15273 and Public Resources Code§ 21080(b)(8), this Resolution is not subject to CEQA because CEQA does not apply to the establishment, modification, structuring, restructuring, or approval of rates, tolls, fares, or other charges by public agencies for certain purposes, including for the purpose of meeting operating expenses. This Resolution does not involve any commitment to any specific project that may result in a potentially significant physical impact on the environment. If the Solid Waste Service Fees are used for any project that would have such effect, the City will undertake the required CEQA review for that particular project.

4. Severability. If any section, subsection, subdivision, sentence, clause, or phrase in this Resolution or any part thereof is for any reason held to be unconstitutional or invalid, ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Resolution or any part thereof. The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective.

5. Effective Date: This Resolution shall take effect immediately upon its passage.

PASSED AND ADOPTED by the City Council of the City of Livingston on the 19th day of March, 2013, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

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Rodrigo Espinoza, Mayor of the City of Livingston

ATTEST:

I, hereby certify that the foregoing resolution was regularly introduced, passed and adopted at a regular meeting of the City Council of the City of Livingston this 19th day of March, 2013.

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Antonio Silva, City Clerk of the City of Livingston

21154646.2.

ORDINANCE NO. 603

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON ESTABLISHING RATES FOR SOLID WASTE SERVICE FEES

WHEREAS, in 1996, California voters approved Proposition 218, the "Right to Vote on Taxes Act," which added Articles X111 C and XI liD to the California Constitution; and

WHEREAS, various court cases in 2005 and 2006, most notably Bighorn-Desert View Water Agency v. Verjil; Richmond v. Shasta Community Services District; and the Howard Jarvis Taxpayers Association v. City of Fresno, extended the application of Proposition 218 from general taxes and assessments to utility user fees (i.e. sewer, water and waste collection, etc.); and

WHEREAS, although there is an argument that solid waste collection service fees ("Solid Waste Service Fees" or "Service Fees") within the City of Livingston are not subject to Proposition 218 because the services are provided by a private solid waste hauler and not the City, the City Council and the City Manager have decided to follow the process detailed by Proposition 218 in order to promote transparency and involvement by City property owners and customers. Accordingly, the City does not waive its right to conduct Solid Waste Service Fee increases without following the Proposition 218 procedures; and

WHEREAS, the City of Livingston determined to undertake a rate study to analyze the revenue requirements, and the rate structure that should be adopted to proportionately allocate the costs of providing solid waste service to its solid waste customers. The rate study was prepared by Hansford Economic Consulting Inc., and has been on file at Livingston City Hall since the notices to property owners and customers were sent out on February 1, 2013; and

WHEREAS, the City of Livingston determined it was also necessary to issue a request for proposals ("RFP") for solid waste collection services in order to pass on the lowest rates possible. The City issued an RFP on July 2, 2012. The City received four proposals to the RFP which provided information useful in the rate study; and

WHEREAS, the City of Livingston intends to contract with Gilton Solid Waste Management Inc., ("Gilton") for solid waste collection services. Gilton offered the lowest rates for solid waste collection services; and

WHEREAS, the rate study determined that existing solid waste system revenues are, and will be, insufficient to cover current and projected operations and maintenance costs of the City’s solid waste system (the "System"); and

WHEREAS, the City must generate revenues in an amount sufficient to cover the City’s ongoing costs of the System’s operations, maintenance, and capital facilities; and

WHEREAS, the rate study determined that increases to the schedule of rates for the City’s solid waste service fees, ("Service Fees") are necessary for a five-year period to generate revenues sufficient to cover the City’s ongoing costs of the System’s operations, maintenance, and capital facilities; and

WHEREAS, the revenues derived from the proposed Service Fees will not exceed the funds required to provide the solid waste services and shall be used exclusively for the System; and

WHEREAS, the amount of the proposed Service Fees will not exceed the proportional cost of the service attributable to each parcel upon which they are proposed for imposition; and

WHEREAS, the proposed Service Fees will not be imposed on a parcel unless the solid waste services are actually used by, or immediately available to, the owner of the parcel; and

WHEREAS, California Constitution article XIII D, section 6 ("Article XIII D") requires that prior to imposing any increase to the Service Fees, the City shall provide written notice (the "Notice") by mail of the proposed increases to the Service Fees to the record owner of each parcel upon which the rate increases to the Service Fees are proposed for imposition, and any tenant directly liable for payment of such Service Fees, the amount of the rates for the Service Fees proposed to be imposed on each parcel, the basis upon which the rates for the Service Fees were calculated, the reason for the rate increases to the Service Fees, and the date time and location of a public hearing (the "Hearing") on the proposed rate increases to the Service Fees; and

WHEREAS, pursuant to Article XIII D such Notice is required to be provided to the affected property owners and any tenant directly liable for the payment of the Service Fees not less than forty-five days prior to the Hearing on the proposed rates; and

WHEREAS, on February 1, 2013, the City provided the Notice to the affected property owners and tenants of the proposed rate increases to the Service Fees in compliance with Article XIII D; and

WHEREAS, the Hearing was held March 19, 2013; and

WHEREAS, at the Hearing, the City Council heard and considered all oral testimony, written materials, and written protests concerning the establishment and imposition of the proposed rate increases to the Service Fees; and

WHEREAS, upon close of the Hearing, the City did not receive written protests against the establishment and imposition of the proposed rate increases to the Service Fees from a majority of the affected property owners and tenants directly liable for the payment of the Service Fees; and

WHEREAS, Livingston Municipal Code section 8-2-43 requires that "monthly customer collection charges for single-family units, multi-family units, commercial units, industrial units, institutional units and Government units shall be set by Resolution of the City Council"; and

WHEREAS, this Ordinance and Resolution No. 2013-7 shall supersede all other previous resolutions and ordinances that may conflict with, or be contrary to, this Ordinance and Resolution No. 2013-7 respecting the rates for Service Fees described more particularly herein.

THE CITY COUNCIL OF THE CITY OF LIVINGSTON DOES ORDAIN AS FOLLOWS: SECTION

1. RECITALS

The foregoing recitals are true and correct and made a part of this Ordinance.

SECTION 2. SOLID WASTE SERVICE FEE ADJUSTMENT

The City Council of the City of Livingston does hereby approve the Solid Waste Service Fees set forth in the attached Exhibit A. The City Council hereby authorizes and directs the City Manager to implement and take all actions necessary to effectuate the rates for the Service Fees set forth herein.

SECTION 3. CEQA

The approval of this Ordinance is not a project within the meaning of the California Environmental Quality Act (Public Resources Code§§ 21000 et seq., "CEQA," and 14 Cal. Code Reg.§§ 15000 et seq., "CEQA Guidelines"). Further, pursuant to CEQA Guidelines section 15273 and Public Resources Code § 21080(b)(8), this Ordinance is not subject to CEQA because CEQA does not apply to the establishment, modification, structuring, restructuring, or approval of rates, tolls, fares, or other charges by public agencies for certain purposes, including for the purpose of meeting operating expenses. This Ordinance does not involve any commitment to any specific project that may result in a potentially significant physical impact on the environment. If the Solid Waste Service Fees are used for any project that would have such effect, the City will undertake the required CEQA review for that particular project.

SECTION 4. SEVERABILITY

If any provision of this Ordinance, or the application thereof to any person or circumstance, is held invalid, the remainder of the Ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid or unenforceable.

SECTIONS. EFFECTIVE DATE

This Ordinance shall become effective thirty (30) days after its final passage and adoption. Introduced: March 19, 2013

Passed and Adopted: April 2, 2013

RODRIGO ESPINOZA, Mayor of the City of Livingston

ATTEST:

State of California ) County of Merced ) City of Livingston )

I, hereby certify that the foregoing Ordinance was duly introduced at a Regular Meeting of the City Council of the City of Livingston on March 19, 2013, and was regularly passed and adopted by the City Council of the City of Livingston this 2"d day of April, 2013.

AYES:

NOES:

ABSENT:

ABSTAIN:

ANTONIO SILVA,

City Clerk of the City of Livingston

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