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HomeMy WebLinkAboutMINUTES - 10221996 - C62 TO: BOARD OF SUPERVISORS CoOt'1tIYd FROM: HARVEY BRAGDON Costa DIRECTOR OF COMMUNITY DEVELOPMENT Vo DATE: OCTOBER 22, 1996 SUBJECT: Accept the report and authorize the Chair of the Board of Supervisors to sign the Franchise Agreement between the County and Bay View Refuse and Recycling Services, Inc. effective October 17, 1996 SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: Accept the staff report review of background and prior Board action. Acknowledge that no further action has been taken by the Kensington Community Services District and Bay View Refuse and Recycling Services, Inc. to reach a conclusion on negotiating a new franchise agreement between them and new collection rates. Authorize the Chair to sign the franchise agreement between Bay View Refuse and Recycling Services, Inc. FINANCIAL IMPACT The franchise agreement includes a provision for franchise fees that will help to pay for solid waste administration and recycling programs that the County will be providing in the unincorporated area. CONTINUED ON ATTACHMENT: X YES SIGNATURE: _RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF B AR COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON Oct'6ber" 22 , 1996 APPROVED AS RECOMMENDED X OTHER Lyan Wolter , 207 •:T4illamette ..Avenue , Kensington, commented on rates for the Bay View Refuse and Recycling Services , Inc . contract ; Mark. Armstrong , Attorney for Bay View Refuse and Recycling Services , Inc ._,. c_ommented on services that will be provided for in the contract . VOTE OF SUPERVISORS -- UNANIMOUS (ABSENT -- I HEREBY CERTIFY THAT THIS IS A TRUE AND AYES:I I IV V NOES: III I CORRECT COPY OF AN ACTION TAKEN AND ABSENT: ABSTAIN: ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: Val Alexeeff(510) 646-1620 cc: Growth Management & Economic Development ATTESTED October 22 , 1996 Agency(GMEDA) PHIL BATCHELOR, CLERK OF THE Community Development Department(CDD) BOARD OF SUPERVISORS AND County Counsel - S. Marchesi COUNTY ADMINISTRATOR BY ✓-, DEPUTY VA/MF/rw 0 RMF1:BV102296.bo Board Order Franchise Agreement between the County & Bay View Refuse & Recycling Services, Inc. October 22, 1996 - Page 2 - BACKGROUND On September 17, 1996, the Board of Supervisors approved a Franchise Agreement with Bay View Refuse and Recycling Services, Inc. (Bay View) for provision of solid waste services in the Kensington area. The effective date of the Agreement was set for 30 days later to allow time for the Kensington Community Services District and Bay View to reach an agreement on collection rates and on the content of a revised franchise agreement between them. Staff sent another letter to the District offering its assistance to Bay View and the District to allow them to reach consensus on a new franchise agreement between them and a memorandum of understanding with the County. Bay View submitted another written proposal to that same effect. There has been no response from the District. Instead, the District has filed a lawsuit against Contra Costa County and Bay View challenging the Board's action to approve the County's franchise agreement. The Chair and County Counsel have yet to sign the franchise agreement. Due to the press of time, staff was not able to return to the Board before October 17, 1996, the effective date of the approved franchise agreement, with a completed Board order authorizing the Chair to sign the franchise agreement. In staffs judgment, since the prior Board order did not expressly authorize the Chair to execute the agreement, and given the unusual, month long delay in the effective date of the agreement and the fact that the effective date has now been exceeded, it would be procedurally appropriate and staff recommends that this order be adopted by the Board. In that way, there will be no uncertainty or confusion, procedurally or substantively, as to the Board's final action on this franchise agreement. The fact that a lawsuit has already been filed challenging the Board's initial action on this franchise agreement is a further reason to be procedurally and substantively clear on the Board's decision and bring it to a formal conclusion. Staff recommends that the Board of Supervisors authorize the Chair to sign the attached franchise agreement. The effective date language has been eliminated since October 17, 1996 has passed. A typographical inconsistency between the agreement and its Exhibit B has been corrected. ACTION OF THE BOARD The Board of Supervisors, acting in its legislative capacity, considered the three alternatives presented by staff and the additional alternative requested by the Kensington Police Protection and Community Services District ("District"). The Board of Supervisors continued this matter 4 times for almost three months to encourage and give Bay View and the District the opportunity to resolve their differences through a new franchise agreement. The Board expressed its preference for a memorandum of understanding with the District, as allowed by County ordinance, to allow the District to continue to administer Bay View's service through its own franchise agreement with the service provider, so long as the District and Bay View resolve their differences. Staff and the Board followed and encouraged that process, which proved unsuccessful. Board members expressed their position that under the circumstances, further delay of the Board's decision on a County franchise agreement would be an unreasonable burden on Bay View and Mr. Figone, who has requested that this process be brought to a conclusion so that he could provide service with some degree of regulatory certainty. Board Order Franchise Agreement between the County& Bay View Refuse & Recycling Services, Inc. October 22, 1996 - Page 3 - Given that Bay View and the District have yet to resolve their differences, the District has stated that the only alternative acceptable to it is approval of a memorandum of understanding satisfactory to the District and the Board that allows for and does not substantially affect the continuation of the franchise agreement between Bay View Refuse Service, Inc. and the District and without requiring any amendments or changes to that franchise agreement. In making its decision, the Board has considered the testimony at the Board and Ad Hoc Solid Waste Committee meetings on this matter, the negotiations and communications between Bay View and the District, correspondence and other documents provided to the County from District representatives, Bay View representatives and other interested parties, staffs reports, opinions and recommendations, and County Counsel's advice, opinions and recommendations. Board members have also relied on their individual and County experiences in the franchising and regulation of solid waste service and their understanding of that industry in Contra Costa County jurisdictions and generally. By a majority vote, on September 17, the Board approved a County franchise agreement, recommended as to form and content by staff and County Counsel, with an effective date of October 17, 1996. The Board has made its decision to reject the District's requested alternative and to instead approve the County franchise agreement with Bay View based on reasons and rationales that include the following: 1. In the judgment of the Board, there has been a serious breakdown over the last several months in the relationship between District officials and Lewis Figone. There is a lack of trust and confidence between the parties. This situation is exemplified in several ways. For example, District officials have questioned whether Bay View is overcharging its customers for the level of services provided. Bay View contends its rates are not high enough to provide a reasonable profit. It strongly believes that its current rates are the lowest in the County for similar services in a hard to serve area with no commercial base. Some District officials believe they could get lower rates and comparable or better services if the franchise contract was put out to bid. As another example, District officials have questioned Bay View's existing service operations. Bay View wants to rely on its existing service operations which, in its view, have been refined and proven safe and reliable over the years. Also, Lewis Figone and Bay View's certified public accountant, Ed Butler, have basic disagreements with District officials and their financial consultant over the extent of operating expenses and the methodology for determining them. Despite the strong encouragement of the Board and the assistance of County staff, Bay View and District officials have been unable to resolve their differences and develop an effective, long term working relationship through a new franchise agreement. 2. In the judgment of the Board, a strong and effective working relationship has developed over the last several months between Bay View representatives, including its president, Lewis Figone, and County staff responsible for regulating solid waste collection services. There is every reasonable expectation that this relationship will continue through the term of the County franchise agreement. This will enhance stability in the delivery of service to Kensington with rates carefully reviewed by County staff. County staff is well experienced in administering solid waste collection services to the common benefit of the ratepayers, service providers and State and County interests in diversion and other solid waste related matters. Board Order Franchise Agreement between the County& Bay View Refuse & Recycling Services, Inc. October 22, 1996 - Page 4 - 3. In the judgment of the Board, Bay View is the most qualified solid waste collection service provider for Kensington. With Mr. Figone's personal experience and the experience of his children and Bay View's employees, the company is able to tailor its service to the unique requirements of the Kensington area, with its hillside homes, its narrow, steep and tree-lined streets, and its lack of any commercial base. As demonstrated by a recent customer satisfaction survey, an overwhelming majority of Bay View's customers are satisfied that the company provides Kensington with good services at a fair price. 4. Mr. Figone has expressed his concerns about continuing to provide service to the Kensington area given the disputes and uncertainties associated with a franchise agreement between Bay View and the District. In the judgment of the Board, it is in the best interests of the public for the Board to do what is reasonable to keep Bay View over the long term as the solid waste and recycling collection service provider in Kensington. The Board is concerned that continued confrontations between the District and Bay View will cause the company, voluntarily or involuntarily, to no longer be the service provider. The risk that the next provider will not be as well regarded by Kensington residents and will not satisfy the service requirements of the Kensington ratepayers as well as Bay View has done over many years is not worth taking. 5. Diversion of solid waste is an important County goal, but it is not the only County issue or concern with respect to solid waste collection services. For example, customer satisfaction with the service provider is also very important. So is assurance that service is being provided in a safe and sanitary manner. So is reasonable consistency in the administration and provision of such services throughout the unincorporated area. In any event, customer satisfaction with services and rates helps promote a successful solid waste diversion program. Providing long term security for such a service provider is in the best interests of ratepayers and the County to continue to meet diversion goals. 6. It is the judgment of the Board that, based on survey results, the level of service provided and the rates in Kensington compared to other areas in Contra Costa County and Alameda County, the more than fifty years of Bay View's experience in providing service in Kensington, and other factors, it is in the best interest of the ratepayers in the unincorporated Kensington area for the Board to enter a franchise agreement with Bay View as a reasonable step to help encourage and ensure that Bay View will remain the service provider in Kensington over the long term. In the judgment of the Board, under all the circumstances here, the best way to accomplish such a long term service commitment is through a County franchise agreement. The Board's decision for the Kensington area is based on the facts and circumstances here. It should not be considered a precedent elsewhere. 7. It is the judgment of the Board that rates for the services provided by Bay View to Kensington are very reasonable and among the lowest in the County for such service. The rates are low even though Kensington is a hard to serve area with a nominal commercial base. Under the County's franchise agreement, basic rates will remain the same for at least the next year. Board Order Franchise Agreement between the County & Bay View Refuse & Recycling Services, Inc. October 22, 1996 - Page 5 - S. In a larger context, in the judgment of the Board the presence of small service providers in Contra Costa County is of benefit to ratepayers throughout Contra Costa County, because those small providers offer an effective market counterbalance and comparison to the multi-national service providers in Contra Costa County in the County and in adjoining counties. In the judgment of the Board, providing small company service providers with long term franchise agreements encourages their continued existence and helps to assure long term market competition and the opportunity for regulators to compare services and rates. Without such franchise agreements, the ability for small service providers to compete effectively and in the long term with multi-national companies that can and do provide service in the general area is in question. 9. District officials and some residents have testified that local control of solid waste and recycling collection service is of paramount importance to Kensington residents. The Board respectfully disagrees. In the judgment of the Board, Kensington residents are more interested in securing Bay View's continuation of its quality service, which they have come to expect over the years. In the judgment of the Board, unless the County enters a franchise agreement with Bay View, there is a serious risk that the confrontations between the District and Bay View, which have not been resolved, will result at some point in Bay View no longer providing service to Kensington, or in deterioration of the quality and scope of service provided by Bay View to Kensington. Bay View historically has provided more services than required under its franchise agreement with the District (e.g., street sweeping in commercial area). In the judgment of the Board, residents and businesses will be satisfied with the quality of service and the rates for service in the future under County regulation through a franchise agreement. 10. In the judgment of the Board, if the District's requested alternative were adopted by the Board, there would be a strong likelihood of continued confrontations between the District and Bay View and substantial uncertainties in the regulatory relationship, which would ultimately be to the detriment of Kensington ratepayers. If a local regulator is unable to maintain a good working relationship with a service provider held in high regard by the area's businesses and residents, a continuation of such regulation, in particular in a small, hard to serve area, is not in the best interest of the local ratepayers. Under such circumstances, the broader perspectives of County officials may prove helpful and more effective. When there is.a breakdown between the local regulator and a long time, well regarded service provider in an unincorporated area, the Board has a responsibility to act in what it considers the best interests of the residents and businesses there to provide more certainty and decrease the prospects for confrontation in the future, notwithstanding the objections of local officials. 11. In the judgment of the Board, local input and recommendations through a Local Advisory Committee, as provided in the County franchise agreement, will provide sufficient local control. Under the terms of the County franchise agreement, County officials will have sufficient financial review and rate review authority to be assured that rates will remain reasonable through the term of the franchise. County officials also have sufficient authority under the agreement to be assured that services will continue to be tailored to meet the needs of Kensington ratepayers. Board Order Franchise Agreement between the County & Bay View Refuse & Recycling Services, Inc. October 22, 1996 - Page 6 - Lawyers for the District have alleged in the lawsuit that the County franchise agreement is a project subject to the requirements of the California Environmental Quality Act (CEQA) and that the County failed to comply with CEQA. Staff is unaware of a claim during the administrative process by the District or anyone else to that effect. The Board should be aware that staff and County Counsel evaluated the application of CEQA to the County franchise agreement requested by Bay View. Staff and County Counsel concluded that the proposed franchise agreement is not a project under CEQA, because it is not an activity which may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in the environment. Staff came to that conclusion because the franchise agreement request essentially involves a decision on which agency should regulate or administer the current provider of solid waste collection and recycling services in Kensington. Under the franchise agreement, the County has complete control to direct the scope and level of service operations including solid waste collection, recycling, green waste, and periodic clean-ups. The County has authority under the contract to review service operations, sanitation, safety, customer satisfaction and all other programs or methods for solid waste collection. County officials have substantial experience in regulating and administering solid waste collection and recycling services. There is nothing in the franchise agreement and the County's regulation of the services in Kensington that result in a direct physical change in the environment or a reasonably foreseeable indirect change in the environment. A contrary conclusion could be based only on the assumption that the County officials will not properly and professionally perform their regulatory duties. Specifically identifying additional items to be recycled, (cardboard, mixed paper, plastic film and polystyrene) as required by County ordinance, and providing for an enhanced green waste diversion program, will not result in a physical change in the environment, directly or indirectly. The program will be reviewed as it is being implemented. County officials have the ability under the contract to direct any adjustments or improvements in the program that may prove appropriate or necessary to avoid an unforeseen change in the physical environment or for other reasons, following initial experience with its implementation. Even assuming that approval of the franchise agreement is a project under CEQA, nonetheless it is exempt because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Issuance of the franchise agreement simply means that the County will now regulate and administer an existing service provider instead of the District. Services remain essentially the same. The County retains authority and control under the franchise agreement to regulate the collection services and the disposal of solid waste and recyclable items that are picked up so that the County may be assured that there is no possibility that approval of the franchise agreement may have a significant effect on the environment. In addition, the County's ability to adjust collection rates is an exempt discretionary activity under CEQA. In staffs experience with the regulation of solid waste collection and recycling services, typically franchise agreements are not considered projects under CEQA. That is in large part because such agreements regulate an ongoing and routine public service. Absent some unusual circumstances, a continuation of that service through a franchise agreement will not result in a direct or indirect physical change in the environment. As an example, the franchise agreement between Bay View Refuse Service, Inc. and the District was not evaluated as a project under CEQA either when it was first implemented or when it was amended. The fourth amendment to the agreement in 1990 added recycling to the solid waste collection service. There is no evidence that its approval was considered a project by the District to be evaluated under CEQA. In adopting this order the Board concurs with staff's previous conclusion. VA/M F/rw RMF1:BV102296.bo CONTRA COSTA COUNTY CLERK OF THE BOARD TO:. Board Members DATE: October 21, 1996 FROM: Jeanne Maglio SUBJECT: Board Agenda Item 10/22/96-C. 62 Attached are copies of the letter from the Law Offices of Hanson, Bridgett, Marcus, Vlahos & Rudy relative to Agenda Item C. 62 before you this day. The Complaint and referenced attachments are on file in the Office of the Clerk of the Board and will be available for your review upon request. jm Attachments cc: County Counsel County Administrator LAW OFFICES HANSON, BMDGETT, MARCUS, VT,---HOS & RuDY, LLP 333 MARKET STREET, SUITE, 2300 SAN FRANCISCO. CALIFORNIA 94105-2173 (415) 777-3200 RAYMOND L. HANSON ARTHUR T. BRIDGETT (RET.) FACSIMILE (415) 541-9366 (1912-1996) GERALD D. MARCUS JOHN J. VLAHOS SIDNEY RUDY WILLIAM J. BUSH RONALD C. PETERSON OF COUNSEL RICHARD N. RAPOPORT DAVID J. MILLER JACK P. WONG LAURENCE W. KESSENICK RAY E. MCDEVITT DANIEL W. BAKER DOUGLAS H. BARTON JERROLD C. SCHAEFER ROBERT E. SIMMS JAMES D. HOLDEN PAUL A. GORDON MICHAEL A. DUNCHEON WILLIAM D. TAYLOR JOHN W. BROAD FRED B. WEIL TED C. KRUMLAND CRAIG J. CANNIZZO STEVEN V. SCHNIER SARAH D. MOTT THEODORE A. HELLMAN KEVIN M. O'DONNELL . STEPHEN L. TABER JOAN L. CASSMAN STEPHEN B. PECK ALLAN D. JERGESEN KIM T SCHOKNECHT ROBERT L. RUSKY BONNIEKATHLEEN GIBSON HOWARD W. ASHCRAFT JOEL S. GOLDMAN RORY J. CAMPBELL �� JACQUELYN J. GARMAN DAVID W. BAER R ELJ MADELINE. CHUN LORA J. THIELBAR LINDA E. KLAMM PAUL F GOLDSMITH October 18 19 6 PETER L. OMYTRYK JANE WOODSIDE SUSAN G. O'NEILL PATRICK M. GLENN I IJ�� DAVID C. LONGINOTTI PAMELA S. KAUFMANN OCT Z FFF DIANE MARIE O'MALLEY JEFFREY M. CHU MICHAEL N. CONNERAN MATTHEW J. DULKA _ f JONATHAN S. STORPER WILLIAM A. HICKEYi LEE ANN M. LA FRANCE STEVEN J. LEVINE LYNN TRACY NERLAND PETER CHADWICK CLERK BOARD OF SUPERVI's01? ) ANDREW G. GIACOMINI DEBRA L. WATANUKI JAMES A. NAPOLI PATRICK T. MIYAKI CONTRA COSTA CO. MABEL NG CHARLES L. THOMPSON, IV LAURA L. HAUCK LISA M. POOLEY MICHAEL AM L. BROWN MEREDITH BE.MBROWNHTON PH LIP E. F GONE VIA EXPRESS DELIVERY SANDRA L. RAPPAPORT LISA K. PUNTILLO BEfTINA E. MOORE ERIC V. TAO ALLISON M. WOODALL GLENDA M. ZARBOCK AMY R. RATNER Supervisor Jeff Smith, District 2 651 Pine Street, Room 108A Martinez, CA 94553 Re: Kensington Police Protection and Community Services District v. Board of Supervisors, Contra Costa County and Bay View Refuse and Recycling Services, Inc. Dear Mr. Smith: We are the attorneys for Kensington Police Protection and Community Services District ("Kensington"). We are enclosing certain documents which we request you review prior to the Board of Supervisors meeting on October 22, 1996. According to the October 22.Board meeting agenda, you will have an opportunity to reconsider certain action you voted in favor of on September 17, 1996. The action in question was the Board's approval, on a 3-2 vote, of the decision to interfere with Kensington's presently existing franchise agreement with.Bay View and to have the County enter into a new agreement, the effect of which is purportedly to abrogate Kensington's exercise of its authority under State law. The Board's action was illegal and it is not defensible as a matter of public policy. As reflected in the enclosed documents, Kensington has filed suit to invalidate the Board's action and to obtain a court order prohibiting the County from interfering with the jurisdiction of independent special districts like Kensington or attempting to nullify their franchise agreements. The following documents are enclosed: 334000.1 �. Supervisor Jeff Smith, District 2 October 18, 1996 Page 2 1. Verified Petition for Writ of Mandate and for Issuance of Alternative Writ and Stay Order (CCP §1085); Complaint for Declaratory and Injunctive Relief; 2. Memorandum of Points and Authorities in Support of Petition for Writ of Mandate and for Issuance or Alternative Writ and Stay Order (CCP §1085); 3. editorial appearing in West Contra Costa Times on Wednesday, September 25, 1996, "Trampling on Local Control"; 4. letter to the editor from Supervisor Rogers appearing in the West Contra Costa Times on Thursday, October 17, 1996; 5. Kensington Police Protection and Community Service District's press release; 6. letter from the Kensington Police Protection and Community Services District to Kensington Residents dated October 10, 1996; and 7. letter from Natalie Salsig, Vice President, Kensington Improvement Club, and Ronald "Kip" Meader, President Kensington Property Owners Association to David Fike, President Kensington Police Protection and Community Services District dated October 10, 1996. On behalf of the public and Kensington, we request that the subject matter be taken off the ".consent calendar" at the meeting on October 22, 1996, and that it be fully reconsidered. We request the opportunity to be heard at the meeting. The staff report dated October 22, 1996 addressing this matter is an obvious example of an attempt to develop an "after the fact" rationalization.for final action taken on September 17, 1996. That staff and Mr. Figone's counsel saw a need to develop such an "after the fact" rationalization confirms the invalidity of what the Board has heretofore done, as well as representing a transparent and futile attempt to "clean up" a totally inadequate record. The staff report is replete with bogus arguments, wholly lacking in rationality or evidentiary support. We will submit further commentary in this regard at the Board meeting. We respectfully request that the Board take the time to carefully reconsider this matter and determine to revoke its decision to interfere with Kensington's existing franchise agreement. Regardless of the Board's purported rationale for its action, State law does not permit the County Board of Supervisors to supplant or take over the jurisdiction of an independent special district like Kensington, where the jurisdiction has been exercised and where a valid franchise agreement is in effect. If the Board proceeds nonetheless, it will simply impose unnecessary legal expense 334000.1 Supervisor Jeff Smith, District 2 October 18, 1996 Page 3 on the County, on Mr. Figone, and on Kensington. It would seem that the County would have better use for its resources. We request that the Board reconsider and set aside its action. Yours truly, Michael A. Duncheon MAD:sey Enclosures cc: West Contra Costa Times Mark Armstrong, Esq. Lillian Fujii, Esq. Supervisor Jim Rogers Supervisor Gayle Bishop Clerk, Board of Supervisors 334000.1 1 HANSON, BRIDGETT, MARCUS; VLAHOS & RUDY MICHAEL A. DUNCHEON - 65682 2 333 Market Street, Suite 2300 �, r , San Francisco, California 94105-2173 } ' ' C" ` f P 3 (415) 777-3200 4 Attorneys for Petitioner, KENSINGTON POLICE PROTECTION AND COMMUNITY SERVICES�Y- 5 DISTRICT 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF CONTRA COSTA 10 11 KENSINGTON POLICE PROTECTION AND ) Nqi 96 - 04574 COMMUNITY SERVICES DISTRICT, ) 12 ) VERIFIED PETITION FOR WRIT Petitioners and Plaintiff, ) OF MANDATE AND FOR ISSUANCE 13 ) OF ALTERNATIVE WRIT AND VS. ) STAY ORDER (CCP §1085) 14 ) BOARD OF SUPERVISORS, CONTRA COSTA ) COMPLAINT FOR DECLARATORY 15 COUNTY, Does 1 through 25, ) AND INJUNCTIVE RELIEF 16 Respondents and defendants. . 17 BAY VIEW REFUSE AND RECYCLING ) PER'LOC RULE 5 THIS SERVICES, INC. ) CASE IS NED TO 18 ) DEPT Real Party in Interest and ) 19 Defendant. ) 20 21 INTRODUCTION 22 Petitioner, KENSINGTON POLICE PROTECTION AND COMMUNITY 23 SERVICES DISTRICT ("KENSINGTON") , respectfully petitions the 24 Court for a writ of mandate, under Code of Civil Procedure §1085, 25 directed to Respondent BOARD OF SUPERVISORS, CONTRA COSTA COUNTY 26 ("COUNTY") , to set aside and rescind its motion of September 17 , 27 1996, approving a proposed franchise agreement between Bay View 28 Refuse and Recycling Services, Inc. and Contra Costa County for 330179.2 1 the collection of solid waste in the KENSINGTON area, effective 2 thirty (30) days after adoption. Petitioner seeks mandate on the 3 grounds that said action was taken illegally, arbitrarily and 4 capriciously, in excess of Respondent's jurisdiction and in an 5 abuse of discretion, in that KENSINGTON has the statutory 6 authority to regulate and arrange for the collection of solid 7 waste in the KENSINGTON area, in that KENSINGTON has exercised 8 that authority by entering into a franchise agreement with Bay 9 View Refuse Service, Inc. , which agreement is presently in effect 10 and remains in effect until the year 2009 , and in that the 11 franchise agreement approved by Respondent purports to abrogate 12 and supersede the franchise agreement heretofore entered into by 13 KENSINGTON. Petitioner also seeks declaratory and injunctive 14 relief to invalidate said action and to enjoin its 15 implementation. 16 THE PARTIES 17 1. Petitioner and plaintiff, KENSINGTON, is a community 18 services district and local public entity duly organized and 19 existing under the laws of the State of California, Government 20 Code Sections 61000 et seq. 21 2 . KENSINGTON exercises its statutorily conferred 22 jurisdiction and authority over an area generally located 23 adjacent to and north of the City of Berkeley, California, within 24 the boundaries of Contra Costa County. Said area is herein 25 referred to as the KENSINGTON area. Approximately 6000 people 26 reside in the KENSINGTON area. 27 3 . Respondent and Defendant, COUNTY, is the legislative . 28 body governing Contra Costa County. Contra Costa County is a Verified Petition for Writ - 2 - 330179.2 of Mandate 1 general law county and political subdivision of the State of 2 California. 3 4 . Real Party in Interest and Defendant, BAY VIEW REFUSE 4 AND RECYCLING SERVICES, INC. ("BAY VIEW I") , is a California 5 corporation organized and existing under the laws of the State of 6 California. BAY VIEW I is a party to the franchise agreement 7 which was illegally approved in the challenged motion and into 8 which COUNTY proposes to illegally enter. Petitioner is informed 9 and believes that the sole owner of BAY VIEW I is Lewis Figone. 10 5 . The true names and capacities of Respondents and 11 Defendants named herein as Does 1. through 25 are unknown to 12 Petitioner, who therefore sues such Respondents by these 13 fictitious names. Petitioner will seek leave of court to amend 14 this petition and complaint to show the true names and capacities 15 of the Respondents designated as Does, together with appropriate 16 changing allegations, at such time as Petitioner has ascertained 17 said names and capacities. Petitioner is informed and believes, 18 and on that basis alleges, that each of this fictitiously named 19 parties is responsible in some manner for the acts complained of 20 herein. 21 GENERAL ALLEGATIONS 22 6. As a community services district established pursuant 23 to Government Code §61000, et sem. , KENSINGTON has the statutory 24 authority to collect and dispose of solid waste (Government Code 25 Section 61600) . and to enter into contracts for any and all 26 purposes necessary or convenient for the full exercise of its 27 powers (Gov. Code §61616, §61622) : 28 7. The California Integrated Waste Management Act, Public Verified Petition for Writ - 3 - 330179.2 of Mandate 1 Resources Code §40000 et ' seg. , confirms that special districts 2 like KENSINGTON have and retain authority to provide for solid 3 waste collection and handling within their jurisdiction (Pub. 4 Res. Code §§40002, 40150, 40057, 40059. ) KENSINGTON has provided 5 for solid waste collection and disposal, as well as recycling, 6 through an exclusive franchise agreement entered into with 7 Bayview Refuse Service, Inc. (Bayview) in 1981. Petitioner is 8 informed and believes that the sole owner of Bay View is Lewis 9 Figone. This franchise agreement does not allow for termination 10 for convenience. It is presently in full force and effect. It 11 extends to the year 2009 . 12 8 . Under its Franchise Agreement with Bay View, 13 KENSINGTON reviews and approves or disapproves increases in the 14 rates charged by Bay View to residents of KENSINGTON, and 15 otherwise regulates the collection and disposal of solid waste in 16 that area. In 1995 Bay View requested a rate increase of 11% for 17 January, 1996, and a further increase of 3% in January, 1997 , for 18 a total requested increase of 14% over two years. . In its 19 initial review, the Board of Directors of KENSINGTON raised 20 questions as to. the justification for the requested increase. In 21 accordance with the franchise agreement which was in effect, 22 KENSINGTON requested further information from Bay View. The 23 information submitted by Bay View was analyzed by independent 24 consultants retained by KENSINGTON. This information submitted 25 by Bay View did not appear to justify the magnitude of the 26 requested rate increase. KENSINGTON requested additional 27 information and raised questions which it wished the franchisee 28 to address. Instead of .supplying the requested information to Verified Petition for Writ — 4 — 330179.2 of Mandate 1 KENSINGTON, and addressing the outstanding questions Bay View 2 withdrew its request for a rate increase. 3 9 . Petitioner is informed and believes and thereupon 4 alleges that the sole owner of Bay View and BAY VIEW I, Mr. Lewis 5 Figone, then contacted members of the Board of Supervisors of 6 Contra Costa County. Mr. Figone requested that the COUNTY enter 7 into a direct contract with BAY VIEW I, a new company formed by 8 Mr. Figone for that purpose. As a result of Mr. Figone's 9 lobbying, Respondent, on a 3-2 vote, adopted the challenged 10 motion approving the franchise agreement with BAY VIEW I . 11 10. The challenged motion was adopted on September 17, 12 1996. A true and correct copy of an official record of the 13 Respondent showing the adoption of said motion is attached as 14 Exhibit "A. " Attached as Exhibit "B" is a true and correct copy 15 of the proposed franchise agreement between COUNTY and BAY VIEW 16 I . By this franchise agreement, Respondent purports to abrogate 17 and supplant the franchise agreement presently in effect between 18 KENSINGTON and Bay View, and to enter into a superceding 19 franchise agreement with BAY VIEW I for the collection and 20 disposal of solid waste in the Kensington area. 21 11. KENSINGTON, under its franchise agreement with Bay 22 View, charges Bay View franchise fee of $2 , 000 per year. Under 23 the franchise agreement proposed to be entered into by Respondent 24 COUNTY, the COUNTY will charge BAY VIEW I a franchise fee of at 25 least $30, 000 per year. This significantly increased franchise 26 fee will be borne ultimately by KENSINGTON residents in the form 27 of higher rates. 28 12 . KENSINGTON is informed and believes and thereupon Verified Petition for Writ - 5 - 330179.2 of Mandate 1 alleges that officers, shareholders, directors, agents, or 2 attorneys of BAY VIEW I have made significant campaign 3 contributions to or for the benefit of the members of Respondent 4 who voted in favor of the motion challenged herein. 5 13 . If the franchise agreement between the Respondent 6 COUNTY and BAY VIEW I goes into effect, the COUNTY will take over 7 from the Board of Directors of Kensington the authority to 8 regulate future rate increases to be imposed on the residents of 9 the Kensington area and to regulate the collection of solid waste 10 from the Board of Directors of KENSINGTON. The Board of 11 Directors of KENSINGTON are elected officials residing in 12 KENSINGTON. The members of the Board of Supervisors of COUNTY 13 are elected by district, countywide. None of the present members 14 of the Board of Supervisors of COUNTY reside in KENSINGTON. 15 COUNTY' S ILLEGAL ACTS 16 14 . COUNTY has a legal duty to exercise its powers in 17 accordance with the general laws of the State of California and 18 not to take any action that conflicts with the State's general 19 laws. In adopting the challenged motion, COUNTY has violated 20 this legal duty by purporting to ignore and abrogate the existing 21 franchise agreement duly and lawfully entered into by KENSINGTON 22 with Bay View and by purporting to supplant the lawful and proper 23 exercise of general law authority duly conferred upon and 24 exercised by KENSINGTON. COUNTY's action which is herein 25 challenged is illegal, arbitrary, capricious, an abuse of 26 discretion, and in excess of COUNTY lawful authority and 27 jurisdiction. COUNTY has a legal duty to set aside and rescind 28 the subject motion and to not enter into the proposed franchise Verified Petition for Writ - 6 - 330179.2 of Mandate 1 agreement with BAY VIEW I 2 15. At all times pertinent, Respondent has been able to 3 perform its legal duty to comply with the law. Notwithstanding 4 this ability and over Petitioner's objection, Respondent has 5 failed and refused to do so and it persisted in adopting the 6 challenged motion and in proposing to enter into the illegal 7 franchise agreement with BAY VIEW I. 8 BENEFICIAL INTEREST 9 16. KENSINGTON is beneficially interested in the issuance 10 of the requested writ because it is a party to the existing 11 franchise agreement which the COUNTY's action purports to 12 abrogate. Under that agreement and under its governing statutes, 13 KENSINGTON has the authority and the duty to provide for and 14 regulate the collection of solid waste in the KENSINGTON area. 15 The COUNTY's action challenged herein, if not set aside, prevents 16 and precludes KENSINGTON from exercising its contractual rights 17 and its statutory authority for the benefit of its residents. 18 17 . KENSINGTON has no administrative remedy and no appeal . 19' KENSINGTON has no plain, speedy and adequate remedy in the 20 ordinary course of law, other than the relief sought in this 21 petition. 22 18 . KENSINGTON requests the issuance of an alternative 23 writ of mandate staying the effective date of the COUNTY's motion 24 and the proposed franchise agreement with BAY VIEW I , pending 25 issuance of the requested peremptory writ of mandate requiring 26 Respondent COUNTY to set aside and rescind the challenged motion 27 and prohibiting Respondent from entering into said franchise 28 agreement. KENSINGTON will be irreparably harmed if the Verified Petition for Writ - 7 - 330179.2 of Mandate 1 requested stay is not issued because the COUNTY's proposed 2 franchise agreement with BAY VIEW I supplants and abrogates 3 KENSINGTON's existing franchise agreement with Bay View, and 4 because it purports to preclude and interfere with KENSINGTON's 5 exercise of its statutory authority over the collection of solid 6 waste in the KENSINGTON area. 7 CLAIM FOR DECLARATORY RELIEF 8 19 . Petitioner incorporates by reference the allegations 9 of paragraph 1-18 hereof. 10 20. An actual dispute and controversy has arisen between 11 Petitioner and Respondent COUNTY in that petitioner contends that 12 the challenged motion and proposed franchise agreement with BAY 13 VIEW I are illegal, arbitrary, capricious, an abuse of discretion 14 and in excess of Respondents jurisdiction, and invalid. 15 Petitioner further contends that its existing franchise agreement 16 with Bay View is valid, lawful and in full force and effect. 17 Respondent COUNTY contends the contrary. 18 21. A declaration of the rights and duties of the parties 19 is necessary to establish that the COUNTY's challenged resolution 20 and COUNTY's proposed franchise agreement with BAY VIEW I are 21 illegal, void and invalid, and that the existing franchise 22 agreement between Petitioner and Bayview is valid and in full 23 force and effect. Petition requests that the Court issue such a 24 declaration. 25 CLAIM ARISING UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT 26 22 . KENSINGTON incorporates by reference the allegations 27 of paragraphs 1-18 hereof. 28 23 . COUNTY's adoption of the challenged motion and its Verified Petition for Writ - 8 - 330179.2 of Mandate 1 proposed entering into a'-franchise agreement with BAY VIEW I 2 constitutes action (a "project") which is subject to the 3 requirements of the California Environmental Quality Act (CEQA) . 4 24 . COUNTY's action may have a substantial effect on the 5 environment for the following reasons: it lacks the requirement 6 currently found in the existing KENSINGTON/Bay View franchise 7 agreement that all recyclable materials which are picked up by 8 the franchisee actually be recycled (and not just dumped with 9 other household trash) ; it materially reduces the number and 10 volume of curbside pick-ups of household materials which may lead 11 to a buildup of unwanted items, potentially causing fire hazards 12 and illegal dumping; it lacks provisions regulating: (i) noise 13 from trash-hauling operations, (ii) vehicle maintenance, (iii) 14 cleanliness, and (iv) litter prevention. 15 25. COUNTY made no attempt to comply with CEQA in taking 16 the action herein challenged, undertook no assessment or initial 17 study as to whether the project may have a substantial effect on 18 the environment, made no indication that the project was exempt 19 from CEQA, published no notices as required under CEQA, did not 20 issue a negative declaration, and did not prepare or cause to be 21 prepared an environmental impact report. 22 26. KENSINGTON objected both orally and in writing to the 23 COUNTY's proposed actions and has exhausted its administrative 24 remedies. 25 27 . Consequently, COUNTY, by adopting the motion and 26 entering into the proposed franchise agreement with BAY VIEW I, 27 has failed to proceed in a manner as required by law, has made a 28 decision that is not supported by substantial evidence in the Verified Petition for Writ - 9 - 330179.2 of Mandate 1 record, and has violated' CEQA. Said action should therefore be 2 invalidated and enjoined. 3 28 . KENSINGTON has properly notified COUNTY of its 4 intention to file this action, pursuant to the notice required by 5 Public Resources Code §21167 . 5. 6 ATTORNEYS' FEES 7 29 . Pursuant to CCP §1021. 5 and other applicable law, 8 KENSINGTON, having acted as a private attorney general and on 9 behalf of its residents, requests an award of reasonable 10 attorneys' fees incurred by it in bringing and prosecuting this 11 action. 12 PRAYER FOR RELIEF 13 WHEREFORE, petitioner and plaintiff, KENSINGTON, prays for 14 relief as follows: 15 1. An alternative writ issue, ex parte, ordering . 16 respondent COUNTY to set aside and rescind its motion of 17 September 17 , 1996, which approves a franchise agreement between 18 Bay View Refuse and Recycling Service, Inc. and Contra Costa 19 County for the collection of solid waste in the KENSINGTON area, 20 or, in the alternative, to show cause why a peremptory writ of 21 mandate should not issue directing it to do so, and staying the 22 effective date of the motion and the proposed franchise agreement 23 pending a decision on issuance of the requested peremptory writ. 24 2 . A peremptory writ of mandate ordering Respondent 25 COUNTY to set aside and rescind said motion and prohibiting the 26 entering into of the proposed franchise agreement between COUNTY 27 and 'Bay View Refuse and Recycling Service, Inc. 28 3 . For a declaration of the rights, duties and Verified Petition for Writ - 10 - 330179.2 of Mandate 1 obligations of the parties to the effect that said motion is 2 illegal and invalid, that the proposed franchise agreement 3 between COUNTY and Bay View Refuse and Recycling Services, Inc. 4 may not be entered into, and that KENSINGTON's franchise 5 agreement with Bay View Refuse Service, Inc. is valid and in full 6 force and effect. 7 4 . For a declaration invalidating and enjoining the 8 challenged motion and the proposed franchise agreement on the 9 grounds that the COUNTY failed to comply with CEQA. 10 5. For equitable relief and a permanent injunction 11 requiring COUNTY to comply with its legal duties as declared and 12 determined by the court. 13 6. For an award of costs and reasonable attorneys' fees 14 to KENSINGTON. 15 7 . For such other and further relief as may be just and 16 proper. 17 Dated: October 1996 HANSON, BRIDGETT, MARCUS, VLAHOS & RUDY 18 19 By: Michael A. Duncheon 20 Attorneys for Petitioner KENSINGTON POLICE PROTECTION 21 AND COMMUNITY SERVICES DISTRICT 22 23 24 25 26 27 28 Verified Petition for Writ 330179.2 of Mandate 1 VERIFICATION 2 I, JIM BRAY, declare: 3 ' I am the general manager of KENSINGTON POLICE PROTECTION 4 AND COMMUNITY SERVICES DISTRICT ("KENSINGTON") , petitioner and 5 plaintiff herein. I am authorized to execute this verification 6 on behalf of KENSINGTON. I have read the foregoing Verified 7 Petition For Writ of Mandate And For Issuance Of Alternative Writ 8 And Stay Order and know the contents thereof and the same is true 9 of my own knowledge, except matters alleged on information and 10 belief, which matters I believe to be true. 11 I declare under penalty of perjury the foregoing is true 12 and correct. 13 Executed on October 8 , 1996 in--the­ C6un of Contra 14 Costa. 15 Y 16 17 18 19 20 21 22 23 24 25 26 27 28 331677.1 OCT-09-19% 09:18 FROM ZRNDONELLR REPORTING SERV TO 1415541.9366 P.02 SUMMARY OF THE PROCEEDINGS BEFORE THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY MEETING IN ALL ITS CAPACITIES PURSUANT TO ORDINANCE CODE SECTION 24-20402 TUESDAY' SEPTEMBER 17, 1996 CLOSED SESSION: No reportable action taken- CONSENT ITEMS: Approved as listed except as noted below: C.8 DELETED from consideration SUB 7178: to accept completion of improvements and declare certain roads for subdivision being developed by Kevin Morrison and Paulette (Morrison) Zamora, Clyde area. C.9 DELETED from consideration SUB 7027: to accept completion of improvements and declare certain roads as County roads for subdivision being developed by Kevin Morrison and Joseph Zamora, Clyde area. C.14 DELETED; to be relisted to the September 24, 1996, Board agenda, the request to approve and authorize the Public Works Director to execute a second amendment to the lease with Buchanan East Hangar Company at the Buchanan Field Airport, Concord area; and DIRECTED the Public Works Director to provide a summary of the facts in this matter for Board consideration at the September 24, 1996 Board meeting. C.16 DELETED from consideration the request to approve Consulting Services Agreement with Paragon Project Management, Inc., for expert testimony regarding litigation on Drainage Area 40A storm drain project, Martinez area. 7C.41 APPROVED and AUTHORIZED the Health Services Director, or designee, to execute the Master Grant Agreement with the State Department of Health Services in the amount of$1,176,719 to fund the County's AIDS program through June 30, 1997, and to execute a Memorandum of Understanding for each component of the County's AIDS Program upon receipt of each document from the State Department of Health Services; and DIRECTED the Health Services Director to provide a comprehensive report to the Board by the end of October on the County's consolidated efforts to combat the spread of AIDS through AIDS prevention and medical care. C.66 REFERRED to the Internal Operation Committee for review and report to the Board the request to authorize the Public Works Director and the General Services Director to order changes to construction contracts subject to the provisions of the Public Contract Code. PRESENTATIONS: Approved.as fisted. 1 (09-17-1996 -Sum) OCT 09 '96 10:23 4 (.� 1 PAGE.002 OCT-04-96 THU 12:13 PM KENSINGTON 510 526 1028 P. 10 SHORT DISCUSSION ITEMS: Approved as listed except as noted below: SD.1 CORRECTED to read: CONSIDER approval of the Community Development Director's report on the Contra Costa Transportation Authority's proposed process for the allocation of Transportation bund for Clean Air and Measure C-1988 Carpool funds. SD.2 CORRECTED to read: CONSIDER approval of the Community Development Director's report on the draft Measure C-1988 Regional Transportation Mitigation Program for the Central County area. (AYES: IV, V and II; NOES: I and III; ABSENT:None; ABSTAIN: None) SD.3 DIRECTED the County Administrator's Office and County Counsel to develop a policy for reporting significant incidents/actions involving a County department to the Board of Supervisors and provide a report to the Board of Supervisors within 60 days. DELIBERATION ITEMS: Approved as listed except as noted below: DA ACCEPTED report from the Health Services Director on the recent incidents on I and J Wards at Merrithew Memorial Hospital; and DIRECTED staff to regularly place this issue on the Medical Services Joint Conference Committee agenda and provide reports to the Board of Supervisors on the results of the discussions. D.8 APPROVED Recommendation No. 1, and Alternative Il to Recommendation No. 2, as presented by the Internal Operations Committee in response to Report No. 9610 of the 1995-96 Grand Jury. D.9 CONTINUED to September 24, 1996, consideration of issues, including legal concerns, regarding the proposed consolidation of the Moraga and Orinda Fire Protection Districts into a new independent district. D.10 CONTINUED to September 24, 1996, the staff report concerning the Hazardous Materials Commission; and consideration relative to the Hazardous Materials band Use Ordinance, and the work of the Ad Hoc Industrial Safety Committee. D.11 CONSIDERED introducing an ordinance to change the timeline for opting into debt retirement cycle.portion of the Campaign Spending Reform Ordinance in view of the September 20, 1996 deadline for candidates to make a decision on this issue.NO ACTION WAS TAKEN. D.12 APPROVED the Franchise Agreement between Bay View Refuse and Recycling Inc. and the County for collection of solid waste in the Kensington area to become effective in 30 days. (AYES: IV, V and II; NOES: I and III; ABSENT:None; ABSTAIN:None). D.13 Public Comment: The Chair read a letter from William and Samuel Smith, 31I-1st Avenue So., Pacheco, concerning abatement of their property. 2 (09-17-1996 -Sum) OCT 04 '96 12: 10 510 526 1028 PAGE-010 FRANCHISE AGREEMENT WITH BAY VIEW REFUSE AND RECYCLING SERVICES, INC. CONTRA COSTA COUNTY EXFlwv"vTiLli+ri► TABLE OF CONTENTS 1. 'EFFECTIVE DATE, PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 a. Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 b. Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C. Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 d. Commercial Solid Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 e. Contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 f. County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 g. Customers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 h. Designated Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Franchise Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 j. Hazardous Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 k. Industrial Wast(: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Infectious Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 M. Recycle or Recycling . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 n. Residential Solid Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 o. Septage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P. Solid Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 q. Waste Stream . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL . . . . . . . . . . . . . . . . . 3 5. EXCLUSIVE PRIVILEGE AND DUTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S RIGHT TO EXAMINE RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 8. RATES . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9. RATE APPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10. OPERATION BY CONTRACTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. 11. LIMITATION ON TIME AND MANNER OF COLLECTION . . . . . . . . . . . . . . . . 7 . i 12. CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 13. CUSTOMER SERVICE STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 14. LOCAL ADVISORY COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. 1. Utilize County Rate Setting Methodology . . . . . . . . . . . . . . . . . . . 10 2. Utilize Diversion Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3. Method of Recycling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4. Household Hazardous Waste. . .. . . . . . . . . . . . . . . . . . . . . . . . . .11 B. AB 939 Implementation and Tracking . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1. Data Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 2. Program Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 15. CUSTOMER COMPLAINTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 16. BILLING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 17. RECYCLING . . . . . . . . . . . 13 18. FREE SERVICE FOR COUNTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 19, FRANCHISE AREA-WIDE COLLECTION . . . . . . . . . . . . . . . . . . . . . . . . . 14 20, PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS . . . . . . . . . . . . . . 15 21, DISPOSAL AND WASTE STREAM CONTROL . . . . . . . . . . . . . . . . . . . . . . . 15 22, MISCELLANEOUS OBLIGATIONS OF CONTRACTOR . . . . . . . . . . . . . . . . . 15 23. ADMINISTRATIVE SERVICES AND FRANCHISE FEES . . . . . . . . . . . . . . . . 15 24. HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . 16 25. PRELIMINARY DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 26. FAITHFUL PERFORMANCE BOND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 27. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 28. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 a. Complete Indemnification of County . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 b. Defense of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 29. ATTORNEY'S FEES 18 ii 30. ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 31. INVOLUNTARY ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 32. NOTICE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 33. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES . . . . . 20 '34. AFFILIATED ENTITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 35. BREACH AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 36. EMERGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 37. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS . . . . . . . . . . . . 23 38. AMENDMENT OR MODIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 39. POLICE POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 40. CONTEST OF AGREEMENT'S TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 41. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 42. WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 43. SURVIVAL OF OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44. NEW AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 45. -ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 iii FRANCHISE AGREEMENT WITH BAY VIEW REFUSE AND RECYCLING SERVICES, INC. 1. EFFECTIVE DATE, PARTIES. This Agreement is binding between the County and the below named Contractor and is effective on September 11,1996. 2. DEFINITIONS. As used.herein, the following terms shall have the meanings set forth below: a. Agreement. Agreement means this Agreement by and between the County and Contractor for the collection, removal and disposal of solid waste and the recycling of material. b. Act. Act means the Califomia Integrated Waste Management Act of 1989 (Public Res. Code, § 40000 et seq.) and all rules and regulations adopted under any of those sections, as such sections, rules and regulations may be amended from time to time in the future. C. Board. Board means the Board of Supervisors for the County of Contra Costa. d. Commercial Solid Waste. Commercial Solid Waste means Solid Waste routinely originating from stores, business offices and other commercial and light industrial sources excluding residences and any wastes from heavy industry (i.e., industry that manufactures or processes petroleum, lumber, steel, chemicals, explosives, fertilizers, gas, rubber, cement, sugar and other such products [see section 84-60.402 of the Contra Costa County Ordinance Code.]). e. Contractor. Contractor means Bay View Refuse and Recycling Services, Inc., a California Corporation. It is the entity which has been granted an exclusive franchise pursuant to the terms and conditions set forth herein. Lewis Figone is president and owns 100% of the stock in Bay View Refuse and Recycling Services, Inc. Lewis Figone is also president and owns 100% of the stock in Bay View Refuse Service, Inc., the corporation that is providing waste collection and recycling services to the Kensington franchise area up to the effective date of this Agreement, based on a contract with the Kensington Police Protection and Community Services District. f. County. County means the County of Contra Costa. g. Customers. Customers means those who receive service from the Contractor for the collection of materials for recycling and/or for the collection, removal, or disposal of Solid Waste, pursuant to this Agreement and applicable ordinances of County, including mandatory subscription ordinances. h. Designated Waste. Designated Waste as used herein has the meaning set forth in section 2522 of Title 23 of the California Code of Regulations, as amended from time to time. i. Franchise Area. Franchise Area means the geographic area generally known as the unincorporated community of Kensington in West Contra Costa County described in Exhibit A to this Agreement with Bay View Refuse and Recycling Services, Inc. The Community Development Department may maintain six hundred (600)-scale maps reflecting the Franchise Area. Exhibit A and/or the six hundred (600)-scale maps may be amended from time to time to reflect changes of boundaries of the Franchise Area in such a manner as to identify each alteration to the Franchise Area and the effective date thereof. j. Hazardous Waste. Hazardous Wastes include any waste material or mixture of wastes which is toxic, corrosive, flammable, an irritant, or a strong sensitizer, which generates pressure through decomposition, heat or other means, if such a waste or mixture of wastes may cause substantial personal injury, serious illness or harm to humans, domestic animals, or wildlife, during or as a proximate result of any disposal of such wastes as defined in Article 2, Chapter 6.5, Section 25117 of the Health and Safety.Code and 14 Cal.Code Regs., § 17225.32. The terms "toxic," "corrosive," "flammable," irritant," and "strong sensitizer" shall be given the same meaning as in.the California Hazardous Substances Act (Chapter 4 commencing with Section 108100 of Part 3 of Division 104 of the Health and Safety Code). k. Industrial Waste. Industrial Waste includes all types of Solid Waste which result from industrial processes and manufacturing operations and/or which originates from such facilities. I. Infectious Waste. Infectious Wastes include: (1) Equipment, instruments, utensils and other fomites of a disposable nature from the rooms of patients who are suspected to have or have been diagnosed as having a communicable disease and must, therefore, be isolated as required by public health agencies; (2) laboratory wastes, including pathological specimens (i.e., all tissues, specimens of blood elements, excreta and secretions obtained from patients or laboratory animals) and disposable fomites (any substances that may harbor or transmit pathogenic organisms) attendant thereto; (3) surgical operating room pathologic specimens - including 2 recognizable. anatomical parts, human tissue, anatomical human remains and disposable materials from hospital, clinics, outpatient areas and emergency rooms, as is also defined in Section 314(d) of the California Administrative Code, Title 17 (14 Cal.Code Regs., § 17225.36). M. Recycle or Recycling. Recycle or Recycling means the process of collecting, sorting, cleaning, treating and reconstituting materials and recovering them so that they may be used in the form of raw material for new, reused, or reconstituted products. n. Residential Solid Waste. Residential Solid Waste means Solid Waste routinely originating from single family or multiple family dwellings. Residential Solid Waste includes household hazardous waste, but does not include septage. o. Septage. Septage means non-sewered liquid or semi-liquid waste which may be trucked to treatment facilities for disposal, to include, but not be limited to, waste from residential septic tanks, commercial grease clean-outs, and industrial waste holding facilities. p. Solid Waste. Solid Waste has the meaning set forth in Section 40191 of the California Public Resources Code as of the date of execution of this Agreement. Solid Waste includes, but is not limited to, all putrescible and nonputrescible solid; semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid and semisolid wastes and other discarded solid and semisolid wastes. "Solid Waste" does not include infectious, designated, and hazardous waste, except household hazardous waste. q. Waste Stream. Waste Stream means the Solid Waste to be collected under this Agreement from the time of its collection by the Contractor to its disposal at a landfill or, at County's discretion, delivery to a transfer facility or other facility by Contractor. 3. TERM. Subject to section 33 (Annexation and Change of Franchise Area Boundaries) and section 35 (Breach and Termination) , the term of this Agreement and the exclusive franchise granted hereunder shall be 20 years, commencing on the effective date first mentioned in section 1 of this Agreement. 4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The parties hereto agree 3 that County currently has jurisdiction to regulate the collection, removal and disposal of all Solid Waste, and the recycling of all material in the Franchise Area. The intent of this Agreement is to regulate Solid Waste handling service and recycling of material in the Franchise Area. Consistent with State law and County ordinance, this Agreement is intended to and shall supersede the "Contract With Relation To Collection And Disposal Of Garbage Between Bay View Refuse Service, Inca and the Kensington Community Service District", as amended. 5. EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by law, County hereby grants to Contractor the exclusive privilege and duty within the Franchise Area to collect, and remove for disposal and recycling, all residential and commercial Solid Waste, including recyclable materials, and to charge and receive charges therefor, pursuant to and subject to the terms of this Agreement. Contractor promises and agrees to perform the responsibilities and duties set forth herein. The Franchise Area may be expanded or reduced in size by mutual agreement of the parties, or as provided in section 33 (Annexation and Change of Franchise Area Boundaries) of this Agreement. 6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive privilege granted by this Agreement shall riot apply if: a. A person or entity generates Solid Waste, including recyclable materials, and personally collects, removes and disposes or recycles such in a clean and sanitary manner in conformance with all applicable laws and regulations, including mandatory subscription ordinances. This exception shall not apply to a person who incurs a net cost of collection to a third person in the above described activities; or b. A person or entity contracts with a third person for the removal and disposal or recycling of inorganic refuse or garden waste (a "Non-Franchised Contractor") and such removal and disposal or recycling is solely incidental to work such as remodeling or gardening occasionally performed by or for the customer. This exception shall not apply if the Non-Franchised Contractor incurs a net cost of collection to any third person in connection with its collection and/or disposal of said Solid Waste.. 7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S RIGHT TO EXAMINE RECORDS. Contractor shall maintain a proper set of books and records in accordance with generally accepted accounting principles, accurately reflecting the business done by it under this Agreement. Contractor shall further maintain and make available to County, upon its request, records as to number of Customers, total and by type, route maps, service records and other materials and operating statistics in such manner and with such detail as 4 County may require. County shall treat the information required by this paragraph that affects the competitive position of the company as confidential information to the extent permitted by law. County may at any time during the term of this Agreement, have the books and records of the Contractor examined by a County Agent or Agents (as defined hereinbelow) appointed for that purpose by the County. County shall give thirty (30) days written notice to the Contractor of such examination date. County expenses incurred under this section shall be paid by Contractor subject to their recovery through the rates allowed by the County hereunder. The information required by this section shall pertain to Contractor's operations covered and regulated by this Agreement, and nothing contained herein shall require the Contractor to provide the County with information pertaining to the Contractor's operations which are not regulated by the County, except in conformance with this section. County's Agents may examine Contractors books, records and financial statements pertaining to operations not regulated by the County as may be reasonably required for the sole purpose of gathering information necessary to allow the Agents to ascertain whether income, expenses, assets and liabilities are reasonably and consistently allocated among operations regulated by County and thosenot regulated by the County. Contractor shall obtain County's written approval of its method of segregating its financial records between County-regulated and non- County regulated operations. County shall not unreasonably withhold such approval. To the extent allowed by law, information gained from examination of records pertaining to operations not regulated by the County shall be treated by County and its Agents as confidential information. For the review of books and other financial records necessary to verify the Contractor's income, expenses, assets and liabilities, "County Agent" shall mean County employees or any independent Certified Public Accountant or public accountancy firm. For all other information or records, including the results of financial verification, "County Agent" shall mean any consultant designated by the County or County employees. Nothing in this section will prevent County from allowing public access to County records as provided for under the California Government Code, and in the event any dispute arises as to the public access to information provided by Contractor under the terms of this Agreement, the County shall in its discretion provide public access to said information according to law or tender the defense of any claims made against the County concerning said information to Contractor. Prior to releasing any information pursuant to this paragraph, County shall make a good faith effort to notify Contractor of the intended release. 5 i • 8. RATES. Rates shall be fixed by the County from time to time. In determining the rates, the County shall consider fairness to both Contractor and the Customers. Reasonable costs incurred by Contractor pursuant to this Agreement shall be designated as "pass-through" or"subject to reasonable profit' as determined by the County during the rate review process. Rates fixed by County shall be maximum rates which Contractor may charge the Customers. The maximum rates fixed by the County at this time shall be the current rates set forth in Exhibit B to this Agreement. Future modifications in said maximum rates pursuant to section 9 (Rate Applications) hereinbelow shall not require an amendment to this Agreement to be allowed. Following consultation with the Contractor and examination of industry norms and trends, the County, in its sole discretion, shall determine the method of determining Contractor profitability. Contractor is advised that the County may try to establish a common rate setting methodology for unincorporated areas, with input from Contractor and other solid waste collectors in the unincorporated areas. All costs associated with County review and processing of rate applications shall be paid by Contractor and shall be allowed as a pass-through cost in the rate application process. Following a survey, Contractor shall offer a mini-can program at reduced rates and variable can rates if requested by the Community Development Director. Rates shall be reallocated so that the overall receipts of the Contractor remain essentially the same when the program is in operation. Any such program implementation in 1997 will be part of the June rate review provided for in section 9. 9. RATE APPLICATIONS. Rate applications shall be prepared in accordance with such forms and in such detail as required by the County. The application shall include one reproducible hard copy, 15 hard copies bound in an appropriate manner and one copy on disk formatted pursuant to County specifications. All rate applications.shall include information from the previous rate change to the present, or such other period of time as is selected by the County. At least every three years, any rate application shall be accompanied by an auditedfinancial statement covering the entire period since the last audited rate application together with supporting documentation as required to segregate its County regulated activities from other business activities. The Community Development Director may, in writing, allow the rate application to be submitted without an audited financial statement provided the Community Development Director is satisfied that the level of verifiable detail allows for adequate assessment of the Contractor's income, expenses, assets-and liabilities. Rate changes may be initiated by County at any time or by Contractor under the conditions allowed in this section. In either case, Contractor shall prepare a rate 6 application in accordance with the requirements of this section. If the rate change is initiated by County, the Contractor shall submit its rate application to County within 60 days of County's notice to Contractor. If the rate change is initiated by Contractor, it shall be submitted no more than once a year under normal operating conditions (but see also section 12.c below regarding implementation of new programs). The date of Contractor initiated applications shall reasonably relate to the fiscal year of Contractor and be standard, year by year. Unless otherwise agreed by the parties, rate applications will be submitted in June of any year and any new rate shall be applied to the September 1 st billing (the bill for September through December service). Such a mutual agreement on alternative rate application submittal dates does not require an' amendment to this Agreement. In the event that the rate change that would be requested by Contractor is no more than the change in the Consumer Price Index for All Urban Consumers for the San Francisco Bay Area for that fiscal year of Contractor,.Contractor may increase its rate up to such amount and not request a rate change from the County. Contractor may defer a rate application pursuant to this paragraph for a. maximum of two consecutive years. In the event that Contractor must make significant changes in its operations or experiences significant changes in costs or revenue not under its control, Contractor may submit a rate application at.any such time thereafter. Contractor shall provide documentation for the need for such rate application relative to those changes. The application will thereafter be considered by the Board. 10. OPERATION BY CONTRACTOR. Contractor shall furnish all necessary equipment(excluding containers for weekly Solid Waste service) for services provided pursuant to this Agreement in the Franchise Area and shall maintain such equipment in a sanitary condition at all times. Contractor shall furnish all necessary labor in connection with the operation of a Solid Waste collection system in the Franchise Area. The Contractor, in performance of this Agreement, shall use trucks with covered, water-tight truck bodies constructed of sufficient strength to withstand a fire within the.truck body and not endanger adjacent property. Trucks, drop boxes, bins, or similar types of equipment owned and operated by the Contractor shall be kept clean and in good repair. Contractor shall have its name and telephone number on the side of each truck and on each drop box, bin or similar type equipment provided by Contractor. 11. LIMITATION ON TIME AND MANNER OF COLLECTION. Contractor shall systematically collect Solid Waste, and to the extent permitted by this Agreement, materials for recycling from its Customers. Frequency, place of pickup (backyard service for weekly Solid Waste and curbside service for recycling, green waste and periodic clean-ups unless otherwise approved by the County) or any other manner of collection shall be subject to the review and approval of the Director of Community Development. Upon commencement of service and upon changes in collection day schedules, Contractor shall provide each customer with notice of the scheduled collection day. Contractor shall not collect Solid Waste from an inhabited dwelling or dwelling unit between the hours of 6:00 p.m. and 5:30 a.m. from May through October and 6:00 a.m. from November through April (unless otherwise directed by the Community Development Director). 12. CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION. a, From time to time, at its discretion, County may examine Contractor's operation in order to evaluate whether the Contractor is operating at a satisfactory level of efficiency and customer satisfaction. Contractor agrees to cooperate in any such examination and shall permit County representatives to inspect, at Contractor's principal place of business, such information pertaining to Contractor's obligations hereunder as County may require, including, but not limited to, such things as customer inquiry records, collection routes and equipment records. Access to Contractor's records shall be subject to section 7 (Contractor's Duty to Maintain Records; County's Right to Examine Records). b. Notwithstanding any contrary provision in this Agreement, the County shall have the right to direct Contractor to compile information, develop plans for and/or conduct programs on alternative methods of Solid Waste and recyclable material collection and management, or to take any other action requested by the County for the purpose of meeting the source reduction, recycling and composting requirements of the Act, and any other applicable federal, state or local laws regarding Solid Waste collection, recycling and disposal, including, without limitation, the County's Materials Diversion Ordinance. Contractor agrees to indemnify and hold the County harmless from and- against any and all liability to the State of California for the County's noncompliance with the requirements of the California Integrated Waste Management Act due in whole or material part to the material failure of Contractor to properly carry out the reasonable directives of-the County to Contractor regarding collection and disposition of Solid Waste and recyclable material; provided, however, that Contractor shall not be obligated to carry out any such directive (and shall not indemnify nor hold the County _ harmless from any resulting liability) if the County fails to agree to allow Contractor its reasonable costs (including a reasonable profit) associated with carrying out such directives. 8 C. County may require Contractor to develop plans for and conduct programs on alternative methods'of Solid Waste collection, including pilot programs of limited scope, or may require additional programs, for the purpose of improving service, increasing customer satisfaction, and meeting diversion requirements. County may also require Contractor to implement efficiencies in its operation upon written notice from County. The notice shall allow Contractor a reasonable period of time to implement the specified service (or efficiency). Should County require commencement of such a program as outlined in this paragraph, Contractor agrees not only to do those things specified herein, but also to act at the direction of the County on other matters that may be necessary for the success and efficiency of the project, such as public information and notification. In the event that County elects to direct Contractor to discontinue any service theretofore performed by Contractor at. the direction of County hereunder, County shall allow Contractor to recover its reasonable capital equipment costs and other reasonable costs arising upon termination of the service. Rate adjustments applicable solely to programs instituted pursuant to this subsection initially shall be established at the time the County authorizes implementation of the program or efficiency. 13. CUSTOMER SERVICE STANDARDS. Contractor shall provide prompt, efficient, continuous and professional service to its Customers. Contractor shall have a phone system with sufficient capacity to promptly respond to telephone calls for at least 8 hours a day during weekdays, excluding those holidays observed by Contractor, plus a 24-hour answering service. All vehicles shall be radio equipped. Telephone numbers for customer service shall be located in the local telephone directory. All telephone lines for customer service shall be toll free to Customers. Not less than once every three years and not less than six months prior to an application for contract renewal, assignment or extension of term, Contractor shall conduct a representative survey or surveys of Customers within the Franchise Area to determine satisfaction with service, including, without limitation, response to customer complaints. The survey methodology, format and content shall be subject to the prior review and approval of the Director of Community Development. A copy of the survey results shall be sent to the County within sixty (60) days of completion of the survey. Nothing in this paragraph shall limit the right of the County to conduct additional surveys. The Contractor shall cooperate with the County in such cases. Upon initiation of service, and at least once a year, Contractor shall send or deliver to Customers information concerning the conditions of service, including, but not limited to, rates, fees, charges, service options, payment options, discounts (if any), days of collections, the amount and manner of refuse to be collected, service level and inquiry/complaint procedures, including the name, address and local telephone number of Contractor and the name, address and telephone number of the County Community Development Department. The form and content shall be subject to the 9 • • review and approval of the Director of Community Development. 14. LOCAL ADVISORY COMMITTEE. The Board of Supervisors shall establish the Kensington Solid Waste and Recycling Committee ("Committee") and appoint five Kensington residents to the Committee. At least two members shall be appointed from the Kensington Police Protection and Community Services District(if requested by the'District). The Committee at its election may: 1) review local service interests and needs, recycling and diversion programs, household hazardous materials programs, and the performance of the Contractor in the Kensington Franchise Area and under this Franchise Agreement; 2) participate in rate review; and 3) advise and provide recommendations to the Community Development Department Director and the Board of Supervisors on any such matters. The Committee at its election may hold regularly scheduled meetings or special meetings as may be appropriate. In all cases, the Committee shall provide public notice of its meetings and agendas as a County standing committee and otherwise comply with County committee procedures. The Committee shall hold such meetings at a time and place in Kensington convenient to the public. The Committee should encourage and solicit public input. The Board of Supervisors, in it's discretion, may apportion up to 2% of the franchise fee (section 23) to the Committee based on the Committee's acceptance of responsibility for making recommendations to the Community Development Director or the Board of Supervisors, implementing the SRRE and other matters, as directed by the County from time to time. If accepted by the Committee, such responsibility may include but is not limited to: A. 1) UTILIZE COUNTY RATE SETTING METHODOLOGY - The County shall set the initial rate for solid waste and recycling pickup. Future rate modifications may be reviewed by the Committee using the methodology established by the County. Recommendations shall then be referred to the County for discussion. 2) UTILIZE DIVERSION CRITERIA - The Committee shall be responsible for developing in coordination with and subject to approval of the County conservation staff, programs as indicated in the County SRRE to assure that the State mandated diversion of 50% is accomplished by the year 2000. Due to the difficulty in determining the exact amount of waste generated by the subject area in 1990 and the current difficulties in tracking all waste coming from the area due to self hauling and special non-franchised loads, the Committee shall assist in implementing such source reduction and recycling programs as directed by the County, in a timely manner, on a schedule that, at least, reflects that of the majority of the County population including the Cities and Regional Agencies within the County. 10 3) METHOD OF RECYCLING (CURBSIDE/TRANSFER STATION/ETC) - The Committee may determine, with the Contractor, the most cost effective method of accomplishing the required recycling. Possible methods to consider are: a) picking up at curbside different materials on different days, b) allow for mixed curbside pickup to be sorted at a transfer station or central sorting area or, c) designated containers for each material to be picked up at curbside d) local neighborhood drop off sites for some materials 4) HOUSEHOLD HAZARDOUS WASTE - METHOD OF DEALING WITH HHW REQUIREMENTS - In order to meet State requirements each city and county is required to provide Household Hazardous Waste disposal for their residents. The County mobile HHW program is currently providing for a mobile drop-off service that is financed in various ways throughout the county. The Local Advisory Committee shall determine the method of payment for the Kensington area. B. AB 939 IMPLEMENTATION AND TRACKING 1) DATA COLLECTION a) REPORTS FROM CONTRACTOR TO LOCAL ENTITY AND COUNTY REGARDING SOLID WASTE DISPOSED AND MATERIALS RECYCLED - The Committee may be responsible for obtaining reports from the Contractor that provide a breakdown by material/tonnage and sales price of all materials recycled and of the amount of solid waste and green waste disposed and at what location for the Kensington Community. Such report information would then be forwarded to the County in the required format for compilation into the Countywide recording system, initially in the format shown in Exhibit C. b) COUNTYWIDE COLLECTION OF DATA AND REPORTING TO STATE - The County shall be responsible for the collection and consolidation of all disposal and recycling information for the unincorporated County and for collection and reporting to each County jurisdiction of disposal information, and for the AB 939 reporting to the State. 2) PROGRAM DEVELOPMENT 11 a) COUNTY RESPONSIBILITY-The County will be responsible for setting up programs in all parts of the County to meet the requirements of the State approved SRRE. As part of that responsibility the County will provide Source Reduction and Recycling programs to individual communities. An example is compost workshops. The County will also provide coordination to provide for variable can rates, mini-can rates, source reduction programs (ie: Shop Smart), Commercial recycling programs, collection programs for reusable items, develop full scale recycling programs for both single family and multifamily residential and commercial developments. b) LOCAL RESPONSIBILITY - The Committee may provide local publicity and generate local interest in solid waste and recycling programs, provide locations for activities such as compost workshops, determine any special needs that the community may have in regards to solid waste pickup services, either garbage or recycling, work with county staff to develop "reduce, reuse and recycle" programs that will be effective in the Kensington community. The Committee, using the methodology approved by the County, may review any rate change requests and transmit their recommendation on the request to the County. They will determine the preferred method of paying for Household Hazardous Waste services and maintain records of amounts of solid waste, recyclables and green waste collected. 15. CUSTOMER COMPLAINTS. Contractor shall develop and implement policy and procedure for responding to and recording Customer complaints, including dispute resolution. The policy and procedure shall be subject to the approval of the Director of Community Development. 16. BILLING. The form and content of customer bills shall be subject to the review and approval of the Director of Community Development. Bills for services will be sent three times per year for every four months (September, January, May), unless otherwise determined by the County. The County may establish billing period options for Customers upon a.finding that such options are cost-effective and meet a community need. Full payment for drop boxes may be required by Contractor prior to delivery of the drop box to the Customer. The County shall have the right to direct the Contractor to change or alter its billing system in which event the marginal additional expenses incurred by the Contractor in the implementation of the change, with regard to the accounting, printing, mailing, 12 a loss of use of funds, or otherwise,shall be recoverable by the Contractor through the rates allowed by the County provided such expenses are reasonable. Contractor shall inform Customers of all rate changes at least 30 days prior to their effective date. A copy or facsimile of such notice shall be provided to County at the time of Customer notification. 17. RECYCLING. County grants to Contractor the right and obligation to operate recycling programs, including curbside pick up of recyclable materials, as determined and designated by County, subject to County's right to terminate this grant to Contractor pursuant to the provisions of this section. Contractor shall request that recyclable materials be placed at the curb by 5:00 a.m. of the day for which service has been designated for that particular dwelling. Contractor is not responsible to pick up recyclables not placed on the curb in a timely manner. Contractor has already instituted and implemented a recycling program including regular curbside pick up in five-gallon buckets at all single family residences of at least aluminum, tin, newsprint, glass bottles, non-colored HDPE and PET, as more fully set forth in Exhibit B. The current program will be supplemented by cardboard, mixed paper and other collections with the implementation of this Agreement, so that items listed in County Ordinance Section 418-10.604, as it may be amended from time to time, are collected. Separate green waste pick ups will be added effective January 1997. The County has the right at any time to modify said program or require new programs as provided at section 12.b hereinabove. At the written request of Contractor, the Community.Development Department Director may delete a material from recycling if the Director determines that there is no market to accept the material (see Article 418-10.8 for applicable exemptions and findings). Contractor shall maintain and provide to the County records relating to its recycling programs as directed by the Director of Community Development. Contractor shall provide to each household promotional information pertaining to the curbside recycling program. Contractor shall allow County staff to review such material prior to delivery and shall make any changes reasonably requested by staff. Contractor shall distribute written promotional material two times per year as necessary to maintain participation in the program and more frequently, if required by the Community Development Director. Unless otherwise required by the Community Development Director, Contractor shall provide the County with periodic reports on the recycling program which shall include: a. Participation level (i.e., the number of residences participating in the recycling program) based on one sample week during each calendar quarter. b. Quantity of materials collected, in tons, by type of material (e.g., newspaper, glass, plastic and metal), by calendar quarter. 13 C. Revenues received by Contractor for each type of material and total revenues received, by calendar quarter. Unless otherwise directed by the Community Development Director, reports shall be provided quarterly and annually. The quarterly reports shall be due by the 15th of the month following the close of the quarter and shall cover the preceding three months. For example, the first quarterly report shall be due April 15, 1997 and shall cover January, February and March, 1997. The first annual report shall be due by March 15 of 1997, and shall cover the preceding calendar year. Contractor's provision of recycling service shall be reviewed in approximately one year and thereafter within three (3) years of the effective date of this Agreement .and, at County's discretion, every five years thereafter. If County determines that continuation of such service by Contractor is not consistent with the County's ratepayers best interest, but not as a result of Contractors failure to satisfactorily provide recycling services, Contractor shall be allowed to recoup its unamortized capital expenditures as follows. Contractor shall make a good faith effort to sell all disposable assets acquired in furtherance of the program for their fair market value. If income derived from the sale is insufficient to cover the unamortized costs of such assets, Contractor may transfer those losses together with net operations profits or losses to its general account and submit a rate application to cover such losses. If County determines that Contractor has failed to satisfactorily provide and perform recycling services, County may terminate this grant to Contractor of the right and obligation to provide and operate recycling programs, at no cost or further obligation on the part of the County or County's ratepayers. 18. FREE SERVICE FOR COUNTY. Contractor shall provide Solid Waste collection and disposal services at those County. buildings within the Franchise Area (the library) designated by the.Director of Community Development from time to time, .at no charge to the County. 19. FRANCHISE AREA-WIDE COLLECTION. Unless otherwise determined by the Community Development Director, in addition to its regular collections, commencing in January, 1997, as set forth in Exhibit B, Contractor shall provide three scheduled green waste curbside pick ups (no yardage limit; no plastic bags) and one on call curbside general pick up (two yards, bundled, tied or placed in boxes or trash containers). Said collections shall be made each year throughout the term of this Agreement in accordance with practices and procedures established by Contractor and subject to the approval of the Community Development Director. If the Community Development Director determines that one more green waste pick up is desirable, then Contractor shall provide it at no additional cost until the next regular rate review. Green waste shall be delivered to a composting or chipping facility by the Contractor, subject to review and direction by the Community Development Director. 14 The increased cost of green waste pick ups and any changes in the recycling program may be considered as part of the next rate review. Customers shall be timely notified on the dates of the scheduled green waste pick ups. The recycling and other services provided by Contractor are set forth in Exhibit B. The scope of solid waste collection, green waste and recycling services provided may be changed from Exhibit B at the direction or with the approval of the Community Development Director and without amending this Agreement. 20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS. Contractor shall provide, upon direction of the Community Development Director, Solid Waste drop boxes or equivalent containers for community or other clean-up projects within the Franchise Area. The Contractor's obligation shall be limited to the equivalent of up to three (3) 20-cubic yards drop boxes per year on request in the Franchise Area. 21. DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be solely responsible for the disposal of the Solid Waste collected pursuant to this Agreement. County has complete authority and control over the Franchise Area waste stream. County may, at its sole discretion upon providing 60 days notice to Contractor, direct the Solid Waste collected under this Agreement to be delivered to any site or facility of its choosing. This shall include the right of the County to direct the Solid Waste to be delivered to any County designated transfer station, disposal site, transformation facility and/or resource recovery facility. It is understood that County may contract with any party, public or private, to commit the waste stream from the Franchise Area, and that Contractor's contracts may not bind County, nor need County consider such other contracts for any purpose. Notwithstanding the above, Contractor may propose, and County may but need not consider, waste management and/or disposition alternatives which are cost effective. In determining or comparing costs, County shall consider all relevant factors, including but not limited to, transportation costs, closure and postclosure requirements, costs and liabilities, disposal fees, fees levied by governmental entities, including benefits to Contractor's customers from paying such fees, costs of compliance with ordinances and other local requirements, and long-term costs, including degree of control over future costs. 22. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor shall assist County in its enforcement of its mandatory subscription ordinance by providing County with the addresses of properties not subscribing to collection service within the Franchise Area and by providing collection service to such properties upon written request by the County. 23. ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor shall pay to the County for (a) the services provided by the County in administering this Agreement, (b)for services and programs pertaining to Solid Waste provided by the County, and (c) additionally as directed by the County, a percentage of its gross 15 annual revenues generated from the performance of such waste collection services under this Agreement. Unless otherwise subsequently determined by the County, the total amount for such administration services and franchise fees shall be 5% of .the commercial and residential bills for each calendar year, commencing in September, 1996. Such percentage, time and frequency of payment may be adjusted by County from time to time. Said sums shall be payable from the Contractor to the County on a four month basis (January, May and September for the respective four preceding months' billings). Such administrative and program services and any franchise fees shall be considered a reasonable cost and subject to "pass-through" as described in section 8 on Rates. 24. HAZARDOUS WASTE. The parties hereto recognize that federal, state and local agencies with responsibility for defining hazardous waste and for regulating the collection, handling or disposing of such substances are continually providing new definitions, tests and regulations concerning these substances. Under this Agreement, it is Contractor's responsibility to keep current with the regulations on such substances and to identify such substances and to comply with all federal, state and local regulations concerning such substances. Contractor agrees to provide to County upon its request, Contractor's program for identifying hazardous waste and complying with all federal, state and local statutes and regulations dealing with hazardous waste. Contractor shall make every reasonable effort to prohibit the collection and the disposal of hazardous waste in any manner inconsistent with applicable law. 25. PRELIMINARY DISPUTE RESOLUTION. If Contractor has a question as to the interpretation of this Agreement, it shall submit a written request to the Director of Community Development for a determination of the issue. The Contractor shall provide and submit such information as the Director of Community Development may request or require to make the requested determination. The written determination of the Director of Community Development on such interpretation, as with any other determination by the Director, may be appealed to the Board of Supervisors pursuant to Ordinance Code Chapter 14-4. 26. FAITHFUL PERFORMANCE BOND. Contractor shall submit to County simultaneously with the execution of this Agreement a corporate surety bond in the amount of$10,000, provided however, that the Board may increase this amount not more often than every three years to reflect changes in the Consumer Price Index for All Urban Consumers for the San Francisco Bay Area. The bond shall be executed by a surety company licensed to do business in the State of California and acceptable to County. The bond shall be approved by the County and shall be payable to County. The condition of the bond shall be that Contractor will faithfully perform. the duties imposed by ordinance, this Agreement and the rules and regulations of County. Any action by County to proceed against the Bond shall not limit or affect the right of County to use other remedies available to County under the agreement or in courts of law or equity, not withstanding the foregoing. In lieu 16 of the corporate surety bond, Contractor may provide to County a letter of credit, cash bond or other security acceptable to the County Administrator's Office and in a form satisfactory to the County. 27. INSURANCE. Contractor shall procure and maintain in full force and effect at all times during the entire term of this Agreement the following coverage: a. Public liability and property damage insurance including completed operations, products, contractual, broad form property damage, personal injury and owned and non-owned automobile liability with such coverages and limits as may be reasonably requested by County from time to time, but in no event with limits not less than the sum of$3 million combined single limit for each occurrence arising from the services as stated in the Agreement herein. County shall be named as an additional insured under such liability insurance policy or policies, if commercially available. b. Contractor shall carry workers' compensation insurance for all its employees. Evidence of liability and workers' compensation insurance shall be provided by Contractor by filing with County a certificate of"insurance indicating that County is endorsed as an additional named insured under the liability policy. All policies shall include a provision that written notice of cancellation or any material change in coverage shall be delivered to County thirty (30) days in advance of the effective date thereof. No cancellation, alteration or change of beneficiary shall be made without written notice to County. County reserves the right to examine all policies from time to time to ensure appropriate conformity to prevailing practices and standards of the insurance industry. Such insurance shall be obtained from a company or companies licensed to do business in the State of California and acceptable to County. Failure of Contractor to maintain insurance in the manner and amount stated herein and as directed by County Administrator, subject to the approval of the Board, will constitute a material breach of this Agreement. 28. INDEMNIFICATION. a. Complete Indemnification of County. All work and performance covered by this Agreement shall be at the risk of Contractor. Contractor agrees to save, indemnify and keep harmless the County, its officers, employees, agents and assigns against any and all liability, claims, judgments, or demands, including demands arising from injuries or deaths of persons and damage to property, including environmental damage, arising 17 directly or indirectly out of the obligations herein undertaken or out of the operations conducted by Contractor, save .and except claims or litigation arising through the sole negligence or willful misconduct of County, and will make good to and reimburse County for any expenditures, including reasonable attorney's fees, that County may make by reason of such matters and, if requested by County shall defend any such suit at the sole cost and expense of Contractor. The above promise by Contractor to indemnify, hold harmless and defend the County expressly includes, but is not limited to, all claims, damages (including but riot limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits; legal administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorney's and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, County, its officers, employees or agents arising from or attributed to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous substances or hazardous waste at any place where municipal solid waste is or has been transported, transferred, processed, stored, disposed of or otherwise come to be located by Contractor under Agreement, or the activities of Contractor pursuant to this Agreement resulting in a release of hazardous substances or waste into the environment. The foregoing is intended to operate in part as an agreement, pursuant to section 107 (e) of the Comprehensive Environmental Response, Compensation and Liability Act, "CERCLA," 42 U.S.C. section 9607(e), and California Health and Safety Code section 25364, to defend, protect, hold harmless and indemnify County. The intent of the section is to provided County with the highest level of protection possible under existing and future laws. b. Defense of Agreement. Should any party successfully challenge the validity of this Agreement, the procedure by which this Agreement was entered into or, the validity of any County ordinance which authorizes the County to enter into this Agreement, then in such case the Contractor shall have no cause of action for damages or any other relief against County as a result of such successful challenge. Contractor has the right to defend this Agreement and County. County has no duty to Contractor to defend the validity of this Agreement or any provision hereof. 29. ATTORNEY'S FEES. In the event of litigation between the parties arising 18 hereunder, each party shall be responsible for and pay its own litigation expenses, including attorney's fees. 30. ASSIGNABILITY. Contractor shall not sell, assign, subcontract or transfer this Agreement or any part hereof, or any obligation hereunder, without the written consent of County. The term assignment shall include any dissolution, merger, consolidation or other reorganization of Contractor, which results in change of control of Contractor, or the sale or other transfer by probate proceeding or otherwise of a controlling percentage of Contractor's capital stock to a person not a shareholder on the date of the execution of this Agreement. The term "assignment" does not include internal business reorganizations or formations of new companies by Contractor, formation of trusts by Contractor or transfers of any interest of Contractor as a result of death, disability or estate planning by one or more of the principals of Contractor, so long as essential management decisions are retained by Lewis Figone, his spouse, his children, and/or their spouses. It is understood and agreed by the parties that corporations that are 100% owned by Lewis Figone, his spouse, his children, and/or their spouses may presently and in the future perform obligations and responsibilities of the Contractor in the Franchise Area. Performances of obligations and responsibilities of the Contractor by such companies shall not be deemed an assignment under this section. Consent to assignment may not be unreasonably withheld. However, it is understood that County's grant of this franchise to Contractor is partly persuaded by the Contractor's financial strength and background in the field of waste management. Therefore, assuming Contractor maintains its ability to faithfully carry out its duties hereunder, it is in the County's ratepayers best interest for Contractor to continue under this Agreement. Following a public hearing, County may assign or transfer any or all of its rights under this Agreement without the consent of Contractor to any legally authorized public entity. In the event Contractor herein attempts to assign or subcontract this Agreement or any part hereof or any obligations hereunder in a manner inconsistent with the foregoing, County shall have the right to elect to terminate this Agreement forthwith, without suit or other proceeding. 31. INVOLUNTARY ASSIGNMENT. :No interest of Contractor in this Agreement shall be assignable by operation of law. Each or any of the following acts shall be considered an involuntary assignment providing County with the right to elect to terminate the Agreement forthwith, without suit or other proceedings: (1) If Contractor is or becomes insolvent, or makes an assignment for the benefit of creditors; (2) If writ of attachment or execution is levied on this Agreement or other property of Contractor such that would affect Contractor's ability to perform 19 its duties and obligations under this Agreement. (3) If in any proceeding to which Contractor is a party, a receiver is appointed with authority to take possession of Contractor's property such that would affect Contractor's ability to perform its duties and obligations under this Agreement. (4) Except as otherwise provided in section 30 (Assignability), in the event of a probate proceeding where the rights of Contractor under the Agreement would pass to another individual or other individuals. 32. NOTICE PROVISIONS. Any notice required or permitted under this Agreement shall be in writing and shall be deemed to have been given if delivered personally -or ten (10) days after posted by certified mail, return receipt requested, addressed as appropriate either to Contractor: Bay View Refuse and Recycling Services, Inc. Attn: Lewis Figone P.O. Box 277 EI Cerrito, CA 94530 Or to County: Contra Costa Community Development Department 651 Pine Street, 4th Floor, North Wing Martinez, CA 94553-0095 Attention: Solid Waste Program Manager 33. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES. Contractor shall give notice to County by January 30 of the next calendar year of any geographic area in the Franchise Area or immediately contiguous to the --Franchise Area, in which Contractor has commenced service within the preceding -year, notwithstanding whether Contractor deems that area to be regulated or unregulated. Contractor realizes that the public agency boundaries may be altered by virtue of actions taken by the Contra Costa County Local Agency Formation Commission (LAFCO). Contractor agrees that should a municipal corporation lawfully annex territory which is within the Franchise Area, County may make such alterations to the Franchise Area as the annexation necessitates. Should the Franchise Area boundaries be amended, Contractor agrees that it will abide by any change resulting from the Franchise Area change. Contractor agrees that the Board of Supervisors may make such alterations to the Franchise Area as are necessitated by such Local Agency Formation Commission actions and shall have no right or claim to damages or other relief against the County for such alterations to the Franchise Area. However, nothing herein is intended to abrogate Contractor's rights under Public Resources Code Section 49520 or any successor or similar 20 statute. 34. AFFILIATED ENTITIES. Contractor shall provide information necessary to reasonably satisfy County that the charges made by any Affiliated Entity are reasonable in accordance with the provisions of section 8 (Contractor's Duty to Maintain Records; County's Right to Examine Records). Information gained from examination of books and records pertaining to operations not regulated by the County shall be treated by the County and its Agents as confidential information. "Affiliated Entity" shall be defined, for purposes of this section, as any entity which provides products or services to Contractor and in which either Contractor or the affiliated entity owns a ten percent (10%) or greater interest in the other, or where one person or entity owns ten percent (10%) or greater interest in both. For purposes of this section, the term "Contractor" shall include Contractor, and if Contractor is an individual or a group of individuals (partnership), all immediate family members, or if a corporation, major shareholders, and if any major shareholder is an individual, said individual's immediate family members. For the purpose of this paragraph, "immediate family" includes spouses and relatives of the first degree of sanguinity, and their spouses. 35. BREACH AND TERMINATION. The Director of Community Development shall have authority, subject to review by the Board of Supervisors upon appeal, to determine whether a breach of any provision of this Agreement by Contractor has occurred. Any waiver of a breach shall not be deemed to be a waiver of any subsequent breach or to be construed as approval of a course of conduct. In the event that the Director determines that a breach has occurred, County shall give Contractor written notice of the breach setting forth the breach or default. Contractor shall have a reasonable period to cure the noticed breach, said period not to exceed 60 days. In the event the breach or default is cured to the satisfaction of the Director of Community Development within the period of time allotted, the breach shall not be deemed a material breach. In the event that the Director of Community Development determines that Contractor has failed to satisfactorily cure the breach or default within the period of time allotted, the Director of Community Development may determine such breach or default to be material. Multiple or repeated breaches, or a pattern of breaches and subsequent attempts to cure said breaches by Contractor shall provide an adequate basis for the Director of Community Development, in his discretion, to declare any subsequent breach to be material, notwithstanding whether that breach is ultimately cured by Contractor. If such a determination of material breach is made, the Director of Community Development's determination shall be automatically appealed to the Board of Supervisors for final action. A material breach shall be cause for termination of this Agreement by the Board of Supervisors. 21 In the event of a termination pursuant to this section, County shall have the right to temporarily assume the obligations of Contractor and shall have the right to forthwith take possession of all trucks and other equipment of Contractor and exercise Contractor's right to enter and use any disposal facilities for the purpose of performing the services agreed to be performed by Contractor herein until such time as County can make other arrangements for the performance of said services. However, such temporary assumption of Contractor's obligations under the Agreement shall not be continued by County for a period exceeding twelve (12) months from the date such operations are undertaken by County. During any period in which County has temporarily assumed the obligations of Contractor under this Agreement, County shall be entitled to the gross revenue attributable to operations during such period and shall pay therefrom only those costs and expenses applicable or allocable to said period, including the reasonable rental value of the trucks and equipment to be paid to Contractor. County shall be entitled to the excess, if any, of revenue over applicable or allowable costs and expenses during such period. The loss, if any, during such period shall be a charge against Contractor, and shall be paid to County by Contractor on demand. Final adjustment and allocation of gross revenue, costs, and expenses to the period during which County temporarily assumed the obligations of Contractor shall be determined by an audit by a Certified Public Accountant and prepared in report form with his unqualified opinion attached thereto. Nothing in this Agreement shall prevent County during any period in which County temporarily assumes the obligations of Contractor under this Agreement, from employing persons who were employed by the Contractor for the collection of Solid Waste under.this Agreement. Upon the occurrence of a material breach and the declaration of such and termination of this Agreement by the Board of Supervisors, this Agreement and the franchise granted thereunder shall be of no further force and effect, excepting -.these provisions concerning County's right to temporarily assume Contractor's obligations and to use Contractors facilities, and section 28 (Indemnification). County then shall be free to enter into whatever other arrangementsare deemed justified and.necessary for the collection, removal and d.isposal of Solid Waste within the Franchise Area. 36. EMERGENCY. Notwithstanding Contractor's exclusive franchise rights set forth in section 5 (Exclusive Privilege and Duty), in the event of an emergency due to natural disaster or labor strike which interrupts the collection of Solid Waste by Contractor, the Board of Supervisors shall have the right to declare a temporary suspension of this Agreement for the reasonable duration of the emergency and until such time as County determines that Contractor is able to reassume all obligations under this Agreement. Should Contractor fail to demonstrate to the satisfaction of the Board of Supervisors that required services can be resumed by Contractor prior to the expiration of a six (6) month period, this Agreement may be terminated at the direction of the Board. 22 37. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. Contractor shall be responsible for and shall comply with all applicable laws, rules, and regulations that are now in effect or may be promulgated or amended from time to time by the Government of the United States, the State of California, the County and any other agency now authorized or which may be authorized in the future to regulate the services to be performed herein regarding the collection, removal and disposal of Solid Waste and recycling of material. This includes County Ordinance Code Chapter 418-6 (on mandatory subscription to Solid Waste collection service), and the County's Materials Diversion Ordinance. 38. AMENDMENT OR MODIFICATION. This Agreement may be amended or modified upon written agreement of the parties hereto. The parties agree to meet and confer in good faith if amendments or modifications are proposed. 39. POLICE POWERS. Nothing in this Agreement is intended to or may limit County authority pursuant to its police power. 40. CONTEST OF AGREEMENTS TERMS. In the event either party to this Agreement attempts to challenge the validity of any portion of this Agreement, such action in. attempting to challenge the Agreement shall constitute a material breach of this Agreement and the non-breaching party shall have the right to elect to terminate this Agreement forthwith without suit of other proceeding. This section shall not be construed to prevent either party from seeking redress from the courts for the purpose of legal review of administrative proceedings regarding rate setting or County actions taken pursuant to this Agreement, or for the purpose of interpreting or enforcing the provisions contained in this Agreement. 41. SEVERABILITY. In the event legal action is brought by a person or entity, other than the parties to this Agreement, to challenge, invalidate, contest or set aside any of the provisions of this Agreement, each and every term and condition, and each and every section and paragraph, is severable from the remaining terms, conditions, sections, and paragraphs. . The invalidation of any -term, condition, section or paragraph as a result of a legal action, brought by a person or entity not a party to this Agreement shall not affect the validity or enforceability of the remaining provisions. However, -if material provisions hereof are affected, the parties agree to negotiate in good faith to reach agreement on revisions which preserve the substance hereof to the greatest extent allowed by law. 42. WAIVER. The waiver by either party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach or violation of the same or any other provision. The acceptance of any monies which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation 23 by the other party of any provision"of this Agreement. 43. SURVIVAL OF OBLIGATIONS. Obligations of this Agreement which embody continuing obligations, including but not limited to section 28 (Indemnification) shall survive the termination or expiration of this Agreement. 44. NEW AGREEMENT. Contractor acknowledges that County has provided notice to Contractor pursuant to Public Resource Code section 49520. Pursuant to said notice and Chapter 418-7 of the County Ordinance Code, effective no later than the effective date of this Agreement, Contractor's Franchise Agreement with the Kensington Community Service District is terminated and of no force or effect. Pursuant to section 3 (Term), this Agreement will be effective through it's term. 45. ENTIRE AGREEMENT. This Agreement represents the full and entire agreement between the parties hereto with respect to the matters covered herein. COUNTY OF CONTRA COSTA CHAIR, BOARD OF SUPERVISORS Date ATTEST, Phil Batchelor, Recommended for Approval Clerk of the Board Form Approved and County Administrator By: DEPUTY :.CONTRACTOR BAY VIEW REFUSE AND RECYCLING SERVICES, INC. a California Corporation By: LEWIS FIGONE Date PRESIDENT Taxpayer I.D. No. Form Approved MFI*TRANCHISAGR 24 U � V6 Ln ., OR N Ul a 41 OC, - �Fy t£R C RACE -., . 4� � - HIGHLAND G� j too E N t J i t STQ K�ns�n9 N K l �f. -..BLVD. t KE'RR V,4 �QQCT y o � cr a q yc� icy NpRw��° 4'fO ys01 sr cot PL v��. O E10 1►l arc ,� 14 C 15- Oc war qr�, AV P t 46 WE sl 15�O WAY sAV a' OR n < nA4A oopz� vp 0-1 a © � /� z fix, '�Q� \ \ '�,�► ��1 CD � y 9, VAN G r � • ' ` ® `EXON N �_ � ^� F�� `�; /` FDG V E nt�O ,, v y LEy (OV ic ; � u �_ E E �'► ave Lw ;� 'vc ,- ' ��L�--.� •�, �C• w pJF, l PAll R A►AOl1 m AilN . r ,o Q p VAL.�p1. � 2 avE• 10 -- -- ti �v. lo 4t- �( � 4j, 5 V� = �' s �r t OQ RD SANT, 4 co SEX N4 OV E Nr •. Ebb 8.x'9, �. j► SCF % �(,, \ "." • ''f. �'�► p/ PL. e n Highgate Rd. Highland Blvd. , oN,, Jessen Dr. <1 Kenilworth Ct . l7 LA Kenilworth Dr. Kensington Rd. P-3 � Kenyon Av. �, t) Kerr Av. ROAD ;` Kingston Rd. p Lake Dr. , vLawson Rd. ' Los Altos Drw 4VD �. Lenox Rd. Lexington Rd. �i . l "L! CjK`"sen 9tor�py • o _ ti - Gp NORWOOD \ � o PL. c \\ P \N T Q7 gyp 1, 2 ' � •A � i .�� Geo T5 QQ` �' �FST� �m AV o WILLAMETTE ® r 4 •� 7X AV E. _ .SUNS ��� UR.` 5 � AV o 0 9` GIN S� p0 t �t .A -- �.` ESOP DKGnSingtori p oi tv pq z z srZ .\\"VA NOR PL0 c= �, 1NGTON CT. x 110 AV m �„ WYLLA14ETTE AV �c t ao % SUNSET' D� UNSEL_ _ S�Fy AV — LP ell E LO I T J 'ALPt CA s m LEXINGTON ,-- R0 v ARGON `� �� cg ��-�4► -,("rte i , �� ( �►c �,. D \'- fi Y z + -o r►�, pV E. ��, c �, aij, t� OS zn pV. G G' Nd INC c 4 - IS7 ',►�, �,� .\ � fTUG,g y SSR tv t, • �+� til, t'�` M '~ .,, _ ,� - ../i \ c �r Wit` a O n0 Rd n R` L•��r6t• 10000 y ND I '4 .� �G j to�0,y E KNi L ns�r9 lO�,., �LV,p. K� 5��; -: � �A oAry •�3 • n ,,► KERR hvE.� Q � qac yAcRWoO� 0' Cl oQc v col► 4 4'+ � + �� AV Ile- OA �► �. �; � - �� F tib. "• �. AO AVG - P 15 o > o w , o\` Exhibit B MONTHLY MAXIMUM RESIDENTIAL AND COMMERCIAL RATES IN KENSINGTON • Residential Rates: 30 gallon cans Monthly Fee 1 can once a week $16.25 2 cans once a week $27.50 3 cans once a week $39.00 4 cans once a week $50.00 5 cans once a week $61.30 40 gallon cans Monthly Fee 1 can once a week $36.60 45 gallon cans Monthly Fee 1 can once a week $39.75 • Commercial Rates: 30 gallon can once a week $16.25 Material other than can use (bulk rate) Dry $16.50/cubic yard Wet $17.00/cubic yard • These rates represent the current rates in Kensington. Rates subject to adjustment when mini- can and higher multiple can rates are implemented by the County with the intent that total revenue collected remain approximately the same. KENSINGTON SERVICE INFORMATION • Yearly 4 month billing cycles: bills sent our in January, May and September for next 4 months service beginning with billing month. • Designated month to file standard applications for rate changes: June. Earliest rate review request by Bay View would be June, 1997. Any such approved rate request may take effect in September. Rate reallocation among customers may occur earlier with new mini-can rate and higher multiple can rates. • Containers: residential and commercial customers provide their own cans for the weekly solid waste collection service. 3 five-gallon buckets provided by Bay View for weekly recycling service(customers charged at cost for any replacement buckets). If recycling increases, Bay View will provide additional buckets. Recyclable materials are as follows: (a) aluminum cans, (b) glass containers, (c) newsprint, (d) PET bottles, (e) clear HDPE bottles, (f) colored HDPE bottles, (g) steel and tin-plated cans, (h) cardboard, (1) polystyrene, (j) plastic film, (k) yardwaste, and (1) mixed paper (includes magazines). 0 Special job pick ups (e.g., old refrigerators) may be scheduled for a separate charge. y • At County direction, ay View will provide notice of scl._Juled pick ups by Bay View of reusable materials (e.g., old clothes, toys) in coordination with organizations like Good Will Industries. • Pick up locations: backyard weekly service for cans; frontyard weekly recycling service. • Green waste pick ups effective January 1, 1997: frontyard scheduled green waste pick ups, 3 pick ups annually on customer's regular garbage day; each pick up (no yardage limit) bundled, tied or placed in boxes or trash containers (no plastic bags). • General pick up effective January 1, 1997: 1 frontyard on call pick up annually on customer's regular garbage day; 1 1/2 yards bundled, tied or bagged of general waste (no waste); up to eight such on call pick ups per day in the Franchise Area scheduled on first call basis unless otherwise directed by the Community Development Department. • In 1996 there will be one general pick up in November. AAEXII BIT$ r , 1 HANSON, BRIDGETT, MARCUS,:.VLAHOS & R 1-11 0 MICHAEL A D UNC ON HE 6568 2 1 C 2 STEVEN J. LEVINE - 125059 3 333 Market Street, Suite 2300 t P ' GC1 �. San Francisco, California 94105-2173 4 (415) 777-3200 s �.t<r �c 1A 5 Attorneys for Petitioner, KENSINGTON POLICEY—= 6 PROTECTION AND COMMUNITY SERVICES DISTRICT 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF CONTRA COSTA 10 11 KENSINGTON POLICE PROTECTION AND ) No. 12 COMMUNITY SERVICES DISTRICT, ) C 96 - 04574 13 ) MEMORANDUM OF POINTS AND Petitioner and Plaintiff, ) AUTHORITIES IN SUPPORT OF 14 ) PETITION FOR WRIT OF VS. ) MANDATE AND FOR ISSUANCE 15 ) OR ALTERNATIVE WRIT AND BOARD OF SUPERVISORS, CONTRA ) STAY ORDER (CCP §1085) 16 COSTA COUNTY, Does 1 through 25, ) 17 ) Date: Respondents and defendants. ) Time: 18 ) Dept: BAY VIEW REFUSE AND RECYCLING ) 19 SERVICES, INC. ) 20 ) Real Party in Interest and Defendant. ) 21 22 23 24 25 26 27 28 332300.1 1 TABLE OF CONTENTS 2 3 Page 4 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 6 II. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7 III. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 8 A. Mandamus May Issue to Set Aside the Challenged Action of 9 Respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 10 B. Independent Special Districts Are Local Government Agencies Equal In Dignity To Counties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 11 C. A County May Not Displace A Special District From The Performance 12 Of Its Statutorily Authorized Duties . . . . . . . . . . . . . . . . . . . . . . . . . 6 13 D. The Authority Relied Upon by the BOARD for Abrogating 14 KENSINGTON's Franchise Actually Prohibits Such Action . . . . . . . . . . 8 15 E. KENSINGTON Is "First in Time," So It Is "First in Right." . . . . . . . . . 11 16 F. Respondent Approved the Proposed Franchise Agreement In Violation 17 ofCEQA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 18 G. A Stay Should Issue Pending A Hearing On This Petition . . . . . . . . . . . .15 19 20 21 22 23 24 25 26 27 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —1— 1 TABLE OF AUTHORITIES 2 3 Page 4 Cases 5 Baldwin Park County Water District v. Los Angeles County (1962) 6 208 Cal.App.2d 87 . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 7 7 California Water and Telephone Co. v. County of Los An e�les (1967) 253 Cal.App.2d 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 Clean Air Constituency v. California State Air Resources Bd. 9 (1974) 11 Cal.3d 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 10 Contra Costa v. Central Contra Costa Sanitary District (1960) 11 182 Cal.App.3d 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 12 County of Sacramento v. Chambers (1917) 33 Cal.App. 142 . . . . . . . . . . . . . . . . . . 5 13 Danley v. Merced Irrigation District (1924) 66 Cal.App. 97 . . . . . . . . . . . . . . . . . . . 6 14 Griffin v. Board of Supervisors (1963) 60 Cal.2d 318 . . . . . . . . . . . . . . . . . . . . . . . 3 15 16 Hunt v. Superior Court (1949) 93 Cal.App.2d 504, 506 . . . . . . . . . . . . . . . . . . . . . . 5 17 In Re Madera Irrigation District (1891) 92 Cal. 296 . . . . . . . . . . . . . . . . . . . . . . . . 4 18 Inouye v. County of Los Angeles (1994) 30 Cal.App.4th 278 . . . . . . . . . . . . . . . . . . 5 19 Kistler v. Redwoods Community College District (1993) 20 15 Cal.App.4th 1326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 21 Laidlaw Waste Systems, Inc. v. Bay Cities Service, Inc. (1996) 43 Cal.App.4th 630 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 22 Manjares v. Newton (1960) 64 Cal.2d 365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 23 24 Monarch Cablevision, Inc. v. City Council (239 Cal.App.2d 206 . . . . . . . . . . . . . . . . 3 25 Orange County Cable Communications Co. v. City of San Clemente (1976) 59 Cal.App.3d 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 26 State of California v. Marin Municipal Water District (1941) 2 7 17 Cal.2d 699 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ -11- 1 Wilson v. Hidden Valley Mun. Water Dist. (1967) 256 Cal.App.2d 271 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 Opinions of the Attorney General 3 25 Opinions of the Attorney General 164 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4 27 Opinions of the Attorney General 261 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . 6 36 Opinions of the Attorney General 297 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . 11 5 67 Opinions of the Attorney General 145 (1984) . . . . . . . . . . . . . . . . . . . . .. . . . . . 7 6 7 Statutes, Rules and Regulations 8 California Constitution 9 Article XI, Section 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10 Article XI, Section 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8 11 California Code of Regulations 12 Title 14, Section 15300.2(c) . . . . . . . . . . . . . . . . . . . 14 13 Code of Civil Procedure 14 Section 1085 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 15 Section 1086 . . . . ... . . . . . . . . . . . . . . . . . . . . 3 Section 1094.5(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 16 17 County Ordinance Code 18 Chapter 418-7 . ... . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 8 Section 418-7.202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 19 Government Code 20 21 Section 54725 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 56036(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8 22 Section 61000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 6 Section 61100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 23 Section 61600 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 24 Section 61610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Section 61615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 25 Section 61616 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Section 61622 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 26 Public Resource Code 27 28 Section 21000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —111— 1 Section 21065 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . 14 Section 21080(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2 Section 40000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 3 Section 40002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 40057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 4 Section 40059 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 9, 10, 11 Section 47000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 5 Section 49000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 6 Section 49510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 49520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —1V— 1 I. INTRODUCTION 2 Petitioner, KENSINGTON POLICE PROTECTION AND COMMUNITY 3 SERVICES DISTRICT ("KENSINGTON"), is a local governmental entity, specifically an 4 "independent special district." KENSINGTON is organized and existing under California 5 6 state law, pursuant to a vote of the people who reside in its area, (Govt. Code Sections 7 61000 et se-q.)) KENSINGTON''s statutory authority includes responsibility for the collection, 8 disposal, and recycling of solid waste. Since 1981 KENSINGTON has exercised this 9 authority by entering into, maintaining in effect, and periodically amending a franchise to agreement with a private company (Bay View Refuse Service, Inc. ("Bay View")). 11 KENSINGTON's franchise agreement with Bay View is in full force and effect, it is not 12 13 terminable for convenience, and its term extends to the year 2009. 14 KENSINGTON's franchisee, Bay View, requested approval of a substantial rate 15 increase for 1996. The Board of Directors of KENSINGTON had questions and concerns 16 about the justification for the size of the rate increase. In accordance with the franchise 17 agreement, KENSINGTON requested further information. However, rather than address 18 KENSINGTON's requests and,concerns, the owner of the franchisee (Mr. Lewis Figone) 19 20 withdrew the application for a rate increase and began lobbying the Respondent, BOARD OF 21 SUPERVISORS, COUNTY OF CONTRA COSTA ("BOARD"). This special interest 22 lobbying paid off. On September 17, 1996, three members of the Respondent BOARD voted 23 to approve a motion whereby the County would enter into a new and different franchise 24 agreement with a company created by Mr. Figone for that purpose, BAY VIEW REFUSE 25 AND RECYCLING SERVICES, INC. ("BAY VIEW I"). The intended effect of this action 26 27 is to abrogate KENSINGTON's existing franchise agreement with Bay View, to supplant 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ -1- • i 1 KENSINGTON as the governmental body statutorily responsible for solid waste in the 2 Kensington area, and to substitute the County of Contra Costa. 3 Respondent BOARD's action is illegal, the product of hardball politics and a 4 retaliation against KENSINGTON for questioning the franchisee's proposed rate increase to 5 KENSINGTON residents. KENSINGTON petitions for a writ of mandate to rescind and to 6 7 set aside Respondent BOARD's illegal and arbitrary action. 8 The Respondent BOARD does not have the legal authority to take over 9 KENSINGTON's exercise of statutory authority for solid waste matters or to nullify 10 KENSINGTON's existing franchise agreement with Bay View. Independent special districts 11 like KENSINGTON are, within the sphere of the legal authority conferred upon them by the 12 13 State legislature, of equal dignity with a county. The BOARD may no more take over 14 KENSINGTON's exercise of its authority for solid waste management than the BOARD 15 could take over the function of the Contra Costa Water District, the East Bay Regional Park 16 District, the Alameda-Contra Costa Transit District (AC Transit) or the Mt. Diablo Hospital 17 District. 18 KENSINGTON and the County of Contra Costa are both subject to the principle of 19 20 "first in time, first in right," because they are public entities of equal dignity, sharing 21 common authority and overlapping jurisdictions. With respect to solid waste matters, 22 KENSINGTON has exercised this authority since 1981 and it is presently exercising such 23 authority. Having been first, it cannot lawfully be displaced by Respondent BOARD. 24 Finally, the BOARD utterly failed to consider the potential adverse environmental 25 consequences of its action, and thereby violated the California Environmental Quality Act. 26 27 (Public Resources Code §§21000 et seg..) 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —2— 1 Mandamus should issue requiring the BOARD to set aside and rescind its motion 2 approving a proposed new franchise agreement with BAY VIEW I for the Kensington area, 3 and prohibiting the BOARD from entering into or implementing the proposed franchise 4 agreement. Further, pending a hearing on and final determination of this petition, 5 KENSINGTON requests that the Court stay the effective date of the challenged motion and, 6 7 proposed franchise agreement. A stay is necessary to preserve the status quo, and to prevent 8 disruption and confusion caused by the existence of two solid waste franchise agreements 9 with different parties each purportedly applicable to the same geographical area. 10 H. STATEMENT OF FACTS 11 The salient facts are set forth in the verified petition on file and the accompanying 12 13 declarations of James Bray and Lynn Wolter. 14 III. ARGUMENT 15 A. Mandamus May Issue to Set Aside the Challenged Action of Respondent. 16 A writ of mandate may issue to compel a governmental body to perform a legal duty 17 or to set aside an illegal act, when there is not a plain, speedy and adequate remedy in the 18 ordinary course of law. (Code of Civ. Proc. §§ 1085, 1086.) Mandamus is the proper 19 20 procedure for invalidating quasi-legislative acts of a governmental body which are illegal or 21 which exceed that body's jurisdiction. (See, e.g., Manjares v. Newton (1960) 64 Cal.2d 365; 22 Griffin v. Board of Supervisors (1963) 60 Cal.2d 318.) 23 Respondent's motion, which approves the entering into of a new franchise 24 agreement, is a quasi-legislative act, as distinguished from an adjudicatory act. Monarch 25 Cablevision. Inc. v. City Council (239 Cal.App.2d 206, 211; Orange County Cable 26 27 Communications Co. v. City of San Clemente (1976) 59 Cal.App.3d 165, 171.) In 28 reviewing this quasi-legislative act,. the court determines whether the legislative body acted in Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —3— 0 1 excess of its jurisdiction, whether its-action was illegal, entirely lacking in evidentiary 2 support, whether its action was arbitrary or capricious, or whether it has failed to follow the 3 procedure required by law. ()Milson v. Hidden Valley Mun. Water Dist. (1967) 256 4 Cal.App.2d 271, 286-87; Clean Air Constituency v. California State Air Resources Bd. 5 6 (1974) 11 Cal.3d 801, 809.) The challenged motion and Respondent's expressed.intent to 7 enter into the proposed franchise agreement is illegal and invalid under this standard. 8 B. Independent Special Districts Are Local Government Agencies Equal In 9 Dignity To Counties. 10 The legal pretext for the BOARD'S political act is the BOARD'S apparent notion 11 that, compared to KENSINGTON, the County is a "superior" form of local government 12 whose powers trump the powers State law confers on independent special districts. Not so. 13 Independent special districts like KENSINGTON are, within their authorized fields of 14 activity, autonomous agencies, of equal dignity and power compared to counties. 15 16 An independent special district is "an agency of the State, formed pursuant to 17 general law or special act, for the local performance of governmental or proprietary functions 18 within limited boundaries." (Govt. Code Section 56036(a).) Special districts have been 19 important instrumentalities for local self-government in California for well over 100 years. 20 The Wright Act of 1887, which authorized the establishment of irrigation districts, is 21 generally taken to be the first district enabling statute. Upholding the constitutionality of the 22 23 Wright Act, the Supreme Court long ago held: 2 4 "In providing for the welfare of the State and its several parts, the Legislature may . . . create municipal organizations or agencies within the several counties, or it may 25 avail itself of the county or other municipal organizations for the purposes of such legislation, or it may create new districts . . . and may delegate to such 26 organizations a part of its legislative power to be exercised within the boundaries of said organized districts, and may vest them with certain powers of local legislation, 2 in respect to which the parties interested may be supposed more competent to judge 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —4— 1 of their needs than the central authority." (In Re Madera Irrigation District (189 1) 92 Cal. 296, 308.) 2 3 The venerable Wright Act was but the first of a long series of special district 4 enabling acts. Over the ensuing decades, the Legislature has passed numerous general laws 5 empowering local voters to create special districts for a wide variety of governmental 6 purposes. Some of these districts are large regional agencies with budgets that dwarf those 7 of most cities and counties. The Metropolitan Water District of Southern California, created 8 9 under the California Water Code and comprising 13 cities and 14 water districts, with a 10 service area extending over six counties, is an example of such a special district. Others are 11 much more modest in scale and purpose, such as a mosquito abatement district formed under 12 the Health & Safety Code. Large or small, independent special districts are creatures of 13 State law, the form of democratically elected local government with which most people have 14 direct contact, and not instrumentalities or subdivisions of counties. (Hunt v. Superior Court 15 16 (1949) 93 Cal.App.2d 504, 506.) 17 A county is "merely a political subdivision of the state" (Inouye v. County of Los 18 Angeles (1994) 30 Cal.App.4th 278, 284), created "without the particular solicitation, 19 consent or concurrent action of the people who inhabit them." (County of Sacramento v. 20 Chambers (1917) 33 Cal.App. 142, 146.) By contrast, community services districts, such as 21 KENSINGTON, are formed by a vote of the residents of an area, for the promotion of the 22 23 community's interests. Government Code Section 61100, et sem. They may exercise the 24 powers they are granted by the Legislature for a wide range of purposes, including the 25 provision of water, transportation, police and fire protection, construction of roads, bridges 26 and libraries and, as here, the collection and disposal of garbage or refuse matter. 27 (Government Code Section 61600.) 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —5— 1 The powers delegated to community services districts are comprehensive. In 2 carrying out their designated governmental functions, they may: levy taxes (Ld., at §61615); 3 acquire property through eminent domain 1'd. at §61610); make contracts for any and all 4 purposes necessary or convenient to the full exercise of their powersInd., at §61616) and 5 6 perform all acts necessary to carry out fully the provisions of [the Community Services 7 District Act] (Ld., at §61622). Indeed, because of the voluntary method of their formation, 8 their undoubted governmental nature, and their broad powers, independent special districts 9 have frequently been held to be municipal corporations, akin to cities: (State of California v. 10 Marin Municipal Water District (1941) 17 Cal.2d 699, 702; Kistler v. Redwoods Community 11 College District (1993).15 Cal.AppAth 1326, 1337.) This characterization has been applied 12 13 specifically to community service districts: 14 "While community services districts are not strictly speaking "cities," a reading of Government Code Section 61600 shows that they possess many of the rights, and 15 perform many of the functions, normally regarded as municipal in nature; namely, the supplying of water, police protection, fire protection, garbage collection, etc. A 16 reading of Government Code Section 61000 et sec . convinces us that it was the 17 intent of the Legislature in providing for these districts, to provide them with some of the rights and advantages of cities and towns without actually becoming 18 municipalities." (27 Opinions of the Attorney General 261, 262-263 (1956).) 19 C. A County May Not Displace A Special District From The Performance Of Its 20 Statutorily Authorized Duties. 21 Under the State Constitution, a county may adopt only those regulations which are 22 not in conflict with general laws. Unlike charter cities, which have "home rule" powers over 23 municipal affairs (Cal. Const., Art. XI, Sec. 5), counties such as Contra Costa are entirely 24 subservient to the general laws of the State. (Cal. Const. Art. XI, Sec. 7) Article XI, 25 Section 7,.of the Constitution is both a grant and a limitation upon the power of cities and 26 counties to enact legislation. The Courtof Appeal summarized the law as follows: 27 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —6— 0 1 "Local legislation in conflict with general law is void. Conflicts exist if the ordinance duplicates, contradicts or enters an area fully occupied by general law, 2 either expressly or by legislative implication. . . . If local legislation conflicts with 3 general law or is a matter of state-wide rather than strictly local concern, jit] is void whether or not the general law totally occupies the `field,' however defined." 4 (California Water and Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, at 27-28 (emph. added).) 5 6 Thus, a county's ability to suppress or take over the operation of a duly formed 7 independent special district is limited by state law. For example, a county's attempt to 8 require that employees of water districts operating within the unincorporated area of the 9 county obtain licenses from the county and comply with county ordinances regulating water 10 supply was invalidated on these grounds in Baldwin Park County Water District v. Los 11 Angeles County (1962) 208 Cal.App.2d 87. 12 13 In several areas, the authority of special districts is paramount to that of a county or 14 city. For example, the California Attorney General concluded that, where a community 15 services district had constructed roads pursuant to the Community Services District Law, the 16 district had "exclusive jurisdiction" over such roads and that the county was prohibited from 17 adopting an ordinance authorizing the placement of stop signs and establishing speed zones 18 on the district's roads. 67 California Attorney General Opinions 145, 148 (1984). The 19 20 Attorney General reached this conclusion, in part, because 21 "[I]f the county were also authorized to enact the ordinances in question, confusion and lack of uniformity could result. In interpreting these statutes, we must avoid 22 such consequences if possible." Id., at 148. 23 More recently, the Court of Appeal has held that an exclusive solid waste franchise 24 granted by a charter city was not binding on a school district. Laidlaw Waste Systems, Inc. 25 v. Bay Cities Service. Inc. (1996) 43 Cal.App.4th 630. 26 27 The BOARD'S attempt to interfere with KENSINGTON'S lawful exercise of its 28 statutory powers in pursuit of its statutory purpose is therefore prohibited by the State Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —7— 1 Constitution, unless a county is expressly authorized to thus regulate independent special 2 districts by general law. No such authority exists. 3 D. The Authority Relied Upon by the BOARD for Abrogating KENSINGTON's 4 Franchise Actually Prohibits Such Action. 5 The BOARD purports to have the right to abrogate KENSINGTON's franchise 6 agreement "[p]ursuant to . . . Chapter 418-7 of the County Ordinance Code." (County's 7 Proposed Franchise Agreement, Sec. 44.) Chapter 418-7 of the County Ordinance Code 8 9 ("County Code") was enacted in 1991 under the purported authority of the State Constitution 10 and Public Resources Code Sections 40057 and 40059. (County Code, Sec. 418-7.202.) 11 Contrary to the County's contentions, the cited authority prohibits, rather than authorizes, the 12 BOARD's action challenged herein. 13 The BOARD'S reliance on the Constitution as authority for abrogating 14 KENSINGTON's franchise agreement is misplaced. The BOARD is presumably referring to 15 16 the Constitution's limited grant of police power ip Article 11, Section 7. As previously 17 established, however, that section expressly prohibits a county from passing ordinances under 18 the guise of its "police power" which are in conflict with any of the State's general laws. 19 Ordinances in conflict with general laws are thus void. (See supra.) 20 Districts such as KENSINGTON are "formed pursuant to general law . . . for the 21 local performance of governmental or proprietary functions within limited boundaries." 22 (Govt. Code § 56036(a) (emph. added).) The State's general law conferring statutory 23 24 authority on KENSINGTON takes precedence over and limits the County's purported 25 exercise of police power, when exercised in derogation of the State's plain delegation of 26 authority to independent special districts. Further, the residents of the Kensington area voted 27 to form a Community Services District pursuant to the general law authority provided by the 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —8— 1 Community Services District Law.—The BOARD cannot, by fiat or otherwise, deprive this 2 electorate of the rights and powers expressly and directly created and conferred by the State. 3 The County's reliance on Public Resources Code Sections 40057 and 40059.flies in 4 the face of the express language of the statutes. Sections 40057 and 40059 are a part of the 5 6 California Integrated Waste Management Act (Pub. Res. Code § 40000, et seq.), enacted in 7 1989 (the "Waste Management Act"). Contrary to the County's position, the Waste 8 Management Act actually confirms the general law authority of Community Services Districts 9 and other special districts in the field of the collection and disposal of solid waste. For 10 example, Section 40057 (relied upon by the County) directs that any "county, city, district, 11 or. other local governmental agency" collecting and disposing of waste assure that certain 12 services specified in the Waste Management Act be provided. (Emph. added.)' Similarly, 13 14 Section 40059 (also relied upon by the County) assures that the Waste Management Act is 15 not intended to interfere with the decisions of any "county, city, district, or other local 16 governmental agency" pertaining to, among other matters: 17 "Aspects of solid waste handling which are of local concern, including, but not 18 limited to, frequency of collection, means of collection and transportation, level of services, charges and fees, and nature, location, and extent of providing solid waste 19 handling services." (Emph. added.) 20 Significantly, Section 40059 also provides as a matter of general law that a 21 governing entity is specifically prohibited from utilizing the provisions of the Act as a means 22 of abrogating a pre-existing franchise: 23 24 "Nothing in [the Waste Management Act in its entirety] modifies or abrogates in any manner . . . [a]ny franchise previously granted or extended by any county or other 25 local governmental agency." 26 27 'Consistently therewith, Public Resources Code § 40002 declares the need for the State to authorize and require "local agencies" to "make adequate provision for solid waste 28 handling. . . ." Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —9— 1 Notwithstanding this clear general law prohibition, the County is attempting to do precisely 2 what the Constitution and the Waste Management Act mandate that it may not do - abrogate 3 a franchise previously granted by KENSINGTON which is presently in effect. 4 Finally, the County's proposed franchise agreement makes cryptic reference to some 5 6 unspecified "notice" the County purportedly provided to Bay View "pursuant to Public 7 Resources Code section 49520," and asserts that such "notice" facilitates the County's power 8 to terminate KENSINGTON's franchise agreement. (County's Proposed Franchise 9 Agreement, Sec. 44.) The County's notice was purportedly issued pursuant to Public 10 Resources Code Section 49520, which is found in Part 8 of the Waste Management Act 11 (§49000, et gQ.), entitled "Garbage and Refuse Disposal." KENSINGTON was not 12 13 Provided with this "notice" (notwithstanding its purported effect of stripping KENSINGTON 14 of its franchise powers in the waste disposal field), and is thus unable to comment on its 15 substance. In any event, BOARD has no authority to issue a notice under Section 49520 16 terminating KENSINGTON's franchise. Further, Section 49520 is expressly made 17 subordinate to Section 40059, which protects franchises. 18 As noted supra, Section 40059 (contained in Part 1 of the Waste Management Act) 19 20 specifically prohibits a governing entity from utilizing the provisions of the Act as a means 21 of abrogating a pre-existing franchise: "Nothing in this division [30, which encompasses 22 Chapters 1 through 8 of the Waste Management Act in their entirety] modifies or abrogates 23 'in any manner . . . [a]ny franchise previously granted or extended by any county or other 24 local governmental agency." Thus to the extent the notice provisions of Section 49520 25 purportedly permit the premature termination of a previously granted franchise, said section 26 27 is inconsistent with the provision of Section 40059 cited above. As rioted in the Historical 28 and Statutory Notes accompanying Section 40000: Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ _10— 1 "In the event of any conflict or inconsistency between the provisions of Parts 1 (commencing with Section 40000) to Part 7 (commencing with Section 47000), 2 inclusive, and Part 8 (commencing with Section 4[9]000) [sic] of Division 30, as, 3 enacted by this act, the provisions of Parts 1 to 7, inclusive, shall prevail." (Parens. in orig., emph. added.) 4 E. KENSINGTON Is "First in Time." So It Is "First in Right." 5 6 Being on an equal footing with the County and operating within the sphere of its 7 authority under State law, KENSINGTON cannot be displaced by the County. A 1960 8 California Attorney General Opinion addresses this issue. In the opinion, a county sought to 9 supersede a community services district's provision of fire protection service within the 10 district. The county argued that its recent annexation of an area which included a portion of 11 the district provided it with superior jurisdiction, enabling it to select its own county-formed 12 13 district as the provider of such services thereafter. The Attorney General rejected the 14 county's position. The Attorney General preliminarily noted: 15 "When the boundaries of a community services district and a county water district overlap, the question arises as to which of the districts shall furnish to the 16 inhabitants those services common to the powers of both governmental agencies. . . 17 . `It is a well-settled doctrine that "there cannot be at the same time, within the same territory, two distinct [governmental agencies] exercising the same.powers, 18 jurisdiction and privileges."' [Citations omitted.] . . . . (36 Cal.Atty.Gen. 297, 298 (1960).) 19 20 The Attorney General concluded that the county did not have the authority to usurp 21 from the community services district the right to provide fire protection services within the 22 community. Significantly, the Attorney General held that the determinative principle in cases 23 such as this should be that the agency first in time be deemed to be first in right: 24 "It is to be expected that where one governmental agency is adequately providing a 25 particular service within an area under the jurisdiction of two districts having common powers over the subject, the agency first in time and functioning in the area 26 would continue to provide the service without duplication by the other. . . . A community services district. . . . is in no sense a subdivision of the count or 2 counties in which it is formed and not subject to direction or control by the county 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ -11- i • 1 in the administration of its-affairs or exercise of its statutoLy powers. . . . " (Id. at 300 (emph. added).) 2 3 The first.in time, first in right principle is similarly applied in Contra Costa v. 4 Central Contra Costa SanitarXDistrict (1960) 182 Cal.App.3d 176. In that case, Contra 5 Costa County lost its attempt to compel an independent special district to pay the cost of 6 relocating utility pipelines which predated the County's ownership of the creek which ran 7 across them. The Court noted that the "district's right and easement to use Grayson Creek 8 for its sewer line was prior in time to the rights of the two other public bodies and therefore 9 to prior in right." (Ld. at 178 (emph. added).) In holding the district's preexisting rights 11 paramount over the county's purported rights, the Court held that the district's right to 12 maintain its sewer line was essentially a property right, and the county did not have "`any 13 right to appropriate or interfere with property already dedicated to public use. [citation 14 omitted]." (Id. at 179.) 15 16 The first in time, first in right principle is applicable here. The County acted 17 beyond its legal authority by granting a franchise which purports to supersede and terminate 18 KENSINGTON's Franchise Agreement, which has been in effect since 1981 and which 19 remains in effect until the year 2009. 20 The opposite conclusion would have unsettling consequences for both special 21 districts and the private sector companies with which they contract. Waste collection 22 companies make investments in equipment on the assumption that they will be able to recover 23 24 these costs through rates over time. Public agencies may make even greater investments 25 through contracts for solid waste handling facilities of the type authorized by Government 26 Code Section 54725 et sed. If counties were free to terminate such contracts at will, the 27 effects would be disruptive to both public and private investments and to ventures between 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —12— 1 special districts and private sector enterprises. This would subvert the Legislature's goal of 2 fostering such partnerships, as expressed in the Act. (,See, e.g., Public Resources Code 3 Section 49510: "It is in the public interest to foster and encourage solid waste enterprises so 4 that, at all times, there will continue to be competent enterprises willing and financially able 5 6 to furnish needed solid waste handling services".) 7 Finally, if a county were permitted to extend its "police powers" to the usurpation of 8 a community services district's preexisting rights to provide waste disposal services, such a 9 result could open the door to the county attempting to take over a whole array of other vital 10 (and revenue generating) services presently provided by community police districts, hospital 11 districts, fire districts, water districts, park and recreation districts, etc. The ramifications of 12 13 such an extension of a county's powers are profound and plainly not within the contemplation 14 of the Legislature or State law. 15 F. Respondent BOARD Approved the Proposed Franchise Agreement Without Any Consideration of or Attempt to Comply With CEQA. Inasmuch As the 16 Approval May Have An Adverse Environmental Effect, the Approval Violated 17 CEQA. 18 The proposed franchise agreement between the County and BAY VIEW I reflects 19 significant differences from the agreement currently in place in KENSINGTON. These 20 changes may have an adverse environmental impact. Under the California Environmental 21 Quality Act ("CEQA"), the BOARD was required to consider these potential environmental 22 23 effects before acting. The political agenda of Respondent BOARD members caused them to 24 disregard CEQA issues entirely. 25 CEQA applies to "discretionary projects proposed to be carried out or approved by 26 public agencies. . . ." (Pub. Resources Code §21080, subd. (a).) A "project" is an "an 27 activity which may cause either a direct physical change in the environment, or a reasonably 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —13— 1 foreseeable indirect physical change.-in the environment, and which is . . .(b) undertaken by 2 a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, 3 or other forms of assistance from one or more public agencies." (Pub. Resources Code, § 4 21065.) The differences between the franchise agreement approved by BOARD and the 5 6 franchise agreement currently in effect in the Kensington area may cause direct or indirect 7 adverse changes in the environment pertaining to noise, litter, waste disposal and other 8 matters. (Verified petition, 124; Bray Decl., 1 32.) Consequently, the BOARD's approval 9 of the franchise agreement with BAY VIEW I was clearly an "approval" of a "discretionary 10 project" which is subject to CEQA. 11 Respondent BOARD was required to either determine that the project is exempt 12 13 from CEQA review pursuant to certain defined statutory or categorical exemptions or 14 conduct an initial environmental study, which leads to the issuance of a negative declaration .15 or the preparation of anenvironmental impact report. The BOARD did nothing, even though 16 petitioner brought to the BOARD's attention the fact that numerous environmental impacts 17 could result from the changes being wrought through the new franchise agreement. 18 Not being concerned about CEQA or any other applicable law, the BOARD did not 19 20 cite or rely upon an exemption from CEQA at the time the challenged action was taken. 21 There is no substantial evidence in the record supporting the application of an exemption. 22 Further, even if a project potentially falls within a defined categorical exemption, further 23 environmental review might nevertheless be required if "there is a reasonable possibility that 24 the activity will have a significant effect on the environment due to unusual circumstances" 25 (Cal. Code of Regs., tit. 14, § 15300.2, subd. (c).) The BOARD simply was not interested. 26 27 Not having conducted even the semblance of an environmental analysis, the 28 Respondent failed to act as required by CEQA. Accordingly, the action should be set aside. Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —14— 1 G. A Stay Should Issue Pending A Hearing On This Petition. 2 Code of Civil Procedure Section 1094.5(g) authorizes the Court to stay operation of 3 a challenged action where, as here, the petitioner's interests will be significantly and 4 adversely affected before a judgment issuing the peremptory writ can be obtained: 5 6 "Mhe court in which proceedings under this section are instituted may stay operation of the administrative order or decision pending the judgment of the court. 7 . . . 8 KENSINGTON requests the issuance of an alternative writ of mandate and a stay 9 order, staying the effective date of the BOARD'S motion and the proposed franchise 10 agreement with BAY VIEW I, pending issuance of the requested peremptory writ of 11 mandate. KENSINGTON will be irreparably harmed if the requested stay is not issued 12 13 because the County's proposed franchise agreement with BAY VIEW I supplants and 14 abrogates KENSINGTON's existing franchise agreement with Bay View, and because it 15 purports to preclude and interfere with KENSINGTON's exercise of its statutory authority 16 over the collection of solid waste in the Kensington area. A stay maintains the status quo 17 and avoids confusion and disruption caused by two public agencies undertaking to regulate 18 solid waste collection in the same area, at the same time, pursuant to different franchise 19 20 agreements. 21 Dated: October/0, 1996 HANSON, BRIDGETT, MARCUS, VLAHOS & RUDY/ 22 By: 23 MICHAEL A. DUNCHEON 24 Attorneys for Petitioner 25 26 27 28 Memorandum of Points and Authorities In Support of Petition for Writ of Mandate 332300.1 and for Issuance of Alternative Writ —15— J KENSINGTON POLICE PROTECTION .AND COMMUNITY SERVICES DISTRICT NEWS RELEASE For Information Contact: Jim Bray(510)526-4141 KENSINGTON DISTRICX' SUES CONTRA COS'T'A COUNTY TO PRESERVE LOCAL CONTROL OVER SOLID WASTE SERVICES October 16, 1996 The Kensington Police Protection and Community Services District("District") filed suit on Friday, October 11, against Contra Costa County. The lawsuit challenges the County Board of Supervisors' action on September 17 awarding an exclusive 20-year contract for collection of garbage and recycling in the Kensington area. The Board of Supervisors acted at the request of Lewis Figone, a Marin County resident who owns several garbage companies, including Bay View Refuse Service ("Bay View'), which has been providing garbage service to Kensington, under a contract with the District, since 1981. The lawsuit contends that the Board's action is illegal, the product of"hardball politics" and a"retaliation" against the District for questioning Mr. Figone's request in August 1995 for an 11% increase in his company's rates. The lawsuit asserts that the County does not have legal authority to take over Kensington's exercise of statutory authority for solid waste matters or to nullify Kensington's existing franchise agreement with Bay View. The District maintains that the Board of Supervisors may no more take over Kensington's exercise of its authority for solid waste management than it could take over the functions of the Contra Costa County Water District, the East Bay Regional Park District, AC Transit or the Mt. Diablo Hospital District. "This is a direct challenge to the principle of local control and the independence of special districts generally," said David Fike, President of the Kensington District Board of Directors. -more- 217 .Arlington Avenue Kensington, California 94707-1401 (51.0) 526-4141 OCT 18 196 11 :38 510 526 1028 PAGE .003 Vyl —aO—JG IV as •-�z �.• •�.......... �.. _ 0;/ "We think that an elected board of Kensington residents is far better able to regulate garbage rates and to tailor recycling programs to our community needs than supervisors in Martinez, none of whom live in the District," said Fike. Fike noted that Kensington's Board of Directors was a highly qualified group: "We have a Stanford MBA., a graduate of Georgetown Law School, a retired Oakland Deputy Chief of Police, and a financial analyst who worked for Wells Fargo Leasing." Fike himself holds a Ph.D. and is a college professor of economics. "Also, none of us takes campaign contributions from the garbage company, or its lawyers," added Fike. The dispute began when District directors probed into Bay View's financial affairs in response to Figone's demand for an 11% rate increase. Directors found Bay View's financial records disorganized and were puzzled by its federal income tax returns which showed assets unrelated to garbage collection(including property at Lake Tahoe, a boat, and two Mercedes Benz sedans), as well as expenses connected to thoroughbred horseracing. Rather than respond to the District's request for additional information, Mr. Figone withdrew his rate increase request in January 1996 and.then began to lobby the County Board of Supervisors. In April, he asked the Supervisors to simply take over and give him a new contract, under which they would set the rates. At about the same time, Mr. Figone made sizable contributions to Supervisors Smith($4,000)and Torlakson ($4,000), who are running for State office. The District attempted to negotiate with Mr. Figone from April through September, but it proved impossible to satisfy his escalating demands for increased rates and restrictive contract terms. The District was supported by the League of Women Voters (Richmond Area) and community groups, such as the Kensington Property Owners Association and the Kensington Improvement Club, all of which urged the Board of Supervisors to leave garbage franchising where State law puts it, namely in local control. Nonetheless, on September 17, the Board of Supervisors voted 3-2 to give a new 20-year franchise to Mr. Figone's new company. Supervisors Smith and Torlakson,joined by Supervisor De Saulnier, voted to support Mr. Figone. The County agreed in court on Friday that it would not sign the contract with Mr. Figone's new company, which had been scheduled to go into effect on October 17, before October 30, when the District's request for a temporary stay of the franchise agreement will be heard. The suit will ultimately be decided by a judge from a neutral county. This is not the only confrontation between the County and local agencies over garbage franchises. In September, Mountain View Sanitary District and Rodeo Sanitary District each filed claims against the County totalling nearly$300,000 for similar actions by the Board of Supervisors terminating those districts' franchises. OCT 18 196 11 : 38 510 526 1028 PAGE- 004 OGT—I t$ l hu i I =yam Hl'l 6,tn5 IN U } UNthemUrf the s[feel." wunlen still rarely tiVUI� political ads.They Still take st r. This may be standard ting music in of the lingering curto%itie� the world of negative camp ertisin voices are almo%t never use• But this year's recruits in alta s are in- male candidates But when creasingly women.The latest weapon is a they're probably on the attar A Knight-Ridder Newspaper nicely tuned set of female pipes. ception of Liddy Dole. who ♦- - — - - - The notion that a woman's place is in an bly polite ad reassuring Atnc George Riggs. publisher attack ad is not entirely new. The most fa- is going to vote for her husb. ;nony Marquez. managing editor I mous such ad is the one that scared voters ing about ads in(which a wor -e Williams. editorial page editor _ I away from Barry Goldwater in 1964.Behind first punch. I the image of a little girl counting daisy petals Recently,the Clinton cam. }n(the press and that connot be lintued svithow being fast." before the nuclear holocaust was a female three women narrators all g — rnomss t.fikimn voice-over, Four of six Dole ads with fem if there are more women today,it may be returned the offense. 0OPINIONS 0 NOW TO WF Ae Times'opinion is Readers' Forur expressed only in its editorials. The opinions West County T expressed in guest PO. Box 100 lDERs editorials,columns, Pinole, CA letters and cartoons are y� those of the authors. 94564 t�•F lay !. :+., 7 i:. 0". �w }^,k>, The coverage is comprehensive—med- of Supervisors (who don't represent Kens. Personally we long for tt teal, dental,vision--for the retirees and ington) have little opportunity to get an un- the city looked wonderful includes any and all of their dependents: derstanding of Kensington issues. enough city staff to provide 11 � � spouse,aging parents,grown-up offspring Many of us are reluctant to create new needed. Please join us for the with broken lives, grandchildren. if they governmental bodies to take on new tasks future by voting yes on the meet the tax criteria, they qualify on the but KCSD is already administering the Landscaping and the Fire Su Asinsurance. garbage contract and KCSD is needed to sessments on Nov. S '[fie policy is a Cadillac of coverage,paid perform many other tasks aside from the for by Richmond taxpayers. Niccolls was garbage franchise. .,ne Niccolls not one of the council people who impor- The county take-over was approved on nt of Floyd tuned for this plush benefit;still,she is one a 3-2 vote in spite of vigorous lobbying by The taxpayer pays •:s Aug,28). of the original beneficiaries. the KCSD board,community members and +fuse of her I do not wish to impugn Niccolls.She is myself. if the majority of the county su- with election coming up,it •.•e her rea• a treasured friend who forgave me for once pervisors will not reconsider the take-over, call and reiterate the excel .t. no proof making a hard-hearted, untrue personifi- then we need to work on a system to en- American political office. iement. cation of her council service.But 1 wish that sure that real input from the KCSD board In the book "The Politica .hnson was she had reminded the public regarding the is seriously considered by the county in the ceit.Self Interest and Corrupi I the public tax'paid insurance benefits she is eligible future. ican Politics"by Martin L.Gr, for due to the obliging efforts of the ex- Supervisor Sim Rogers ject is very well covered. but an as- tremely controversial character she now Board of Supervisors With some politicians,their utation and recommends. Contra Costa County, First District tus and perks isolate them fro it. Even a Ronald Deziel and limit their ability to unt :,y seem to Richmond El Cerrito needs revenue public's needs. Then, when 0 fice,they usually stay on in W a rope of With Proposition 13,our property taxes special privileged lobbyists. System needs work became negligible and our children's taxes For a campaign donation }use of her Thank you for your editorial"Trampling for new homes were very high. you can become a recognized demeanor. on local control," (Times,Sept. 25).asking Before that time EI Cerrito had prided President Bill Clinton in your •>le woman, the Contra Costa Supervisors to reconsider itself in htaving the lowest property taxes can enjoy two meals with this dal (except their decision to take over the Kensington in the County. So Prop. 13 was a blow to president, two more meals wit garbage franchise from the Kensington city finances. ident Al Gore, a slot on a trad arks for a Community Services District. We also teamed that our low taxes for a foreign nation, flown Cher( someone This decision inexplicably ignores the the last 25 years did not cover even the cost leaders on Air Force One, twl fact that an existing locally elected gov- of police and fire services in El Cerrito. treats"with top administration know that ernmental body (KCSD) is in a better po- Therefore,we wholeheartedly support the still more perks. 1 in getting sition to administer a garbage contract. $125 Fire Suppression Assessment as well Consider the vice president% lme health As the County Supervisor representing as the Landscape and Lighting Assessment old days of 1944.vice Presiders :ith at least Kensington. I go to enough meetings and that we already pay. man lived in a two-bedroom al talk to enough people to have a decent un- These assessments will cover Fire De- which he paid $140 a montl Je}ing that derstanding of Kensington issues (although partment cost to the City and allow Gen- $12,000 salary. Modern vice pr. the Utility not as much as the KCSD Board). eral Funds to be used for long-deferred in a taxpayer-provided t•oyal !ollar. However, my colleagues on the Board maintenance, the grounds of the National (� . � � t-' t O-�1 •� rr 510 526 1028 PAGE - 005 OCT 19 ' 96 11 , 39 I t6-7b 1 PIU 11 :46 H19 i 14A—The Times W Wednesday, September 25, 1996 EDiTowaLS .lag •� Trampling on local control SUe.rViSOrS la during the summer,one supervisor— P play gaMeS board President Jeff Smith—frequently in Kensington trash deal berated Kensington officials and praised Bay View at board meetings. he county trampled on the right At the same time,Bay View owner of Kensington to control its own Lewis Figone made no bones about his affairs when it awarded a garbage preference for dealing with the county, franchise over the objections of the un- although he said he would negotiate incorporated town's officials. with Kensington in good faith. This roughshod tactic is all the more And even as it urged the parties to odious for its wrapping in a flimsy come to terms,the county board had sham of reasonableness. draft franchise agreements in hand that For reasons that are speculative at it was prepared to vote on. this point, a majority of the Board of The board hasn't pulled the trigger Supervisors wants to put the county in yet on the gun it has held to Kensing- the garbage hauling business. Or, more ton's head all summer. It set a 30-day specifically, in the business of handing starting date from Tuesday, Sept. 17, out franchises to the companies that for the franchising prerogative it haul the refuse.But the board didn't put snatched away from Kensington. it so bluntly in words. Instead,it figura- In light of what has happened,this tively took the old musket off the wall, gesture is simply more window dress- aimed it at the head of Kensington and ing for a deal that was done a long time told the town's Community Services Dis- ago.The county wanted to take over trict to resolve a long-standing dispute awarding a trash hauling franchise with its garbage hauler—or else ... from Kensington and it did what it That was on June 28,and the super- wanted to do while pretending to show visors gave the principals 30 days to cut sweet reasonableness. a deal.A satisfactory outcome seemed This is not the sort of waltzing close during the last few weeks as around an issue that inspires confi- Kensington and the Bay View Refuse dence in government. Co. agreed in principle to a 12 percent It is not the sort of respect commu- rate of return and an extension of the nity control of local affairs deserves. franchise to the year 2016. The vote to trash Kensington's wishes As the matter has now played out, and elbow its officials aside was 3-2, this was a shadow play, doomed from with Tom Torlakson,Mark DeSaulnier the start---as far as Kensington is con- and Smith voting in favor. Gayle Bishop, cerned. voted no, as did Jim Rogers,whose dis- While negotiations were going on trict includes Kensington. OCT 18 '96 11 : 40 510 526 1028 PAGE. 006 KENSINGTON POLICE PROTECTION AND COMMUNITY SERyicES DISTRICT October 10, 1996 Dear Kensington Resident, The County Board of Supervisors has recently taken action which presents an extraordinary and unprecedented threat to looal control in Kensington. At its September 17, 1996 meeting,the Board of Supervisors voted 3-2 to take responsibility for overseeing garbage collection rates and services in Kensington,effective October 17, 1996. The Kensington Community Service District Board has been providing this oversight for many years. We currently have 12 years remaining on a contract with Bay View Refuse Service to supply waste collection services in Kensington. The Board has repeatedly said publicly and pA)xtely to company officials that we believe the community is pleased with the basic quality of these services in Kensington. We have been exploring ways of expanding this quality service to . include more recycling and waste reduction programs. ,f Unfortunately,rates--and our community's ability to oversee them--have become a point of contention. We regret this fact. We assure you that the District Board has attempted to avoid any unnecessary friction with Bay View while at the same time looking ager the ratepayers'interests. Lamentably,it has proved impossible to satisfy Bay View and.we now believe Kensington residents'interests are being severely threatened. The following brief review of events provides the t reason for this belief 1 As you know,garbage companies are granted long-term,exclusive convacts to provide service. In other words,garbage companies are monopolies for the life of their contracts. To balance Bay View's monopoly power,Kensington's elected Community Services District Board has the authority to oversee rates charged and services provided. This arrangement is standard in California and,we believe,serves our community well. Our current Board consists of five Kensington residents with significant professional experience, including one former financial analyst,two economists,one lawyer,and a retired Deputy Police Chief. All members are accountable to the voters of Kensington and serve in a completely voluntary unpaid capacity. f Late last year,Bay View requested an 11%increase in rates. Our Board requested financial documentation to justify the increase. The company,apparently not happy with our attempt to carefully review the rate request,asked the County to take control of rate-setting in Kensington. District officials contacted members of the County Board of Supervisors and argued that their takeover of garbage services in Kensington was illegal and unwise. On Yune 25, 1996,the Supervisors voted to delay action,but made it clear that if the District did not reach an agreement with Bay Vi-u/ +fey would act to take over the franebise. .. s t .1 217 Arlington Avenue Kensington, California 94707-1401 (510) 526-4141 OCT 18 '96 1 1 :4 1 510 526 1 028 PAGE- 007 Apparently bolstcred by the support of tho County,the garbage company informally submitted a now proposal to the District. The new proposal called for a 22%increase in rates,to a monthly rate of$19.90 for a single can($238.80 annually). It also asked that the term of the contract be extended to 20 years and that a periodic review of rates be replaced with a system of automatic adjustments tied to general inflation indicators and various cost"pass throughs" Under extreme duress arising from the County's threat to takeover services,District officials spent the summer attempting to negotiate an agreement which would protect the interests of ratepayers in Kensington. In a last minute effort to avoid litigation,we agreed to increase single can rates by approximately 10%. This offer was made despite the fact that it exceeded the rate recommended by our ad hoc subcommittee and the recommendation of two separate solid waste industry consultants whose services the District retained. When this offer was rejected by the garbage company,the County Board of Supervisors directed County staff to meet with the two sides and make a recommendation to the Board. The meeti qS was ostensibly designed to help the County gain an understanding of"outstanding financial issues."Less than 24 hours after their first briefing on the details of these issues—issues which our Board and consultants had been working on for months--County staff recommended that rates in Kensington should be increased nearly 14%immediately. Moreover,and even more amazingly, County staff recommended that"KCSD must acknowledge that this Interim Rate"provides an insufficient profit to Bay View and that new,higher rates would need to be established in the near' future.When we refused to accept this reoommendation,a slim majority of the County Board of Ir Supervisors voted to take over garbage services in Kensington. Less than one-week later our Board of Directors unanimously voted to authorize the District's legal counsel to commence litigation.We wish to tell you that this course of action is not one which we ' take lightly. We believe that our Board has bent over backwards to reach an agreement which would protect the ratepayers and have attempted in good faith to avoid bringing this issue to the courts. But the County's action clearly jeopardizes the interests of Kensington's ratepayers. This fact is evident from the above-referenced actions. It is further substantiated by the fact that rates in County-supervised unincorporated areas are already more than 40%higher than Kensington's: Most importantly,the County action represents a significant threat to local control of all local services. If successful in abrogating a legal contract with 12 years remaining and ignoring the District's legal rights to oversee refuse collection services,then what might prevent future majorities on the Board of Supervisors from taking oontrol of other vital community functions such as public safety(police and fire services)or parks and recreation? We believe these matters to be in need of urgent community attention and suggest that you contact P the District and the County Board of Supervisors with your questions or concerns.Enclosed with this letter is additional information we believe you will find of interest. This information includes an editorial from the West County Times,a letter from the Kensington Improvement Club and Kensington Property Owners Association,and a summary of tate information. Sincerely, David 9 John F.Ream Presid4l, Vice President OCT 18 '96 11 :41 510 526 1028 PAGE - 008 R t 1`1+7 IN V 1 W" V i u Z>Gb L nL0 r Y17 October 10, 1,996 David Fike,President Kensington.Police Protection and Community Services District 217 Arlington Avenue Kensington,California 94707 Dear David, The Boards of the Kensington Improvement Club(KIC)and Kensington Property Owners Association (KPOA)are in receipt of your recent letter of September 30, 1996 and are writing this joint letter because of our deep concern regarding issues of local control over our public services. We believe that Kensington's residents interests are being severely threatened by the County's unwarranted take over of the District's responsibility for regulating recycling and garbage services. The KIC and KPOA Boards have endorsed the actions taken by the District Board: 1. to pursue financial information to determine the accuracy and fairness of the proposed increase in garbage collection rates;and 2. to oppose the take over of the garbage collection franchise by the County. We believe your actions are vital to prevent loss of local control over public services in Kensington. Kensington residents recently received a letter from Bay View Refuse which we believe contains misleading information. The letter indicates that the company is concerned they might lose their contract in Kensington while in fact,the District agreed during negotiations to extend it an additional 7 years if a satisfactory rate structure could be negotiated. The company has chosen to compare our rates to a limited number of select jurisdictions. This comparison fails to consider variations in the types of collection services or the variance in operating expense. Most noticeably it fails to correctly compare the proposed new rate,which is substantially higher than the current rate. The District has had two independent financial analysts review our rate structure with supporting financial information from Bay View Refuse and determined that the rate should be significantly less than what was requested by the company. The company states that their recent survey showed residents are satisfied with the quality of service currently provided. We support the continuation of current backyard services and the District's efforts to contract for additional state mandated recycling services with Bay View Refuse. Local control has always been important to the quality of life for Kensington residents. In 1979 residents voted to expand the responsibility of the KCSD to include regulation of solid waste collection. A County take over would overturn this vote for local control of public services. We will encourage residents to join us in support of the District Board in their effort to continue administering the garbage collection contract. Natalie Salsig,Vice President Ronald"Kip"Meader,President Kensington Improvement Club Kensington Property Owners Association OCT 18 196 11 : 42 510 526 1028 PAGE.009 PI2� FRANCHISE AGREEMENT WITH BAY VIEW REFUSE AND RECYCLING SERVICES, INC. CONTRA COSTA COUNTY October 17, 1996 TABLE OF CONTENTS 1. EFFECTIVE DATE, PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 a. Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 b. Act . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C. Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 d. Commercial Solid Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 e. Contractor . . : . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 f. County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 g. Customers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 h. Designated Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Franchise Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 j. Hazardous Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 k. Industrial Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Infectious Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 M. Recycle or Recycling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 n. Residential Solid Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 o. Septage . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 P. Solid Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 q. Waste Stream . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID WASTE COLLECTION, REMOVAL AND/OR DISPOSAL . . . . . . . . . . . . . . . . . 3 5. EXCLUSIVE PRIVILEGE AND DUTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE . . . . . . . . . i. . . . . . . . . . . . . . . . . . 4 7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S BIGHT TO EXAMINE RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 8. RATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9. RATE APPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 10. OPERATION BY CONTRACTOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 11. LIMITATION ON TIME AND MANNER OF COLLECTION . . . . . . . . . . . . . . . . 7 October 17, 1996 i 12. CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 13. CUSTOMER SERVICE STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 14. LOCAL ADVISORY COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. 1. Utilize County Rate Setting Methodology . . . . . . . . . . . . . . . . . . . 10 2. Utilize Diversion Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 3. Method of Recycling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 4. Household Hazardous Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 B. AB 939 Implementation and Tracking . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1. Data Collection . . . . . . . . 11 2. Program Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 15. CUSTOMER COMPLAINTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 16. BILLING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 17. RECYCLING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 18. FREE SERVICE FOR COUNTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 19. FRANCHISE AREA-WIDE COLLECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS . . . . . . . . . . . . . . 15 21. DISPOSAL AND WASTE STREAM CONTROL . . . . . . . . . . . . . . . . . . . . . . . 15 22. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR . . . . . . . . . . . . . . . . . 15 21 ADMINISTRATIVE SERVICES AND FRANCHISE FEES . . . . . . . . . . . . . . . . 15 24. HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 25. PRELIMINARY DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 26. FAITHFUL PERFORMANCE BOND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 27. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 28. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 a. Complete Indemnification of County . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 b. Defense of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 29. ATTORNEY'S FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 October 17, 1996 ii 30. ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 31. INVOLUNTARY ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 32. NOTICE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 33. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES . . . . . 20 34. AFFILIATED ENTITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 35. BREACH AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 36. EMERGENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 37. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS . . . . . . . . . . . . 23 38. AMENDMENT OR MODIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 39. POLICE POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 40. CONTEST OF AGREEMENT'S TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 41. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 42. WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 43. SURVIVAL OF OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 44. NEW AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 45. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 October 17, 1996 iii FRANCHISE AGREEMENT WITH BAY VIEW REFUSE AND RECYCLING SERVICES, INC. 1. EFFECTIVE DATE, PARTIES. This Agreement is binding between the County and the below named Contractor and is effective on the date last signed by the parties hereto. 2. DEFINITIONS. As used herein, the following terms shall have the meanings set forth below: a. Agreement. Agreement means this Agreement by and between the County and Contractor for the collection, removal and disposal of solid waste and the recycling of material. b. Act. Act means the California Integrated Waste Management Act of 1989 (Public Res. Code, § 40000 et seq.) and all rules and regulations adopted under any of those sections, as such sections, rules and regulations may be amended from time to time in the future. C. Board. Board means the Board of Supervisors for the County of Contra Costa. d. Commercial Solid Waste. Commercial Solid Waste means Solid Waste routinely originating from stores, business offices and other commercial and light industrial sources excluding residences and any wastes from heavy industry (i.e., industry that manufactures or processes petroleum, lumber, steel, chemicals, explosives, fertilizers, gas, rubber, cement, sugar and other such products [see section 84-60.402 of the Contra Costa County Ordinance Code.]). e. Contractor. Contractor.means Bay View Refuse and Recycling Services, Inc., a California Corporation. It is the entity which has been granted an exclusive franchise pursuant to the terms and conditions set forth herein. Lewis Figone is president and owns 100% of the stock in Bay View Refuse and Recycling Services, Inc. Lewis Figone is also president and owns 100% of the stock in Bay View Refuse Service, Inc., the corporation that is providing waste collection and recycling services to the Kensington franchise area up to the effective date of this Agreement, based on a contract with the Kensington Police Protection and Community Services District. f. County. County means the County of Contra Costa. g. Customers. Customers means those who receive service from the Contractor for the collection of materials for recycling and/or for the collection, removal, or disposal of Solid Waste, pursuant to this Agreement October 17, 1996 1 and applicable ordinances of County, including mandatory subscription ordinances. h. Designated Waste. Designated Waste as used herein has the meaning set forth in section 2522 of Title 23 of the California Code of Regulations, as amended from time to time. L Franchise Area. Franchise Area means the geographic area generally known as the unincorporated community of Kensington in West Contra Costa County described in Exhibit A to this Agreement with Bay View Refuse and Recycling Services, Inc. The Community Development Department may maintain six hundred (600)-scale maps reflecting the Franchise Area. Exhibit A and/or the six hundred (600)-scale maps may be amended from time to time to reflect changes of boundaries of the Franchise Area in such a manner as to identify each alteration to the Franchise Area and the effective date thereof. j. Hazardous Waste. Hazardous Wastes include any waste material or mixture of wastes which is toxic, corrosive, flammable, an irritant, or a strong sensitizer, which generates pressure through decomposition, heat or other means, if such a waste or mixture of wastes may cause substantial personal injury, serious illness or harm to humans, domestic animals, or wildlife, during or as a proximate result of any disposal of such wastes as defined in Article 2, Chapter 6.5, Section 25117 of the Health and Safety Code and 14 Cal.Code Regs., § 17225.32. The terms "toxic," "corrosive," "flammable," irritant," and "strong sensitizer' shall be given the same meaning as in the California Hazardous Substances Act (Chapter 4 commencing with Section 108100 of Part 3 of Division 104 of the Health and Safety Code). k. Industrial Waste. Industrial Waste includes all types of Solid Waste which result from industrial processes and manufacturing operations and/or which originates from such facilities. I. Infectious Waste. Infectious Wastes include: (1) Equipment, instruments, utensils and other fomites of a disposable nature from the rooms of patients who are suspected to have or have been diagnosed as having a communicable disease and must, therefore, be isolated as required by public health agencies; (2) laboratory wastes, including pathological specimens (i.e., all tissues, specimens of blood elements, excreta and secretions obtained from patients or laboratory animals) and disposable fomites (any substances that may harbor or transmit pathogenic organisms) attendant thereto; October 17, 1996 2 (3) surgical operating room pathologic specimens - including recognizable anatomical parts, human tissue, anatomical human remains and disposable materials from hospital, clinics, outpatient areas and emergency rooms, as is also defined in Section 314(d) of the California Administrative Code, Title 17 (14 Cal.Code Regs., § 17225.36). M. Recycle or Recycling. Recycle or Recycling means the process of collecting, sorting, cleaning, treating and reconstituting materials and recovering them so that they may be used in the form of raw material for new, reused, or reconstituted products. n. Residential Solid Waste. Residential Solid Waste means Solid Waste routinely originating from single family or multiple family dwellings. Residential Solid Waste includes household hazardous waste, but does not include septage. o. Septage. Septage means non-sewered liquid or semi-liquid waste which may be trucked to treatment facilities for disposal, to include, but not be limited to, waste from residential septic tanks, commercial grease clean-outs, and industrial waste holding facilities. P_ Solid Waste. Solid Waste has the meaning set forth in Section 40191 of the California Public Resources Code as of the date of execution of this Agreement. Solid Waste includes, but is not limited to, all putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid and semisolid wastes and other discarded solid and semisolid wastes. "Solid Waste" does not include infectioys, designated, and hazardous waste, except household hazardous waste. q. Waste Stream. Waste Stream means the Solid Waste to be collected under this Agreement from the time of its collection by the Contractor to its disposal at a landfill or, at County's discretion, delivery to a transfer facility or other facility by Contractor. 3. TERM. Subject to section 33 (Annexation and Change of Franchise Area Boundaries) and section 35 (Breach and Termination) , the term of this Agreement and the exclusive franchise granted hereunder shall be 20 years, commencing on the effective date first mentioned in section 1 of this Agreement. 4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID October 17, 1996 3 WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The parties hereto agree that County currently has jurisdiction to regulate the collection, removal and disposal of all Solid Waste, and the recycling of all material in the Franchise Area. The intent of this Agreement is to regulate Solid Waste handling service and recycling of material in the Franchise Area. Consistent with State law and County ordinance, this Agreement is intended to and shall supersede the "Contract With Relation To Collection And Disposal Of Garbage Between Bay View Refuse Service, Inc. and the Kensington Community Service District", as amended. 5. EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by law, County hereby grants to Contractor the exclusive privilege and duty within the Franchise Area to collect, and remove for disposal and recycling, all residential and commercial Solid Waste, including recyclable materials, and to charge and receive charges therefor, pursuant to and subject to the terms of this Agreement. Contractor promises and agrees to perform the responsibilities and duties set forth herein. The Franchise Area may be expanded or reduced in size by mutual agreement of the parties, or as provided in section 33 (Annexation and Change of Franchise Area Boundaries) of this Agreement. 6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive privilege granted by this Agreement shall not apply if: a. A person or entity generates Solid Waste, including recyclable materials, and personally collects, removes and disposes or recycles such in a clean and sanitary manner in conformance with all applicable laws and regulations, including mandatory subscription ordinances. This exception shall not apply to a person who incurs a net cost of collection to a third person in the above described activities; or b. A person or entity contracts with. a third person for the removal and disposal or recycling of inorganic refuse or garden waste (a "Non-Franchised Contractor") and such removal and disposal or recycling is solely incidental to work such as remodeling or gardening occasionally performed by or for the customer. This exception shall not apply if the Non-Franchised Contractor incurs a net cost of collection to any third person in connection with its collection and/or disposal of said Solid Waste. 7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S RIGHT TO EXAMINE RECORDS. Contractor shall maintain a proper set of books and records in accordance with generally accepted accounting principles, accurately reflecting the business done by it under this Agreement. Contractor shall further maintain and make available to County, upon its request, records as to number of Customers, total and by type, route maps, service records October 17, 1996 4 and other materials and operating statistics in such manner and with such detail as County may require. County shall treat the information required by this paragraph that affects the competitive position of the company as confidential information to the extent permitted by law. County may at any time during the term of this Agreement, have the books and records of the Contractor examined by a County Agent or Agents (as defined hereinbelow) appointed for that purpose by the County. County shall give thirty (30) days written notice to the Contractor of such examination date. County expenses incurred under this section shall be paid by Contractor subject to their recovery through the rates allowed by the County hereunder. The information required by this section shall pertain to Contractor's operations covered and regulated by this Agreement, and nothing contained herein shall require the Contractor to provide the County with information pertaining to the Contractor's operations which are not regulated by the County, except in conformance with this section. County's Agents may examine Contractor's books, records and financial statements pertaining to operations not regulated by the County as may be reasonably required for the sole purpose of gathering information necessary to allow the Agents to ascertain whether income, expenses, assets and liabilities are reasonably and* consistently allocated among operations regulated by County and those not regulated by the County. Contractor shall obtain County's written approval of its method of segregating its financial records between County-regulated and non- County regulated operations. County shall not unreasonably withhold such approval. To the extent allowed by law, information gained from examination of records pertaining to operations not regulated by the County shall be treated by County and its Agents as confidential information. For the review of books and other financial records necessary to verify the Contractor's income, expenses, assets and liabilities, "County Agent" shall mean County employees or any independent Certified Public Accountant or public accountancy firm. For all other information or records, including the results of financial verification, "County Agent" shall mean any consultant designated by the County or County employees. Nothing in this section will prevent County from allowing public access to County records as provided for under the California Government Code, and in the event any dispute arises as to the public access to information provided by Contractor under the terms of this Agreement, the County shall in its discretion provide public access to said information according to law or tender the defense of any claims made against the County concerning said information to Contractor. Prior to releasing any information pursuant to this paragraph, County shall make a good October 17, 1996 5 faith effort to notify Contractor of the intended release. 8. RATES. Rates shall be fixed by the County from time to time. In determining the rates, the County shall consider fairness to both Contractor and the Customers. Reasonable costs incurred by Contractor pursuant to this Agreement shall be designated as "pass-through" or"subject to reasonable profit" as determined by the County during the rate review process. Rates fixed by County shall be maximum rates which Contractor may charge the Customers. The maximum rates fixed by the County at this time shall be the current rates set forth in Exhibit B to this Agreement. Future modifications in said maximum rates pursuant to section 9 (Rate Applications) hereinbelow shall not require an amendment to this Agreement to be allowed. Following consultation with the Contractor and examination of industry norms and trends, the County, in its sole discretion, shall determine the method of determining Contractor profitability. Contractor is advised that the County may try to establish a common rate setting methodology for unincorporated areas, with input from Contractor and other solid waste collectors in the unincorporated areas. All costs associated with County review and .processing of rate applications shall be paid by Contractor and shall be allowed as a pass-through cost in the rate application process. Following a survey, Contractor shall offer a mini-can program at reduced rates and variable can rates if requested by the Community Development Director. Rates shall be reallocated so that the overall receipts of the Contractor remain essentially the same when the program is in operation. Any such program implementation in 1997 will be part of the June rate review provided for in section 9. 9. RATE APPLICATIONS. Rate applications shall be prepared in accordance with such forms and in such detail as required by the County. The application shall include one reproducible; hard copy, 15 hard copies bound in an appropriate manner and one copy on disk formatted pursuant to County specifications. All rate applications shall include information from the previous rate change to the present, or such other period of time as is selected by the County. At least every three years, any rate application shall be accompanied by an audited financial statement covering the entire period since the last audited rate application together with supporting documentation as required to segregate its County .regulated activities from other business activities. The Community Development Director may, in writing, allow the rate application to be submitted without an audited financial statement provided the Community Development Director is satisfied that the level of verifiable detail allows for adequate assessment of the Contractor's income, expenses, assets and liabilities. Rate changes may be initiated by County at any time or by Contractor under the October 17, 1996 6 conditions allowed in this section. In either case, Contractor shall prepare a rate application in accordance with the requirements of this section. If the rate change is initiated by County, the Contractor shall submit its rate application to County within 60 days of County's notice to Contractor. If the rate change is initiated by Contractor, it shall be submitted no more than once a year under normal operating conditions (but see also section 12.c below regarding implementation of new programs). The date of Contractor initiated applications shall reasonably relate to the fiscal year of Contractor and be standard, year by year. Unless otherwise agreed by the parties, rate applications will be submitted in June of any year and any new rate shall be applied to the September 1st billing (the bill for September through December service). Such a mutual agreement on alternative rate application submittal dates does not require an amendment to this Agreement. In the event that the rate change that would be requested by Contractor is no more than the change in the Consumer Price Index for All Urban Consumers for the San Francisco Bay Area for that fiscal year of Contractor, Contractor may increase its rate up to such amount and not request a rate change from the County. Contractor may defer a rate application pursuant to this paragraph for a maximum of two consecutive years. In the event that Contractor must make significant changes in its operations or experiences significant changes in costs or revenue not under its control, Contractor may submit a rate application at any such time thereafter. Contractor shall provide documentation for the need for such rate application relative to those changes. The application will thereafter be considered by the Board. 10. OPERATION BY CONTRACTOR. Contractor shall furnish all necessary equipment(excluding containers for weekly Solid Waste service) for services provided pursuant to thi§Agreement in the Franchise Area and shall maintain such equipment in a sanitary condition at all times. Contractor shall furnish all necessary labor in connection with the operation of a Solid Waste collection system in the Franchise Area. The Contractor, in performance of this Agreement, shall use trucks with covered, water-tight truck bodies constructed of sufficient strength to withstand a fire within the truck body and not endanger adjacent property. Trucks, drop boxes, bins, or similar types of equipment owned and operated by the Contractor shall be kept clean and in good repair. Contractor shall have its name and telephone number on the side of each truck and on each drop box, bin or similar type equipment provided by Contractor. 11. LIMITATION ON TIME AND MANNER OF COLLECTION. Contractor shall systematically collect Solid Waste, and to the extent permitted by this Agreement, October 17,1996 7 materials for recycling from its Customers. Frequency, place of pickup (backyard service for weekly Solid Waste and curbside service for recycling, green waste and periodic clean-ups unless otherwise approved by the County) or any other manner of collection shall be subject to the review and approval of the Director of Community Development. Upon commencement of service and upon changes in collection day schedules, Contractor shall provide each customer with notice of the scheduled collection day. Contractor shall not collect Solid Waste from an inhabited dwelling or dwelling unit between the hours of 6:00 p.m. and 5:30 a.m. from May through October and 6:00 a.m. from November through April (unless otherwise directed by the Community Development Director). 12. CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION. a. From time to time, at its discretion, County may examine Contractor's operation in order to evaluate whether the Contractor is operating at a satisfactory level of efficiency and customer satisfaction. Contractor agrees to cooperate in any such examination and shall permit County representatives to inspect, at Contractor's principal place of business, such information pertaining to Contractor's obligations hereunder as County may require, including, but not limited to, such things as customer inquiry records, collection routes and equipment records. Access to Contractor's records shall be subject to section 7 (Contractor's Duty to Maintain Records; County's Right to Examine Records). b. Notwithstanding any contrary provision in this Agreement, the County shall have the right to direct Contractor to compile information, develop plans for and/or conduct programs on alternative methods of Solid Waste and recyclable material collection and management, or to take any other action requested by the County for the purpose of meeting the source reduction, recycling and composting requirements of the Act, and any other applicable federal, state or local laws regarding Solid Waste collection, recycling and disposal, including, without limitation, the County's Materials Diversion Ordinance. Contractor agrees to indemnify and hold the County harmless from and against any and all liability to the State of California for the County's noncompliance with the requirements of the California Integrated Waste Management Act due in whole or material part to the material failure of Contractor to properly carry out the reasonable directives of the County to Contractor regarding collection and disposition of Solid Waste and recyclable material; provided, however, that Contractor shall not be obligated to carry out any such directive (and shall not indemnify nor hold the County harmless from any resulting liability) if the County fails to agree to allow Contractor its reasonable costs (including a reasonable profit) associated with carrying out such directives. October 17, 1996 8 C. County may require Contractor to develop plans for and conduct programs on alternative methods of Solid Waste collection, including pilot programs of limited scope, or may require additional programs, for the purpose of improving service, increasing customer satisfaction, and meeting diversion requirements. County may also require Contractor to implement efficiencies in its operation upon written notice from County. The notice shall allow Contractor a reasonable period of time to implement the specified service (or efficiency). Should County require commencement of such a program as outlined in this paragraph, Contractor agrees not only to do those things specified herein, but also to act at the direction of the County on other matters that may be necessary for the success and efficiency of the project, such as public information and notification. In the event that County elects to direct Contractor to discontinue any service theretofore performed by Contractor at the direction of County hereunder, County shall allow Contractor to recover its reasonable capital equipment costs and other reasonable costs arising upon termination of the service. Rate adjustments applicable solely to programs instituted pursuant to this subsection initially shall be established at the time the County authorizes implementation of the program or efficiency. 13. CUSTOMER SERVICE STANDARDS. Contractor shall provide prompt, efficient, continuous and professional service to its Customers. Contractor shall have a phone system with sufficient capacity to promptly respond to telephone calls for at least 8 hours a day during weekdays, excluding those holidays observed by Contractor, plus a 24-hour answering service. All vehicles shall be radio equipped. Telephone numbers for customer service shall be located in the local telephone directory. All telephone lines for customer service shall be toll free to Customers. Not less than once every three years and not less than six months prior to an application for contract renewal, assignment or extension of term, Contractor shall conduct a representative survey or surveys of Customers within the Franchise Area to determine satisfaction with; service, including, without limitation, response to customer complaints. The survey methodology, format and content shall be subject to the prior review and approval of the Director of Community Development. A copy of the survey results shall be sent to the County within sixty (60) days of completion of the survey. Nothing in this paragraph shall limit the right of the County to conduct additional surveys. The Contractor shall cooperate with the County in such cases. Upon initiation of service, and at least once a year, Contractor shall send or deliver to Customers information concerning the conditions of service, including, but not limited to, rates, fees, charges, service options, payment options, discounts (if any), days of collections, the amount and manner of refuse to be collected, service level and inquiry/complaint procedures, including the name, address and local telephone number of Contractor and the name, address and telephone number of the County Community Development Department. The form and content shall be subject to the October 17, 1996 9 review and approval of the Director of Community Development. 14. LOCAL ADVISORY COMMITTEE. The Board of Supervisors shall establish the Kensington Solid Waste and Recycling Committee ("Committee") and appoint five Kensington residents to the Committee. At least two members shall be appointed from the Kensington Police Protection and Community Services District(if requested by the District). The Committee at its election may: 1) review local service interests and needs, recycling and diversion programs, household hazardous materials programs, and the performance of the Contractor in the Kensington Franchise Area and under this Franchise Agreement; 2) participate in rate review; and 3) advise and provide recommendations to the Community Development Department Director and the Board of Supervisors on any such matters. The Committee at its election may hold regularly scheduled meetings or special meetings as may be appropriate. In all cases, the Committee shall provide public notice of its meetings and agendas as a County standing committee and otherwise comply with County committee procedures. The Committee shall hold such meetings at a time and place in Kensington convenient to the public. The Committee should encourage and solicit public input. The Board of Supervisors, in it's discretion, may apportion up to 2% of the franchise fee (section 23) to the Committee based on the Committee's acceptance of responsibility for making recommendations to the Community Development Director or the Board of Supervisors, implementing the SRRE and other matters, as directed by the County from time to time. If accepted by the Committee, such responsibility may include but is not limited to: A. 1) UTILIZE COUNTY RATE SETTING METHODOLOGY - The County shall set the initial rate for solid waste and recycling pickup. Future rate modifications may be reviewed by the Committee using the methodology established by the County. Recommendations shall then be referred to the County for discussion. 2) UTILIZE DIVERSION CRITERIA - The Committee shall be responsible for developing in coordination with and subject to approval of the County conservation staff, programs as indicated in the County SRRE to assure that the State mandated diversion of 50% is accomplished by the year 2000. Due to the difficulty in determining the exact amount of waste generated by the subject area in 1990 and the current difficulties in tracking all waste coming from the area due to self hauling and special non-franchised loads, the Committee shall assist in implementing such source reduction and recycling programs as directed by the County, in a timely manner, on a schedule that, at least, reflects that of the majority of the County population including the Cities and Regional Agencies within the County. October 17, 1996 10 3) METHOD OF RECYCLING (CURBSIDE/TRANSFER STATION/ETC) - The Committee may determine, with the Contractor, the most cost effective method of accomplishing the required recycling. ' Possible methods to consider are- a) picking up at curbside different materials on different days, b) allow for mixed curbside pickup to be sorted at a transfer station or central sorting area or, c) designated containers for each material to be picked up at curbside d) local neighborhood drop off sites for some materials 4) HOUSEHOLD HAZARDOUS WASTE - METHOD OF DEALING WITH HHW REQUIREMENTS - In order to meet State requirements each city and county is required to provide Household Hazardous Waste disposal for their residents. The County mobile HHW program is currently providing for a mobile drop-off service that is financed in various ways throughout the county. The Local Advisory Committee shall determine the method of payment for the Kensington area. B. AB 939 IMPLEMENTATION AND TRACKING 1) DATA COLLECTION a) REPORTS FROM CONTRACTOR TO LOCAL ENTITY AND COUNTY REGARDING SOLID WASTE DISPOSED AND MATERIALS RECYCLED - The Committee may be responsible for obtaining reports from the Contractor that provide a breakdown by material/ tonnage and sales price of all materials recycled and of the amount of solid waste and green,waste disposed and at what location for the Kensington Community. Such report information would then be forwarded to the County in the required format for compilation into the Countywide recording system, initially in the format shown in Exhibit C. b) COUNTYWIDE COLLECTION OF DATA AND REPORTING TO STATE - The County shall be responsible for the collection and consolidation of all disposal and recycling information for the unincorporated County and for collection and reporting to each County jurisdiction of disposal information, and for the AB 939 reporting to the State. 2) PROGRAM DEVELOPMENT October 17, 1996 11 a) COUNTY RESPONSIBILITY- The County will be responsible for setting up programs in all parts of the County to meet the requirements of the State approved SRRE. As part of that responsibility the County will provide Source Reduction and Recycling programs to individual communities. An example is compost workshops. The County will also provide coordination to provide for variable can rates, mini-can rates, source reduction programs (ie: Shop Smart), Commercial recycling programs, collection programs for reusable items, develop full scale recycling programs for both single family and multifamily residential and commercial developments. b) LOCAL RESPONSIBILITY - The Committee may provide local publicity and generate local interest in solid waste and recycling programs, provide locations for activities such as compost workshops, determine any special needs that the community may have in regards to solid waste pickup services, either garbage or recycling, work with county staff to develop "reduce, reuse and recycle" programs that will be effective in the Kensington community. The Committee, using the methodology approved by the County, may review any rate change requests and transmit their recommendation on the request to the County. They will determine the preferred method of paying for Household Hazardous Waste services and maintain records of amounts of solid waste, recyclables and green waste collected. 15. CUSTOMER COMPLAINTS. Contractor shall develop and implement policy and procedure for responding to and recording Customer complaints, including dispute resolution. The policy and procedure shall be subject to the approval of the Director of Community Development. 16. BILLING. The form and content of customer bills shall be subject to the review and approval of the Director of Community Development. Bills for services will be sent three times per year for every four months (September, January, May), unless otherwise determined by the County. The County may establish billing period options for Customers upon a finding that such options are cost-effective and meet a community need. Full payment for drop boxes may be required by Contractor prior to delivery of the drop box to the Customer. The County shall have the right to direct the Contractor to change or alter its billing system in which event the marginal additional expenses incurred by the Contractor in the implementation of the change, with regard to the accounting, printing, mailing, October 17, 1996 12 loss of use of funds, or otherwise, shall be recoverable by the Contractor through the rates allowed by the County provided such expenses are reasonable. Contractor shall inform Customers of all rate changes at least 30 days prior to their effective date. A copy or facsimile of such notice shall be provided to County at the time of Customer notification. 17. RECYCLING. County grants to Contractor the right and obligation to operate recycling programs, including curbside pick up of recyclable materials, as determined and designated by County, subject to County's right to terminate this grant to Contractor pursuant to the provisions of this section. Contractor shall request that recyclable materials be placed at the curb by 5:00 a.m. of the day for which service has been designated for that particular dwelling. Contractor is not responsible to pick up recyclables not placed on the curb in a timely manner. Contractor has already instituted and implemented a recycling program including regular curbside pick up in five-gallon buckets at all single family residences of at least aluminum, tin, newsprint, glass bottles, non-colored HDPE and PET, as more fully set forth in Exhibit B. The current program will be supplemented by cardboard, mixed paper and other collections with the implementation of this Agreement, so that items listed in County Ordinance Section 418-10.604, as it may be amended from time to time, are collected. Separate green waste pick ups will be added effective January 1997. The County has the right at any time to modify said program or require new programs as provided at section 12.b hereinabove. At the written request of Contractor, the Community Development Department Director may delete a material from recycling if the Director determines that there is no market to accept the material (see Article 418-10.8 for applicable exemptions and findings). Contractor shall maintain and provide to the County records relating to its recycling programs as directed by the Director of Community Development. Contractor shall provide to each household promotional information pertaining to the curbside recycling program. Contractor shall allow County staff to review such material prior to delivery ano shall make any changes reasonably requested by staff. Contractor shall distribute written promotional material two times per year as necessary to maintain participation in the program and more frequently, if required . by the Community Development Director: Unless otherwise required by the Community Development Director, Contractor shall provide the County with periodic reports on the recycling program which shall include: i r a. Participation level (i.e., the number of residences participating in the recycling program) based on one sample week during each calendar quarter. b. Quantity of materials collected, in tons, by type of material (e.g., newspaper, glass, plastic and metal), by calendar quarter. October 17, 1996 13 C. Revenues received by Contractor for each type of material and total revenues received, by calendar quarter. Unless otherwise directed by the Community Development Director, reports shall be provided quarterly and annually. The quarterly reports shall be due by the 15th of the month following the close of the quarter and shall cover the preceding three months. For example, the first quarterly report shall be due April 15, 1997 and shall cover January, February and March, 1997. The first annual report shall be due by March 15 of 1997, and shall cover the preceding calendar year. Contractor's provision of recycling service shall be reviewed in approximately one year and thereafter within three (3) years of the effective date of this Agreement and, at County's discretion, every five years thereafter. If County determines that continuation of such service by Contractor is not consistent with the County's ratepayers best interest, but not as a result of Contractor's failure to satisfactorily provide recycling services, Contractor shall be allowed to recoup its unamortized capital expenditures as follows. Contractor shall make a good faith effort to sell all disposable assets acquired in furtherance of the program for their fair market value. If income derived from the sale is insufficient to cover the unamortized costs of such assets, Contractor may transfer those losses together with net operations profits or losses to its general account and submit a rate application to cover such losses. If County determines that Contractor has failed to satisfactorily provide and perform recycling services, County may terminate this grant to Contractor of the right and obligation to provide and operate recycling programs, at no cost or further obligation on the part of the County or County's ratepayers. 18. FREE SERVICE FOR COUNTY. Contractor shall provide Solid Waste collection and disposal services at those County buildings within the Franchise Area (the library) designated by the Director of Community Development from time to time, at no charge to the County. 19. FRANCHISE AREA-WIDE COLLECTION. Unless otherwise determined by the Community Development Director, in addition to its regular collections, commencing in January, 1997, as set forth in Exhibit B, Contractor shall provide four scheduled green waste curbside pick ups (no yardage limit; no plastic bags) and one curbside general pick up (1 1/2 yards, bundled, tied or placed in boxes or trash containers). Said collections shall be made each year throughout the term of this Agreement in accordance with practices and procedures established by Contractor and subject to the approval of the Community Development Director. If the Community Development Director determines that one more green waste pick up is desirable, then Contractor shall provide it at no additional cost until the next regular rate review. Green waste shall be delivered to a composting or chipping facility by the Contractor, subject to review and direction by the Community Development Director. October 17, 1996 14 The increased cost of green waste pick ups and any changes in the recycling . program may be considered as part of the next rate review. Customers shall be timely notified on the dates of the scheduled green waste pick ups. The recycling and other services provided by Contractor are set forth in Exhibit B. The scope of solid waste collection, green waste and recycling services provided may be changed from Exhibit B at the direction or with the approval of the Community Development Director and without amending this Agreement. 20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS. Contractor shall provide, upon direction of the Community Development Director, Solid Waste drop boxes or equivalent containers for community or other clean-up projects within the Franchise Area. The Contractor's obligation shall be limited to the equivalent of up to three (3) 20-cubic yards drop boxes per year on request in the Franchise Area. 21. DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be solely responsible for the disposal of the Solid Waste collected pursuant to this Agreement. County has complete authority and control over the Franchise Area waste stream. County may, at its sole discretion upon providing 60 days notice to Contractor, direct the Solid Waste collected under this Agreement to be delivered to any site or facility of its choosing. This shall include the right of the County to direct the Solid Waste to be delivered to any County designated transfer station, disposal site, transformation facility and/or resource recovery facility. It is understood that County may contract with any party, public or private, to commit the waste stream from the Franchise Area, and that Contractor's contracts may not bind County, nor need County consider such other contracts for any purpose. Notwithstanding the above, Contractor may propose, and County may but need not consider, waste management and/or disposition alternatives which are cost effective. In determining or comparing costs, County shall consider all relevant factors, including but not limited to, transportation costs, closure and postclosure requirements, costs and liabilities, disposal fees, fees levied by governmental entities, including benefits to Contractor's customers from paying such fees, costs of compliance with ordinances and other local requirements, and long-term costs, including degree of control over future costs. 22. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor shall assist County in its enforcement of its mandatory subscription ordinance by providing County with the addresses of properties not subscribing to collection service within the Franchise Area and by providing collection service to such properties upon written request by the County. 23. ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor shall pay to the County for (a) the services provided by the County in administering this Agreement, (b)for services and programs pertaining to Solid Waste provided by the County, and (c) additionally as directed by the County, a percentage of its gross October 17, 1996 15 annual revenues generated from the performance of such waste collection services under this Agreement. Unless otherwise subsequently determined by the County, the total amount for such administration services and franchise fees shall be 5% of the commercial and residential bills for each calendar year, commencing in September, 1996. Such percentage, time and frequency of payment may be adjusted by County from time to time. Said sums shall be payable from the Contractor to the County on a four month basis (January, May and September for the respective four preceding months' billings). Such administrative and program services and any franchise fees shall be considered a reasonable cost and subject to "pass-through" as described in section 8 on Rates. 24. HAZARDOUS WASTE. The parties hereto recognize that federal, state and local agencies with responsibility for defining hazardous waste and for regulating the collection, handling or disposing of such substances are continually providing new definitions, tests and regulations concerning these substances. Under this Agreement, it is Contractor's responsibility to keep current with the regulations on such substances and to identify such substances and to comply with all federal, state and local regulations concerning such substances. Contractor agrees to provide to County upon its request, Contractor's program for identifying hazardous waste and complying with all federal, state and local statutes and regulations dealing with hazardous waste. Contractor shall make every reasonable effort to prohibit the collection and the disposal of hazardous waste in any manner inconsistent with applicable law. 25. PRELIMINARY DISPUTE RESOLUTION. If Contractor has a question as to the interpretation of this Agreement, it shall submit a written request to the Director of Community Development for a determination of the issue. The Contractor shall provide and submit such information as the Director of Community Development may request or require to make the requested determination. The written determination of the Director of Community Development on such interpretation, as with any other determination by the Director, may be appealed to the Board of Supervisors pursuant to Ordinance Code Chapter 14-4. 26. FAITHFUL PERFORMANCE BOND. Contractor shall submit to County simultaneously with the execution of this Agreement a corporate surety bond in the amount of$10,000, provided however, that the Board may increase this amount not more often than every three years to reflect changes in the Consumer Price Index for All Urban Consumers for the San Francisco Bay Area. The bond shall be executed by a surety company licensed to do business in the State of California and acceptable to County. The bond shall be approved by the County and shall be payable to County. The condition of the bond shall be that Contractor will faithfully perform the duties imposed by ordinance, this Agreement and the rules and regulations of County. Any action by County to proceed against the Bond shall not limit or affect the right of County to use other remedies available to County under the agreement or in courts of law or equity, not withstanding the foregoing. In lieu October 17, 1996 16 of the corporate surety bond, Contractor may provide to County a letter of credit, cash bond or other security acceptable to the County Administrator's Office and in a form satisfactory to the County. 27. INSURANCE. Contractor shall procure and maintain in full force and effect at all times during the entire term of this Agreement the following coverage: a. Public liability and property damage insurance including completed operations, products, contractual, broad form property damage, personal injury and owned and non-owned automobile liability with such coverages and limits as may be reasonably requested by County from time to time, but in no event with limits not less than the sum of$3 million combined single limit for each occurrence arising from the services as stated in the Agreement herein. County shall be named as an additional insured under such liability insurance policy or policies, if commercially available. b. Contractor shall carry workers' compensation insurance for all its employees. Evidence of liability and workers' compensation insurance shall be provided by Contractor by filing with County a certificate of insurance indicating that County is endorsed as an additional named insured under the liability policy. All policies shall include a provision that written notice of cancellation or any material change in coverage shall be delivered to County thirty (30) days in advance of the effective date thereof. No cancellation, alteration or change of beneficiary shall be made without written notice to County. County reserves the right to examine all policies from time to time to ensure appropriate conformity to prevailing practices and standards of the insurance industry. Such insurance shall be obtained from a company or companies licensed to do business in the State of California and acceptable to County. Failure of Contractor to maintain insurance in the manner and amount stated herein and as directed by County Administrator, subject to the apprgval of the Board, will constitute a material breach of this Agreement. 28. INDEMNIFICATION. a. Complete Indemnification of County. All work and performance covered by this Agreement shall be at the risk of Contractor. Contractor agrees to save, indemnify and keep harmless the County, its officers, employees, agents and assigns against any and all liability, claims, judgments, or demands, including demands arising from injuries or deaths of persons and damage to property, including environmental damage, arising October 17, 1996 17 directly or indirectly out of the obligations herein undertaken or out of the operations conducted by Contractor, save and except claims or litigation arising through the sole negligence or willful misconduct of County, and will make good to and reimburse County for any expenditures, including reasonable attorney's fees, that County may make by reason of such matters and, if requested by County shall defend any such suit at the sole cost and expense of Contractor. The above promise by Contractor to indemnify, hold harmless and defend the County expressly includes, but is not limited to, all claims, damages (including but not limited to special and consequential damages), natural resources damages, punitive damages, injuries, costs, response, remediation and removal costs, losses, demands, debts, liens, liabilities, causes of action, suits, legal administrative proceedings, interest, fines, charges, penalties and expenses (including but not limited to attorney's and expert witness fees and costs incurred in connection with defending against any of the foregoing or in enforcing this indemnity) of any kind whatsoever paid, incurred or suffered by, or asserted against, County, its officers, employees or agents arising from or attributed to any repair, cleanup or detoxification, or preparation and implementation of any removal, remedial, response, closure or other plan (regardless of whether undertaken due to governmental action) concerning any hazardous substances or hazardous waste at any place where municipal solid waste is or has been transported, transferred, processed, stored, disposed of or otherwise come to be located by Contractor under Agreement, or the activities of Contractor pursuant to this Agreement resulting in a release of hazardous substances or waste into the environment. The foregoing is intended to operate in part as an agreement, pursuant to section 107 (e) of the Comprehensive Environmental Response, Compensation and Liability Act, "CERCLA," 42 U.S.C. section 9607(e), and California Health and Safety Code section 25364, to defend, protect, hold harmless and indemnify County. The intent of the section is to prgvided County with the highest level of protection pqssible under existing and future laws. b. Defense of Agreement. Should any party successfully challenge the validity of this Agreement, the procedure by which this Agreement was entered into or the validity of any County ordinance which authorizes the County to enter into this Agreement, then in such case the Contractor shall have no cause of action for damages or any other relief against County as a result of such successful challenge. Contractor has the right to defend this Agreement and County. County has no duty to Contractor to defend the validity of this Agreement or any provision hereof. 29. ATTORNEY'S FEES. In the event of litigation between the parties arising October 17, 1996 18 hereunder, each party shall be responsible for and pay its own litigation expenses, including attorney's fees. 30. ASSIGNABILITY. Contractor shall not sell, assign, subcontract or transfer this Agreement or any part hereof, or any obligation hereunder, without the written consent of County. The term assignment shall include any dissolution, merger, consolidation or other reorganization of Contractor, which results in change of control of Contractor, or the sale or other transfer by probate proceeding or otherwise of a controlling percentage of Contractor's capital stock to a person not a shareholder on the date of the execution of this Agreement. The term "assignment" does not include internal business reorganizations or formations of new companies by Contractor, formation of trusts by Contractor or transfers of any interest of Contractor as a result of death, disability or estate planning by one or more of the principals of Contractor, so long as essential management decisions are retained by Lewis Figone, his spouse, his children, and/or their spouses. It is understood and agreed by the parties that corporations that are 100% owned by Lewis Figone, his spouse, his children, and/or their spouses may presently and in the future perform obligations and responsibilities of the Contractor in the Franchise Area. Performances of obligations and responsibilities of the Contractor by such companies shall not be deemed an assignment under this section. Consent to assignment may not be unreasonably withheld. However, it is understood that County's grant of this franchise to Contractor is partly persuaded by the Contractor's financial strength and background in the field of waste management. Therefore, assuming Contractor maintains its ability to faithfully carry out its duties hereunder, it is in the County's ratepayers best interest for Contractor to continue under this Agreement. Following a public hearing, County may assign or transfer any or all of its rights under this Agreement without the consent of Contractor �o any legally authorized public entity. In the event Contractor herein attempts to assign or subcontract this Agreement or any part hereof or any obligations hereunder in a manner inconsistent with the foregoing, County shall have the right to elect to terminate this Agreement forthwith, without suit or other proceeding. 31. INVOLUNTARY ASSIGNMENT. No interest of Contractor in this Agreement shall be assignable by operation of law. Each or any of the following acts shall be considered an involuntary assignment providing County with the right to elect to terminate the Agreement forthwith, without suit or other proceedings.. (1) If Contractor is or becomes insolvent, or makes an assignment for the benefit of creditors; (2) If writ of attachment or execution is levied on this Agreement or other property of Contractor such that would affect Contractor's ability to perform October 17, 1996 19 its duties and obligations under this Agreement. (3) If in any proceeding to which Contractor is a party, a receiver is appointed with authority to take possession of Contractor's property such that would affect Contractor's ability to perform its duties and obligations under this Agreement. (4) Except as otherwise provided in section 30 (Assignability), in the event of a probate proceeding where the rights of Contractor under the Agreement would pass to another individual or other individuals. 32. NOTICE PROVISIONS. Any notice required or permitted under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or ten (10) days after posted by certified mail, return receipt requested, addressed as appropriate either to Contractor: Bay View Refuse and Recycling Services, Inc. Attn: Lewis Figone P.O. Box 277 EI Cerrito, CA 94530 Or to County: Contra Costa Community Development Department 651 Pine Street, 4th Floor, North Wing Martinez, CA 94553-0095 Attention: Solid Waste Program Manager 33. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES. Contractor shall give notice to County by January 30 of the next calendar year of any geographic area in the Franchise Area or immediately contiguous to the Franchise Area, in\jhich Contractor has commenced service within thg preceding year, notwithstanding whether Contractor deems that area to be regulated or unregulated. Contractor realizes that the public agency boundaries may be altered by virtue of actions taken by the Contra Costa County Local Agency Formation Commission (LAFCO). Contractor agrees that should a municipal corporation lawfully annex .territory which is within the Franchise Area, County may make such alterations to the Franchise Area as the annexation necessitates. Should the Franchise Area boundaries be amended, Contractor agrees that it will abide by any change resulting from the Franchise Area change. Contractor agrees that the Board of Supervisors may make such alterations to the Franchise Area as are necessitated by such Local Agency Formation Commission actions and shall have no right or claim to damages or other relief against the County for such alterations to the Franchise Area. However, nothing herein is intended to abrogate Contractor's rights under Public Resources Code Section 49520 or any successor or similar October 17, 1996 20 statute. 34. AFFILIATED ENTITIES. Contractor shall provide information necessary to reasonably satisfy County that the charges made by any Affiliated Entity are reasonable in accordance with the provisions of section 8 (Contractor's Duty to Maintain Records; County's Right to Examine Records). Information gained from examination of books and records pertaining to operations not regulated by the County shall be treated by the County and its Agents as confidential information. "Affiliated Entity" shall be defined, for purposes of this section, as any entity which provides products or services to Contractor and in which either Contractor or the affiliated entity owns a ten percent (10%) or greater interest in the other, or where one person or entity owns ten percent (10%) or greater interest in both. For purposes of this section, the term "Contractor' shall include Contractor, and if Contractor is an individual or a group of individuals (partnership), all immediate family members, or if a corporation, major shareholders, and if any major shareholder is an individual, said individual's immediate family members. For the purpose of this paragraph, "immediate family' includes spouses and relatives of the first degree of sanguinity, and their spouses. 35. BREACH AND TERMINATION. The Director of Community Development shall have authority, subject to review by the Board of Supervisors upon appeal, to determine whether a breach of any provision of this Agreement by Contractor has occurred. Any waiver of a breach shall not be deemed to be a waiver of any subsequent breach or to be construed as approval of a course of conduct. In the event that the Director determines that a breach has occurred, County shall give Contractor written notice of the breach setting forth the breach or default. Contractor shall have a reasonable period to cure the noticed breach, said period not to exceed 60 days. In the event the breach or default is cured to the satisfaction of the Director of Community Development within the period of time allotted, the breach shall not be deemed a material breach. In the event that the Director of Community Development determines that Contractor has failed to satisfactorily cure the breach or default within the period of time allotted, the; Director of Community Development may determine such breach or default to be material. Multiple or repeated breaches, or a pattern of breaches and subsequent attempts to cure said breaches by Contractor shall provide an adequate basis for the Director of Community Development, in his discretion, to declare any subsequent breach to be material, notwithstanding whether that breach is ultimately cured by Contractor. If such a determination of material breach is made, the Director of Community Development's determination shall be automatically appealed to the Board of Supervisors for final action. A material breach shall be cause for termination of this Agreement by the Board of Supervisors. October 17, 1996 21 In the event of a termination pursuant to this section, County shall have the right to temporarily assume the obligations of Contractor and shall have the right to forthwith take possession of all trucks and other equipment of Contractor and exercise Contractor's right to enter and use any disposal facilities for the purpose of performing the services agreed to be performed by Contractor herein until such time as County can make other arrangements for the performance of said services. However, such temporary assumption of Contractor's obligations under the Agreement shall not be continued by County for a period exceeding twelve (12) months from the date such operations are undertaken by County. During any period in which County has temporarily assumed the obligations of Contractor under this Agreement, County shall be entitled to the gross revenue attributable to operations during such period and shall pay therefrom only those costs and expenses applicable or allocable to said period, including the reasonable rental value of the trucks and equipment to be paid to Contractor. County shall be entitled to the excess, if any, of revenue over applicable or allowable costs and expenses during such period. The loss, if any, during such period shall be a charge against Contractor, and shall be paid to County by Contractor on demand. Final adjustment and allocation of gross revenue, costs, and expenses to the period during which County temporarily assumed the obligations of Contractor shall be determined by an audit by a Certified Public Accountant and prepared in report form with his unqualified opinion attached thereto. Nothing in this Agreement shall prevent County during any period in which County temporarily assumes the obligations of Contractor under this Agreement, from employing persons who were employed by the Contractor for the collection of Solid Waste under this Agreement. Upon the occurrence of a material breach and the declaration of such and termination of this Agreement by the Board of Supervisors, this Agreement and the franchise granted thereunder shall be of no further force and effect, excepting these provisions concerning County's right to temporatily assume Contractor's obligations and to use Contractors facilities, and section 28 (Indemnification). County then shall be free to enter into whatever other arrangements are deemed justified and necessary for the collection, removal and disposal of Solid Waste within the Franchise Area. 36. EMERGENCY. Notwithstanding Contractor's exclusive franchise rights set forth in section 5 (Exclusive Privilege and Duty), in the event of an emergency due to natural disaster or labor strike which interrupts the collection of Solid Waste by Contractor, the Board of Supervisors shall have the right to declare a temporary suspension of this Agreement for the reasonable duration of the emergency and until such time as County determines that Contractor is able to reassume all obligations under this Agreement. Should Contractor fail to demonstrate to the satisfaction of the Board of Supervisors that required services can be resumed by Contractor prior to the expiration of a six (6) month period, this Agreement may be terminated at the direction of the Board. October 17, 1996 22 37. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. Contractor shall be responsible for and shall comply with all applicable laws, rules, and regulations that are now in effect or may be promulgated or amended from time to time by the Government of the United States, the State of California, the County and any other agency now authorized or which may be authorized in the future to regulate the services to be performed herein regarding the collection, removal and disposal of Solid Waste and recycling of material. This includes County Ordinance Code Chapter 418-6 (on mandatory subscription to Solid Waste collection service), and the County's Materials Diversion Ordinance. 38. AMENDMENT OR MODIFICATION. This Agreement may be amended or modified upon written agreement of the parties hereto. The parties agree to meet and confer in good faith if amendments or modifications are proposed. 39. POLICE POWERS. Nothing in this Agreement is intended to or may limit County authority pursuant to its police power. 40. CONTEST OF AGREEMENT'S TERMS. In the event either party to this Agreement attempts to challenge the validity of any portion of this Agreement, such action in attempting to challenge the Agreement shall constitute a material breach of this Agreement and the non-breaching party shall have the right to elect to terminate this Agreement forthwith without suit of other proceeding. This section shall not be construed to prevent either party from seeking redress from the courts for the purpose of legal review of administrative proceedings regarding rate setting or County actions taken pursuant to this Agreement, or for the purpose of interpreting or enforcing the provisions contained in this Agreement. 41. SEVERABILITY. In the event legal action is brought by a person or entity, other than the parties to this Agreement, to challenge, invalidate, contest or set aside any of the provisions of this Agreement, each and every term and condition, and each and every section and paragraph is severable from the remaining terms, conditions, sections, and paragraphs. The invalidation of any term,.condition, section or paragraph as a result of a legal action, brought by a person or entity not a party to this Agreement shall not affect the validity or enforceability of the remaining provisions. However, if material provisions hereof are affected, the parties agree to negotiate in good faith to reach agreement on revisions which preserve the substance hereof to the greatest extent allowed by law. 42. WAIVER. The waiver by either party of any breach or violation of any provisions of this Agreement shall not be deemed to be a waiver of any breach or violation of any other provision nor of any subsequent breach or violation of the same or any other provision. The acceptance of any monies which become due hereunder shall not be deemed to be a waiver of any pre-existing or concurrent breach or violation October 17, 1996 23 by the other party of any provision of this Agreement. 43. SURVIVAL OF OBLIGATIONS. Obligations of this Agreement which embody continuing obligations, including but not limited to section 28 (Indemnification) shall survive the termination or expiration of this Agreement. 44. NEW AGREEMENT. Contractor acknowledges that County has provided notice to Contractor pursuant to Public Resource Code section 49520. Pursuant to said notice and Chapter 418-7 of the County Ordinance Code, effective no later than the effective date of this Agreement, Contractor's Franchise Agreement with the Kensington Community Service District is terminated and of no force or effect. Pursuant to section 3 (Term), this Agreement will be effective through it's term. 45. ENTIRE AGREEMENT. This Agreement represents the full and entire agreement between the parties hereto with respect to the matters covered herein. COUNTY OF CONT OSTA i( - ii- i- 9 4. CHAT , B Ahb OF SUPERVISORS Dat &a ATTEST, Phil Batchelor, _ Clerk of the Board Form Approved and County Administrator By: . 9 EPUTY CONTRACTOR BAY VIEW REFUSE AND RECYCLING SERVICES, INC. a California Corporation By: LEWIS FIG NE Date PRESIDENT �8-- v 39 -Y(P" Taxpayer I.D. No. orm Approved MF1:J:\GROUPS\CDADPOOL\MARY\CONSE RV\FRANCH IS\KENSINGTIBVRR 1017 AGR October 17, 1996 24 d a VOL ,.s n goad' VII ti�cy' �q C<1Ft DR. LLW DR A� F Cj0 1► G C • �s,, \� ,� 0% , QUA 0 wg �t F9J, �4L fq/IPII prR� 1 s J_ a � V .3• G Nt N d ' XERR INC q L � k. y r�J, cyc VORWOOD Cl Tt AY .f <1 VIP AV xv oA NJ skit � \./ `o�c 44- G SS44 10409, w Or Q Highgate Kd. Highland Blvd. \♦ C�,y Jessen Dr. J C,Q �y shy cn - Kenilworth Ct. t=1 [-j Kenilworth Dr. GKensington Rd. t'j Kenyon Av. ' U Kerr Av. ROAD Kingston Rd. ' La • Dr. cn P-4 Lawson Rd. ' U, Los Altos Drw H Lenox Rd. y C �k0 ` y Lexington Rd.. G' � t� 6KOSIngtoS01. ►�py G IN Avg` Vp rn ID ti ♦ NORWOOD PL. 30 \NGTON gyp Q7 ST qV -� „ iMILLAMETTE r C) 4 �n AVE. DR. 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VSO" �• � r`N 1 j K t (, tj .1...::,t �� oLfESI S ZN ` � ~ tRq♦ � AVF > � _1.,:, Apo yt ��.`sH�e• os rc 1 tE N T,E.O r t > QO(ems>i !R MS Z q S 4 pp(c"? of DH J6 _¢ int• 8\ LLa < CFF Sr \ 1 •_��SOw 5 T o } :`� t i 1 t •1 `f > �e < Exhibit B MONTHLY MAXIMUM RESIDENTIAL AND COMMERCIAL RATES IN KENSINGTON • Residential Rates: 30 gallon cans Monthly Fee 1 can once a week $16.25 2 cans once a week $27.50 3 cans once a week $39.00 4 cans once a week $50.00 5 cans once a week $61.30 40 gallon cans Monthly Fee 1 can once a week $36.60 45 gallon cans Monthly Fee 1 can once a week $39.75 ® Commercial Rates: 30 gallon can once a week $16.25 Material other than can use (bulk rate) Dry $16.50/cubic yard Wet $17.00/cubic yard i These rates represent the current rates in Kensington. Rates subject to adjustment when mini- can and higher multiple can rates are implemented by the County with the intent that total revenue collected remain approximately the same. • The September billing will provide information about the mini can and variable can programs and will survey customers regarding their'interest in changing their service. Based upon the' results of the survey, mini can and variable can rates will be effective January 1, 1997. KENSINGTON SERVICE INFORMATION • Yearly 4 month billing cycles: bills sent our in January, May and September for next 4 months service beginning with billing month. • Designated month to file standard applications for rate changes: June. Earliest rate review request by Bay View would be June, 1997. Any such approved rate request may take effect in September. Rate reallocation among customers will occur earlier with new mini-can rate and higher multiple can rates. • Containers: residential and commercial customers provide their own cans for the weekly solid waste collection service. 3 five-gallon buckets provided by Bay View for weekly recycling service (customers charged at cost for any replacement buckets). If recycling increases, Bay View will provide additional buckets. Recyclable materials are as follows: (a) aluminum cans, (b) glass containers, (c) newsprint, (d) PET bottles, (e) clear HDPE bottles, (f) colored HDPE bottles, (g) steel and tin-plated cans, (h) cardboard, (1) polystyrene, (j) plastic film, (k) yardwaste, and (1) mixed paper (includes magazines). • Special job pick ups (e.g., old refrigerators) may be scheduled for a separate charge. • At County direction, Bay View will provide notice of scheduled pick ups by Bay View of reusable materials (e.g., old clothes, toys) in coordination with organizations like Good Will Industries and Urban Ore. • Pick up locations: backyard weekly service for cans; curbside weekly recycling service. • Green waste pick ups effective January 1, 1997: curbside scheduled green waste pick ups; 4 pick ups annually on customer's regular garbage day; each pick up (no yardage limit) bundled, tied or placed in boxes or trash containers (boxes and containers will not be removed)(no plastic bags). • General pick up effective January 1, 1997: 1 curbside pick up annually in September; 1 1/2 yards bundled, tied or bagged of general waste (no greenwaste), unless otherwise directed by the Community Development Department. • In 1996 there will be one general pick up in November. AAEXHIBIT.B t � Exhibit C UNINCORPORATED CONTRA COSTA COUNTY DIVERSION DATA Service Provider: Program Type: Unincorporated Service Area: Is the Data from an annual report (Yes or No)? If not, which quarter of the year (e.g. 1,2,3 or 4)? Year: MATERIAL TYPES ENTER TONNAGES BY MATERIAL TYPE Abbreviations are shown in parenthesis PAPER PLASTIC Corrugated Cardboard (OCC): PET (PET): Newsprint (ONP): HDPE (HDPE): High grade (HG): Polystyrene (PS): Mixed Paper(MP): Other(P-X): Magazines(OMG): GLASS OTHER WASTES CA Redemption Value Cont. (CRV): Textiles (TX): Other Glass (GLS): Inerts (INRT): White Goods (WG): METAL Reusables (REUSE): Aluminum Cans (UBC):+ Other (OTHER): Tinned cans and ferrous (Fe): Other non-ferrous (N-Fe): Notes: ORGANICS Yard waste (YW): Food waste (FW): Wood waste (WW): Completed by: Firm or Agency Date: Page of Phone No. Instructions for completing diversion data forms: The attached form has been designed to assist Contra Costa County in compiling information on diversion programs in unincorporated areas of the County. The use of these forms will aid County staff in tracking the progress of individual waste diversion programs and unincorporated communities. The following instructions have been written to assist you in accurate and efficient completion of these forms: • Service Provider: Enter the name of your company or franchised service provider. • Program Type: Enter the program name(for example--curbside collection; drop-off,greenwaste collection). Complete a separate form for each program!!! • Unincorporated Service Area: If possible,indicate the Unincorporated Service Area where the materials came from(e.g. Crockett). If specific information is unavailable,use a more general description to identify the location or region (e.g. use West County to identify materials collected in the western region of Contra Costa County). Complete a separate form for each Unincorporated Area!!! • On the next two lines,please indicate whether the data represents an entire year or is a single quarter. If data is for a single quarter,be sure to use a new form for each quarter of data. • Enter the tonnages of each material type you handle. If you have a material type that does not appear on the list,use one of the categories listed as 'other"to report materials. For paper grades not listed,use either"mixed paper"or"high grade paper",as appropriate. • Use the space provided under"notes"to make any special comments about the data presented in the form. • At the bottom of the page write your name,the name of your organization and phone number,the date;and the current page and total number of pages being submitted. If you have any questions or concerns regarding the completion of these forms,please call Mary Fleming at(510)335-1230. Thank You For Your Assistance!! r i