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HomeMy WebLinkAboutMINUTES - 08131996 - D12 D. 12 BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on August 13, 1996 by the following vote: AYES: Supervisors Rogers, Bishop, DeSaulnier, Torlakson and Smith NOES: None ABSENT: None ABSTAIN: None SUBJECT: Report from the Community Development Director on the status of agreements between the Kensington Community Services District and Bay View Refuse and Recycling, Inc . , and the County for the provision of solid waste and recycling services in the Kensington area. On August 6, 1996, the Board of Supervisors continued to this date consideration of a report from the Community Development Director on the status of agreements between the Kensington Community Services District and Bay View Refuse and Recycling, Inc . , and the County for the provision of solid waste and recycling services in the Kensington area. Mary Fleming, Community Development Department, presented an oral report on the above matter. Ms . Fleming presented a brief history of the request in April 1996, from Bay View Refuse and Recycling Inc . , that the County franchise with them to provide solid waste service to the Kensington area and she also commented on the options presented to the Board on June 25, 1996, three Franchise Agreements and a Memorandum of Understanding. Ms . Fleming advised that staff has prepared a Franchise Agreement that is agreeable to Bay View Refuse and Recycling, Inc . , and that they have requested input from the Kensington Community Services District on the Memorandum of Understanding. Ms . Fleming noted that there was a bit more work needed to bring everyone together and to coordinate the Kensington/Bayview Franchise Agreement and the Memorandum of Understanding. She also advised of a letter from Mr. Mark Armstrong, attorney for Bay View Refuse and Recycling,_ Inc . , requesting that the Franchise Agreement be entered into between Bay View and the County. Ms . Fleming presented the staff recommendation that the Board take testimony from interested parties, and if the Board is going to approve the Franchise Agreement with Bayview, approve that subject to approval as to form to become effective September 11, 1996, only if the Kensington Community Services District has not entered into their Franchise Agreement and there is no Memorandum of Understanding to be presented to the Board on September 10,1996 . She advised of the staff recommendation to continue the hearing to September 10, 1996, and to request that the Kensington Community Services District complete their Franchise Agreement and work with the County staff to complete the Memorandum of Understanding for return to the Board of Supervisors on September 10, 1996 . Supervisor Rogers clarified that the staff recommendation was to continue the process between the Kensington Community Services District and Bay View Refuse and Recycling, Inc . , and that the matter would be continued to September 10, 1996 . Ms . Fleming concurred. The following persons presented testimony: Jim Bray, General Manager, Kensington Community Services District; Milton B. Ketter, 4 Oak Creek Road, El Sobrante; Joan Gallegos, 239 Cambridge Avenue, Kensington; Mark Armstrong, P.O. Box 218, Danville, representing Bay View Refuse and Recycling, Inc. ; Kathy Stein, 32 Beverly Road, Kensington. Following testimony and Board of Supervisors discussion, IT IS BY THE BOARD ORDERED that consideration of the above matter is CONTINUED to September 10, 1996; and staff and the parties involved are REQUESTED to continue the process that has been on- going relative to a franchise agreement and memorandum of understanding and return to the Board on September 10, 1996; and Community Development Department staff is DIRECTED to agendize appropriate options for Board consideration on September 10 , 1996 . 1 WWw=*qW t+�w.rw.ne aawat a i.e0 � w r p' ow °ath. "-7 afebad IV aper 77 cc : Community Development Director Kensington Community Services District Bay View Refuse and Recycling, Inc. Consider with Item D.12 _ LAW OFFICES OF GAGEN, MCCOY, MCMAHON & ARMSTI?ONG WILLIAM E. GAGEN, JR. A PROFESSIONAL CORPORATION DANVILLE OFFICE GREGORY L. MCCOY 279 FRONT STREET PATRICK J. MCMAHON P. 0. BOX 218 MARK L. ARMSTRONG DANVILLE, CALIFORNIA 94526-0218 LINN K. COOMBS TELEPHONE: (510) 837-0585 STEPHEN W. THOMAS FAX: (510) 838-5985 CHARLES A. KOSS MICHAEL J. MARKOWITZ p NAPA OFFICE 8 MICHAEL W. CARTER August , 1996 1001 SECOND STREET, SUITE 315 RICHARD C. RAINES, VICTOR J. CONTI NAPA, CALIFORNIA 94559-3017 - BARBARA DUVAL JEWELL TELEPHONE: (707) 224-8396 ROBERT M. FANUCCI FAX: (707) 224-5817 ALLAN C. MOORE PATRIPLEASE REPLY TO: STEPHEN E. CURTIN Dmv le STEPHENN T. BUEHL �� ALEXANDER L. SCHMID CHARLES A. KLINGE DANIEL A. MULLER Chair Jeff Smith Contra Costa County Board of Supervisors 651 Pine Street, Room 106 Martinez, CA 94553 Re: Kensington Franchise Agreement With Bay View Refuse and Recycling Services, Inc. Dear Chair Smith: At this point, it does not appear likely that the Board of Directors of the Kensington Police Protection and Community Services District will be in a position to approve a Franchise Agreement with Bay View Refuse and Recycling Services, Inc. and a Memorandum of Understanding with Contra Costa County prior to the Board of Supervisors' meeting this coming Tuesday. That is the last Board of Supervisors' meeting until September 10, 1996. The County Franchise Agreement is in final form and Lewis Figone is prepared to sign it on behalf of Bay View. Given these circumstances, Mr. Figone requests that the Board of Supervisors on Tuesday approve the County Franchise Agreement in the form and content recommended by County staff and County Counsel. The County Franchise Agreement provides for an effective date of September 11, 1996. That should give District officials, County staff, County Counsel and Bay View more than enough time before the effective date of the County Franchise Agreement to reach agreement on the form and content of the District Franchise Agreement and the Memorandum of Understanding. Specifically, there should be enough time to allow the parties to complete negotiations and allow then for the District Board of Directors to approve both of those contracts before September 10th and the Board of Supervisors to approve the Memorandum of Understanding and rescind the County Franchise Agreement at your meeting on September 10th. Mr. Figone has been very patient and accommodating over these several months. It has been a very expensive and time-consuming process for him. He really wants to conclude this matter one way or another before he sends out his September bills. He will be very happy to franchise directly with the District if the County, Bay View and the District are all in agreement on the form and Chair Jeff Smith August 8, 1996 Page 2 content of a Memorandum of Understanding and a District Franchise Agreement. I think we are close but not there yet. In the meantime, we would like the Board of Supervisors to approve the County Franchise Agreement. If the Board of Supervisors grants our request, Lewis Figone will then at least have a franchise agreement. Right now all he has is a very short term transitional permit with the County. Board approval on Tuesday with an effective date on September 11th should also encourage the parties to reach a conclusion by September 10th on a District Franchise Agreement and a Memorandum of Understanding. On behalf of Bay View and myself, I would like to express our appreciation to the Board, County staff and County Counsel for your assistance and direction. On Tuesday, we will be prepared to answer any questions from Supervisors and relate to the Board any new developments. Thank you. Very t my yours, Mark Armstrong MLA:kh cc: Board of Supervisors Val Alexeeff Mary Fleming Lillian Fujii Jim Bray Ray McDevitt Lewis Figone FACLNEA\28117\SN=1TR KENSINGTON POLICE PROTECTION AND COMMUNITY SERVICES DISTRICT August 12, 1996 By Facsimile; Original Hand Delivered RECEIVED Chair Jeff Smith Contra Costa County Board of Supervisors AUG 13 1996 651 Pine Street, Room 106 Martinez, CA 94553 CLERK BOARD OF SUPERVISORS CONTRA COSTA CO. Subject: Kensington Franchise Agreement with Bay View Refuse and Recycling Services, Inc. Dear Chair Smith: The Kensington Police Protection and Community Services District objects to the request, made in Mark Armstrong's August 8 letter, that the Board approve a Franchise Agreement with Bay View Refuse and Recycling Services, Inc., on August 13. The District opposes the request for three reasons: 1. Approving_a Franchise Agreement with Mr. Figone's new company is unnecessary. Mr. Armstrong's letter says that, if his request is granted, "Lewis Figone will then at least have a franchise agreement. Right now all he has is a very short term transitional permit with the County." Actually, Mr. Figone has a franchise agreement already -- one with the District which he signed several years ago and which will not expire until June 30, 2009. The "transitional permit "runs until September 30, 1996. Insofar as sending out bills in September is concerned, Mr. Figone's rates will be unchanged if the County does adopt the new franchise agreement, just as they would be unless the District Board of Directors approves an increase. There is thus no urgency which requires approving the new 20-year franchise agreement with a new company tomorrow. 2. Approving a new Franchise Agreement with Mr. Figone's new company will not be helpful. The District has been working diligently during these past weeks on several fronts: Rates: As an accommodation to Mr. Figone (whose attorney voiced objections to the District's initial financial advisor), the District interviewed other accountants and consultants and selected James Arnstein, who, while with Coopers & Lybrand, assisted in the development of the Coun 's solid waste rate setting methodology. Mr. Arnstein has reviewed Bay.View records, 217 Arlington Avenue Kensington, California 94707-1401 (510) 526-4141 Chair Jeff Smith August 12, 1996 Page 2 met with Mr. Figone and Bay View's accountant and just submitted a preliminary report to the District (in draft form) on Friday. Franchise Agreement: The District's attorney, Ray McDevitt, wrote to Mark Armstrong on July 16, inquiring when Mr. Armstrong would furnish an initial draft of the Agreement, as he had been requested to do the previous week. The draft arrived on July 19. Mr. McDevitt and I reviewed it immediately and forwarded our comments to Mr. Armstrong on July 26. A second draft was received on August 2, too late to be considered by the Board at its August meeting. It is currently under review at staff level. MOU with County: The District, of course, sent a draft MOU to the County in April 1992 and never received a response for over four years. More recently, on July 16, Mary Fleming sent me a draft MOU prepared by County Counsel. I reviewed it with our legal counsel and forwarded our comments to Ms. Fleming on July 25. On August 5, I received a second draft which contained many changes from the first draft, but none made in response to our comments. Mr. Armstrong was also sent a copy of the MOU, and he also objected to at least two provisions, in a letter to Val Alexeeff sent on August 8. Mr. McDevitt and I met with County staff and County Counsel (Mr. Figone and his attorney also attended) to discuss the second draft MOU this morning. We were presented with a third draft, which again had a number of new provisions. The meeting was constructive and we are expecting to receive an updated MOU reflecting our discussions by the end of this week. The parties are either going to come together voluntarily or not at all. If anything, adopting the Franchise Agreement on Tuesday will have just the opposite effect from that suggested in Mr. Armstrong's letter -- it will be an impediment to reaching voluntary agreement. 3. Approving a new Franchise Agreement with Mr. Figone's new company would be ille al. The June 17 letter from the President of the District's Board of Directors informed you of our position that the County does not have legal authority to abrogate an existing franchise agreement entered into by a local government agency authorized by statute to provide solid waste handling services. Nothing that has come to our attention in the intervening weeks has caused us to change our position. Mr. Armstrong closes his letter by expressing appreciation to the Board, County staff and County Counsel for their assistance and direction. The District respectfully presents a modest request -- please do not extend your assistance to Mr. Figone to the point of approving a 20-year franchise r' Chair Jeff Smith August 12, 1996 Page 3 agreement with his new company in order to pressure the District to accede to his demands for higher rates and more favorable terms from the District. Thank you. i erely, LJAM M. BRAY General Manager cc: Board of Supervisors Board of Directors, Kensington Police Protection and Community Services District Val Alexeeff Mary Fleming Lewis Figone Lillian Fujii Mark Armstrong Ray McDevitt