The URL can be used to link to this page

Home My WebLink AboutMINUTES - 04041995 - SW.1 TO: BOARD OF SUPERVISORS FROM: AD HOC SOLID WASTE COMMITTEE SUPERVISOR JEFF SMITH, DISTRICT 2 SUPERVISOR GAYLE BISHOP, DISTRICT 3 DATE: APRIL 4, 1995 SUBJECT: REPORT FROM AD HOC SOLID WASTE COMMITTEE MEETING OF MARCH 23, 1995 SI'IsC11,IC REQUEST(S)OR RECONINIENDA'HON(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: 1. CONSIDER and SELECT from among the Rodeo and Mt. View Sanitary District/County agreement alternatives listed below, and 2. ACCEPT the recommendations made by BFI regarding fees on source-separated recyclables - under the franchise agreement and DIRECT staff to prepare clarification letter. FISCAL IMPACT: The County is responsible for AB 939 compliance'to maintain information with periodic reports to the State and to divert 25% of the wastestream by 1995 and 50% by 2000. Inability to ensure compliance could place the County in jeopardy of fines. Franchise fees would offset costs. BFI requests appear to be revenue neutral. BACKGROUND/MASONS FOR RECOMMENDATIONS: AGENDA ITEM 1. PUBLIC COMMENT -None. (Continued on Page 2) . CONTINUED ON ATTACHMENT: X YES SIGNATURE: RECOMMENDATION OF(:'OUNT'Y,U)N1INIS"TRA'I'OR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON Ap r i 1 ' 4 . 1995 APPROVED AS RECOMMENDED OTHER X SEE ADDENDUM FOR BOARD ACTION AND VOTE. I HEREBY CERTIFYTHAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ` ON THE MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. ATTESTED Ap r i 1 4, 1995 PHIL BATCHELOR,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR VA:dg BY /" ,DEPUTY adhocsw.bo Contact: Val,Uexeeff(646-1620) CC: County Administrator County Counsel GMEDA Departments T Report from Ad Hoc Solid Waste Committee April 4, 1995 Page 2 BACKGROUND/REASONS FOR RECOMMENDATIONS: AGENDA ITEM 2. RODEO AND MT. VIEW MOUs Rodeo and Mt. View Sanitary District/County agreement alternatives: 1. No change in present status. This would mean that County would not exercise franchising authority in the unincorporated area. County retains responsibility for AB 939 compliance. 2. County to exercise franchise authority after expiration of five-year notice period. Could call for quotes or proposals from other potential haulers., County could collect franchise fee. County's authority is provided in Attachment A. 3. County take over franchise and contract with Sanitary Districts for administration and policy recommendations. County would take authority, but would allow Sanitary Districts to continue administration. 4. Establish agreements based upon following points recommended by BFI. 4 BFI/PHBD will provide the County and Sanitary Districts with an AB939 indemnity'in the same form as in the present PHBD/County franchise agreement. 4 BFUPHBD will implement recycling programs in the Sanitary Districts of the same type as required by the County in other unincorporated areas. The County and Sanitary District will agree to include the reasonable costs of these programs in BFI/PHBD's collection rates. 4 BFI/PHBD will agree to include, as a pass-thru cost in its collection rates in the Sanitary Districts, all governmental fees (including franchise fees) agreed upon by the County and Sanitary Districts. The Sanitary Districts will agree to allow the County to collect reasonable AB939 program fees through collection rates in the Sanitary District franchise areas. 4 BFI/PHBD will agree to direct the wastestream from the Sanitary District franchise areas to any disposal site(s) determined by the County. 4 BFUPHBD will agree to include, as a pass-thru cost in its collection rates in the Sanitary Districts, any surcharge determined as necessary by the District Boards to fund any settlement or judgment in the Acme CERCLA litigation. 4 The Sanitary Districts will continue to determine the levels of service for solid waste collection desired by local residents (except for County mandated recycling programs) and shall set the collection rates for these services. 5. Expand and revise the Sanitary District MOU proposals. This is favored by the Sanitary Districts since it maintains their authority, but the County's responsibility. (See Attachment B). Under any alternative, periodic reports on AB939 compliance will be necessary. No action is necessary until the five year notice period expires on August 6, 1996. Discussion also included the Acme lawsuit, the issue of releases of RFQ's and RFP's, and current garbage rates. 1 1 { 1 .t t Report from Ad Hoc Solid Waste Committee April 4, 1995 Page 3 AGENDA ITEM 3. DEVELOP A MODEL SOLID WASTE FRANCHISE AGREEMENT Future franchise agreements should make reference to the model agreement (Attachment C) when deviations occur. AGENDA ITEM 4. TRIGGER DATES FOR FRANCHISES Come back with subsequent report on appropriate dates for County assumption of franchising authority. As franchises are transitioned from Sanitary Districts, dates have to be established for such transition. Agreements .on issues such as fee, liability, and similar matters could assist transition. AGENDA ITEM 5. CITY OF PITTSBURG LETTER TO THE BOARD OF SUPERVISORS The letter was discussed and taken under advisement by the Ad Hoc Solid Waste Committee, then referred to the Finance Committee. AGENDA ITEM 6. BFI FEE ISSUES REGARDING SEPARATED RECYCLABLES AT TRANSFER STATION AND SPECIAL WASTE Recyclables: The Committee concurred with BFI's suggestion that if the recycling activities are moved to the Transfer Station, source-separated recyclables are not subject to fees since they are not subject to fees at the present time. Attachment D indicates recycling conditions which encourage recycling on transfer station premises. Neither the land use permit nor the franchise agreement appear to impose fees for source=separated recycling, thereby, staff feels a clarification letter would be adequate, unless the Board feels the action should be taken by change in the franchise and/or the land use permit. Special Waste: BFI is requesting clarification of the application of fees set for direct haul/special wastes received at Keller Canyon Landfill. The Board needs to determine (1) whether the combined community mitigation fee should be $3 or $4, and (2) whether the programmatic dollar amounts set prior to November 1, 1994 (i.e.,.$1/LEA, $1/Res. Rec.) are to be applied to direct haul/special wastes or combined total 25% surcharge is to be applied. t z t u ADDENDUM ACTION OF THE BOARD OF SUPERVISORS April 4, 1995 (SW. 1) Dave Levy, attorney representing the Mt. View and Rodeo Sanitary Districts, 2121 North California Boulevard, Suite 1010, Walnut Creek 94596, advised that he could support Alternative Number 5. Richard Luchini, representing the Rodeo Sanitary District, 912 Hawthorne Drive, Rodeo, advised that his District does not want the County to control the waste stream. Dorothy Sakazaki, representing the Mt. View Sanitary District, 737 Central Avenue, Martinez 94553, advised that she favored Alternative Number 5. She expressed concern with the possible negative impact to senior citizens if garbage collection rates are increased. All persons desiring to speak were heard. Supervisor Bishop moved that the Board approve Alternative Number 5 that would expand and revise the Sanitary District MOU proposals. The motion died for lack of a second. Supervisor Smith moved that the Board approve Alternative Number 3 (Ad Hoc Committee Agenda Item 2 : Rodeo and Mt. View MOUs) to incorporate the areas of Rodeo and Mt. View Sanitary Districts (including those parts of Rodeo outside of the Rodeo Sanitary District) into the current master franchise with BFI effective August 6, 1996, and to negotiate with the Sanitary Districts a Memorandum of Understanding (to be brought back to the Board) to provide that the District Boards act as advisory boards to the Board of Supervisors, provide for the administra- tion of the franchises and address indemnity issues and any pass through of any surcharge to deal with the Acme litigation, as appropriate. The motion was seconded by Supervisor Torlakson. Supervisor Bishop advised that she would not be supporting the motion because she believes Alternative No. 5 best meets the needs of the rate payers in the Mt. View and Rodeo Sanitary Districts. The vote on the motion was as follows: AYES: Supervisors Rogers, Smith, Desaulnier, Torlakson NOES: Supervisor Bishop ABSENT: None No action was taken on Recommendation No. 2 of the report of the Ad Hoc Solid Waste Committee pending further report to the Board at some future time. board Order/Resolution Distribution To: . "'� � Board Action Date: !'ROM: Clerk of the board She attached board order/Resolution is forwarded to you for distri- bution for the reason as noted: (ref: Administrative bulletin 1.6.) tl Distribution not noted on board Order/Resolution. . 11.6 VII A) Address not indicated for Agency outside of County government. (1.6 VII A, C) W. Distribution exceeds six individuals/agencies/county departments. (1.6 VII ID) Clerk of the board not provided with sufficient copies .of theme for dlistribution to required county departments. (1.6 VII b, G) Il ' MCCABE, SCHWARTZ, EVANS, LEVY & DAWE PROFESSIONAL LAW CORPORATION TRACY D. ALEXANDER CALIFORNIA PLAZA ANTHONY CARY STEVEN R. CHARNO' 2121 NORTH CALIFORNIA BOULEVARD, SUITE 1010 OF COUNSEL DEAN A. CHRISTOPHERSON* JAME5 N. DAWE WALNUT CREEK, CALIFORNIA 94596 DAVID J. LEVY BRIAN P. EVANS TELEPHONE (510) 934-6082 OF COUNSEL BEVERLY J. LAVIN MICHAEL P. MCCABE KENNETH H. LAVIN FACSIMILE (510) 934-1507 OF COUNSEL MARCHMONT J. SCHWARTZ ARLENE SEGAL LEO J. O'BRIEN OF COUNSEL 'ALSO ADMITTED IN WASHINGTON STATE tALSO ADMITTED IN CONNECTICUT 6 NEW YORK April 1, 1995 VIA FACSIMILIE RECEIVE[ The Honorable Chairperson and Members APR - 4 1995 Board of Supervisors County Administration Building CLERK BOARD OF SUPERVISORS 651 Pine Street CONTRA COSTA CO. Martinez, CA 94553 Re: RFP's for Garbage Franchises Mt. View Sanitary District Rodeo Sanitary District Board Meeting April 4 , 1995 Our File Nos. 504-001 and 602-001 Dear Chairperson Bishop and Supervisors: This is to further address the matter of the issuance of RFP's for garbage franchises in Mt. View Sanitary District and Rodeo Sanitary District. The Districts have existing franchises with Pleasant Hill Bayshore Disposal, Inc. through the years 2011 and 2001 respectively. Both Districts serve their modest working class residents without complaint and provide garbage rates within the ijean rates available elsewhere in the county. The franchise fees (surcharge) received by the districts is essential for the districts' use in defending the Acme landfill litigation. You should be aware and are respectfully placed on notice that the Districts have been advised that they will have the right to assert a claim for tortious interference with a contractual relationship, or an action for inverse condemnation against the county, if the county unilaterally modifies, abrogates or interferes with the existing franchises. We attach a copy of the full text of Public Resource Code Section 40059 which provides that nothing in the Waste Management Act abrogates (repeals) the franchises. We feel that the county's potential interference with the Districts' franchise agreements would give rise to a cause of action for tortious interference with a contractual relationship. The elements of such an action are clearly met in this case: (1) 0504-001/super/ltr/DJL/car MCCABE, SCHWARTZ, EVAxs. LEVY & DAWE ,• PROFESSIONAL LAW CORPORATION Ms. Gayle Bishop April 1 , 1995 Page 2 there is the existence of valid franchise agreements; ( 2) the county is aware of the franchises; ( 3) the county would have intentionally disrupted or interfered with the franchises; ( 4) causing actual disruption of the economic relationship; (5) resulting in damages to the Districts. (5 Witkin, Summary of California Law, (9th ed. ) Torts, §§ 652-654; Black v. Kirwan (1985) 39 Ca.3d 311. Injunctive relief , compensatory damages and punitive damages would be available to the districts should they sue and prevail in such an action. In Marin Mun. Water District v. City of Mill Valley ( 1988) 202 Cal .App. 3d 1161 , a district obtained a judgment against the defendant city for inverse condemnation of franchise rights involving water lines. , On appeal , the city argued that the taking of a district's franchise does not support an action for inverse condemnation. The court rejected the city's position, holding that (1) a district may sue another public entity for inverse condemnation, and (2) that an action for inverse condemnation is available to a district for the loss or damage to its franchise rights. (Id. at 1164-1166 . ) We respectfully urge you to allow the districts to continue to serve their residents as the residents wish under the existing franchises. If that is not possible, the Districts, in the past, have supported a negotiated MOU that will give the County indemnification for AB 939 liability resulting from the Districts' noncompliance. This is consistent with Pleasant Hill Bayshore Disposal , Inc. 's suggestions. This is not the time for the county to exercise franchise authority or call for proposals from other potential haulers. Very truly yours, MCCABE, SCHWARTZ, EVANS, LEVY & DAWE Professional Law Corporation David J. evy TDA/DJL/car Enclosure cc: Supervisor Jim Rogers--w/encl. District 1 100 37th . Richmond, CA 94805 0504-001/super/itr/DJL/Car MCCABE, SCHWARTZ, EVANS, LEVY & DAWE a PROFESSIONAL lAW CORPORATION Ms. Gayle Bishop April 1 , 1995 Page 3 Supervisor Jeff Smith--w/encl . District 2 651 Pine, Room 108a Martinez , CA 94553 Supervisor Gayle Bishop--w/encl . District 3 18 Crow Canyon Court, Suite 120 San Ramon, CA 94583 Supervisor Mark De Saulnier--w/encl . District 4 2301 Stanwell Drive Concord,, CA - 94520 Supervisor Tom Torlakson--w/encl . District: 5 300 East: Leland Road, Suite 100 Pittsburg, CA 94565 Mr. Val Alexeeff, Director--w/encl . -- via facsimile Growth Management & Economic Development Agency 651 Pine Street North Wing, 2nd Floor Martinez, CA 94553 Thomas M. Bruen, Esq.--w/encl. -- via facsimile Bruen & Gordon 1990 North California Boulevard Suite 608 Walnut Creek, CA 94596 Victor J.. Westman--w/encl . -- via facsimile County Counsel Contra Costa County 651 Pine Street P. O. Box 69 Martinez, CA 94553 Mr. Phil Batchelder--w/encl . Clerk of the Board of Supervisors County Administration Building 651 Pine Street Martinez , CA 94553 0504-ool/super,ltr,DJL/car _ c � MCCABE, SCHWARTZ, EVANs, LEVY & DAWE PROFESSIONAL LAW CORPORATION Ms. Gayle Bishop April 1 , 1995 Page 4 Mr. Ken Etherington--w/encl . Pleasant Hill Bayshore Disposal , Inc. 441 NDrth Buchanan Circle Pacheco, CA Board of Directors, Mt. View Sanitary District--w/encl . -- via facsimile Board of Directors, Rodeo Sanitary District--w/encl. -- via facsimile 0504-ooiisuperiitr/DJL/car § 40058 PUBW RESOURCES CODE PILI • Historical and Statutory Notes '~ . (I Ohl' Derivation: Gov. C.former§ 756,added by Stats.1980, nes c. 504, p. 1059, § 1. or Nvat. § 40059. Local determinations; extent of services; means for providing services;'abrogation of `wi• existing franchises or contracts me, (a) Notwithstanding any other provision of law, each county, city, district, or other local governmental (` agency may determine,all of.the following: pur (1) Aspects of-solid waste handling which are of local concern, including, but not limited tb, frequency (` of collection, means of collection and transportation, level of services, charges and fees, and nature, location, and extent of providing solid waste handling services. reg (2) Whether the services are to be provided by means of nonexclusive franchise, contract, license, Lal permit, or otherwise, either with or without competitive bidding, or if, in the opinion of its governing (` body, the public health, safety, and well-being so require, by partially exclusive or wholly exclusive .Jan franchise, contract, license, permit, or otherwise, either with or without competitive bidding. The V6 authority to provide solid waste handling services may be granted under terms and conditions prescribed titl, by the governing body of the local governmental agency by resolution or ordinance. ma (b) Nothing in this division modifies or abrogates in any manner 4 ' • either of the following: Jar 1) Any franchise previously granted or extended by any county or other local governmental agency. Sul (2) Any contract, license, or any permit to collect solid waste previously granted or extended by a city, county, or a city an coup (a) \ 7Added by Stats.1989, c. 1095, § 22. Amended by Stats.1990, c. 1355 (A.B.3992), § 1, eff. Sept. 27, 1990.) bol Historical and Statutory Notes bol juo Derivation: Gov. C. former § 66757, added by Stats. Nu 1980, c. 504, p. 1059, § 1. (Ac Notes of Decisions Preemption 1.5 gies v.Department of Public Health of City and County of I Recyclables 2 San Francisco (App. 1 Dist. 1994) 28 Cal.Rptr.2d 422,23 198 Validity CalApp.4th 299. 2. Recyclable@ Recyclable materials sold by owner is not"waste"under IL Validity California Integrated Waste Management Act and owner l Provisions of county waste reduction and recycling act is not required by Act to transfer these materials to waste ho, which infringed on city autonomy by requiring incorporat- hauler which has been granted exclusive franchise; re- wh ed cities to impose surcharge on landfills,ban incineration, cyclables have not been discarded. Waste Management of and establish waste reduction goals could be severed, even Desert, Inc.v.Palm Springs Recycling Center, Inc.(19%) coy though act did not contain severance clause, where refer- 28 Cal.Rptr.2d 461, 7 Cal.4th 478, 869 Ptd 440. me ence to incorporated areas could be grammatically ex- 'Discarding recyclable, property that otherwise could cised, severance would not impair operation of rest of act, have been sold renders property "waste" and subject to and initiative for adoption of act probably would have - been successful even if voters had foreseen infringement collection under exclusive franchise authorized by Califor- wa on city autonomy. City of Dublin v. County of Alameda nia Integrated Waste Management Act. Waste Manage- (App. 1 Dist.1993) 17 Cal.Rptr.2d 845, 14 CalApp.4th 264, ment of Desert, Inc. v. Palm Springs Recycling Center, review denied. Inc.(1994)28 Cal.Rptr.2d 461,7 Cal.4th 478,869 Ptd 440. pr( Owner of undiscarded recyclables was not required by 1.5. Preemption California Integrated Waste Management Act to transfer res Waste Management Act did not preempt city's power to those recyclables to holder of exclusive solid waste hauling sol grant exclusive refuse collection permit; Act not only franchise; owner retained right to sell undiscarded recycl- anticipates and tolerates, but as practical matter demands, abler. .. Waste Management of Desert, Inc. v. Palm ag• supplementary local regulation to spell out details of solid Springs Recycling Center, Inc. (1994) 28 Cal.Rptr2d 461, waste collection and disposal. Waste Resource Technolo- . 7 Cal.4th-478, 869 P.2d 440. m lo• §. 40060. Landfill permits for land primarily used for mining; or:excavation of,gravel or.sand; variances;, hearing gu... (a) Notwithstanding any other provision of law, a regional water board shall not issue a waste in pu discharge permit for a new landfill, or a lateral expansion of an existing landfill, which is used for the (A disposal of nonhazardous solid waste if the land has been primarily used at any time for the mining or (A excavation of gravel or sand. (A Additions or changes Indicated by underline; deletions by asterisks * * *) 119. r § 40058 • PUBLIC.IWURCES',CODE , PUBLIC 1 ' Historical and StatutoryNotes-r:;-w;4,4 n (b) A regi Derivation: Gov.C.former f 756,added by Stats.1980, .rs.ur'i •: .i,r r'r- applicant dee c.504,p.1059, 9 1. r Ui .7 !'_... ;� I new facility or threaten water board § 40069. Local determinations; extent of services; means for providing services; abrogation.of sivity of the existing franchisee or contracts " ' means the ul (a) Notwithstanding any other provision of law,each county,city,district,or other local governmental (c) Nothim agency may determine,all of the following. . :` pursuant to ; (1) Aspects of solid waste handling which are of local concern,including, but not limited ttr,frequency (d) The fol of collection, means of collection and transportation, level of servicesi:charges and fees, and nature, (1) "Landf location, and extent of providing solid waste handling services.- t .. .. regional aaG (2) Whither the services are to be provided by means of nonexclusive franchise, contract, license, California Cc permit, or otherwise, either with or without competitive bidding;or if, in the opinion of its governing . (2) "Later: body, the public health, safety, and well-being so require, by partially exclusive or wholly exclusive January 1, 19 franchise, contract, license, permit, or otherwise, either with or without competitive bidding. The with Section authority to provide solid waste handling services may be granted under terms and conditions prescribed title. For pi by the governing body of the local governmental agency by resolution or ordinance - management (b) Nothing in this division modifies or abrogates in any manner *'-* **.'either of the following: January 1, 19 q_Any franchise previously granted or extended by any county or other local governmental agency. (e);The tel, (2) Any contract,license,or any permit to collect solid waste previously granted or extended by a city, 3ubdrvision (1 \_ county, or a city an county: (f) Notwith dded by Stats.1989,c. 1095, § 22. Amended by Stata.1990,x.•1355(A—B-3992), § 1;eB SepL 27,"1990.). . (a) if the vary .. boundaries o Historical and Statutory Notes :T .,. ;:__; .•. :, . •`; boundaries of judgment in Derivation: Gov. C. former 9 66757;added by State. Number 9241 1980,a 504,p.1069, 0 1. (Added by st. Notes of Decisions Preemption lb gies v.Department of Public Health of City and County of Derivation: Recyclables. 2 San Francisco(App.1 Dist.1994)28 Cal.Rptr2d 422,23 1988, c. 1476, t Validity li CalAppAth 299. . 2. Recyclables § 40061. Aga Recyclable materials sold by owner is not"waste"under r. )L .Validity California Integrated Waste Management Act and owner (a) Notwith Provisions of county waste reduction and recycling act is not required by Act to transfer these materials to waste which infringed on city autonomy by requiring incorporat- hauler which has been granted.exclusive franchise; re- households a ed cities to impose surcharge on landfills,ban incineration, cyclables have not been discarded: Waste Management of which directly and establish waste reduction goals could be severed,even Desert,Inc.v.Palm Springs Recycling Center,Inc.(1994) cost of collect though act did not contain severance clause,where refer- 28 Cal.Rptr2d 461,7 CalAth 478,869 Ptd 440. months, arran ence to incorporated areas could be grammatically ex- Discarding recyclable.property that otherwise could (1) The ave cised,severance would not impair operation of rest of act, have been sold renders property"waste" and subject to and initiative for adoption of act probably would have . collection under exclusive franchise authorized by Califor- (2) The tot:1 been successful even if voters had foreseen infringement nia Integrated Waste Management Act. Waste Manage- waste produce on city autonomy. City of Dublin v. County of Alameda ment of Desert, Inc.v. Palm Springs (App.1 Diat.1993)17 Cal.Rptr2a Inc.(1994)28 Cal.Rptr2d 461,7 d 845,14 CalApp.4th 264, CaRecycling 478,.869 Ptd 440. produced by e g Center, (3) The ave review denied. Owner of undiscarded recyclables was not required by (b) For the I.S. Preemption California Integrated Waste Management Act to transfer Waste Management Act did not preempt citys power to those recyciables to holder of exclusive solid waste hauling residential uni grant exclusive refuse collection permit; Act not only franchise; owner retained right to sell undiscarded recycl- solid waste or anticipates and tolerates,but as practical matter demands, abler..-Waste Management of Desert, Inc. v. Palm agency's,total supplementary local regulation to spell out details of solid Springs Recycling Center, Inc.(1994)28,Cal.Rptr.24 461, waste collection and disposal. Waste Resource Technolo- 7 Cdl.4th•478,869 Ptd 440.' The noti! ma(c)) u j located. 11..40060.. Landfill permits for land primarily used for mining or,e.xcavation-of.grave.l.,or,sand; • • • d( ) U• variances; hearing subdivision(a) (a) Notwithstanding any other provision of law, a regional water board.shall not issue a waste in no distribut discharge permit for a new landfill, or a lateral expansion of an existing landfill, which is used for the purposes. disposal of nonhazardous solid waste if the land has been primarily used at any time for the mining or (Added by Sri excavation of gravel or sand. (A.B.719), § 1., Additions or changes Indicated by underline; deletions by asterisks."'*- * Add 112 - i -•sa" .':saT ATTACHMENT A COUNTY AUTHORITY FOR FRANCHISES The County's authority to take over the franchises from sanitary districts is based on the County's Police Power and: California Integrated Waste Management Act of 1989, including the following Public Resources Code Sections: ► Section 40002 authorized local agencies to make provision for solid waste handling, which established authority for County's to take over franchises. ► Section 41780 required cities and counties to reduce solid wastestream. ► Section 41813, 41850 established fines for the County. Ordinance 91-31 was based on the California Integrated Waste Management Act of 1989 and the County's Police Power, and set forth solid waste franchise requirements within the unincorporated area of the County. (attached) August 1, 1991 Board Order implemented Ordinance 91-31 and set out procedure. (attached) Resolutions followed to provide notice to haulers and sanitary districts. (attached) VA:dg coauffill (3;28%95) 1 • REC;EiVED JUN 18 1991 _UUNTY COUNSEL MARTINEZ, CALIF. ORDINANCE NO. 91-31 (Solid Waste Collection, Disposal and Recycling Agreements) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code) : SECTION I. SUMMARY. Chapter 418-7 is added to the County Ordinance Code to require a franchise from, or agreement with, the County for the operation of a solid waste collection, disposal, handling and/or recycling service in the unincorporated area of the County. SECTION II. -BACKGROUND. The Legislature has found that the amount of solid waste generated in the state coupled with diminishing landfill space and potential adverse environmental impacts from landfills constitutes an urgent need for state and local agencies to enact and implement an aggressive new integrated waste management program. (Pub. Resources Code, § 40000 (d) . ) Therefore, the Legislature has adopted the California Integrated Waste Management Act of 1989. (Stats. 1989, ch. 1095, Pub. Resources Code, § 40050. ) As a part of the state's comprehensive program for solid waste management, the Legislature has declared that it is in the public interest to authorize and require local agencies, as subdivisions of the state, to make adequate provision for solid waste handling, both within their respective jurisdictions and in response to regional needs consistent with the policies, standards, and requirements of the Integrated Waste Management Act of 1989. (Pub. Resources Code, § 40002 . ) The Board of Supervisors agrees with the findings of the Legislature, and is therefore prepared to take action necessary to achieve the Legislature's stated purpose of adopting the Integrated Waste Management Act of 1989, of reducing, recycling and reusing solid waste generated to the maximum extent feasible. (Pub. Resources Code,- § 40052. ) In order to promote reducing, recycling and reusing of solid waste, cities and counties must participate in the preparation of a county Integrated Waste Management Plan by adopting and implementing source reduction and recycling elements for their respective jurisdictions. The Legislature has also generally required cities and counties to divert 25 percent of all solid waste from landfills or transformation facilities through source reduction, recycling C and composting activities by January 1, 1995, and 50 percent by January 1, 2000. (Pub. Resources Code, § 41780. ) To facilitate achieving these waste diversion goals, the Legislature has authorized the imposition of ten thousand dollars ($10,000) per day administrative civil penalties upon cities and counties for the failure to submit or implement the source reduction and recycling element. (Pub. Resources Code, $§ 41813, 41850. ) Historically, solid waste collection and disposal services in the unincorporated area have been franchised by sanitary and other special districts, and not the County. The Board hereby acknowledges the fine efforts of these agencies in providing for solid waste collection and disposal. The Board further acknowledges that these agencies have required recycling programs within their jurisdictions as a means of achieving waste reduction goals. However, the Board also acknowledges that the County is solely responsible for the successful implementation of the County's source reduction and recycling element, and any penalty levied upon the County for any district's failure to implement the source reduction and recycling element will be borne by all of the residents of the unincorporated area of the County. Furthermore, the Board acknowledges that most of the Sanitary Districts do not control wastestream or the disposition of recyclables in their franchise areas and that public control has been a long standing objective of the Board in order to. further the public inter-st and to ensure compliance with recycling programs of the County's Source Reduction and Recycling Element. In recognition of the Sanitary Districts historic role in solid waste collection, disposal and recycling in the unincorporated area and the Board's state-mandated responsibilities for successful implementation of the County's Source Reduction and Recycling Element, the Board intends to provide a framework under which the Sanitary Districts can enter into Memoranda of Understanding or agreements with the County for continued franchising and part}iipation in AB 939 compliance where conditions are appropri= -!e. The Board further intends Lo provide for oversight and regulation of solid waste collection, disposal and recycling throughout the unincorporated areas of Contra Costa County. In doing so, it is the intent of the Board to allow the current providers of solid waste collection and disposal, and recycling services to continue providing such services, in accordance with the provisions of this ordinance. (June 4 , 1991) -2- ' SECTION III. Chapter 418-7 is added to the County Ordinance Code, to read: Chapter 418-7 RANCHISES FOR SOLID WASTE COLLECTION, DISPOSAL BIND/OR RECYCLING SERVICE Article 418-7.2 General 418-7.202 Authority. This chapter is enacted, in part, pursuant to the authority granted by Public Resources Code sections 40057 and 40059, and the Constitution of the State of California. (Ord. 91-. 31 S 3. ) 418-7.204 Other laws and regulations. Compliance with this chapter does not waive or excuse compliance with all other applicable provisions of this code, county ordinances and state or federal laws and regulations. (Ord. 91-31 S 3. ) Article 418-7.4 Definitions 418-7.402. General. As used in this chapter, the following words shall have the meanings set forth in this article. Words used in this chapter not defined in this article shall have the meanings ascribed to them in the California Integrated Waste . Management Act of 1989 (Pub. Resources Code, S 40000 et seq. ) , and regulations adopted pursuant thereto, unless the context indicates otherwise. (Ord. 91-. 31 S 3. ) 418-7.404 Commercial solid waste. "Commercial solid waste" means solid waste routinely originating from stores, business offices, commercial .warehouses, hospitals, educational, health care, military and correctional institutions, non-profit research organizations, and non-exempt government offices. . Commercial solid waste refers to SIC Codes 401 through 4939, 4961, and 4971 (transportation, communications and utilities) , 501 through 5999 (wholesale and retail trade) , 601 through 679 (finance, insurance and real estate) , 701 through 8748 (public and private service industries such as hospitals and hotels) , and 911 through 9721 (public administration) . Commercial solid waste does not include construction or demolition waste, industrial waste or septage. (Ord. 91-_ 31 S 3 . ) (June 4 , 1991) -3- 418-7.406 Designated Waste. "Designated waste" as used herein has the meaning set forth in Title 23 , California Code of Regulations, section 2522. (Ord. 91- 31 S 3. ) 418-7.408 Hazardous waste. "Hazardous waste" means a waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may either: (1) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (2) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. The term "hazardous waste" is intended to include all waste which are defined as being a hazardous waste pursuant to any federal, state or county laws, statutes, ordinances or other regulation currently in effect or as may be enacted or amended in the future. (Ord. 91- 31 S 3. ) 418-7.410 Industrial waste. "Industrial waste" means solid S waste originating from mechanized manufacturing facilities, factories, refineries, and publicly operated treatment works. (Ord. 91- 31 S 3. ) 418-7.412 Medical waste. "Medica waste" means waste regulated pursuant to the provisions of Health and Safety Code chapter 6.1 (S 25015 et seq. ) . (Ord. 91- 31 S 3. ) 418-7.414 Person. "Person" includes an individual, firm, association, copartnership, public agency, municipality, industry, public or private corporation, or any other entity whatsoever. (Ord. 91- 31 S 3. ) 418-7.416 Public agency "Public agency" means a special district, joint exercise of powers agency formed pursuant to Government Code chapter 5 (section 6500 et seq. ) , or any other public agency authorized by law to provide, franchise or otherwise regulate solid waste handling service. (Ord. 91-31 S 3. ) 418-7.418 Recycle. "Recycle" or "recycling" means the process of collecting, sorting, cleaning, treating, and reconstituting materials that would otherwise become solid waste, and recovering them so that they may be used in the form of raw material for new, reused, or reconstituted products. (Ord. 91-31 S 3 . ) (June 4 , 1991) -4- 418-7.420 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. (Ord. 91- 31 S 3. ) 418-7.422 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 cleanouts, and industrial waste holding facilities. (Ord. 91- 31 S 3. ) 418-7.424 Solid waste. "Solid waste" means 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 medical, designated, and hazardous waste, except household hazardous waste. (Ord. 91- 31 S 3. ) 418-7.426 Solid waste handling. "Solid waste handling" or "handling" means the collection, transportation, storage, transfer, or processing of solid wastes. (Ord. 91- 31 S 3. ) Article 418-7.6 Franchise or Agreement 418-7.602 Requirement. Except as set forth in Article 418- 7.8 , no person shall operate or permit, license, contract, franchise, or in any way allow, the operation of, a business providing services for the handling of commercial and/or residential solid waste, and/or the collection of recyclable materials from commercial establishments and/or residences in the unincorporated area of the county unless, at the county's sole option, either (1) an exclusive or nonexclusive franchise or permit has been granted therefor by the board, or (2) for public agencies only, the board has entered into an agreement or Memorandum of Understanding (MOU) for such activities. (Ord. 91- 31 S 3; see Pub. Resources Code, SS 40057, 40059. ) 418-7. 604 Agreement content. Except as provided in Section 418-7. 606, any franchise or agreement approved pursuant to this article with any person shall, among other things, contain rules, regulations, terms and conditions for the protection of the public health, safety and welfare, including provisions necessary (June 4 ,1991) -5- for the proper implementation of the county's source reduction and recycling element of the County Integrated Waste Management Plan adopted pursuant to Public Resources Code, Chapter 3 (S 41300 et seq. ) , board review, approval and control. of the rates to be charged customers by the operators of rate-regulated businesses, control of wastestream and disposition of recyclables by the board and any other matter deemed by the board to be necessary or convenient for the proper and efficient management and disposition of solid waste. A non-exclusive franchise or agreement for commercial recycling need not reserve disposition of recyclables to the board. (Ord. 91- 31 S 3. ) 418-7.606 Agreement with Public Agencies. Section 418-7.604 does not apply to any agreement or MOU with a public agency approved pursuant to this article provided that the agreement or MOU contains, among other things, 1) appropriate provision for indemnification of the County for any fines imposed on the County by the State for failure to properly implement the County's Source Reduction and Recycling Element; 2) terms and conditions for a public agency's role in implementing the County's Source Reduction and Recycling Element, including but not limited to: participation in a coordinating committee; adoption of uniform monitoring, reporting and data collection methodologies; designation of respective County/public agency responsibility for individual element components; agreement to disseminate information to individual customers (for example, bill stuffers) at the direction of the County; and agreement to design and modify programs and/or rate structures as necessary to meet overall Element goals; 3) agreement to pass through the County costs incurred pursuant to the California Integrated Waste Management Act of 1989 (Public Resources Code, S 40000 etc. ) , as amended from time to time, in the collection rates; 4) control of .the wastestream and disposition of recyclables by the Board of Supervisors; and 5) provision for County and public agency termination of the agreement or MOU. (Ord. 91- 31 S3. ) 418-7.608 Local advisory bodies. The board may establish local advisory bodies to advise the board on issues relating to the administration of a franchise or agreement deemed appropriate by the board. The members of such local advisory body may consist of the members of the governing body of an existing Municipal Advisory Council or special district which provided, franchised or otherwise authorized solid waste handling services within the franchise or agreement area. (Ord. 91- 31 S 3 . ) (June 4 , 1991) -6- i J- ,gi. 2 ,. Article 418-7.8 Exceptions 418-7.802 Existing solid waste enterprises. Nothing in this chapter is intended to abrogate the rights granted by Public Resources Code chapter 6 (S 49500 et seq. ) to a solid waste enterprise providing solid waste handling services in accordance with said chapter. (Ord. 91-31 S 3 . ) 418-7.804 Transitional permit. The board may, by resolution,. upon a finding of good cause, and pursuant to terms and conditions in furtherance of public health and well being, grant transitional permission to a person to operate or temporarily permit, license, contract, franchise or otherwise allow, the operation of a business providing services for the handling of commercial and/or residential solid waste, and/or the collection of recyclable materials from commercial establishments and/or residences. (Ord. 91-31 S 3 . ) 418-7.806 Excluded Solid Waste. This chapter does not apply to a person whose primary business is not franchised or rate-regulated by a municipality or public agency, to the extent that such person is operating a business handling only "solid waste" described in subdivision (b) of section 41781 of the Public Resources Code, which "solid waste" is diverted, recycled, reused, refurbished, or not disposed of at a landfill or transformation facility, and is not included in determining the base amount of solid waste from which source reduction, recycling, and composting levels are to be calculated. (Ord. 91- 31 S 3. ) Article 418-7. 10 Violation 418-7. 1002 Misdemeanor. Any person who violates the provisions of this chapter is guilty of a misdemeanor and, upon conviction thereof, shall be punishable in accordance with . chapter 14-8. (Ord. 91- 31 S 3 . ) SECTION IV. EFFECTIVE DATE. This ordinance becomes effective 60 days after passage, and within 15 days of passage shall be published once with the names of the Supervisors voting for and against it in the Contra Costa Times, a newspaper published in this County. (June 4 , 1991) -7- PASSED on June 11, 1991 by the following vote: , AYES: Suvervisors McPeak, Torlakson, Powers NOES: Supervisors Fanden, Schroder ABSENT: None ABSTAIN: None ATTEST: Phil Batchelor, Cler of the Board and County Administr or By: Deputy Pbatd Chair SMH/hs LTF/jh rranz:.acolIcc.«a (June 4, 1991) -8- ORDINANCE NO. 91-31 r• , TOS BOARD OF SUPERVISORS FROM: Sara Hoffman Solid Waste Manager �:-. -,��.. . �� Costa DATE: August 6, 1991 q '-" ��T^ � Via('+ County V . SUBJECT: Implementation of Ordinance- 91-31, Solid Waste J Collection, Disposal and Recycling Agreements. SPECIFIC REQUEST(S) OR RECOMMENDATIONS (S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS I. ADOPT resolutions granting transitional permits to Richmond Sanitary Service, SAWDCO dba Valley Waste Management, Pleasant Hill Bayshore Disposal, Pleasant Hill Bayshore Disposal Inc. , Martinez Disposal, Orinda Moraga Disposal, Crockett Garbage Company, Bay View Refuse and Silvio Garaventa, Sr. (dba Concord Disposal, Oakley Disposal, Brentwood Disposal) to allow continued operation of solid waste collection and recycling services in the unincorporated areas of Contra Costa County. 2 . ADOPT resolutions granting transitional permits to Byron Sanitary District, Central Contra Costa . Sanitary District, Crockett-Valona Sanitary District, Kensington Community Services District, Mt. View Sanitary District, Oakley -Sanitary District, Rodeo Sanitary District and West Contra Costa Sanitary District to allow their continued franchising of solid waste collection and recycling services in the unincorporated areas of the Contra Costa County. 3 . APPROVE and AUTHORIZE the Chair of the Board of Supervisors to transmit notices to Richmond Sanitary Service, SAWDCO dba Valley Waste Management, Pleasant Hill Bayshore Disposal, Pleasant Hill Bayshore Disposal, Inc. , Orinda Moraga Disposal, Bay View Refuse, Crockett Garbage Co. and Silvio Garaventa, Sr. (dba Concord. Disposal, Oakley Disposal, Brentwood Disposal) that exclusive solid waste handling services, including recycling services, are to be authorized or provided by Contra Costa County, pursuant to Public Resources Code, Chapter 6 (Section 49520) CONTINUED ON ATTACHMENT: X YES SIGNATURE• RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF 'BOARD COMMITTEE APPROVE OTHER SIGNATURE(S) : ACTION OF BOARD ON 1 APPROVED AS RECOMMENDED OTHER Ah) VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A UNANIMOUS, (ABSENT ) TRUE AND CORRECT COPY OF AN AYES: NOES: ACTION TAKEN AND ENTERED ON THE ABSENT: ABSTAIN: MINUTES OF THE BOARD OF SUPERVISORS ON THE DATE SHOWN. ATTESTED PHIL BATCHELOR, CLERK OF THE BQARD OF SUPERVISORS AND COUNTY ADMINISTRATOR cc: Community Development County Counsel h20:imp91-31.bos BY , DEPUTY • r BACKGROUND/REASONS FOR RECOMMENDATION On June 11, 1991, the Board of Supervisors adopted Ordinance 91-31, Solid Waste Collection, Disposal and Recycling Agreements. This ordinance was adopted in response to State law which requires the County to develop and implement plans and programs for the unincorporated areas to reduce waste going to the landfill by 25% by 1995 and 50% by the year 2000. State law . provides for fines of up to. $10, 000 per day if the County does not meet these diversion goals. Ordinance. 91-31 provides a mechanism for the County to achieve these State mandates. Recognizing the sanitary districts historic role in solid waste collection in the unincorporated areas of the County and the Board's new state mandated responsibility, the Board provided a framework under which the sanitary districts could enter into memorandums of understanding (MOUs) or agreements with: the County for continued solid waste collection franchising abd participation in the recycling effort. Following adoption of the ordinance, the Chair of the Board of Supervisors sent letters to the presidents of each of the sanitary districts informing them of the desire of the Board to cooperate with the sanitary districts and inviting them to enter into discussions with the County. The Solid Waste Manager sent a similar letter to all of the general managers of the sanitary districts. To date, informal responses have been received from four districts: Kensington Community Services District, Mt. View Sanitary District, Rodeo Sanitary District and Central Sanitary District.. Staff will be working with the districts in an effort to develop MOUS consistent with. the ordinance. In addition, discussions have been held with each of the solid waste haulers on the need to receive franchises for currently unfranchised unincorporated areas and for those areas for which there is no MOU with the currently franchising sanitary district. Most of the haulers serve a small number of unincorporated area homes that are not franchised; typically, isolated pockets of under 50 homes. The one exception is Oakley/Brentwood Disposal which serves Bethel Island and the unincorporated areas of Oakley and Brentwood. To allow time for the sanitary districts to consider the MOU option, and to provide for continued uninterrupted service in the unincorporated areas, it will be necessary for the Board of Supervisors to issue transitional permits to the local haulers and franchising sanitary districts as provided in Ordinance 91-31. The transitional permits would be effective from August 11 through December 31, 1991 and require each hauler to certify that recycling services are available .to the residents of the unincorporated area through curbside service in the urbanized areas and drop off in the rural areas no later than September 30, 1991. It should be noted that the haulers are currently providing curbside recycling services in most areas. Ordinance 91-31 establishes parameters for the MOUS, including control of the wastestream and recyclables being retained by the Board of Supervisors. Wastestream control is very important since waste will no longer go directly to landfills but to material recovery facilities which will perf orml recycling activities. The local - haulers currently control wastestream in all unincorporated areas except those currently franchised by Contra Costa County and Central Sanitary District. Under State law, the haulers may voluntarily assign their wastestream control to the County or the County can obtain it in accordance with Public Resource Code, Chapter 6, Section 49520 by giving a five year notice to the hauler of the County's intent to authorize solid waste collection services, including recycling. In accordance with the Board's declaration of intent to allow the current providers of service in the unincorporated area to continue providing such , services for at least the term of their current franchises with the sanitary districts if the County's attempts to negotiate MOUs with the sanitary districts are not successful, the five year notice provides that it becomes null and void if an MOU is operative on the effective date of the notice, or if the local haulers have an executed franchise agreement with the County by December 31, 1991. IN THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, STATE OF CALIFORNIA In the Matter of ) RESOLUTION NO. 91- transitional permit for ) Pleasant Hill Bayshore. ) Disposal, Inc. ) The Board of Supervisors of Contra Costa County RESOLVES THAT: 1. Effective August 11, 1991, Ordinance 91-31, Section 418-7 . 502 provides that, excepting as provided in the ordinance, no person shall operate or permit, license, contract, franchise or in any allow the operation of a business providing services for the handling of commercial and/or residential solid waste and/or the collection of recycling materials from commercial establishments and/or residents in the unincorporated areas of the County unless, at the County's sole option either (1) an exclusive or non-exclusive franchise or permit has been granted therefor by the Board or (2) for public agencies only, the Board has entered into an agreement or memorandum of understanding (MOU) for such activities. 2 . Pleasant: Hill Bayshore Disposal, Inc. provides solid waste handling and recycling services within the unincorporated areas of Contra Costa County, a portion of which are unfranchised and a portion of which are franchised by Mt. View Sanitary District:. 3 . Mt. View Sanitary District is currently in discussions with Contra Costa County regarding an MOU pursuant to Ordinance 91- 31. 4 . For the currently unfranchised areas, Pleasant Hill Bayshore Disposal, Inc. is currently in discussions with Contra Costa County for a franchise agreement for continued provision of service for those unincorporated areas. 5. To provide for uninterrupted solid waste handling and recycling services to the residents and businesses of the unincorporated areas during the development of MOUs with the sanitary districts and franchises with the current haulers, Section 418-7.804 of Ordinance 91-31 provides for transitional permits. 6. Pleasant Hill Bayshore Disposal, Inc. is hereby granted a transitional permit to continue its current solid waste handling services, including recycling services, in the unincorporated areas under the following terms and conditions: A. The term of this permit shall be from August 11, 1991 through December 31, 1991. B. Pleasant Hill Bayshore Disposal, Inc. shall continue to provide such services in the unincorporated area franchised by Mt. View Sanitary District under the terms and conditions of its current franchise with Mt. View Sanitary District. C. In the currently unfranchised areas, rates charged to customers shall be no more than those charged to residents and businesses in the areas currently franchised by 'Mt. View Sanitary District. D. Pleasant Hill Bayshore Disposal, Inc. shall provide curbside recycling services in the currently franchised areas at least equal to those provided in the franchised areas no later than September 30, 1991 and shall submit certification of provision of such services to the Solid Waste Manager. i. PASSED by unanimous vote of the Board Members present on this day of 1991. I hereby certify that the foregoing is a true and correct copy of an order entered on the minutes of the Board of Supervisors of the date aforesaid. Witness my hand and Seal of the Board of Supervisors affixed on this day of , 1991. Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk h20:phbay.res 1'.K IN THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, STATE OF CALIFORNIA In the Matter of ) RESOLUTION NO. 91- transitional permit for j Pleasant Hill Bayshore ) Disposal, Inc. ) The Board of Supervisors of Contra Costa County RESOLVES THAT: : 1. Effective August 11, 1991, Ordinance 91-31, Section 418-7 . 602 provider that,excepting as provided in the ordinance, no person shall operate or permit, license, contract, franchise or in any allow the operation of a business providing services for the handling of commercial and/or residential solid waste and/or the collection of recycling materials from commercial establishments and/or residents in the unincorporated areas of the County unless, at the County's sole option either (1) an exclusive or non-exclusive franchise or permit has been granted therefor by the Board or (2) for public agencies only, the Board has entered into an agreement or memorandum of understanding (MOU) for such activities. 2 . Pleasant, Hill Bayshore Disposal , Inc. provides solid waste handling and recycling services within the unincorporated areas of Contra Costa County, a portion of which are unfranchised and a portion of which are franchised by Rodeo Sanitary District. 3 . Rodeo Sanitary District is currently in discussions with Contra Costa County regarding an MOU pursuant to Ordinance 91-31. 4 . For the currently unfranchised areas, Pleasant Hill Bayshore Disposal, Inc. is currently in discussions with Contra Costa .County for a franchise agreement for continued provision of service for those unincorporated areas. 5. To provide for uninterrupted solid waste handling and recycling services to the residents and businesses of the unincorporated areas during the development of MOUs with the sanitary districts and franchises with the current haulers, Section 418-7 . 804 of Ordinance 91-31 provides for transitional permits. 6. Pleasant Hill Bayshore Disposal, Inc. is hereby granted a transitional permit to continue its current solid waste handling services, including recycling services, in the unincorporated areas under the following terms and conditions: A. The term of this permit shall be from August 11, 1991 through December 31, 1991. B. Pleasant Hill Bayshore Disposal, Inc. shall continue to provide such services in the unincorporated area franchised by Rodeo Sanitary District under the terms and conditions of its current franchise with Rodeo Sanitary District. C. In the currently unfranchised areas, rates charged to customers shall be no more than those charged to residents and businesses in the areas currently franchised by Rodeo Sanitary District. D. Pleasant Hill Bayshore Disposal, Inc. shall provide curbside recycling services in the currently franchised areas at least equal to those provided in the franchised areas no' later than September 30, 1991 and shall submit certification of provision of such services to the Solid Waste Manager. PASSED by unanimous vote of the Board Members present on this day of , 1991. I hereby certify that the foregoing is ,a true and correct copy of an order entered on. .the minutes of the Board of Supervisors of the date aforesaid. Witness my hand and Seal of the Board of Supervisors affixed on this day of , 1991. Phil Batchelor, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk h2l:phdisp.res K 1 i* 4: * , ATTACHMENT 6 't AGREEMENT THIS AGREEMENT made and entered into this 8th day of April , 1986, by and between the RODEO SANITARY DISTRICT, organized and existing under and by virtue of the laws of the State of California, First Party, and BOYD M. OLNEY, JR. , doing business under the firm name and style of PLEASANT HILL BAY SHORE DISPOSAL, Second Party. W I T N E S S E T H• That: in consideration of the covenants and conditions herein contained, First Party herein grants to Second Party for a term beginning with the date hereof and ending the 30th day of October, 2001, 'the exclusive right and privilege to collect and dispose of all garbage, rubbish and swill in said District, or in any area serviced by said District, upon the following c terms and conditions: 1. ' That Second Party shall collect and dispose of all garbage, •rubbish and swill in said District, or in any area serviced by said District, in accordance with and at the rates not in excess of those set by Ordinance No. 51 of said District, or any subsequently adopted ordinance amending or superseding Ordinance No. 51 . 2 . Second Party shall at all times during the term of this agreement, at his own expense, provide and maintain a sanitary collection and disposal -service, including a garbage 1 r and rubbish disposal site sufficient in capacity to systematically and in a sanitary manner collect and dispose of all said garbage, rubbish and swill and to faithfully and diligently perform the duties of collecting and disposing of all said garbage, rubbish and swill in accordance with the terms and conditions of this agreement and any and all ordinances relating to garbage disposal in said District and the sanitary laws of the State of California and shall at all times apply the most modern and sanitary methods of collecting and disposing of such garbage, rubbish and swill and shall furnish all machinery and equipment necessary to properly perform this agreement and shall maintain and keep the same in such condition, particularly with reference to paint and appearance, as required by First Party during the entire term of this agreement. 3 . That the privilege hereby granted to Second Party to collect and dispose of garbage, rubbish and swill within said District, or any area serviced by said District, and to retain all salvage therefrom, shall be deemed to be and is an exclusive privilege and franchise so long as Second Party, during the life of this agreement, shall fully and fai hfully carry out and perform all the conditions and covenants of this agreement on its part to be kept and performed. 4 . Neither this agreement or any interest therein shall be sold, assigned or transferred without the prior written consent of First Party. 2 N j 5. The words "garbage, " "rubbish" and "swill" as used herein shall mean and include all such material as defined in Sections 1, 2 and 6 of Ordinance No. 20 of the District. 6. Second Party shall have and it is hereby given the exclusive right and title to all such garbage, rubbish and swill and salvage from said collections, and he may grant a permit to any third person, firm or corporation to keep and dispose of swill and salvage upon such terms as Second Party may desire, provided that all disposal of such swill and salvage and all permits therefor granted by Second Party shall conform to and be subject to the direction of and under rules and regulations made by said Sanitary Board of Rodeo Sanitary District, or such other officer as may be from time to time designated by the District. 7. If any provisions of this agreement shall be held to be invalid, such invalidity shall not affect any other provision hereof and the .parties thereto hereby declare that they would have agreed to each section of this agreement irrespective of the validity or invalidity of any other section. 8. Second Party shall provide two cleanup garbage collections per year comparable to those presently provided to the customers of Mt. View Sanitary District. 9 . This Agreement supersedes the agreement between First party and Allan F. Riemke dated October 11, 1971 which was assigned to second party by assignment dated December 23 , 1977 consented to by First Party on December 28, 1977, 3 IN WITNESS- WHEREOF, First Party has caused these presents to be signed and its official seal affixed by _i.ts officers thereunto duly authorized and Second Party has caused these presents to be signed, all on the day and year first above written. RODEO SANITARY DISTRICT 1 By: ,222 ),2'2 -4-0 President By: J Sed etary, First Party Boyd M. Olney, Jr. , individually and doing business under the firm name and style of Pleasant Hill Bay Shore Disposal, Second Party SMS: lj-5 0193A/1. 12.7 896. 100 4 CONSENT TO ASSIGNMENT RODEO SANITARY DISTRICT, a public corporation, hereinafter referred to as "District" consents to the .assignment by BOYD M. OLNEY, JR. , dba PLEASANT HILL BAYSHORE DISPOSAL COMPANY, hereinafter referred to as "Contractor-Assignor" to PLEASANT HILL BAYSHORE DISPOSAL,- INC. , a California corporation, hereinafter referred to as "Contractor-Assignee"' of that certain agreement for collection and disposal of refuse in the District's territory. District consents to the agreement by Contractor-Assignee to assume and perform all. of the duties and obligations of Contractor- Assignor pursuant to the collection and disposal of refuse agreement. District agrees to be bound by and perform all of its obligations pursuant to the terms and provisions of said agreement. Thir Consent to Assignment shall not constitute consent to any subsequent assignment. DATED: March., 1990 RODEO SANITARY DISTRICT A Sewer District By RESIDENT ATTEST: (2=Z& SECRETARY APPROVED AS TO FORM: ATTORNEY FOR DISTRICT . ORDINANCE RODEO SANITARY DISTRICT RODEO, CONTRA COSTA COUNTY, CALIFORNIA No. 53 THE DISTRICT BOARD OF RODEO SANITARY DISTRICT DOES ORDAIN AS FOLLOWS: WHEREAS, pursuant to .the provisions of Section 6490 of the Health and Safety Code of the State of California, and after having heard arguments pertaining to the modification of the monthly collection rate for ,garbage, and it appearing to be in the best interests of the residents of the district, the District Boax-d of the Rodeo Sanitary District hereby promulgates General Regulation No. 89-53 setting maximum rates for garbage collection and repealing, and superceding all former regulations setting such rates, as follows: GENERAL REGULATION No. 89-53 A. Maximum rates that may be charged by Pleasant Hill Bay Shore Disposal Service, as District's garbage franchise holder, for monthly garbage collection shall be as follows: Garbage Collection Rates: 1. The monthly rate for collecting garbage for residents in the District shall be as follows: a. For the weekly pickup of one 32-gallon maximum can Monthly Rate of. . . .$13.40 b.• For each addition;--! -can Monthly Rate of. . . .$ 8.70 B. The maximum ratez deccribca h_rai:, are c::b;cct t^ the franchise holder granting a senior citizen discount of $1.00 a month to persons 62 years of age or older---,n accordance with income requirements of Pleasant Hill Bay Shore Disposal Service. -1- C. That copies of this General Regulation shall be posted by the Secretary in three public places in the District and published once in the West County Times, and shall take effect on July 1, 1989, and shall remain in effect until changed by order of the District Board. D. This General Regulation repeals and supersedes all former regulations setting such garbage collection rates. THE FOREGOING ORDINANCE of the District Board of Rodeo Sanitary District was regularly moved, seconded, adopted and entered in the minutes of the regular meeting of the District Board held on the 13th day of June, 1989 by a majority vote of the District Board. ROBERT FITZGERAL resident ATTEST: PAULA FOLEY, Se etary -2- 0 "� Rodeo Sanitary District AB939 Diversion'Calculations 1994 vs Base Year 1990 Tonnages 1990 Tonnages Residential 3,613.91 Commercial 1,011.30 Rolloff 2,54929 Total 7,174.50 1994 Tonnages Residential 2,894.14 Commercial 72978 Rolloff 1,433.16 Total 5,057.08 Decrease,in Tonnages Collected 2,117.42 Diversion as% of 1990 Base Year 29.51% Diversion by Waste Stream Category; Residential 19.92% Commercial 27,84% Rolloff 43.78% TOTAL P.02 C 0 V E R FAX S H E E T -To: Richard Luchini Fax#: 245-4558 Subject: Rodeo AB939 Diversion Levels ° Date: March 13, 1995 Pages: 2, including this cover sheet. COMMENTS: n Rich, I have calculated the diversion levels for Rodeo for the areas which we service. The total diversion level, excluding factors such as population changes..., is 29.51% when comparing calendar 1994 with the base calendar year 1990. Since this obviously doesn't include information for the areas we don't service, you'll need to put the two together if you want to get total diversion for the town. I hope you find this information helpful. If I can offer any further assistance,please call me at (510)685-4716, Ext. 1002. Take care - I'll talk to you later. From the desk of... Randall H.Smith Assistant District Manager BFI-Pleasant Hill sayshore Disposal,Inc. 441 N.Buchanan Circle Pacheco,CA 94553 (510)685-4716,Ext 1002 Fax,(510)685-4735 �Y».�..oa.ac-�c.v--vu.r–..snn.cra,....ti�s�s....snrs.-i....srz.vsurwvsrr..vvti�ww+.r..vnnritiaar..o.w....-../. _. _ - _' •- "••' _ _ _—_—_ ATTACHMENT C MODEL WASTE COLLECTION FRANCHISE AND WASTE COLLECTION RATE REVIEW MODEL Prepared by THE CONTRA COSTA SOLID WASTE AUTHORITY AND CONTRA COSTA COUNTY March 1994 �osT� cour+'t'�'cJ' Printed on Recycled Paper MODEL WASTE COLLECTION FRANCHISE AND WASTE COLLECTION RATE REVIEW MODEL Prepared by THE CONTRA COSTA SOLID WASTE AUTHORITY and CONTRA COSTA COUNTY Task Force Colette Curtis-Brown..........................Central Contra Costa Sanitary District Peter Dragovich..................................................................... City of Concord Arlene Hildebrand............................................................. City of Walnut Creek Sherry Kelly.................................................................................City of Martinez Janet Schneider..................................................................City of Walnut Creek Belinda Smith.....................Contra Costa County Community Development Avon Wilson..............................................Contra Costa Solid Waste Authority Steering Committee Valentin Alexeeff, Director- GMEDA.............................Contra Costa County Louise Aiello, Solid Waste Program Manager............Contra Costa County Donald Blubaugh, City Manager.................................... City of Walnut Creek David Rowlands, City Manager..................................................City of Antioch Avon Wilson,, Executive Director..........Contra Costa Solid Waste Authority Compiled and Edited by Avon M. Wilson, Executive Director.....Contra Costa Solid Waste Authority Contra Costa Solid Waste Authority 4737 Imhoff Place. Suite 4 Martinez,CA 94553-8604 (510)229-9113 ACKNOWLEDGEMENTS CONTRA COSTA SOLID WASTE AUTHORITY REPRESENTING BOARD OF DIRECTORS Gretchen Mariotti, Chair City of Pinole Mary Rocha City of Antioch Bill Doheney City of Brentwood Richard Erickson Byron Sanitary District Sue McNulty Rainey Central Contra Costa Sanitary District Peter Laurence City of Clayton Douglas Tubbs Crockett Valona Sanitary District Dick Waldo Town of Danville Jane A. Bartke City of EI Cerrito Beth Bartke City of Hercules Ivor Powell Ironhouse Sanitary District Ivor Samson City of Lafayette Barbara Woodburn .City of Martinez 1 James J. Sweeny (Chair, May, 1992-July, 1993) Town of Moraga Aldo Guidotti City of Orinda Kimberly N. Brandt City of Pleasant Hill Mary Lou Oliver City of San Ramon Gene Wolfe City of Walnut Creek CONTRA COSTA BOARD OF SUPERVISORS Tom Powers, District I-Chair Jeffrey V. Smith, District II Nancy C. Fanden, District II (Retired) _. Gayle Bishop,District III Robert I. Schroder District 111 (Retired) Sunne Wright McPeak- District IV Tom Torlakson, District V iii � .. s�vs..uuu.cuse;<uicsc:c:c..:w<.ticu:c:.rS.•:rw.:r:'.r:rcr:cuSrie.::.4r.:.d.:.:...�e.cr<.::<:... ....... FORMER AUTHORITY BOARD MEMBERS Rosemary Corbin, Chair- December 1991-April 1992 Avon Wilson, Chair-July- December 1991 Diana Angela Eduardo G. Manuel Mary Erbez Joseph Gomes Karene Gottfried Cathie Kosel Norman La Force Matt Mattson Dwight Meadows Dennis Nunn Nancy Parent Russ Perkins Barbara Price Susanna Schlendorf Michael Shimansky CITY COUNCILS City of Antioch Mayor Joel Keller, Mary Rocha, Elizabeth A. Rimbault, Cathryn R. Freitas, Ralph A. Hernandez -City of Brentwood Mayor Arthur Gonzales,William Hill, Bill Doheney, Karene Gottfried, Barbara Guise City of Clayton Mayor Peter Laurence, Julie Pierce, Robert Kendall, Gregg Manning, Rich Littorno Town of Danville Mayor Don Richey, Mildred Greenberg, Mike Doyle, Michael Shimansky, Dick Waldo City of EI Cerrito Mayor Jane A. Bartke, Norman La Force,Norma Jellison, Cathie Kosel,W.Mae Ritz City of Hercules Mayor Eduardo G. Manuel, Beth Bartke,Alexander C. Sample, III,William Simpson, Darrel "Jay"Tucker City of Lafayette Mayor Anne Grodin, Gayle Uilkema,Judy Garvens, Ivor Samson, Don Tatzin iV City of Martinez Mayor Michael Menesini, Barbara Woodburn, Harriet Burt,Timothy J. Farley,Julian Frazer Town of Moraga Mayor Al Dessayer,James J. Sweeny, Cherie T. Grant, Michael Harris, Susan L.Noe City of Orinda Mayor Bobbie Landers,Aldo Guidotti, Bill Dabel,Joyce Hawkins, Gregg Wheatland City of Pinole Mayor Mary Horton, Peter Murray,Maria Alegria,Gretchen Mariotti, Daniel Purnell City of Pleasant Hill Mayor Terri L.Williamson,W.D. "Bill'Landis, Kimberly N. Brandt, Paul L.Cooper,-Sherry M. Sterrett City of San Ramon Mayor Hermann Welm,Gregory L. Carr, Patricia Boom,Curtis Kinney, Mary Lou Oliver City of Walnut Creek Mayor Ron Beagley, Ed Dimmick, Evelyn Munn, Gwen Regalia, Gene Wolfe SANITARY DISTRICTS Byron Sanitary District President Bob Byer, Ken Botte,Alison Clegg, Richard Erickson, Mike Nisen Central Contra Costa Sanitary District President Susan McNulty Rainey,John B. Clausen,William C. Dalton, Barbara Hockett, Mario M. Menesini, Crockett Valona Sanitary District President Douglas Tubb, Rod Butler, Carl Heller, Peter Milcovich, John Wolthuis Ironhouse Sanitary District -President Lenny Byer, Robert Gromm, Richard Kirkman, Dwight Meadows, David Mickelson, Ivor Powell, William Trice REGIONAL SOLID WASTE JOINT POWERS AUTHORITIES Central Contra Costa Solid Waste Authority President John Clausen, Susan McNulty Rainey, Mary Lou Oliver, Gregory Carr, Evelyn Munn, Gene Wolfe West Contra Costa Integrated Waste Management Authority President Beth Bartke, Jane A. Bartke, Daniel Purnell, Rosemary Corbin, Richard Griffin, Lonny Washington, Joseph Gomes v MODEL WASTE COLLECTION FRANCHISE AND WASTE COLLECTION RATE REVIEW MODEL TABLE OF CONTENTS SECTION PAGE PART I. MODEL WASTE COLLECTION FRANCHISE EXECUTIVE SUMMARY 1 SECTION 1. DEFINITIONS 3 SECTION 2. SCOPE 13 SECTION 3. SERVICE PROVISIONS 16 SECTION 4. OTHER COLLECTION SERVICES 21 a SECTION 5. PERFORMANCE STANDARDS 23 SECTION 6. RATES 26 SECTION 7. RECORDS/REPORTS 28 SECTION 8. LEGAL 30 SECTION 9. REFERENCES 38 PART il. WASTE COLLECTION RATE REVIEW MODEL EXECUTIVE SUMMARY 1 SECTION 1. DEFINITIONS 3 SECTION 2. RATE SETTING METHODOLOGY OVERVIEW 6 SECTION 3. OPERATING RATIO METHODOLOGY 8 vi c.r..-_�=- .,.cs.c.c.s...y.,cn..s..wwc,,...s.r..�cuuusc:csarc:cu:e:aoacwcoc..xr'.-.•�cwcwouc.:+.lr.:.r..,..usrucnrss+.u•.r:r:.srsr.<ur..r.:.ruw.:<s:a ,f-ic.e.-:+-:.re.-i::::.;:::r.rrx..:.t._.:.. y ' SECTION PAGE SECTION 4. ALLOWABLE PROFIT USING RESIDENTIAL CUSTOMER EQUIVALENT UNITS NET OF CAPITAL USE CHARGE METHODOLOGY 10 SECTION 5. PUBLIC UTILITIES COMMISSION METHODOLOGY 14 SECTION 6. INDEXED RATE METHODOLOGY 19 SECTION 7. REFERENCES 21 SECTION 8. APPENDICES A A Memorandum of Agreement and Work Plan Between the Contra Costa Solid Waste Authority and Contra Costa County B APCUC Sample Calculations C Public Utilities Commission (PUC) Example I Calculations 1 D Indexed Rate Sample Rate Adjustment Formulae i E Contra Costa Solid Waste Authority Resolution 94-2 - A Resolution Approving Memorandum of Agreement and Work Plan Task #1 - A Model Waste Collection Franchise and a Waste Collection Rate Review Model F Contra Costa County Board of Supervisors Board Order 2.2, March 22, 1994 - Approving Staff Recommendation to Accept Report on Contra Costa Solid Waste Authority's Completion of Tasks Outlined in County/Authority Agreement Vii r . . I ' . (( . Y S ' ,:) s y 1 P }S_ F ,y Fkw ,� �� l �/v S Y � ( ' 1 N ,!t lktr _ rl '3. D,�vTM f f-3J 1 {' 7 l 1 ti' ' ",;:.- i-r- . . .� � . �:� � . . . , . I '.- - .:---::-, --,, .-,.-I� - , - - .....".-, "- *�. rp,ar C- ! !. - - 5� {S . 4;(t 1 (,r J e �. �h .[rr 1 1 s z �e 1 h f 1 - 1 Y a 7 ( .., - ( h { T t,'�i Fly. [, I. .` �{ 1 .�'. }1 6 3 '' l k .. - .t•. Y { {. . . . . t '.., ..... - .. . .. - .. . '' - Z [ _. ? Y 'J .. t .. 4 f 3.} t lr*ar; { t _ h'- "'4t,t 7 Y -r, .-. „ iY.S 4 . .. ,.. ... .. _- P Y .e .r. - 4 AR Tt J I ti - .: r syr %� 1 '` � R _t F Y 1 * t�r�, r� y r� �, , `h3.k � �aixY 'Tv�'4 O D E L �' _..k 3a'{�N� } 1-. r ,,� 7 � WASTE z aOLLECTION `"' ( � ti l t. . #f+4 k n 5 't,' ,r l �s, . s i c. r as!IP`Y e' 6"". f=' i� -- < t;}" > 1 'l` c`4•Jyi,2T�' r�? 1 .A.yw \ n1; 4 11 J f 5 1 J k� �.��- JY{. 1 '!�4 - C�' y T, t�ir'iMF*{' . .3-?{il�,]-.,� ,ssx.. 'fit 1, 8f+ f�r s. ,t 'x -qe y 5 ! '+' .,d` •£,filo.. ' 4:.. a 9.-' ..5 r x 3 , f- '�S'E4 al yx r 'v�ra�' i .lAY : .� .' y t[,$i' f�"O.,,� 3 s t 'L. . 1- ham'�„ 1 a r crkl q xil�„ dz ry i' ' T _ a "�_yy y 7" 1� r 5 yrs' y n a+s J i f Sn,. r .'�'i_ {.� t .:,: _ / 4.''s[t s:^ t " j r q! ✓ u t a bt� J... {.fes, 1 bntC.S t , r '>•'ac''1sY� s'r.+y.�t "I^'Pr F'. ,� , ' s`r,� t -]r;. nj-',] r h• di t '� -, ' 't 4f of h r 'U k t c<. �r�' ,�.� ' +Cs 1 P�� ] r. eL:('�t-..,z`Ib + c ``' '4a'7�3^G ivy k a a st' n .,i., 1 t a..=±.. r r �' t•.},htl' Yt,,. I. `'- 4'a'4t� i-rx'"7 '� - moi° c t {f.. jP+ �' 7 { - k tf '1 tir+t .n F err R 7�„4rtit ''!« ,w. �- ...'b 1` 4 r 'S't'y,, J -rfffir• +�!rt.�.�.F.,Y •�'f"1.�+ r 't ,:s -- ` to 1.t, ^•c! "'.i 'F.f,t t 'Yf ; Y 2 f. s5 .}u` y k { 1 F .Z �..�y",�,,t` n i, r {: ( _", tN `` `Y� ', , ra: r t .,./i yfi' by y' V50 r�H .L] d: r .. . �"'�t. w , ,,:I' ' .]"'.......� � - — ?� .- . . . . . � `� �{ ! .. ; �F / } .. 5 i FF I <u i "' t 'r ,xf tq ! ` d > 4 iAr ya''X.-Y� tt� ` y .t f r ',f M C �J { {v P 1 C N i .,a ,�r;. i J - 5.. t �4� +'k2"�+,,,31 a c e , f i CYY� I. { t - - 1 S'18,,.:L I: z z��fi, �.. .` ' y 1 �. % , ..5 . r ' . j ! March ' 1994 - . . f MODEL WASTE COLLECTION FRANCHISE TABLE OF CONTENTS SECTION PAGE EXECUTIVE SUMMARY 1 SECTION 1. DEFINITIONS 3 SECTION 2. SCOPE 13 2.1 Term, Options, Whose Option 13 2.2 Exclusive, Non-Exclusive, Exceptions 13 2.3 Residential, Commercial, Multi-family, Industrial 14 2.4 Solid Waste, Recycling 14 2.5 Franchise Service Area 14 2.6 Annexation 14 2.7 Waste Stream Control, Ownership, Flow 15 2.8 Sale of Recyclable Material, Salvage Rights, Ownership 15 SECTION 3. SERVICE PROVISIONS 16 3.1 General Provisions 16 3.2 Implementation Plan 16 3.3 Franchise Area and Service Types 16 3.4 Recycling 17 3.5 Yard/Green Waste 18 3.6 Aid to the Elderly and Handicapped 19 3.7 Special Materials Campaigns 19 3.8 Franchisor Facilities/Events 19 3.9 Holidays 19 3.10 Missed Pickup or Failure to Provide Service 19 3.11 Transportation of Solid Waste 20 3.12 Household Hazardous Waste Program 20 3.13 Removal of Hazardous Waste 20 3.14 Illegally Dumped Bulky Waste 20 3.15 Removal of Dead Animals 20 SECTION 4. OTHER COLLECTION SERVICES 21 4.1 Customer Service 21 4.2 Billing and Payment 21 4.3 Public Access 22 4.4 Nondiscrimination Clause 22 4.5 Changes in Schedule 22 4.6 Emergency Procedures 22 4.7 Rights of Franchisor to Perform During Emergency 22 ' i i SECTION 5. PERFORMANCE STANDARDS 23 5.1 Systems and Services Review 23 5.2 Maintenance of Collection and Processing Equipment 24 5.3 Sanitary Operations 25 SECTION 6. RATES 26 6.1 Franchise Fees 26 6.2 Compensation/Rates 26 6.3 Reviews 26 6.4 Affiliated Entities 37 SECTION 7. RECORDS/REPORTS 28 7.1 Financial Reports 28 7.2 Operational 28 7.3 Confidentiality/Customer Privacy 28 7.4 Customer Notification 29 7.5 Adverse Information 29 SECTION 8. LEGAL 30 8.1 Intent to Regulate 30 8.2 Compliance 30 8.3 Insurance 30 8.4 Faithful Performance Bond 31 8.5 Indemnity (Legal Liability) 32 8.6 Independent Contractor 32 8.7 Termination (Default) 33 8.8 Notices 34 8.9 Permits 34 8.10 Penalties 34 8.11 Attorney Fees 34 8.12 Severability 35 8.13 Assignment 35 8.14 California Integrated Waste Management Act Requirements 35 8.15 Miscellaneous or General Provisions 36 8.16 Franchisor Responsibility 37 SECTION 9. REFERENCES 38 9.1 Solid Waste Franchises 38 9.2 Periodicals 39 9.3 Unpublished Works 39 9.4 Miscellaneous r 40 ii I MODEL WASTE COLLECTION FRANCHISE EXECUTIVE SUMMARY In April, 1993, Contra Costa,County:and the Contra Costa Solid Waste Authority approved a Memorandum of Agreement and Work Plan which had as its goal a partnership which could address the challenges and high costs of complying with the California Integrated Waste Management Act of 1989 (AB 939). As part of that work plan the two entities agreed to develop a model solid waste collection franchise agreement; recognizing that a collection and/or recycling franchise is one of the single most important contracts which an entity can award - representing the potential for significant profit to the contractor over the life of the agreement. The model'development would be staffed by both entities assisted by staff from franchising entities representing cities and sanitary districts; each having had.some experience in developing and negotiating solid waste and recycling franchises. Drawing also upon a wide variety of existing franchises and studies, the committee has developed an extensive list of topics, which are divided into subject categories. While the model document is not all inclusive, it offers a franchising entity a menu of provisions from which to choose in tailoring a franchise agreement to its own particular concerns and interests. 1. Definitions Recognizing that solid waste nomenclature is becoming more complex and ! extensive, a list of definitions commonly used in more recently drafted franchises is included. Definitions are not always generic, but are sometimes presented verbatim as they might appear in a collection or recycling franchise. Where there is more than one definition available, both are included. 2. ' Scope The scope of a franchise deals with the parameters, or breadth, of the franchise. It generally covers such issues as the term or length of the franchise, exceptions, what wastestreams are to be collected, geographical boundaries of the area to be serviced, who controls the wastestream and any other special rights which are reserved by the franchisor. 3. Service Provisions The primary customer services and services to the franchising agency which are required of the contractor are discussed in this section. Service provisions should address basic services: residential, commercial and industrial, provisions for collection, processing and marketing of recyclables and green waste, special material/events campaigns, such as phone book pickup and festivals, hours and frequency of pickup, holidays and hazardous waste collection. 1 i 4. Other Collection Services This section deals with those services which relate to customer service, education, and public information. It also provides for non-routine types of services or situations to which the contractor is expected to respond positively: emergencies, aid to the elderly and handicapped, etc. 5. Performance Standards This section is divided into three areas by which the performance of the contractor can be regularly measured: Systems and Services Review, Maintenance of Collection and Processing Equipment and Sanitary Operations. Properly developed, the provisions in this section should offer incentives for innovation and high performance. Performance is then evaluated through studies, reports and programs prepared by the contractor, and a regular customer feedback process through surveys, public hearings and technical evaluation. 6. Rates Recognizing the interrelationship of the franchise and rate regulation, this section sets guidelines for those areas which affect rates: franchise fees, compensation, rate review process and handling of contractor affiliated entities. 7. Records/Reports This section outlines records which may be required by the franchisor and which are to be provided by the contractor. They may include financial and _. operational reports, AB 939 reporting requirements and provisions for confidentiality or reporting of adverse information regarding the contractor. 8. Legal ----- This section reviews the legal issues which should be considered by the franchisor and the contractor. These types of provisions are intended to protect the legal and economic interests of the customer and franchising agency, assuring that services will be provided as stated. Some of this section's provisions include: definition of the authority and responsibility of the franchisor, rules which govern the contractor, provisions for assuring performance, indemnification, termination, timely notification, penalties, conflict of interest and purchase of equipment. 2 t SECTION 1. DEFINITIONS A majority of the definitions within this section were taken verbatim from existing franchise agreements within Contra Costa County. As such, they are not always generic definitions, but are sometimes specific to the agreements from which they have been excerpted. Previously, the majority of agreements did not include a section for definitions. Instead, terminology was defined within the language of the agreement. Franchise agreements developed within the last five years tend to have an explicit definition section. In this document, more than one definition has sometimes been included for the same term to show the range and differences between definitions as presented in different franchise agreements. The definitions listed below are not intended to be all inclusive. Definitions are grouped into-two areas: general terminology and waste types. General 1 .1 "Affiliated Entity" is any entity which provides products or services to a contractor and in which the contractor owns a ten percent (10 %) or greater interest. 1 .2 "Agreement" means an agreement by and between the franchisor and the contractor for the collection, removal, and disposal of solid waste and the recycling of material. "Agreement" This agreement for the collection, removal , recycling and disposal of garbage by and between the and the Contractor entered } into as of the date first written below. 1 .3 "Allowable Expense" means those expenses which under the terms of the agreement are permissible and stipulated in the Rate Regulation Methodology, except and until the franchisor and the contractor agree to adopt some other Rate Regulation Methodology. Should the franchisor and the contractor adopt such another Rate Regulation methodology, "Allowable Expense" shall have the meaning accorded it in the new methodology. 1 .4 "Allowable Revenue" means those revenues as deemed allowable and as set forth in the Rate Regulation Methodology, unless and until the franchisor and contractor agree to adopt some other Rate Regulation Methodology. Should the franchisor and' contractor adopt such another Rate Regulation Methodology, "Allowable Revenue" shall have the meaning accorded it in the new methodology. 1 .5 "Authorized Recycling Collection Program" A recycling collection program operated by an authorized recycler under contact, franchise agreement, or license with the franchising entity. 3 i 1 .6 "California Integrated Waste Management Act of 1989 (AB 939)" means Sections 40000 et seq. of the California Public Resources Code 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. 1 .7 "CERCLA" means the Federal Comprehensive Environmental Response, Compensation and Liability Act and the rules and regulations adopted under that legislation by the EPA, as that legislation and those rules and regulations have been and in the future may be amended from time to time. "CERCLA" (Superfund) provides the primary federal legal structure for the cleanup and remediation of contaminated sites. It imposes liability for and permits private parties, including .government entities such as cities and redevelopment agencies, to bring civil action for the recovery of their expenses in cleaning up contaminated property. 1 .8 "City Limits" shall mean the boundaries of the City together with all amendments and changes thereto, which current boundaries are shown by maps incorporated herein by reference and which are on file in the office of the Clerk off the City Council. 1 .9 "Closure Surcharge" means the surcharge established for closure, post- closure and additional regulatory costs for a Class 11/II1 Site, as approved and as may be amended from time to time, by the franchising agency and any successor, and which may . subsequently be adopted by any member jurisdiction of the franchising agency. 1 .10 "Collection" means the collection of recyclables and the collection and disposal of garbage and rubbish. 1 .11 "Compost" means the product resulting from the controlled biological decomposition of organic wastes that are source separated from the municipal solid waste stream, or which are separated at a centralized facility. "Compost" includes vegetable, yard, and wood wastes which are not hazardous waste. 1..12 "Compost Operation" A process whereby the biological decomposition of organic wastes is controlled so as to yield a safe and nuisance free product. 1 .13 "Compostables or Compostable Materials" shall have the same meaning as "compost". 1 .14 "Contractor" means the entity which has been granted an exclusive franchise pursuant to the terms and conditions set forth in the franchise agreement. (In franchise agreements, the terms "franchisee" or "grantee" are also used to mean the same as "contractor".) "Contractor" shall mean the entity granted the Franchise to arrange for the collection of solid wastes pursuant to this Franchise Agreement. 4 ., .to -- ,o...,.-�..�....•............��...............................,.._.�......._-..�........_......_....,.,.. i F 1 .15 "Curbside Recycling Collection Program! The, franchisor's curbside recycling program by whichl recycl'abl'es arel pickedr up from single-family residences without payment of any redemptiont value to the property owner. 1 .16 "Customers" means those who have contractedl with the contractor: for the collection, removal, recycling, or disposal: of garbage as provided herein, or who may be required to accept and, pay for said service by local ordinance. "Customers" means those who have contracted! with the contractor for the collection of materials for recycling and/or for the collection, removal, or disposal of discarded materials, pursuant to this Agreement and applicable ordinances, including mandatory subscription ordinances. 1 .17 "Development Project" means a project for which a building permit will be required for a commercial, industrial, or institutional building, marina, or residential building having five or more living units, where solid waste is collected and loaded and any residential project where solid waste is collected and loadedi in a location serving:five or more units. "Development Project" means any new public facility where solid waste is collected and loaded andt any improvements for areas of a public facility used for collecting and loadingsolid waste. 1 .18 "Disposal Facility" means any facility or location where disposal of solid waste occurs. 1 .19 "Disposal Site" includes the place, location, tract of land, area, or premises i in use, intended to be used, or which has been used for the landfill disposal of solid wastes. "Disposal site" includes solid waste landfill. 1 .20 "Franchise Agreement" means this franchise agreement between the contractor and the franchisee. 4.21 "Franchise area" means the geographic area generally described and depicted in graphic exhibits to an agreement, which exhibits are attached and incorporated by reference, and more particularly are set forth in six hundred (600) scale maps maintained and available for inspection at the franchisor's offices. Said six hundred (600) scale maps shall 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. 1 .22 "Franchisee" (See Contractor) 1.23 "Franchise Fee" means the fee or assessment imposed. by the City on Grantee solely because of its status as party to this Franchise Agreement, and which, inter alfa, is intended to compensate City for its expenses in administering this Franchise Agreement and for damages to its roads, curbs, sidewalks and other parts of the City's infrastructure. 5 1 .24 "Franchisor" the entity, agency or jurisdiction which grants, through a contractual agreement, the right or privilege to exercise the duties and perform the functions related to the collection, processing, marketing and' disposal of recyclables and other solid waste. 1 .25 "Grantee" (See Contractor) 1 .26 "Gross Revenues" means any and all revenue or compensation in any form . derived directly or indirectly by Grantee, its affiliates, subsidiaries, parents or any other person or entity in which Grantee has a financial interest, in collecting, transporting, arranging, selling, recycling, handling and/or diverting recyclables generated in the Franchise Area. 1 .27 "Hazard" includes any condition, practice, or procedure which is or may be dangerous, harmful, or perilous to employees, property, neighbors, or the general public. 1 .28 "HDPE" means High Density Polyethylene. 1 .29 "Landfill" means a disposal site employing a method of disposing of solid wastes on land without creating nuisances or hazards to public health or safety, by utilizing principles of engineering to confine the wastes to the smallest practical area, to reduce them to the smallest practical volumes, and to cover them with a layer of suitable cover material at specific designated intervals. 1 .30 "Local Legislation" means any code, ordinance, resolution, or other formal . enactment of the governing body of the franchising agency which now exists or which may hereafter be adopted which constitutes law or regulation governing the operations of the contractor within or about the political boundaries of the franchise area. 1 .31 -"Multi-Family Unit" A dwelling which includes two or more individual living units with common walls and which receives communal refuse and/or recycling services. 1 .32_ "Nondisposal Facility" means any solid waste facility which is neither a landfill or transformation facility. 1 .33 "PETE" means Polyethylene Terephthalate (PET). 1 .34 "Prospective Funding Mechanism" means a mechanism for funding costs of closure or post-closure of a Class II/III Site of surcharges which may be assessed for solid waste disposal at the land fill, or a Transfer facility or other solid waste disposal facility. 6 1 .35 "Rate Regulation Methodology" means the methodology agreed upon by the franchisor and contractor for calculating, setting and adjusting collection rates. Unless and until the franchisor and contractor agree to adopt some other methodology, Rate Regulation Methodology shall mean the methodology set forth regarding financial disclosure requirements, including requirements for audited financial information and documentation of intercompany transactions, and rate regulation for collection of recyclables, yard waste and solid waste collection and disposal operations. 1 .36 "Residential Unit" includes any occupied premises having bathroom or toilet, and kitchen plumbing facilities, suitable for residential occupancy by a.- number of persons living together as a single family, including single family dwellings, and each group of occupied rooms constituting living quarters for a single family duplex, triplex, flat, court or other common wall multiple dwelling structure, but excluding any living or sleeping quarters in hotels, rooming houses, motels, or auto courts where kitchen facilities are not provided. 1 .37 "Recycle" or "Recycling" means the process of collecting, sorting, cleaning, treating, and reconstituting materials that would otherwise become solid waste, and recovering them so that they may be used in the form of raw material for new, reused, or reconstituted products. "Recycle or Recycling" The process of separating and collection of used materials which would otherwise become solid waste, for the purpose of reprocessing them to create new materials to be returned to the economic mainstream. 1 .38 "Recyclable Material" includes all waste materials which may be commercially reprocessed for beneficial use which are disposed of for recycling purposes. These include, but are not limited to cardboard, metals, plastics, paper-based materials, glass and oils. "Recyclable Material" means discarded material generated or collected at — - - place or premises, and in a condition such that it can be re-manufactured or reprocessed into usable materials or new products. "Recyclable or Recyclable Material" shall have the same meaning as provided in the City's municipal Code and includes material which can be reused or processed into a form suitable for reuse through reprocessing or remanufacture, consistent with the requirements of the California Integrated Waste Management Act. The term "Recyclable or Recyclable Materials" includes paper, newsprint, printed matter, paste-board, paper containers, cardboard, glass, aluminum, PET and other plastics, beverage containers, compostable materials, used motor oil, automotive batteries, anti-freeze, latex paint, brick and stone in reusable size and condition, and such other materials designated by the California Integrated Waste Management Board, or other agency with jurisdiction. - 7 f 1 .39 "Salvage" means the removal of material from the waste stream following collection and refurbishing such material so that it may be reused. 1 .40 "Single Family Unit" means a dwelling which receives individual refuse and/or curbside recycling service. Waste Types Definitions of "solid waste" vary from very general definitions encompassing the whole waste stream to very specific identification of waste types. 1 .41 "Bulky Material or Waste" means large items of solid waste such as appliances, furniture, large auto parts, trees, branches, stumps and other oversize wastes whose large size precludes or complicates their handling by normal collection, processing or disposal methods. 1 .42 "Commercial Solid Waste" means solid waste routinely originating from stores, business offices, commercial warehouses, hospitals, educational, health care, military and correctional institutions, non-profit research organizations, and non-exempt government offices. Commercial solid waste does not include construction or demolition waste, industrial waste or septage. "Commercial Solid Waste" includes all types of solid wastes generated by commercial, industrial, governmental and other sources which have been placed in an authorized solid waste container used for the temporary storage of solid waste awaiting pickup. The term "Commercial Solid Waste" does not include hazardous wastes generated by commercial, industrial, governmental and other sources and which are placed in separate containers and which are covered by hazardous waste manifests. 1 .43 "Construction and Demolition Wastes" includes the waste building materials, packaging and rubble resulting from construction, remodeling, repair and demolition operations on pavements, houses, commercial building and other structures. They are removed from a site during the razing or renovation of a structure as part of a total service offered by a duly licensed demolition contractor (C-21 license). 1 .44 "Dead Animals" include those animals whose carcasses require removal. 8 1 .45 "Designated Waste" shall mean any designated wastes as defined in 23 CCR, No. 2522, and special handling waste generated by industrial facilities or processes, but shall not include "hazardous waste" as defined herein. Special wastes shall also include those wastes which are bulky or difficult to transport. Special wastes shall include sewage sludge, water treatment sludge, infectious wastes, dead animals, medical wastes, geothermal waste, demolition debris, drilling muds, contaminated soils, shredder waste, agricultural wastes, filter cake/dewatered sludge, spent catalyst fines, refinery ash and byproducts; except where any such waste are deemed to be hazardous. (In franchise agreements the term "special wastes" has the same meaning as "designated wastes".) 1 ,46 "Garbage" includes all animal and vegetable refuse and household waste resulting form the preparation of food, and all animal and vegetable refuse from places where foodstuffs intended for human consumption are handled commercially, and all cans, bottles, or other receptacles used as food containers, not disposed of for recycling purposes. "Garbage": (1) animal, fruit and vegetable refuse; (2) offal; (3) leaves and cuttings, trimmings from trees, shrubs and grass; (4) inorganic refuse and rubbish; (5) anything thrown away as worthless; provided, however, that garbage shall not be defined as or include Hazardous Waste, Demolition Debris .or abandoned automobiles. 1 .47 "Hazardous Waste" means a waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may either: a. cause, or significantly contribute to an increase in mortality or an increase in serious_irreversible, or incapacitating reversible, illness; or b. pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. The term "hazardous waste" is intended to include all waste which is defined as being a hazardous waste pursuant to any federal, state or county laws, statutes, ordinances or other regulation currently in effect or as may be enacted or amended in the future. 9 ... ... "Hazardous Waste or Materials" means any waste materials or mixture of wastes defined as such pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq., or the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9601 et sea., and all future amendments to either of them, or as defined by the California Environmental Protection Agency or the California Integrated Waste Management Board, or either of them. Where there is conflict in the definitions employed by two or more agencies having jurisdiction over hazardous or solid waste, the term "Hazardous Waste" shall be construed to have the broader, more encompassing definition. 1 .48 "Industrial Solid Waste" means all solid waste and semi-solid waste which results from industrial processes and manufacturing operations, excluding recyclables. "Industrial Waste" Non-sewered liquid waste and solid waste produced as by-product of industrial processes, or other refuse produced or accumulated as a result of industrial processes, or other refuse produced or accumulated as a result of industrial processes, including waste produced by the District and other public entities as a result of treatment or other processes undertaken in providing public utility services. "Industrial Waste" means solid waste originating from mechanized manufacturing facilities, factories,-refineries, and publicly operated treatment works. . 1 .49 "Infectious Wastes" include: - a. Equipment, instruments, utensils and other fomites (any substance that may harbor or transmit pathogenic organisms) 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; b. laboratory wastes,. including pathological specimens (Le., all tissues, specimens of blood elements, excreta and secretions obtained from patients or laboratory animals) and disposable fomites attendant thereto; C. surgical operating room pathologic specimens - including recognizable anatomical parts, human tissue, anatomical human remains and disposable materials from hospitals, clinics, outpatient areas and emergency rooms, as is also defined in Section 314(d) of the California Administrative Code, Title 17. 1 .50 "Litter" means all improperly discarded waste material, including, but not limited to, convenience food, beverage, and other product packages or containers constructed of steel, aluminum, glass, paper, plastic, and other natural and synthetic materials, thrown or deposited on the lands and waters of the state, but not including the properly discarded waste of the primary processing of agriculture, mining, logging, sawmilling, or manufacturing. 10 1 .51 "Municipal Solid Waste" means all solid waste generated within a city which is designated for collection under a franchise agreement. ! 1 .52 "Putrescible Wastes" includes wastes that are capable of being decomposed by micro-organisms with sufficient rapidity as to cause nuisances because of odors, gases or other offensive conditions, and include materials such as food wastes, offal and dead animals. 1 .53 "RCRA" means Resource Conservation and Recovery Act - Federal legislation, to improve solid waste disposal methods and environmentally sound management practices. 1 .54 "Refuse" means garbage and rubbish. 1 .55 "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. 1 .56 "Rubbish" includes all refuse other than garbage, including paper, rags, leaves, grass, vines, sawdust, cans, ashes, and tree trimmings, but does not include rocks, bricks, dirt, concrete, and similar solid materials, not disposed of for recycling purposes. 1 .57 "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 cleanouts, and industrial waste holding facilities. 1 .58 "Solid waste" means 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 semi-solid wastes, and other discarded solid and semisolid wastes. "Solid waste" does not include infectious, designated, and hazardous waste, except household hazardous waste. "Solid Waste" means putrescible and non-putrescible solid and semi-solid material. The term "solid waste" includes garbage; refuse; trash; rubbish; kitchen or table wastes, animal or vegetable wastes; tree, shrub or brush trimmings; newspapers or magazines; ashes; paper or cardboard; tin or aluminum cans; yard clippings; wood; glass; bedding; crockery; plastics or rubber by-products; litter; animal excrements; disposable diapers; vegetable or animal sewage; industrial wastes; demolition and construction wastes; .and discarded home and industrial appliances. 11 j "Solid Waste" shall have the same meaning as provided in the City's Municipal Code, and shall exclude recyclables placed in an approved recycling container. Solid Waste under the municipal code is defined as follows: a. "Solid waste" means all putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, paper, rubbish, ashes, industrial wastes, 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, provided, however, that solid waste does not include recyclable materials. b. "Solid waste" does not include hazardous waste low-level radioactive waste regulated under Chapter 7.6 (commencing with Section 25800) of Division 20 of the California Health and Safety Code. C. "Solid waste" does not include medical waste which is regulated pursuant to the Medical Waste Management Act Chapter 6.1 (commencing with Section 250)5) of Division 20 of the California Health and Safety Code, provided that the medical waste, whether treated or untreated, is not disposed of at a solid waste facility. Medical waste which has been treated and which is deemed to be solid waste shall be regulated pursuant to this chapter. 1 .59 "Special Wastes" (See Designated Wastes) 1 .60 "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 delivery to a transfer facility or other facility by Contractor. 1 .61 "Yard Waste" Organic material from trees, shrubs, grass and similar vegetation. Yard waste may also be designated as recyclable by the City. 12 SECTION 2. SCOPE 2.1 Term, Options, Whose Option The term of a franchise agreement should be of sufficient length to warrant and protect significant capital expenditure by the refuse collection and/or recycling company (i.e., 10+ years). The length of the term, however, should not be excessively long so that the contractor becomes complacent or too few opportunities become available to amend the agreement to account for significant changes such as new legislation or changing public priorities (i.e., 20+ years). Franchise agreements generally compromise on these extremes and it is not uncommon for agreements to be made for 15 years with several 5 year options, either at the franchisee or franchisor's election. Within this structure there exist numerous options for addressing the special needs of the parties. For example, in an agreement between the City of Hercules and Pinole Garbage Service (a division of Richmond Sanitary Service), the contractor is granted an exclusive franchise for garbage collection for a 15-year term. If at any time during the 15-year term, the contractor is required to refinance for capital improvements or participate in a bond issue for capital improvements in which the total funds involved exceed $4,000,000, the.City of Hercules agrees to extend the term of the agreement for an additional 10 years with a cap to any extension of 25 years from the commencement date of the franchise. In general, it is recommended the initial term of the agreement be relatively short (i.e. 10 years or less),_ that_ renewal options be tied to measurable performance standards to be met by the contractor, and that discretion for granting renewal options be retained-by the jurisdiction issuing the franchise. 2.2 Exclusive, Non-exclusive, Exceptions By definition, an exclusive franchise implies the contractor has acquired the sole right to collect, remove and dispose of all garbage (residential, commercial, industrial and/or recyclables) as defined within the agreement. Exceptions to exclusivity may be granted, as indicated by the following example: "the generator is able to collect, remove, and dispose of their own garbage in a sanitary manner and in conformance with applicable laws." This would appear to be a significant exception that could defeat the use and value of the franchise. This exception promotes competition within a franchise arrangement, i.e. contractor is constantly pressured to provide as good or better service than the generator is able to perform for themselves. Monitoring and responding to issues arising from such an exception can draw significant resources from the jurisdiction. 13 2.3 Residential, Commercial, Multi-family, Industrial As an alternative to stating "all garbage generated within the City" is included by the franchise agreement, specific service within each land use, as desired and approved by the franchisor, may be defined. For example, residential service may provide for backyard, sideyard, or curbside collection, recycling service, and annual clean-up events. The service interval (State law requires at least once a week - 14 CCR, Article 5, No. 17331) should be specified. Commercial and industrial garbage collection may allow extended intervals for pick-up if the waste is non-putrescible. Commercial, multi-family, and industrial recycling programs may specify goals for tonnages to be collected and a reporting system with verification. Jurisdictions may also wish to explore excluding hazardous wastes as a waste covered by the franchise agreement. 2.4 Solid Waste, Recycling Solid waste and recycling franchise agreements may be combined in the same document or treated as separate agreements. In general, if the contractor, term of the agreement and service area are identical for each, there is adequate justification to combine the agreements into one document. Variation in one or more of these areas would appear to be best handled through separate agreements which could be revisited, amended, or extended without disturbing or opening up the terms of the other. 2.5 Franchise Service Area - Unless the jurisdiction grants multiple service area franchises within its geographic boundaries, it is recommended the definition of service area be described as the incorporated limits of the jurisdiction as they exist on the _effective date of the agreement and as they may "hereafter be changed by reason of annexation, de-annexation or rezoning (March 1986 Franchise - Agreement Between the Central Contra Costa Sanitary District and Valley Disposal, Inc.). It is useful, as included in the Martinez - Pleasant Hill Bayshore Agreement, to include an exhibit showing these boundaries as of the effective date of the agreement. While these boundaries may change, the extent of the initial service area is made clear. 2.6 Annexation There should be a provision in the franchise agreement for future annexations of land by the franchisor to the franchise area. This provision would include a hold harmless statement indemnifying the franchisor against any claims by another franchise holder which attests that the former franchise holder continues to have any right to service the area so annexed. 14 a 2.7 Waste Stream Control. Ownership, Flow Waste stream ownership and control is a critical issue to be negotiated in a franchise agreement. The need to meet waste division mandates, control direction of the waste stream to desired transfer station(s) and to market and process recyclabl'es requires waste stream control. Indeed, designating environmentally safe disposal option(s) at a comfort level required by a jurisdiction necessitates this control. Indemnification from environmental liability is an elusive goal which can be argued is not achievable. The advantages of waste stream control are great and this control should be included in the franchise agreement. While franchising entities currently have the right to include waste stream control within their franchise agreement, developments in federal law should be watched closely over the next several years. Federal legislation may affect a jurisdiction's rights to specify waste stream ownership and flow control. Current RCRA/CERCLA liability considerations suggest that a jurisdiction might want to relinquish control of the waste stream to the contractor as a part of a larger strategy to arrange indemnification for environmental responsibility. 2.8 Sale of Recyclable Material, Salvage Rights, Ownership The sale of source separated materials by the generator is generally recognized as a right occurring to the generator. Salvage refers to removing and refurbishing materials once they have entered the waste stream; following collection. Salvage rights and the sale of recyclable material are subject to change. In late 1993, the California Supreme Court is expected to hear the Rancho Mirage case. SB 450 (Dills) - a two year bill - may also affect rights in this area. 15 jy ........... .�,w,........teary.cam...-c.<v..u.c«..c.....,�..-....,_......... . V SECTION 3. SERVICE PROVISIONS 3.1 General Provisions There should be a general statement that all provisions and any changes are subject to revision and approval by the franchising agency. This'section should further state that except for those sections which indicate otherwise, the contractor shall provide the specifically enumerated services as requested. It should contain a provision which states that if the contractor is unable to provide the enumerated services that the franchisor can seek service elsewhere. It should also articulate franchisor's policy regarding the subcontracting of certain contractor responsibilities to consultants. 3.2 Implementation Plan If the franchise is with a new contractor, a provision requiring a curbside solid waste implementation plan for Residential/ Commercial-Industrial/Recyclables/ Green waste to be submitted by the contractor should be required within a given time frame. 3.3 Service Types This section should specify the service types: Residential - single family, multi- family; Commercial/Industrial; to be serviced. There should then follow a detailed description of duties for each service type: a. Residential The franchisor has the right to dictate the type of residential service to be provided. This section should include a statement indicating whether the collection is curbside or backyard or both, depending on terrain or agreed upon collection type, such as automated pickup. It should indicate the type and size of container and who provides the container(s). It should include frequency of pickups beyond the State required minimum of one pickup per week, routing and limits on hours/days of collection. It should specify any other residential solid waste collection events and number per year; indicating any special provisions which relate to those events. It should indicate whether the contractor is required to recycle any materials picked up at those events. b. Commercial/Industrial Solid Waste Collection This section should include general guidelines which relate to pickup, hours of collection, frequency of pickup (particularly, in picking up of putrescible waste). It should specify appropriate receptacles and locations where materials may be disposed other than landfills. 16 I 3.4 Recycling ' This section articulates the franchisor's requirements and the contractor's plan for collection, processing and marketing of recyclables. Whether recycling is included in the same document with solid waste collection, or as a separate franchise, with different provisions and/or with a different collector/recycler, the following information should be included: a. Single Family Residential Recycling 1) The franchisor's AB 939 diversion goals and the contractor's reporting requirements in meeting those goals. 2) The size, number, color (if applicable) of containers for the collection of recyclables. Provision for replacement of stolen or destroyed containers should be included. It should specify the ownership of the containers during and at end of contract term. 3) Materials to be collected and provision for adding materials in the future. 4) Contractor's responsibility for dissemination of education/public information regarding all aspects of the recycling programs. 5) Hours and days of pickup and regulations specifying appropriate transport to processing facility and disposition of materials. Permission to landfill or other waivers should be discussed. If the franchisor participates as a partner/JPA member in a non-disposal facility development, specific direction to utilize the facility should be included. b. Multi-Family Residential Recycling - 1) AB 939 diversion goals and the contractor's responsibility in meeting these goals. 2) Collection containers, enclosures and replacement provisions. 3) Materials to be collected and provisions for adding materials. 4) Education of complex managers and resident regarding the program; enumerating services to be provided to the complex. C. Commercial/Industrial 1) The contractor's programs for collection, processing and marketing of all recyclables. 17 2) The franchisor's AB 939 diversion goals and the contractor's responsibility in meeting those goals. Reporting requirements, as detailed in the AB 939 Reporting Section should be referred to. 3) The materials to be targeted. 41) The franchisor's or approved contractor's plans for recycling should be detailed in this section. It should include provisions for collection methodology, equipment, labor requirements, containers to be used, publicity, education, marketing, financial forecasts and diversion projections. If this is a contractor- developed plan the franchisor should retain approval/modification ability to: ensure program can meet .goals. Provisions for utilizing/paying consultants to assist in the plan development should be included. 5) The contractor's responsibility to conduct bi-annual waste audits of all commercial/industrial customers for the purpose of identifying the volume and characteristics of commercial solid waste generated; providing the basis for diversion programs provided to the franchise area. 3.5 Yard/Green Waste This section should include the AB 939 goals and the contractors' responsibility in meeting those goals. Reporting requirements as specified in Section 7, should be referred to. a. This section should present either the franchisor's requirements or the contractor's plan for the collection, processing of green waste. The franchisor should retain approval/modification powers to assure that goals are being met. b. The plan should include equipment, labor requirements, type of containers - rigid, bagged or loose, ownership and placement of containers, frequency of collection, exact type of materials allowed to be -collected, composting facilities, restrictions, publicity, education and/or marketing, financial forecasts and diversion projections. C. The franchisor should also reserve the right to direct the yard/green waste to a given facility or to one in the future, if appropriate. 18 3.6 Aid to the Elderly and Handicapped Most franchises include a provision for assisting residents with pickup, particularly where there is curbside pickup of solid waste, recyclables and/or green waste. This provision would require the contractor to make separate arrangements with any resident who claims special treatment, due to age or physical handicap. The provision can specify a certificate from a licensed physician or proof of date of birth. 3.7 Special Materials Campaigns One or more sections should be devoted to special materials collected on a once a year basis, such as telephone. book recycling, cleanup days and Christmas tree pick-up. It should include any special details for planning and implementing these events as well as the disposition of materials. 3.8 Franchisor Facilities/Events This section should specify those franchisor-sponsored events and facilities, locations and materials to be collected which the contractor is to service free of charge to the franchisor. It is generally the practice that the cost of these "free of charge" services are passed onto the ratepayers. It should specify the collection hours/frequency and location and types of collection containers. If many facilities and containers are to serviced, that list should be provided in an exhibit attached to the franchise: Special events collection general guidelines should also be attached. 3.9 Holidays This section should identify those holidays on which waste and recyclables are not be collected; with provision for alternate days when usual collections days fall on a holiday. 3.10 Missed Pickup or Failure to Provide Service This provision sets the process by which the franchisor provides service if the contractor defaults. It sets the fees which the franchisor may collect from the contractor in such circumstances. 19 r 3.1 1 Transportation of Solid Waste If not included in another section, this section usually contains a statement requiring the contractor to provide for the transportation of all solid waste transported to a disposal site, transfer station and/or materials recovery facility (MRF). It further requires that the contractor shall maintain records of all materials disposed and cooperate in any audit or investigation of such records, consistent with the reporting requirements for AB 939 or other franchisor record keeping. It can require the contractor to cooperate with the operators of transfer stations/MRFs/disposal sites in unloading materials in designated areas. It requires the contractor to cooperate and provides compensation for only extraordinary transportation costs, such as hauls outside the service area. 3.12 Household Hazardous Waste Program The franchisor may wish to include a provision for collection of household quantities of those household hazardous waste products which are recyclable, such as used motor oil, latex paint and lead acid auto batteries. The provision can include curbside collection or establishment of a drop off center which is centrally located within the franchise area. It should provide for adding other items in the future as circumstances and facilities permit. 3.13 Removal of Hazardous Waste The contractor should be empowered to conduct inspections to discover any waste which is defined by State or Federal laws as hazardous and/or to refuse any hazardous waste which is placed in any collection container or is delivered to the contractor's facility. It details the process by which the contractor refuses -_ the material; alternately disposing of the materials; notifying the franchisor and/or other agencies having jurisdiction. It provides for reimbursement of any contractor disposal costs. 3.14 -11legally Dumped Bulky Waste There should be a requirement for the contractor to provide on-demand pickup of illegally dumped bulky waste, such as refrigerators, chairs, abandoned auto parts, etc. The provision should specify notification and response time requirements. 3.15. Removal of Dead Animals This type of provision specifies conditions by which the contractor will remove all dead small domestic and wild animals found on the right-of-way within the franchise area. It should provide notification and response times for removal. 20 i I SECTION 4. OTHER COLLECTION, SERVICES 4.1 Customer Service Customer service requirements are a necessary part of the solid waste franchise. Within this section should be included provisions for public information which relates 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 of the contractor. In concert with) Section, 5. Performance Standards, it should a. set standards for level of service, efficiency and customer satisfaction; b. provide mechanisms for determining performance: surveys, customer complaint log, specific reports, time and motion studies; C. establish procedures for receiving, processing and tracking: complaints, including an arbitration and/or appeal process. The contractor may be required to keep records of all complaints, submit records to the franchisor and provide records of the contractor's response. There should be time limits set for the contractor's response and the franchisor should require that all complaints should bei reasonably resolved; d. designate a liaison between the franchisor and contractor and establish a standard meeting time; e. specify the contractor's responsibilities to provide, with franchisor approval, consumer information regarding various programs and the preparation of materials for recycling and green waste; and f. direct the contractor to prepare and distribute information to insert with billings as well as provide direct-mail information letters. 4.2 Billing and Payment This section should require the contractor to provide regular billing of all customers. It should also indicate the method of billing. This billing should provide an itemized list of all services. It should specify the frequency of billing as well as any other special provisions required by the franchisor for billing inserts and refunds. 21 t i I , 4.3 Public Access This provision should require the establishment of a local office and telephone response service within the franchise area for the purpose of meeting customer obligations. It should further specify the establishment of regular office hours for the public; where the public can pay bills and have access to the contractor's representatives, such as a customer liaison. 4.4 Nondiscrimination Clause This provision shouldrequire that the contractor will not discriminate in the provision of services or the employment of persons based on race, color, religion, sex, age, physical handicap or medical condition or any other conditions as specified by State or Federal law. The contract should detail how the contractor will respond to any special needs represented by these circumstances. 4.5 Changes in Schedule There should be a provision for public notification of customers prior to any change in service. It should provide for specific number of days advance notification. 4.6 Emergency Procedures The franchise should provide for emergency call out procedures due to man made or natural disasters or labor strike. This agreement should also provide j for any necessary suspension of services or other emergency measures for the duration of the emergency. 4.7 Rights of Franchisor to Perform During Emergency This provision would set the parameters by which the franchisor assumes responsibility to collect, transport and dispose of all solid waste controlled by the contract. In the event the contractor is unable or unwilling to perform, it would set the notification process, time limits, health, safety and welfare justification and reimbursement of costs to the franchisor. 22 SECTION 5. PERFORMANCE STANDARDS With the goal of a cost effective collection system, responsive to customer needs, responsive to the ever changing Federal and State mandates, and technological changes, franchisor and contractor should negotiate collection performance standards which also respond to health, safety and environmental responsibilities. 5.1 Systems and Services Review a. Efficiencies in Operation Under this process a contractor would be expected to develop a routing/service plan, including implementation which must have a regular evaluation by the franchisor which considers alternatives for improving efficiencies and cutting costs. The franchisor might want to include a clause which reserves the right to perform an independent inspection or review. It might also stipulate the conditions by which the routing plan/times might be altered. For instance, such a plan and review might consider 1) the number of stops per truck and/or operator(s); 2) the cost per stop; per truck; per disposed ton; i 3) the total community cost for collection, transportation; for transfer; for disposal; 4) Waste projections, using waste audits or professional projections; 5) the impact of union contracts/labor relations; 6) complaints; 7) customer satisfaction survey results; and 8) recycling and yard waste collection participation rate. b. Comparison With Comparable Communities To provide for periodic technological and economic changes, the franchisor may require a periodic report from the contractor which compares operational standards with those in similar communities. Central Contra Costa Sanitary District does this through a quarterly forum of elected officials, contractors and community representatives. 23 a C. Capital and Equipment Purchasing and Improvement Plan The contractor is required to submit a purchasing and improvement plan for a specific time period - 2-5 years - the nature of the capital and equipment to be acquired and an estimate of the costs and impact of the rates. 1) The franchise may require the contractor to initially provide one container to each participating household. The contractor is then permitted to sell additional containers to residents upon request. There should be a provision for who owns them when the franchise is terminated. 2) The franchisor may reserve the right to include in the rate base the reasonable cost of equipment and review the expenses of major purchases. 3) The franchisor may require use of the franchisor's jurisdiction as the point of sale with the franchisor's sales tax number. d. Inspection The franchise stipulates the right of the franchisor to inspect facilities, equipment, daily operation and records upon reasonable notice. 5.2 Maintenance of Collection and Processing Equipment This category establishes requirements for a collection system which is sufficient to regularly - in a safe and sanitary manner - collect, process and dispose of the franchise area's solid wastes; consistent with all applicable ordinances, laws and regulations. It can include a. reports on type, mileage, expected life, value and use of the equipment; b. establishment of standards for types of equipment utilized and purchased, maintenance of equipment, including proper licensing, registration, noise levels and other health and safety issues and reports and inspection; C. standards for methods of collection, processing, transporting; and d. equipment inventory list, including backup vehicles in the event of breakdowns. 24 ------------ 5.3 Sanitary Operations This provision details requirements for healthy and safe collection and processing of solid waste. It may include a. personnel standards for behavior, customer relations and competence; b. .standards for employees relating to wellness, drugs, alcohol, cleanliness, training and supervision; C. required reports related to citations and other adverse reports; d. financial responsibility of the contractor to ensure safe, clean and proper operation and maintenance of all facilities and equipment; and e. inspection schedule and process. 25 SECTION 6. RATES 6.1 Franchise Fees The franchise should set guidelines for establishing the franchise fee. Many agencies set a specific percent of revenue the contractor will pay to the franchising entity. Example: "Contractor shall pay to City ten percent (10%) of gross revenue..." One agency sets the franchise fee based on reimbursement of actual expenses incurred to regulate/manage the franchise. A non-public utility type model would be a contractual agreement which could simply indicate that future rate changes would be made by an amendment to the agreement - that was mutually agreed to by both parties. 6.2 Compensation/Rates This section should discuss allowable profit. Some agencies spell this out in detail, setting a method of calculation and an allowable ratio. Example: "The City shall select an operating ratio for collection operations after reviewing the information required from the hauler. The operating ratio shall be no less than 86 percent and no more than 90 percent." This specific definition does not allow the regulator to adopt better methods of regulation if desired. One regulator was able to replace the operating ratio calculation with an equivalent unit calculation because of the less specific �I wording in the franchise agreement. Example: "Approval off the rate increase, or other action by the Board on the application, shall occur only after the District has had sufficient time to review the application and financial statement, and in - no event will a rate increase take effect before of the year in question." No mention is made of how rate increases will be determined. Other approaches would be to specify allowable compensation in the Request for Proposal (RFP) or simply to be determined during the contract negotiations. 6-.3 Reviews a. Rate Request and Review 1) Number and.frequency of reviews should be stated. 2) The franchisor should be able to specify the format the rate application will take. 3) The document should state if audited financials are required. 4) There may be a need for some type of appeal process, such as arbitration. 26 . r . b. Performance Performance is sometimes used in rate setting. The franchisor may want to provide a mechanism by which good/excellent performance will positively affect'contractor's profitability. C. Systems and Services This section should specify the procedure for reviewing systems and services for the purpose of "providing technological, economic, and regulatory changes in solid waste collection, to facilitate renewal producers, to promote competition in the solid waste industry, and to achieve a continuing, advanced solid waste collection system." d. Operating Efficiencies This section of the agreement might discuss incentives for the hauler to operate more efficiently. Would a larger percent of profit go to the hauler for new innovations? Again, it is probably advantageous to keep this wording non-specific so the regulator has flexibility. 6.4 Affiliated Entities This section should discuss the handling of entities affiliated with the waste hauler. Sample wording follows: "The Contractor shall provide information necessary to satisfy the City that the charges made by an affiliated entity are reasonable. 'Affiliated entity' shall be defined as any entity which provides products or services to the Contractor and in which the Contractor owns a ten percent (10 percent) or greater interest. The City shall have the right to inspect the financial records of any affiliated entity." The contractor can sell recyclable materials to any company wholly or partially owned by contractor but at a price not less than fair market value. Its relationship must be known to the franchisor. 27 SECTION 7. RECORDS/REPORTS In general, this section should outline all records that are required by the regulator to be provided by the hauler. 7.1 Financial Reports a. Books and Records Sample wording might be: "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." b. Audits This section should discuss the type of audited financial statement required. It might also discuss the need for audits that will be performed by the franchisor and the frequency by which they will be conducted. 7.2 Operational a. AB 939 Requirements This topic may also be covered in more depth in Section 9 - Legal. The franchise will need to state the format, content and frequency required for reporting tonnages of material handled by the hauler such as material type, origin of waste, waste source and tonnages. Other information may be requested in order to comply with AB 939. b. Other Reports Necessary for Rate Review It might be appropriate to state that reports of tonnages deposited in the landfills, recycling tonnages, detail revenue statements, etc. are required for rate review and should be supplied willingly by the hauler. This same date must be provided for compliance with AB 939 requirements 7.3 Confidentiality/Customer Privacy This section should discuss privacy issues as they relate to the hauler's customers. Example: "... Information identifying individual customers, or the composition or contents of a customer's refuse shall not be revealed to any person, private agency or company ..." While the hauler should protect their customers' privacy, privacy should not preclude them from preparing waste characterization studies or waste stream analyses which may be required by AB 939. 28 7.4 Customer Notification The contractor should be required to notify customers, within a defined time frame, of the date and time of the public hearing for its rate increase request. 7.5 Adverse Information Sample wording: "Contractor shall provide City two copies of all reports, or other material adversely reflecting on the Contractor's performance under this Franchise Agreement, submitted by the Contractor to the California or U.S. EPA, the California Integrated Waste Management Board or any other federal, state or county agency." 29 SECTION 8. LEGAL 8.1 Intent to Regulate a. Both parties agree that the City has jurisdiction to regulate the collection, removal and disposal of all garbage and/or the recycling of all material within the franchise area. b. A statement should be made as to what is not regulated by this agreement, i.e. recyclable material, removal and disposal of industrial waste, hazardous waste, infectious material, etc. C. Deciding whether a particular solid waste activity is covered or regulated by the agreement should be within the sole determination of the franchisor. A dispute resolution section of the agreement may be referred to in the event that the contractor disagrees with the franchisor's determination. 8.2 Compliance The franchise should include a provision which states that the "Contractor 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 i United States, the State of California, the County of Contra Costa 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 and/or recycling of solid waste." This section could also include a provision which states those issues over which the franchisor's authority extends, i.e. size of garbage cans, use of plastic trash bags, etc. 8.3 Insurance a. The contractor should maintain and continue in force during the term of the agreement, public liability insurance, property damage insurance, automobile liability and workers' compensation and employee liability insurance in amounts as determined by the franchisor. (recommended amounts of liability insurance range from $1 to $5 million per occurrence; Workers Compensation: $1 million; other contracts give the franchisor the right to set insurance limits on an annual basis) b. The franchisor should require that insurance be obtained from a company admitted to do business in the State of California and acceptable to the franchisor. C. The franchisor should reserve the right to examine all policies to ensure appropriate conformity to prevailing practices and standards of the insurance industry. 30 . .. ... ..:..... .......................a.............r......:...uu..w...r..ww .w+.+u.u..r r.t.vvvvarxne...r.a.t w.scertxir+u_-_.y CtLtiV.v'✓..=+.x...r..;t•..':tv'.•..•.... d. The franchisor should require that the insurer on any type of policy cannot cancel or decrease the insurance coverage without first giving thirty day notice in writing to the franchisor. e. The franchisor should require that a certificate of insurance be provided to the franchisor any time the contractor alters a policy or changes carriers. f. The franchisor.should require that a copy of the certificate for each policy, be provided to the franchisor by a date certain of each year. g. The franchisor should require that the franchisor be named as an additional insured on the public liability and property damage policies. 8.4 Faithful Performance Bond a. Simultaneously with the execution of the agreement, the contractor should be required to submit to the franchisor a corporate surety bond. (In the contracts reviewed, the amount of the bond varies from $10,000 to $100,000.) b. A statement may be added, but was not found in all contracts, that allows the amount of the bond to be increased periodically (3-5 years) based on an agreed upon index. C. The bond should be executed by a surety company licensed to do business in the State of California and acceptable to the franchisor. - - d. The bond should be payable to the franchisor. e. The condition of the bond should be that the contractor will faithfully perform the duties imposed by ordinance, the agreement and, if applicable, the rules and regulations of the franchisor. f. A statement allowing that any action by the franchisor to proceed against the bond should not limit or affect the right of the franchisor to use other remedies available to the franchisor under the agreement, or in courts of law or equity. g. In lieu of a corporate surety bond, but not withstanding the foregoing provisions, the contractor may provide a letter of credit, cash bond or other security in a form acceptable to the franchisor. h. The franchisor may want to consider other provisions under which it can redeem the bond. 31 8.5 Indemnity (Legal Liability) In this section the contractor accepts all risk associated with the work and performance covered by the agreement and agrees to hold the franchisor harmless from any liability. a. Sample statement (Each franchisor's attorney will certainly have a recommended version): "Contractor agrees to defend, indemnify and hold harmless the City, 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, arising directly or indirectly out of the obligations here undertaken or out of the operations conducted by the Contractor, save and except claims or litigation arising through the sole negligence or willful misconduct of the City." b The franchisor may want a provision whereby the contractor reimburses the franchising jurisdiction for legal expenses incurred in taking action against people who do not have service, or who are violating the exclusive right of the contractor to haul garbage. c. The franchisor should require a provision whereby upon request of the franchisor, the contractor shall defend the franchisor in any action which challenges the validity or procedures of the franchise agreement, the procedures by which the agreement was entered into, or any ordinance authorizing the agreement. Defense of the franchisor shall be provided by counsel satisfactory to the franchisor. Costs for litigation should be borne by the contractor. The franchisor shall determine if costs associated with such litigation can be charged as an operating expense of the contractor or against the contractor's profits. d. If a challenge to the conditions listed above is successful, the contractor should have no course of action for damages or any other relief against the franchisor. 8.6 Independent Contractor This provision should state that a. the contractor is an independent contractor and not an officer, agent, servant or employee of the franchisor. The contractor will at all times remain an independent contractor in the relationship with the franchisor, and b. the contractor shall not represent himself as an agent or employee of the franchisor and has no authority, express or implied, to act on behalf of the franchisor or to bind the franchisor to any obligation whatsoever. 32 8.7 Termination (Default) This section sets out the conditions under which the franchisor may seek remedies for a breach of the agreement by the contractor. They items, below should be considered for inclusion. a. Establish which franchising. entity official, (suggestion is city/district manager or his or her designee) has the authority to determine whether a breach of any provisions of the franchise agreement has occurred. b. Determine the, procedure for: advising the contractor that an action (or deficiency ) is not in conformity with the provisions of the agreement. This is generally done in writing. In some contracts reference is made to specific items that must be contained in the written notice (time frame within which correction of all deficiencies is to be made, statement of the performance requested', right of appeal). Other contracts simply state that written notice must be provided; C. State a specific time frame in which to remedy deficiencies (not to exceed 60 days was commonly used); d. The contractor should be required to respond to notice of deficiency within a specified time period (not to exceed 10 days was commonly used). e. If the designated franchising entity official determines that the contractor has failed to satisfactorily cure the breach or deficiency within the allotted time frame, the default may be considered to be material and subject to termination of the franchise agreement. f. In the event that a material breach of the franchise agreement has been determined to have occurred, an appeal process may be established. The governing body of the franchising entity is generally the body hearing the appeal. g. Some contracts have language that allows the franchisor, at the expense of the contractor, to take or cause actions necessary to cure the breach or default. This is common when the breach or default is one which interferes with the health or well-being of the franchising entity's residents, and/or disrupts the normal operations of the franchising entity or its residents. h. In the event of a termination prior to the natural expiration of the term of the agreement, the franchisor shall have the right to temporarily assume the obligations of the contractor. This is a lengthy section and should address the following: possession and value of trucks and other equipment, distribution of gross revenue during this period, indemnification of contractor from liability claims, employment of persons who were employed by the contractor. 33 I i. Some contracts specifically list actions that would be considered a material breach of the agreement: j. State that upon the occurrence of a material breach and the declaration of such that termination of the agreement shall be considered; that the agreement and the franchise granted thereunder shall be of no further force and effect, excepting those provisions concerning franchisor's right to temporarily assume contractor's obligations and to use contractor's facilities upon early termination as provided in the agreement. k. In the event of default, or material breach by the contractor, the franchisor should have the right to terminate upon 10 days notice. 8.8 Notices Notices should be in writing; personally delivered or by certified mail. There should be proper addresses and a named person to receive correspondence. 8.9 Permits The contractor must secure all permits necessary to operate and dispose or divert materials at facilities which have all required permits. 8.10 Penalties Penalties may be imposed under the following conditions: a. the establishment of performance standards and liquidated damages for _. failure to perform; b. if the franchise fee is late; C. if the contractor is found to underreport gross receipts; and d. if there are costs included in the rate base in excess of acceptable percentage. 8.11 Attorney Fees Attorneys' fees may be awarded depending on who is likely-to breach or prevail in a law suit. a. In the event of litigation, the prevailing party should recover its reasonable costs of litigation, including attorneys' fees and costs as determined by the Court; or b. Each party should pay its own litigation expenses, including attorney fees. 34 8.12 Severability a. If legal action brought by others who are not party to the franchise agreement challenges any provision, each section and paragraph of agreement is severable from the remaining terms, conditions, sections, etc. b. If a non-material provision of the agreement is deemed to be invalid or unenforceable, it does not affect other provisions of the agreement. 8.13 Assignment Assignment means the transfer, sale or exchange of assets related to the service of the franchise agreement. Common provisions relating to assignment follow. a. Neither party shall assign .its rights or delegate or transfer obligations without written consent of other party. y b. The franchisor may assign or transfer this agreement to another legally authorized public entity. C. This section may include "consent will not be unreasonably held". d. Criteria must be delineated for the proposed transferee. e. A payment of a transfer fee is required. f. The franchise should address changes in control or ownership. g. An involuntary assignment shall constitute a material breach of this agreement and the franchisor shall have the right to terminate. 8.14 California Integrated Waste Management Act (AB 939) Requirements These are necessary to protect the franchisor against penalties imposed by the California Integrated Waste Management Board. a. The contractor is required to maintain accounting and statistical records necessary to provide reports requested by the franchisor. b. The contractor must record on a daily basis materials diverted, materials disposed, yard waste collected, and report to the franchisor on a monthly basis in a form acceptable to to the franchisor. C. The franchisor may require the contractor to achieve a specified percent reduction in the waste stream by 1995, and a specified percent reduction in the waste stream by 2000. 35 B I d. The contractor may be required to submit data on computer discs. e. The franchisor may require the contractor to perform waste audits of commercial customers annually and identify volume and waste characteristics and require the contractor to provide information and offer incentives for source reduction or ways to divert commercial waste. f. Failure to report or provide requested information is deemed a material breach. g. The contractor should hold the franchisor harmless from any fines, penalties, and assessments levied against the franchisor for the franchisor's failure to meet AB 939 requirements 8.15 Miscellaneous or.General Provisions a. The franchisor may obligate the contractor to comply with all legal requirements-laws, ordinances, orders, regulations of any governmental entity which has jurisdiction.. b. The agreement should state that it is governed by, construed, and enforced in accordance with laws of the State of California. C. The agreement should state that the franchise agreement, including attachments, represents full and entire agreement between parties with respect to matters covered herein. d. All references in the agreement to laws shall be understood to include _. such laws as may be subsequently amended or recodified. i e. There should be a statement that the agreement may not be modified or amended in any respect, except in writing. _._ f. It should state that any lawsuits arising out of this agreement shall be brought and concluded in the Courts of of the State of California in Contra Costa County. g. The agreement should state that it will be interpreted and construed reasonably and neither for or against either party. h. The agreement should state that a waiver by either party of any provisions in the agreement shall not be deemed to be a waiver of other provisions in the agreement. L The agreement should state that it does not modify any agreement with another contractor. 36 i l j. Force Majeure (A superior or irresistible force) The agreement should provide that the contractor shall not be in default under the following circumstances: riots, wars, strikes (Some thought needs to be given to whether the franchisor wants to include strikes as a legal excuse for non- performance.), acts of God, etc. This does not include financial inability to perform or failure to obtain permits or licenses. k. The franchise should require that in the case of property or pavement damage, the contractor is responsible for any extraordinary damage to franchising area's driving surfaces due to vehicle use. The contractor should also be responsible for physical damage caused by negligent or willful acts. I. Right of Entry - The contractor should have the right to enter any private street for purpose of collecting solid waste or recyclables. M. The contractor should not demand or accept any compensation or gratuity for the collection of solid waste required under the agreement. 8.16 Franchisor Responsibility In this provision the franchisor agrees a. to take reasonable steps to protect the contractor's ownership of all recyclable materials placed at the curbside or designated collection Location. .A franchisor ordinance will provide remedies to secure protection. i - b. that If there are separate recycling and solid waste collection agreements, the franchisor acknowledges that it would be helpful to coordinate agreements. 37 SECTION 9. REFERENCES 9.1 Solid Waste Franchises a. Agreement Between the City of Hercules and Pinole Garbage Service. a Division of Richmond Sanitary Service, September 10, 1986, 15 pp. b. Agreement Between the City of Livermore and Livermore Dublin Disposal and Oakland Scavenger Company for Collection and Processing of Solid Waste and Collection and Processing of Recyclable Materials, April 22, 1993, 86 pp. C. Agreement Between Contra Costa County and Pleasant Hill Bayshore Disposal. Inc.. for Solid Waste. Collection and Recycling in West Pittsburg, March 5, 1991, 18 pp. d. Agreement for Collection and Disposal of Refuse in the City of Benicia, October 25, 1989, 36 pp. e. Agreement for Residential Curbside Recycling in the City of Benicia, November 1, 1990, 19 pp. f. Agreement for Collection. Removal and Disposal of Garbage Between Central Contra Costa Sanitary District and Valley Waste Management, Zone 2, March 1, 1986, 20 pp. g. Amendment to Agreement for Collection and Disposal of Refuse in the City of Benicia, September 4, 1991, 3 pp. h. An Agreement Between the City of San .Bruno and the San Bruno (garbage Company for the San. Bruno Recycling Program, December 1, -- _ 1987, 22 pp. i. City of San Ramon - Valley Waste Management Agreement for Collection. Removal and Disposal of Garbage, April 3, 1986, 36 pp. j. Contract for the Performance of a Five-Year Curbside Collection of Recyclable Materials in Castro Valley in the Eden Township of Alameda County (Between Castro Valley Sanitary District and Browning-Ferris Industries of California, Inc./Pleasant Hill Bayshore Disposal, Inc.), January 8, 1991, 7 pp. k. Draft Summary of Franchise Agreement Between the City of Walnut Creek and Valley Waste Management. Inc.. for the Collection and Disposal of Solid Waste, undated, 12 pp. 38 e I. Draft Summary of the City of Walnut Creek Revision of Recycling Collection and Processing Agreement with Pacific Rim Recycling, April 14, 1991, 15 pp. M. Franchise Agreement Between Contra Costa County and Richmond Sanitary Service, Inc., October 12, 1993, 30 pp. n. Franchise Agreement Between City of Martinez and Pleasant Hill Bayshore Disposal Inc.. (Solid Waste), March 22, 1993, 54 pp. o. Franchise Agreement Between City of Martinez and Pleasant Hill Bayshore Disposal. Inc. (Residential Recyclinq), March 22, 1993, 53 pp. P. Franchise Agreement Between the City of Richmond and Richmond Sanitary Service, Inc., September 6, 1991, 38 pp. 9.2 Periodicals a. Hornig, Constance. "Laws Give Shape to Solid Waste Contracts and Finance", Solid Waste & Power, October 1991. b. Pferdehirt, Wayne; O"Leary, Phil; and Walsh, Patrick. "Planning a High Performance Collection System", Waste Age, February 1993. 9.3 Unpublished Works a. Deloitte & Touche. "Regulation" (Part of a larger work presented at Pacific Recyclers Expo), 1992, 14 pp. b. Hilton, Farnkopf & Hobson. "Presentation of Issues and Options Regarding Model Franchise Agreement - Contra Costa Solid Waste Authority", June 2, 1993, 10 pp. C. Hornig, Constance. "Key Recycling Clauses for Garbage RFP's and Contracts: Transfer Stations, Rail Haul and Landfilling" (California Resource Recovery Association Workshop), December 11, 1992, 10 pp. d. Young, Rufus C. and Kightlinger, Jeffrey. "Financing Strategies for Integrated Waste Management Programs; Answers for Communities"; "Financing Issues in Establishing Service Agreements" (League of California Cities Workshop), May 1992, 16 pp. 39 C 9.4 Miscellaneous a. Gastro Valley Sanitary District. Specifications for Performance of a Five- Year Curbside Collection of Recyclable Materials in Castro Valley in the Eden Township of Alameda County, September 1990, 40 pp. b. City of Saratoga. Request for Qualifications to Perform a Refuse Collection and Disposal Performance Audit, December 4, 1992, 16 pp. C. County of Santa Clara. Garbage Collection Districts 1 & 4 - Request for Proposals, February 1, 1993, 47 pp. 40 REQUEST TO SPEAK FOAM Date: 14r-- (Two [2] Minute Limit) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: T/`N) 1� �, y \ Phone: Address: a-1 Z. t - 61. (!Ar-t 1`o e t 'a , /�/� City: WA4- /LJ r- Cf�"�� I am speaking for: ❑ Myself OR D<Organization:Alt V/47-0 RDDFD , SA AJI A(�2-' NAME OF ORGANIZATION 6-7 �tC-1,S CHECK ONE: 11J ❑ I wish to speak on Agenda Item # ��" ,n/cy Sr My comments will be: >1 General ❑'For ❑ Against /� ❑ I wish to speak on the subject of: +ti EA I'� �G T�47 S Qy c7 ❑ I do not wish to speak but leave these comments for the Board to consider: _- Date: Z/ `T — / � REQUEST TO SPEAK FOxm (Two [2] Minute Limit) Complete this formand place it in the box near the speakers' rostrum before addressing the Board. j r Name: ) r1ka LLA_C Phone: Address: nI Z � � ��'�a �-- City: I am speaking for: ❑ Myself OR ❑ Organization: l�oe(y Son NAME OF ORGANIZATION CHECK ONE: ❑ I wish to speak on Agenda Item # S l� My comments will be: ❑ General ❑ For ❑ Against ❑ I wish to speak on the subject of: ❑ I do not wish to speak but leave these comments for the Board to consider: Date: REQUEST TO .SPEAK{ FORM (Two [2] Minute Limit) Complete this form and place it in the box near the speakers' rostrum before addressing.the Board. Name: Phone: a -_k2 — S67 / Address: 7 S'? City:)M I am speaking for: ❑ Myself OR (SOrganization: AME OF ORGANI ION CHECK ONE: KI wish to speak on Agenda Item # .S Vl� My comments will be: ❑ General ❑ For ❑ Against ❑ I wish to speak on -the subject of: ❑ I do not wish to speak but leave these comments for the Board to consider: t- ATTACHMENT -D ACME TRANSFER STATION CONDITION OF APPROVAL REGARDING RESOURCE RECOVERY i 12. RESOURCE RECOVERY STAFF Note: The resource recovery goals and time frames cited below shall remain in effect until they are superseded by conditions iml2lementingshe goals and time frames established by the California Integrated Waste Management Act of 1989 IPb. Resources Code §40000 et sea.l. .1 1988-1992 Resource Recovery Program. The Transfer Station - Operator shall implement a resource recovery and recycling pro- gram at the Waste Recovery and Transfer Station, consistent with STAFF the 1989 County Solid Waste Management Plan, to complement Page 7 the cities' and collectors' recycling efforts. From initial start-up through 1992, a drop-off recycling center for newspaper, glass, BOS plastics and cans shall be provided along the access road prior to the pay booth. Wood/brush debris shall be chipped for shipment. Cardboard shall be salvaged and baled. Miscellaneous metals and other reusable materials shall be salvaged and stored in boxes located adjacent to station buildings, in every effort to meet the STAFF recycling goal of the 1989 County Solid Waste Management Plan in the near term of 20 percent reduction of the total waste stream. STAFF .2 Post 1992 Resource Recovery Program. Prior to 1991, the Transfer Station Operator shall prepare and submit for review and approval by the County a proposed resource-recovery program covering the periods from 1992-1997 and 1997-2007. The- proposed program shall be designed to implement the resource recovery goals of the 1989 County Solid Waste Management Plan. STAFF The 1992-1997 phase of the program shall address the recovery of additional materials, and conversion of the drop-off recycling center to a buy-back center. The program shall attempt to recov- er at the Waste Transfer Station an additional 5 percent of the total waste stream to complement the cities' and collectors' anticipated curbside recycling program of 5 percent of the waste stream, to meet the recycling goal of the 1989 County Solid Waste Management Plan in the midterm of 30 percent reduction of the waste stream. The 1997-2007 phase of the program shall address a more comprehensive resource recovery system, including production of refuse pellets for shipment if feasible, with a recycling goal of an approximate additional 20 percent of the waste stream, to bring the total waste recycled at the facility to approximately 45 percent of the total waste stream, to complement the cities' and collectors' anticipated curbside recycling or equivalent recycling program of 15 percent of the waste stream to meet the recycling STAFF goal of the 1989 County Solid Waste Management Plan in the long term of 60 percent reduction of the waste stream. Nothing in Condition 12.2 shall be interpreted as giving approval to modifications of Land Use Permit 2122-86 without - environmental review or due process of law, nor shall it be - interpreted as approving project modifications without obtaining other applicable permits. J Page 8 n , S STAFF .3 Recyclable Extraction. The Transfer Station operator shall screen incoming self-hauler loads for major recyclable materials and extract materials, consistent with the 1989 County Solid Waste Management Plan. .4 Recyclable Storage. The Transfer Station operator shall not store recycled materials in the open on the Transfer Station site, unless the material is baled or placed in bins or storage containers. i .5 Wood Chipping. The Transfer Station operator shall install wood chipping equipment on the site, and establish a program to encourage landscape-services and construction/demolition material haulers to segregate wood material for chipping. .6 Composting Pilot Project. The Transfer Station Operator shall.- propose and implement a pilot project for composting a portion of the organic material brought to the Station. The composting facility shall be placed on the adjoining Acme landfill site at a { location approved by the County Community Development Department.. Alternatively, the Transfer Station Operator may utilize a composting facility at a County landfill or other County- approved location. If practicable, the compost shall be used initially as a soil amendment for Transfer Station landscaping. The pilot project shall be approved by the County Community Development Department and Health Services Department and shall be subject to regulatory agency approvals. The operator shall submit a proposal for the pilot project within one year after receiving waste at the Transfer Station, and shall implement the project within one year of its approval. Its status shall be considered at the next Land Use Permit review. .7 Landfill Gas. The Transfer Station operator shall explore the use of landfill gas to heat the Transfer Station facility. .8 Re-Used Water. See Condition 19.6. r .9 County Resource Recovery Management Program. When j requested by the County, the Transfer Station owner shall provide annual advance funding to support a County Resource Recovery Management Program consisting of the Office of Resource Recovery Manager and its program. The cost of the program shall not exceed $100,000 at 1987 levels. Paye 9 The Transfer Station owner may recover funds provided to the County in advance of the opening of the station through subse- quent rate adjustments or surcharges approved by the County. If the County approves new landfills or other solid waste disposal facilities, it may provide for the new facilities to wholly or partially support the County Resource Recovery Management Program. SW. 1 Rodeo and Mt. View Sanitary District Supervisor Bishop: . . .I'm ready to make a motion on alternative 5 and that is that we look at an expansion of the MOU that incorporates all of the concerns that were announced and articulated by Supervisor Smith. I would, however, say that AB939 is not an issue if we do, you know if we do that then we are not controlling the waste stream and the two sanitary districts are controlling the waste stream or whoever they are dealing with control the waste stream under their existing Memorandum of Understanding. So, I would move number 5 as being the alternative that is acceptable to the sanitary districts involved and also addresses the concerns raised by Supervisor Smith. Well, welcome to the real world, that Gayle Bishop cannot get one motion through on this Board. We' ll hear what Jeff has to propose, cause more than likely that's what you're going to end up with on garbage. (No Second) Supervisor Smith: I 'd like to move recommendation 3, which is essentially to incorporate the areas of Rodeo and the Mt. View sanitary unincorporated areas and also obviously include parts of Rodeo, which are outside of the Rodeo Sanitary District at this point, include them into the current master franchise with BFI and the County and then make that effective August 6, 1996, which is the time period of our notice and sit down and negotiate an MOII with both sanitary districts to allow them to do the administration of the franchises to create both sanitary ' districts as advisory Boards to the Board of Supervisors to implement those franchises and make recommendations about any future changes or needs for changes in those franchises to negotiate the indemnity issue to be incorporated in the franchises as was discussed with Pleasant Hill Bay Shore and to negotiate pass through of any surcharge which is appropriate to deal with the ACME litigation. And the reason I think this is important is because the state law is very clear the County is going to be held responsible for 939 compliance throughout all the unincorporated areas of the County, not just regions . And, even though Mt. View and Rodeo and Bay Point are clearly defined regions that have their own individual identity, when it comes down to the state investigating and passing judgment on whether we comply with 939, it' ll be a County-wide issue and we, as the County, will be responsible for it. . .and it will be the County' s general fund that will be responsible for it. I think to that end it' s important for us to be able to have control over the franchises and to have privity of contract with -the haulers and I think this will address those issues, it will enable us to maintain that control it' ll also enable the sanitary districts to maintain the administration and will enable all of them to get the current process or the current pass through that they have the current indemnity that they have without us interfering with that, but allow us to maintain control for the future. So, anyhow, I ' ll make that motion. Supervisor Torlakson: I ' ll second it. . . Supervisor Bishop: I thought you would. Supervisor Torlakson: . . . for the purposes of discussion and I want to say I think there are a number of things that have been brought up that we want to see pursued in the discussions. Some of the questions that Mr. Levy has brought up about whether the district would be potentially subject to any financial risks or costs if the County for some reason couldn' t meet 939 compliance. That should addressed and I think there should be an indemnity back to the district rate palssso that there' s no potential cost associated with the district. I do think that as I second the motion I want to pursue and follow with you the question of how it would actually work. And, so that on the one hand we want these ideas to be protected in terms of the 939 goals, the waste stream issue - I 'm not quite clear and of the dialogue that went on and I 'd like a little more information about the question of what the power will be, who will trigger where the waste goes and what the financial implications are. So I don't understand that entirely clear from the discussion that occurred today, so I 'm seconding it for the purposes of seeing the process move forward and saying that the district supervisor, Jeff Smith, deserves the opportunity to continue to work with the agencies and try to work out some of the details. I can see potentially some of the confusion that might result and that something that needs to be addressed in the document as you would come up with any kind an agreement. Under any either of the motions that have been offered today the idea of an MOU working out in detail with the district is something that has to be pursued. And, the question of confusion of the public of who do they go to ultimately resolve issues to what degree would number 3 as you are proposing it, Jeff, give their board real authority or have people on the alternative get confused and have to go though a 2 step process to come here to resolve issues. So I think those are some of the questions I have as you would pursue it under the motion to bring back some kind of a proposed draft that we could look at the details and see what rights and powers could be maintained under the MOU that the district would feel comfortable as their elected capacity representing back to their rate payers on certain issues . How would rate increase requests be for instance handled? Who would review those? I would assume under your motion that they would be the body to review those. But, again, without all the details, I think it leaves open a process where further discussions can occur with the districts and you as the district supervisor can work some of the details out with them. Supervisor Smith: Right, I, I . . . . Supervisor Bishop: Ah, could I interject something? I think you spoke and he seconded it and I would like to interject something. Supervisor Smith: Ok. Supervisor Bishop: At this juncture, since I 'm the Chair, at least today I am, I would like to respond to what is going on here. I heard the general fund issue raised time and again by Supervisor Smith and that he is protecting the general fund. I don't think that is what is going on here. I think that what clearly going on here Mr. Batchelor' s going to be happy because this means that the County can levee fees that will come back to our general fund, so that makes Mr. Batchelor happy as far as the control of -the waste stream that the County can control the waste stream. Mr. Levy I apologize to you for giving you a question that I knew the answer to. There is an interest in this Board, the majority of the Board, the maker of the motion and the person who seconded it, to control the waste stream because, I can tell you, the waste stream is not, ultimately if they direct the waste stream, it will end up not going to Keller Canyon it will go to someone' s favorite hauler or favorite landfill operator. And it isn' t calculated on what is the best price. So, I think we need a little reality therapy here, we hear a lot of rhetoric, a lot of political positioning, but we, in reality what is going on here is, you know, people having their favorite garbage interest throughout the room. And, I don't know if Mr. Armstrong is here for garbage or for some other issue. Mr. Batchelor gets some money into the general fund, but you guys, excuse me, you've been ripped-off. You' re gonna get the complaints, we' re gonna get the money, we're gonna get control of the waste stream and that' s what' s really going on here. And I apologize to you, this is County government gone amok. Excuse me, Mr. Levy, I am the Chair, and Mr. Levy rose to speak. I would like him to respond. Mr. Levy: (Inaudible - speaking from audience) Thank you Madam Chairman, I realize there is a motion on the floor and I 'd only like to make sure that the Board has received a communication that I directed to the Board and I got it into I the mail system and faximile system last night, I sent a copy to County Council I hope you received it. Supervisor Bishop: I wouldn' t count on it. Supervisor Smith: Yes, we received it. Supervisor Bishop: I did not receive it. Supervisor Smith: Well, I got a copy of it. Supervisor Bishop: Good, that' s important. Mr. Levy: If I could file this as part of the directory before the motion. Supervisor Bishop: Thank you, you are out of order, we had closed the public hearings so if you could get the comments to me at another time. Supervisor Smith you wished to speak. Supervisor Smith: Yes, I just think, you know, that maybe you really over. . . . Supervisor Bishop: Ah, it' s Supervisor Bishop. . . Supervisor Smith: . . . . . .overstated what your opinion is and isn' t necessarily what the opinion of the rest of the Board is . . . . Supervisor Bishop: I realize that. . . Supervisor Smith: . . .but, in terms of responding to. . . Supervisor Bishop: . . .it' s not an opinion, .�,it' s fact Supervisor Smith. Supervisor Smith: Ok, can I finish a comment too? Supervisor Bishop: Well, I was not permitted, if you recall, about six months ago to even speak for 45 minutes and if you'd like to see that one as a travesty of what a Chair can do. I don' t operate that way, Supervisor Smith, you can go back to Washington two times I can' t go back once I was not permitted to speak at all last year, I 'm going to permit you to speak and show you what being a good Chair is all about. Go ahead Supervisor Smith, but don't say I 'm stating opinions, I 'm giving facts. Supervisor Smith: Thank you, I appreciate your kind indulgence. With responffto the addition to the motion that Supervisor Torlakson made about indemnifying the districts, I think that' s an important addition that I neglected and clearly, what we' re suggesting here if this motion passes, is negotiating an MOU, which by definition means that both parties to . the MOU have to agree to what' s in it and that has to come back to this full Board in the future and it has to go before the boards of the Sanitary Districts in the future, so we will have to delineate exactly what the process will be for determining issues that relate to the franchise in the future and I would certainly envision, you know, both boards, the Board of Supervisors and - actually all three, the Sanitary District Boards reviewing any changes to the franchise any changes to the rates anything that had to do with suggestions about , flow control or anything like that so. I think this really means only that we are going to protect our general fund and assert our legal responsibilities to be assured that we can comply with 939, but it does mean that we are going to come back in the future with something that everybody agrees to and I think that Richard and Mr. Levy and I think Dorothy, once she' s assured that we're not going to tack on a big fee, are going to all end up agreeing because we won' t have an MOU if we don' t agree. And, I mean I 'm sorry if there is a suspicion but let' s dust say between now and the time the MOU is signed which will definitely be before August of 96 so it gives us plenty of time we're gonna all agree and everybody's gonna be happy with the process and the procedure and the indemnity and the 939 requirements and it' ll move on so. And, if we don' t, then we won' t move on. Mr. Levy: The purpose of that letter that I filed only referred to the effect of the mention in the adhoc meeting we' re reserving our rights to protect the contracts of the franchise and in any case of tortious interference with those contractual rights which we've got going with the franchisees for eleven years to come. And, of course if we can all agree to otherwise under an MOU, that would not apply but, it' s addressed just to an unilateral effort by the County as disregards the rights that the districts have and. . . . Supervisor Bishop: Thank you Mr. Levy, thank you. Ah the motion is before. . . . Supervisor Torlakson: Madam Chair, on the motion, if I may as well comment on the comments you made. The issues are not as you frame them and I would appreciatet it if you would not assume what other Board members are thinking, .because the issues as I intended in the motion are number one and after talking to Dorothy and Jeff about the process here would be to see that a system set up where rates could be maintained at the lowest possible basis. And, that there aren' t any "assumptions by any of us to pass on fees and tack them on to the district rate payers in some form, so that assumption number one is wrong. The other assumption that you alluded to is some kind of assumption about sending waste to some other landfill. I think we should have the option to send waste to other landfills because the marketplace may offer a better location that would be more cost effective for the rate payers and if we don't exercise some option in controlling that waste stream, we may not be able to afford the rate payers an opportunity for a lower rate or avoid cost increases that may occur at Keller Canyon. So, I think that that is a very logical part of this whole process, and the way again the motion is framed, we' re talking about going into negotiation and trying to address the details that all of us have raised as well as the representatives from Rodeo and Mt. View Sanitary Districts . So, I think this gives us a time-frame and a process for working something out that will be beneficial to the rate payers . Supervisor Bishop: Before we go to a vote, just a minute Mark, before we go to a vote, I would like to say that we all have different views 'of what is going on and what my assumptions being inaccurate or accurate and, it' s unfortunate that the CCTV camera only goes up here. Frequently when I 'm speaking, when you say you and Dorothy agree on something and when I say Dorothy and I agree on something and then you and I disagree I 'm seeing a nod of Dorothy' s head back there going I agree with Gayle. And, what she was agreeing with was that the fifth alternative that we have here, as Richard is smiling too, the fifth alternative best meets the needs of the rate payers in Mt. View and Rodeo and is not a slap in the face to the Rodeo or the Mt. View Sanitary Districts . I am hopeful that we can work out an MOU but, we can't make any bones about what is really going on here. And, what is really going on here is the County trying to add to its coffers, . . . Supervisor Torlakson: That is not true. Supervisor Bishop: . . .playing political. . . .political . . . . Supervisor Smith: How can you say that we' re not increasing fees at all . Supervisor Bishop: I can say that because I have the floor and I did you the courtesy of not interrupting you, but since you are discourteous not only in interrupting but in going down and walking throughout the room, spending about a half an hour on the telephone, going and sitting with the press, maybe you don' t understand what courtesy is all about. Maybe I could give you some lessons on courtesy, Supervisor Smith, and take some of my very difficult time that I do spend away from the Board and give you some lessons on courtesy. Ah, but the motion is before the Board and Supervisor De Saulnier. Supervisor De Saulnier: I was just, Dave and I go back a ways so I would like to offer, although I don't want to get in the middle of the negotiations, I think from my perspective is you can take five or you could take this one. I think Supervisor Bishop is given notice that she is going to be interested in this and I would like to add my interest is hopefully we can work out a compromise where everyone is happy. My voting for this is to encourage her to do that and David, you know where I am if you want to come talk to me, I 'm always available to you. So, hopefully, peace will come about through all this. Supervisor Bishop: Supervisor Rogers. Supervisor Rogers: Yeah, um, seconding that comments, I 'm gonna support this motion also. I would hope that in approaching these negotiations that we would do what we could to try to come to a agreement that we can both live with. I am concerned about both the specifics of AB939 and also the general principal that when people pass laws in this area they stick the County with the responsibility and I am nervous ultimately about having some measure of control . Hopefully, we can come up with something where we feel ok about it and where we are working closely with the sanitary districts and taking advantage of the knowledge that they have about that. So, with that in mind, I will support the motion. Supervisor Bishop: All those in favor of the motion, indicate by saying Aye. Opposed. Four to One. (Bishop opposed) Supervisor Bishop: Moving on through the Agenda, with the suggestion that Dorothy raised about developing a model solid waste franchise agreement and addressing senior rates I think would be an appropriate incorporation. Anybody have any comment about the model solid waste franchise agreement? Trigger dates for franchises in the Central County JPA as well as here, I think when the County takes over those franchise agreements I think this is just a report that we will have a subsequent report on this matter. On the matter of the City of Pittsburg letter to the Board of Supervisors, what I would like to know is who referred it to the finance committee? It says here, that it was taken under advisement by the adhoc Solid Waste Committee and then referred to the Finance Committee. Supervisor Smith: You suggested that at the subcommittee. Val: Yeah, Finance Committee. Supervisor Bishop: Refresh my recollection. What was the subject? Supervisor Smith: The Keller fees. The proposal to share the Keller fees . Supervisor Bishop: We're sending the mitigation fees back to the finance committee? Sure, Tom and Jeff decide those issues anyway, so that' s a good idea. Ah, BFI issues regarding separated recyclables at transfer stations and special waste. I understood at the meeting that this was a sensible solution. I see Lance Dow here, he did not think it was sensible, he probably wants to comment on that. Supervisor Smith, when I finish my comment then we will move to you. What I understand is they are moving recycling activities to ACME and that they are simply requesting that those numbers not be counted in the numbers at ACME which makes eminent sense, I don't know. Val : Yeah, we took a look at the franchise and at the use permit and the item is unclear. In other words, it doesn' t prevent it, it doesn't create any problems. Actually, the landuse permit encourages having as much activity as possible including the recycling activity at the transfer station, as was written way back when. Our sense, staff' s sense was that we could draft a letter of understanding on the requirement, but if the Board wishes to either amend the franchise agreement or the use permit to prevent any controversy in the future, we can deal -with that as well . Supervisor Bishop: Supervisor Smith. Supervisor Smith: This issue I think is important enough that at least my personal opinion would be that we entertain modifying the franchise agreement and the landuse permit to make it clear. Essentially what BFI is asking for is the ability to move part of their operation which is currently in the Pacheco yard to the ACME site in order to deal with the source separated recyclables which certainly seems to make some sense. But, I think it would be best and cleanest to do it in the context of modifying the franchise and landuse permits so that we don' t run into a situation of not being sure what' s going on and having only a side letter which could be challenged legally, but I ' ll leave it to the Board. Supervisor Bishop: Ok. My view is none of these really require action they are just reporting and I think we maybe want to have you come back: to us a recommendation after we have had further opportunity, and I 'm not even sure we need that, but just coming back to us with an alternative of whether or not we just want a letter of understanding or whether we really want to amend the landuse permit and the franchise agreement. Val : We' ll get a little ways down the road on this issue then. Supervisor Bishop: Ok, so we don' t need any action on those matters. At this time, I apologize to those of you who. . .Supervisor Torlakson. Supervisor Torlakson: Madam Chair, while we are not acting on them I 'd just like to clarify the committee is saying on the number six item that there is a recyclable issue and I think there are some sequel issues or landuse permit issues also that should be looked at carefully, legally. The special waste question on the question of the fees, I ' ll talk to staff in more detail, you're saying today you're not making any recommendation we' re not acting on what the fees should be. We' ll have that back, because I think we had originally intended that all those wastes get charged the full amount of the regular fees that were going to be charged at the time whether or not they went through the transfer station, ok. Supervisor Bishop: If there is no other discussion, we are adjourned to executive session, and we will try to be back out here at two o' clock. (Ajourned until 2 : 15 p.m. )