HomeMy WebLinkAboutMINUTES - 06251996 - D10 D. 10
BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Order on June 25, 1996 by the following vote:
AYES: Supervisors Rogers, DeSaulnier, Torlakson and Smith
NOES: Supervisor Bishop
ABSENT: None
ABSTAIN: None
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SUBJECT: Consideration of Collection Franchising Options for the
Provision of Solid Waste and Recycling Services in the
Kensington Area.
Mary Fleming, Community Development Department, presented
the staff report on the consideration of possible agreements
between the County and Bay View Refuse and Recycling Services,
Inc . for the provision of solid waste and recycling services in
the Kensington area. Ms . Fleming commented on the four options
in the report before the Board for consideration.
Supervisor Rogers requested clarification on the proposals
and Ms . Fleming responded to his request .
Supervisor Rogers suggested that he meet with the parties
and go over the options and come up with a solution that everyone
would be comfortable with while being clear that the County has
control of the recycling process and would not be fined under AB
939 .
Supervisor Bishop spoke in support of Mr. Rogers' comments
and his request for a continuance before a decision is made .
\ Supervisor DeSaulnier conveyed the comments of Mr. David
Fike, the President of the Kensington Police Protection and
Community Services District (KCSD) , relative to Kensington' s
desire to continue to try to work this out between the hauler and
themselves .
The following persons presented comments on the matter:
Kathy Stein, 32 Beverly Road, Kensington;
Lynn Wolter, 207 Willamette Avenue, Kensington;
Joan Gallegos, 239 Cambridge Avenue, Kensington; p
Gloria Morrison, 112 Windsor Avenue, Kensington;
John Ream, 320 Yale Avenue, Kensington;
Greg Christie, P.O. Box 277, E1 Cerrito;
. David Scherer, 75 Georgia Way, San Leandro;
Robert Bell, 500 Yale Avenue, Kensington;
Dorothy Sakazaki, 737 Central Avenue, Martinez;
Mark Armstrong, Gagen, McCoy, McMahon and Armstrong, P.O.
Box 218, Danville, attorney, representing Bay View Refuse
Service, Inc .
Following discussion of the issues, the Board took the
following action:
1 . ENCOURAGED the Kensington Community Services District
and Bay View Refuse Service, Inc . , to negotiate their differences
with the assistance of the Community Development staff and also
with Supervisor Rogers available for assistance;
a
2 . DIRECTED County Counsel to review the appropriate
documentation relative to disclosure on the part of Bay View
Refuse Service, Inc . ;
3 . REQUESTED the Kensington Community Services District to
review public and private comments that have been made and take
appropriate action; and
4 . DIRECTED the Community Development Department staff to
report to the Board of Supervisors in thirty days on solutions to
the dispute including a resolved process, memorandum of
Understanding or a County franchise with the hauler.
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ATTESTED
PHIL OR�Cterlt giebOaN
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cc: County Counsel
Kensington Community Services District
Community Development
Bay View Refuse, Inc.
D 1
TO: BOARD OF SUPERVISORS - - - Contra
FROM: HARVEY E. BRAGDON CostaDIRECTOR OF COMMUNITY DEVELOPMENT
DATE: June 25, 1996 County
SUBJECT: CONSIDERATION OF POSSIBLE AGREEMENTS BETWEEN THE COUNTY AND
BAY VIEW REFUSE&RECYCLING SERVICES INC.FOR THE PROVISION OF
SOLID WASTE AND RECYCLING SERVICES IN THE KENSINGTON AREA
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)& BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS:
Consider the four options presented by staff,determine which option is preferred and direct staff to finalize the
agreement and bring back to the Board for final approval.
FINANCIAL IMPACT`.
The agreements all include the provision for franchise fees that will help support the provision of solid waste
services in the unincorporated county area.
BACKGROUND/REASONS FOR RECOMMENDATIONS:
The Kensington Community Services District has had a contract with Bay View Refuse Service Inc. for the
collection and disposal of solid waste since July of 1981. In 1991,the Board approved 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 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.
CONTINUED ON ATTACHMENT: X YES SIGNATURE: 7 E 8��4 vaw
RECOMMENDATION OF COUNTY ADMINISTRATOR_RECOMMENDATION OF BOARD COMMITTEE
—APPROVE OTHER
SIGNATURE(S):
r
ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS
UNANIMOUS (ABSENT I REBY CERTIFY THAT THIS IS A TRUE AND
AYES: NOES: CORRECT COPY OF AN ACTION TAKEN AND
ABSENT: ABSTAIN: ENTERED ON THE MINUTES OF THE BOARD
OF SUPERVISORS ON THE DATE SHOWN.
Contact: Mary Fleming (510)335-1230
cc: Community Development Depa ent ATTESTED
PHIL BATCHELOR,CLERK OF THE
BOARD OF SUPERVISORS AND
COUNTY ADMINISTRATOR
BY: , DEPUTY
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JAgroupslcd ool\rnarylbayview.bod
Board Order
Agreement between County and
Bay View Refuse&Recycling Services Inc.
June 25, 1996
-Page 2-
BACKGROUND/REASONS FOR RECOMMENDATIONS (CONT-D)
The ordinance requires approval of either a Franchise Agreement or permit granted to the Solid Waste
Company by the Board or a Memorandum of Understanding (MOU)with a public agency.
On August 6, 1991 the Board stated their intent to provide for Solid Waste services in several unincorporated
areas,including Kensington,through either a direct Franchise Agreement with the hauler or an MOU with the
local agency. A five year notice was provided to all haulers and local agencies regarding the county intent.
The Bay View Refuse and Recycling Services Inc. has requested that the County enter into a Franchise
Agreement for the provision of solid waste collection and recycling services. At the May meeting of the Ad Hoc
Solid Waste Committee, representatives of the Kensington Community Services District indicated that they
preferred to retain their franchise with Bay View Refuse. The Ad Hoc Committee directed staff to prepare drafts
of the various possibilities and bring them to the Board.
In response to the above direction, staff has prepared four draft documents labeled 1 through 4 for ease of
review.
Draft Option#1 is a Franchise Agreement submitted by Bay View Refuse&Recycling Services, Inc.which has
been reviewed,and modified by staff to assure that it is in compliance with existing County ordinance Chapter
418-10 "Recycling Requirements for Landfill Disposal" by providing for recycling of the twelve identified
materials. It also has provisions for implementing minican rates and variable can rates and for the development
of a program for curbside pickup of reusable items.
The provisions listed above are all designed to help meet the 50% diversion required by 2000. The County
Source Reduction and Recycling Element(SRRE)provides for numerous programs that the county has agreed
to implement. Beginning August 1996 the County will be providing Annual Reports to the State regarding the
status of the SRRE implementation.
Draft Option#1 allows for Board designation of a Local Advisory Body to advise the Board on the performance
of the contractor, on local service interests and needs and on rate applications.
Draft Option#2 includes a Local Advisory Committee but expands on the various responsibilities of the Local
Advisory Committee and the County in setting rates; receiving Franchise Fees; providing for the Household
Hazardous Waste program;maintaining records; reporting to the State; and implementing programs for waste
reduction, reuse and recycling. The significant contract differences are highlighted and are located under
Section 14, pages 10-13.
Draft Option#3 is very similar to#2 except that it designates a Local Solid Waste Authority that has the power
to set rates using a methodology approved by the County. Section 14 of Draft 3 addresses the Local Solid
Waste Authority. This draft allows for appeal to the Board of Supervisors if the hauler is dissatisfied with
decisions of the Local Solid Waste Authority.
Draft Option#4 provides for a Memorandum of Understanding with the Kensington Community Services District.
It allows for the continuation of the existing Franchise Agreement between Kensington Community Services
District and Bay View Refuse & Recycling Services Inc. It outlines the responsibilities of the County and the
District in regards to meeting the State requirements for waste reduction. Approval of this option may
necessitate a modification of the existing Franchise Agreement in order to clarify the roles and responsibilities
of the District and the Hauler.
Staff recommends that the Board determine which decision making structure they prefer and direct staff to work
with County Counsel,the Kensington Community Services District and Bay View Refuse & Recycling Services,
Inc. To develop a final document which accomplishes the goals and objectives of the California Integrated
Waste Management Act of 1989 and provides for compliance with County Solid Waste & Recycling Ordinances.
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Draft dated April 22, 1996
Modified June 5, 1996
FRANCHISE AGREEMENT WITH
BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
Draft Option #1
CONTRA COSTA COUNTY
AAIFMCHISE.AMD
TABLE OF CONTENTS
1. EFFECTIVE DATE, PARTIES . . . . . . . . . . . . . . . . . 1
2 . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
a. Agreement . . . . . . . . . . . . . . . . . . . . . . 1
b. Act . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. Board . . . . . . . . . . . . . . . . . . . . . . . . 1
d. Commercial Solid Waste . . . . . . . . . . . . . . . 1
0. Contractor . . . . . . . . . . . . . . . . . . . . . 1
f. County . . . . . . . . . . . . . . . . . . . . . . . 1
g. Customers . . . . . . . . . . . . . . . . . . . . . 1
h. Designated Waste . . . . . . . . . . . . . . . . . . 2
I. Franchise Area . . . . . . . . . . . . . . . . . . . 2
j . Hazardous Waste . . . . . . . . . . . . . . . . . . . 2
k. Industrial Waste . . . . . . . . . . . . . . . . . . 2
I. Infectious Waste . . . . . . . . . . . . . . . . . . 2
M. Recycle or Recycling . . . . . . . . . . . . . . . . 3
n. Residential Solid Waste . . . . . . . . . . . . . . . 3
0. Septage . . . . . . . . . . . . . . . . . . . . . . . 3
P. Solid Waste . . . . . . . . . . . . . . . . . . . . . 3
q. Waste Stream . . . . . . . . . . . . . . . . . . . . 3
3 . TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID
WASTE COLLECTION, REMOVAL AND/OR DISPOSAL . . . . . . . . 4
5. EXCLUSIVE PRIVILEGE AND DUTY . . . . . . . . . . . . . . . 4
6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE . . . . . . . . . . . . 4
7 . CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S RIGHT TO
EXAMINE RECORDS . . . . . . . . . . . . . . . . . . . . . 4
8. RATES . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9. RATE APPLICATIONS . . . . . . . . . . . . . . . . . . . . 6
10. OPERATION BY CONTRACTOR . . . . . . . . . . . . . . . . . 7
11. LIMITATION ON TIME AND MANNER OF COLLECTION . . . . . . . 8
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION8
13 . CUSTOMER SERVICE STANDARDS . . . . . . . . . . . . . . 9
14 . LOCAL ADVISORY BODY . . . . . . . . . . . . . . . . . . 10
15. CUSTOMER COMPLAINTS . . . . . . . . . . . . . . . . . . 10
16. BILLING . . . . . . . . . . . . . . . . . . . . . . . . 10
A:TRNCHISE.AMD i
17. RECYCLING . . . . . . . . . . . . . . . . . . . . . . . 11
18. FREE SERVICE FOR COUNTY . . . . . . . . . . . . . . . . 12
19. FRANCHISE AREA-WIDE COLLECTION . . . . . . . . . . . . . 12
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS . . . . . . 12
21. DISPOSAL AND WASTE STREAM CONTROL . . . . . . . . . . . 12
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR . . . . . . . . 13
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES . . . . . . . 13
24. HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . . 13
25. PRELIMINARY DISPUTE RESOLUTION . . . . . . . . . . . . . 14
26. FAITHFUL PERFORMANCE BOND . . . . . . . . . . . . . . . 14
27. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . 14
28 . INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 15
a. Complete Indemnification of County . . . . . . . . 15
b. Defense of Agreement . . . . . . . . . . . . . . . 16
29 . ATTORNEY'S FEES . . . . . . . . . . . . . . . . . . 16
30. ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . 16
31. INVOLUNTARY ASSIGNMENT . . . . . . . . . . . . . . . . . 17
32 . NOTICE PROVISIONS . . . . . . . . . . . . . . . . . . . 18
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES . . . 18
34 . AFFILIATED ENTITIES . . . . . . . . . . . . . . . . . . 19
35. BREACH AND TERMINATION . . . . . . . . . . . . . . . . . 19
36. EMERGENCY . . . . . . . . . . . . . . . . . . . . . . . 21
37 . COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS . . . . . 21
38 . AMENDMENT OR MODIFICATION . . . . . . . . . . . . . . . 21
39. POLICE POWERS . . . . . . . . . . . . . . . . . . . . . 21
40. CONTEST OF AGREEMENT'S TERMS . . . . . . . . . . . . . . 21
41. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . 21
42 . WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . 22
A:\FRNCHISE.AMD ii
• 0
43 . SURVIVAL OF OBLIGATIONS . . . . . . . . . . . . . . . . 22
44 . NEW AGREEMENT . . . . . . . . . . . . . . . . . . . . . 22
45. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . 22
46. OPERATIVE DATE . . . . . . . . . . . . . . . . . . . . . 23
A:\FRNCHISE.AMD 111
Draft dated April 22 , 1996
Modified June 5, 1996
Option 2/Local Advisory
Committee / June 17, 1996
FRANCHISE AGREEMENT WITH
BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
Draft Option #2
CONTRA COSTA COUNTY
A:\FRNCHIS2.AMD
This Page Left
Intentionally Blank
TABLE OF CONTENTS
1. EFFECTIVE DATE, PARTIES . . . . . . . . . . . . . . . . . 1
2 . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
a. Agreement . . . . . . . . . . . . . . . . . . . . . . 1
b. Act . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. Board . . . . . . . . . . . . . . . . . . . . . . 1
d. Commercial Solid Waste . . . . . . . . . . . . . . . 1
e. Contractor . . . . . . . . . . . . . . . . . . . . . 1
f. County . . . . . . . . . . . . . . . . . . . . . . . 1
9- Customers . . . . . . . . . . . . . . . . . . . . . . 1
h. Designated Waste . . . . . . . . . . . . . . . . . . 2
i. Franchise Area . . . . . . . . . . . . . . . . . . . 2
j . Hazardous Waste . . . . . . . . . . . . . . . . . . . 2
k. Industrial Waste . . . . . . . . . . . . . . . . . . 2
1. Infectious Waste . . . . . . . . . . . . . . . . . . 2
M. Recycle or Recycling . . . . . . . . . . . . . . . . 3
n. Residential Solid Waste . . . . . . . . . . . . . . . 3
o. Septage . . . . . . . . . . . . . . . . . . . . 3
P. Solid Waste . . . . . . . . . . . . . . . . . . 3
q. Waste Stream . . . . . . . . . . . . . . . . . 3
3 . TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID
WASTE COLLECTION, REMOVAL AND/OR DISPOSAL . . . . . . . . 4
5. EXCLUSIVE PRIVILEGE AND DUTY . . . . . . . . . . . . . . . 4
6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE . . . . . . . . . . . . 4
7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S RIGHT TO
EXAMINE RECORDS . . . . . . . . . . . . . . . . . . . . . 4
8. RATES . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9. RATE APPLICATIONS . . . . . . . . . . . . . . . . . . . . 6
10. OPERATION BY CONTRACTOR . . . . . . . . . . . . . . . 7
11. LIMITATION ON TIME AND MANNER OF COLLECTION . . . . . . . 8
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13 . CUSTOMER SERVICE STANDARDS . . . . . . . . . . . . . . . . 9
14. LOCAL ADVISORY BODY . . . . . . . . . . . . . . . . . . 10
15. CUSTOMER COMPLAINTS . . . . . . . . . . . . . . . . . . 14
A:\FRNCHIS2.AMD 1
16. BILLING . . . . . . . . . . . . . . . . . . . . . . . . 14
17. RECYCLING . . . . . . . . . . . . . . . . . . . . . . . 14
18 . FREE SERVICE FOR COUNTY . . . . . . . . . . . . . . . . 15
19. FRANCHISE AREA-WIDE COLLECTION . . . . . . . . . . . . . 15
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS . . . . . . 16
21. DISPOSAL AND WASTE STREAM CONTROL . . . . . . . . . . . 16
22 . MISCELLANEOUS OBLIGATIONS OF CONTRACTOR . . . . . . . . 16
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES . . . . . . . 16
24. HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . . 17
25. PRELIMINARY DISPUTE RESOLUTION . . . . . . . . . . . . . 17
26. FAITHFUL PERFORMANCE BOND . . . . . . . . . . . . . . . 17
27. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . 18
28. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 18
a. Complete Indemnification of County . . . . . . . . 19
b. Defense of Agreement . . . . . . . . . . . . . . . 20
29. ATTORNEY'S FEES . . . . . . . . . . . . . . . . . . . . 20
30. ASSIGNABILITY . . . . . . . . . . . . . . . . . . 20
31. INVOLUNTARY ASSIGNMENT . . . . . . . . . . . . . . . . . 21
32 . NOTICE PROVISIONS . . . . . . . . . . . . . . . . . . . 21
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES . . . 22
34 . AFFILIATED ENTITIES . . . . . . . . . . . . . . . . . 22
35. BREACH AND TERMINATION . . . . . . . . . . . . . . . . . 23
36. EMERGENCY . . . . . . . . . . .. . . . . . . . . . . . 24
37. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS . . . . . 24
38.. AMENDMENT OR MODIFICATION . . . . . . . . . . . . . . . 25
39. POLICE POWERS . . . . . . . . . . . . . . . . . . . . . 25
40. CONTEST OF AGREEMENT'S TERMS . . . . . . . . . . . . . . 25
41. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . 25
A:\FRNCHIS2.AMD ii
42 . WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . 25
43 . SURVIVAL OF OBLIGATIONS . . . . . . . . . . . . . . . . 25
44 . NEW AGREEMENT . . . . . . . . . . . . . . . . . . . . . 26
45. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . 26
46. OPERATIVE DATE . . . . . . . . . . . . . . . . . . . . . 26
A:\FRNCHIS2.AMD 111
FRANCHISE AGREEMENT
WITH BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
EFFECTIVE DATE, PARTIES. This Agreement is binding between
the County and the below named Contractor and is effective on
August 7, 1996.
DEFINITIONS. As used herein, the following terms shall have
the meanings set forth below:
Agreement. Agreement means this Agreement by and between
the County and Contractor for the collection, removal and
disposal of solid waste and the recycling of material.
Act. Act means the California Integrated Waste
Management Act of 1989 (Public Res. Code, § 40000 et
seq. ) and all rules and regulations adopted under any of
those sections, as such sections, rules and regulations
may be amended from time to time in the future.
Board. Board means the Board of Supervisors for the
County of Contra Costa.
Commercial Solid Waste. Commercial Solid Waste means
Solid Waste routinely originating from stores, business
offices and other commercial and light industrial sources
excluding residences and any wastes from heavy industry
(i.e. , industry that manufactures or processes petroleum,
lumber, steel, chemicals, explosives, fertilizers, gas,
rubber, cement, sugar and other such products [see
section 84-60.402 of the Contra Costa County Ordinance
Code. ] ) .
Contractor. Contractor means Bay View Refuse and
Recycling Services, Inc. , a California Corporation. It
is the entity which has been granted an exclusive
franchise pursuant to the terms and conditions set forth
herein. Lewis Figone is president and owns 100% of the
stock in Bay View Refuse and Recycling Services, Inc.
Lewis Figone is also president and owns 100% of the stock
in Bay View Refuse Service, Inc. , the corporation that is
providing waste collection and recycling services to the
Kensington franchise area up to the effective date of
this Agreement, based on a contract with the Kensington
Police Protection and Community Services District.
County. County means the County of Contra Costa.
Customers. Customers means those who receive service
from the Contractor for the collection of materials for
recycling and/or for the collection, removal, or disposal
of Solid Waste, pursuant to this Agreement and applicable
AAFRNCHISE.AMD 1
ordinances of County, including mandatory subscription ordinances.
Designated Waste. Designated Waste as used herein has
the meaning set forth in section 2522 of Title 23 of the
California Code of Regulations, as amended from time to
time.
Franchise Area. Franchise Area means the geographic area
generally known as the unincorporated community of
Kensington in West Contra Costa County described in
Exhibit A to this Agreement with Bay View Refuse and
Recycling Services, Inc. The Community Development
Department may maintain six hundred (600) -scale maps
reflecting the Franchise Area. Exhibit A and/or the six
hundred (600) -scale maps may be amended from time to time
to reflect changes of boundaries of the Franchise Area in
such a manner as to identify each alteration to the
Franchise Area and the effective date thereof.
Hazardous Waste. Hazardous Wastes include any waste
material or mixture of wastes which is toxic, corrosive,
flammable, an irritant, or a strong sensitizer, which
generates pressure through decomposition, heat or other
means, if such a waste or mixture of wastes may cause
substantial personal injury, serious illness or harm to
humans, domestic animals, or wildlife, during or as an
approximate result of any disposal of such wastes as
defined in Article 2 , Chapter 6.5, Section 26117 of the
Health and Safety Code. The terms Jtoxic'J acorrosive,
flammable, irritant, and Istrong sensitizer shall be
given the same meaning as in the California Hazardous
Substances Act (Chapter 13 commencing with Section 28740
of Division 21 of the Health and Safety Code and 14
Cal.Code Regs. , § 17225.32) .
Industrial Waste. Industrial Waste includes all types
of Solid Waste which result from industrial processes and
manufacturing operations and/or which originates from
such facilities.
Infectious Waste. Infectious Wastes include:
(1) Equipment, instruments, utensils and other fomites
of a disposable nature from the rooms of patients who are suspected
to have or have been diagnosed as having a communicable disease and
must, therefore, be isolated as required by public health agencies;
(2) laboratory wastes, including pathological specimens
(i. e. , all tissues, specimens of blood elements, excreta and
secretions obtained from patients or laboratory animals) and
disposable fomites (any substances that may harbor or transmit
pathogenic organisms) attendant thereto;
A:\FRNCHISE.AMD 2
(3) surgical operating room pathologic specimens -
including recognizable anatomical parts, human tissue, anatomical
human remains and disposable materials from hospital, clinics,
outpatient areas and emergency rooms, as is also defined in Section
314 (d) of the California Administrative Code, Title 17 (14 Cal.Code
Regs. , § 17225. 36) .
Recycle or Recycling. Recycle or Recycling means the
process of collecting, sorting, cleaning, treating and
reconstituting materials and recovering them so that they
may be used in the form of raw material for new, reused,
or reconstituted products.
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.
Septage. Septage means non-sewered liquid or semi-liquid
waste which may be trucked to treatment facilities for
disposal, to include, but not be limited to, waste from
residential septic tanks, commercial grease clean-outs,
and industrial waste holding facilities.
Solid Waste. Solid Waste has the meaning set forth in
Section 40191 of the California Public Resources Code as
of the date of execution of this Agreement. Solid Waste
includes, but is not limited to, all putrescible and
nonputrescible solid, semisolid, and liquid wastes,
including garbage, trash, refuse, paper, rubbish, ashes,
demolition and construction wastes, abandoned vehicles
and parts thereof, discarded home and industrial
appliances, dewatered, treated, or chemically fixed
sewage sludge which is not hazardous waste, manure,
vegetable or animal solid and semisolid wastes and other
discarded solid and semisolid wastes. ISolid Waste does
not include infectious, designated, and hazardous waste,
except household hazardous waste.
Waste Stream. Waste Stream means the Solid Waste to be
collected under this Agreement from the time of its
collection by the Contractor to its disposal at a
landfill or, at County's discretion, delivery to a
transfer facility or other facility by Contractor.
TERM. Subject to section 33 (Annexation and Change of
Franchise Area Boundaries) and section 35 (Breach and
Termination) , the term of this Agreement and the exclusive
franchise granted hereunder shall be 20 years, commencing on
the effective date first mentioned in section 1 of this
Agreement.
A:\FRNCHISE.AMD 3
INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID
WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The parties hereto
agree that County currently has jurisdiction to regulate the
collection, removal and disposal of all Solid Waste, and the
recycling of all material in the Franchise Area. The intent
of this Agreement is to regulate Solid Waste handling service
and recycling of material in the Franchise Area. Consistent
with State law and County ordinance, this Agreement is
intended to and shall supersede the Contract With Relation To
Collection And Disposal Of Garbage Between Bay View Refuse
Service, Inc. and the Kensington Community Services District
as amended.
EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by law,
County hereby grants to Contractor the exclusive privilege and
duty within the Franchise Area to collect, and remove for
disposal and recycling, all residential and commercial Solid
Waste, including recyclable materials, and to charge and
receive charges therefor, pursuant to and subject to the terms
of this Agreement. Contractor promises and agrees to perform
the responsibilities and duties set forth herein.
The Franchise Area may be expanded or reduced in size by
mutual agreement of the parties, or as provided in section 33
(Annexation and Change of Franchise Area Boundaries) of this
Agreement.
EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive privilege
granted by this Agreement shall not apply if:
a. A person or entity generates Solid Waste, including
recyclable materials, and personally collects, removes
and disposes or recycles such in a clean and sanitary
manner in conformance with all applicable laws and
regulations, including mandatory subscription ordinances.
This exception shall not apply to a. person who incurs a
net cost of collection to a third person in the above
described activities; or
b. A person or entity contracts with a third person for the
removal and disposal or recycling of inorganic refuse or
garden waste (a lion-Franchised Contractor) and such
removal and disposal or recycling is solely incidental to
work such as remodeling or gardening occasionally
performed by or for the customer. This exception shall
not apply if the Non-Franchised Contractor incurs a net
cost of collection to any third person in connection with
its collection and/or disposal of said Solid Waste.
CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S RIGHT TO
EXAMINE RECORDS. Contractor shall maintain a proper set of
books and records in accordance with generally accepted
accounting principles, accurately reflecting the business done
by it under this Agreement.
AAFRNCHISE.AMD 4
Contractor shall further maintain and make available to
County, upon its request, records as to number of Customers,
total and by type, route maps, service records and other
materials and operating statistics in such manner and with
such detail as County may require. County shall treat the
information required by this paragraph that affects the
competitive position of the company as confidential
information to the extent permitted by law.
County may at any time during the term of this Agreement, have
the books and records of the Contractor examined by a County
Agent or Agents (as defined hereinbelow) appointed for that
purpose by the County. County shall give thirty (30) days
written notice to the Contractor of such examination date.
County expenses incurred under this section shall be paid by
Contractor subject to their recovery through the rates allowed
by the County hereunder.
The information required by this section shall pertain to
Contractor's operations covered and regulated by this
Agreement, and nothing contained herein shall require the
Contractor to provide the County with information pertaining
to the Contractor's operations which are not regulated by the
County, except in conformance with this section.
County's Agents may examine Contractor's books, records and
financial statements pertaining to operations not regulated by
the County as may be reasonably required for the sole purpose
of gathering information necessary to allow the Agents to
ascertain whether income, expenses, assets and liabilities are
reasonably and consistently allocated among operations
regulated by County and those not regulated by the County.
Contractor shall obtain County's written approval of its
method of segregating its financial records between County-
regulated and non-County regulated operations. County shall
not unreasonably withhold such approval.
To the extent allowed by law, information gained from
examination of records pertaining to operations not regulated
by the County shall be treated by County and its Agents as
confidential information.
For the review of books and other financial records necessary
to verify the Contractor's income, expenses, assets and
liabilities, IlCounty Agent shall mean County employees or any
independent Certified Public Accountant or public accountancy
firm. For all other information or records, including the
results of financial verification, scounty Agent shall mean
any consultant designated by the County or County employees.
A:\FRNCHISE.AMD 5
Nothing in this section will prevent County from allowing
public access to County records as provided for under the
California Government Code, and in the event any dispute
arises as to the public access to information provided by
Contractor under the terms of this Agreement, the County shall
in its discretion provide public access to said information
according to law or tender the defense of any claims made
against the County concerning said information to Contractor.
Prior to releasing any information pursuant to this paragraph,
County shall make a good faith effort to notify Contractor of
the intended release.
RATES. Rates shall be fixed by the County from time to time.
In determining the rates, the County shall consider fairness
to both Contractor and the Customers. Reasonable costs
incurred by Contractor pursuant to this Agreement shall be
designated as bass-through or asubject to reasonable profit
as determined by the County during the rate review process.
Rates fixed by County shall be maximum rates which Contractor
may charge the Customers. The maximum rates fixed by the
County at this time shall be the current rates set forth on
Exhibit B to this Agreement. Future modifications in said
maximum rates pursuant to section 9 (Rate Applications)
hereinbelow shall not require an amendment to this Agreement
to be allowed.
Following consultation with the Contractor and examination of
industry norms and trends, the County, in its sole discretion,
shall determine the method of determining Contractor
profitability.
All costs associated with County review and processing of rate
applications shall be paid by Contractor and shall be allowed
as a pass-through cost in the rate application process.
Contractor shall offer a mini-can program at reduced rates.
RATE APPLICATIONS. Rate applications shall be prepared in
accordance with such forms and in such detail as required by
the County. The application shall include one reproducible
hard copy, 15 hard copies bound in an appropriate manner and
one copy on disk formatted pursuant to County specifications.
All rate applications shall include information from the
previous rate change to the present, or such other period of
time as is selected by the County. At least every three
years, any rate application shall be accompanied by an audited
financial statement covering the entire period since the last
audited rate application together with supporting
documentation as required to segregate its County regulated
activities from other business activities.
The Community Development Director may, in writing, allow the
A:\FRNCHISE.AMD 6
rate application to be submitted without an audited financial
statement provided the Community Development Director is
satisfied that the level of verifiable detail allows for
adequate assessment of the Contractor's income, expenses,
assets and liabilities.
Rate changes may be initiated by County at any time or by
Contractor under the conditions allowed in this section. In
either case, Contractor shall prepare a rate application in
accordance with the requirements of this section.
If the rate change is initiated by County, the Contractor
shall submit its rate application to County within 60 days of
County's notice to Contractor.
If the rate change is initiated by Contractor, it shall be
submitted no more than once a year under normal operating
conditions (but see also section 12 .c below regarding
implementation of new programs) . The date of Contractor
initiated applications shall reasonably relate to the fiscal
year of Contractor and be standard, year by year. Unless
otherwise agreed by the parties, rate applications will be
submitted in June of any year and any new rate shall be
applied to the September 1st billing (the bill for September
through December service) . Such a mutual agreement on rate
application submittal dates does not require an amendment to
this Agreement.
In the event that the rate change that would be requested by
Contractor is no more than the change in the Consumer Price
Index for All Urban Consumers for the San Francisco Bay Area
for that fiscal year of Contractor, Contractor may increase
its rate up to such amount and not request a rate change from
the County. Contractor may defer a rate application pursuant
to this paragraph for a maximum of two consecutive years.
In the event that Contractor must make significant changes in
its operations or experiences significant changes in costs or
revenue not under its control, Contractor may submit a rate
application at any such time thereafter. Contractor shall
provide documentation for the need for such rate application
relative to those changes. The application will thereafter be
considered by the Board.
OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary equipment (excluding containers for weekly Solid
Waste service) for services provided pursuant to this
Agreement in the Franchise Area and shall maintain such
equipment in a sanitary condition at all times. Contractor
shall furnish all necessary labor in connection with the
operation of a Solid Waste collection system in the Franchise
Area.
A:\FRNCHISE.AMD 7
The Contractor, in performance of this Agreement, shall use
trucks with covered, water-tight truck bodies constructed of
sufficient strength to withstand a fire within the truck body
and not endanger adjacent property. Trucks, ' drop boxes, bins,
or similar types of equipment owned and operated by the
Contractor shall be kept clean and in good repair. Contractor
shall have its name and telephone number on the side of each
truck and on each drop box, bin or similar type equipment
provided by Contractor.
LIMITATION ON TIME AND MANNER OF COLLECTION. Contractor shall
systematically collect Solid Waste, and to the extent
permitted by this Agreement, materials for recycling from its
Customers. Frequency, place of pickup (backyard service for
weekly Solid Waste and curbside service for recycling,
greenwaste and periodic clean-ups unless otherwise approved by
the County) or any other manner of collection shall be subject
to the review and approval of the Director of Community
Development. Upon commencement of service and upon changes in
collection day schedules, Contractor shall provide each
customer with notice of the scheduled collection day.
Contractor shall not collect Solid Waste from an inhabited
dwelling or dwelling unit between the hours of 6: 00 p.m. and
6: 00 a.m.
CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION.
a. From time to time, at its discretion, County may examine
Contractor's operation in order to evaluate whether the
Contractor is operating at a satisfactory level of
efficiency and customer satisfaction. Contractor agrees
to cooperate in any such examination and shall permit
County representatives to inspect, at Contractor's
principal place of business, such information pertaining
to Contractor's obligations hereunder as County may
require, including, but not limited to, such things as
customer inquiry records, collection routes and equipment
records. Access to Contractor's records shall be subject
to section 7 (Contractor's Duty to Maintain Records;
County's Right to Examine Records) .
b. Notwithstanding any contrary provision in this Agreement,
the County shall have the right to direct Contractor to
compile information, develop plans for and/or conduct
programs on alternative methods of Solid Waste and
recyclable material collection and management, or to take
any other action requested by the County for the purpose
of meeting the source reduction, recycling and composting
requirements of the Act, and any other applicable
federal, state or local laws regarding Solid Waste
collection, recycling and disposal, including, without
limitation, the County's Materials Diversion Ordinance.
A:\FRNCHISE.AMD 8
Contractor agrees to indemnify and hold the County
harmless from and against any and all liability to the
State of California for the County's noncompliance with
the requirements of the California Integrated Waste
Management Act due in whole or material part to the
material failure of Contractor to properly carry out the
reasonable directives of the County to Contractor
regarding collection and disposition of Solid Waste and
recyclable material; provided, however, that Contractor
shall not be obligated to carry out any such directive
(and shall not indemnify nor hold the County harmless
from any resulting liability) if the County fails to
agree to allow Contractor its reasonable costs (including
a reasonable profit) associated with carrying out such
directives.
C. County may require Contractor to develop plans for and
conduct programs on alternative methods of Solid Waste
collection, including pilot programs of limited scope, or
may require additional programs, for the purpose of
improving service, increasing customer satisfaction, and
meeting diversion requirements. County may also require
Contractor to implement efficiencies in its operation
upon written notice from County. The notice shall allow
Contractor a reasonable period of time to implement the
specified service (or efficiency) . Should County require
commencement of such a program as outlined in this
paragraph, Contractor agrees not only to do those things
specified herein, but also to act at the direction of the
County on other matters that may be necessary for the
success and efficiency of the project, such as public
information and notification. In the event that County
elects to direct Contractor to discontinue any service
theretofore performed by Contractor at the direction of
County hereunder, County shall allow Contractor to
recover its reasonable capital equipment costs and other
reasonable costs arising upon termination of the service.
Rate adjustments applicable solely to programs instituted
pursuant to this subsection initially shall be
established at the time the County authorizes
implementation of the program or efficiency.
CUSTOMER SERVICE STANDARDS. Contractor shall provide prompt,
efficient, continuous and professional service to its
Customers. Contractor shall have a phone system with
sufficient capacity to promptly respond to telephone calls for
at least 8 hours a day during weekdays, excluding those
holidays observed by Contractor, plus a 24-hour answering
service. All vehicles shall be radio equipped. Telephone
numbers for customer service shall be located in the local
telephone directory. All telephone lines for customer service
shall be toll free to Customers.
A:\FRNCHISE.AMD 9
Not less than once every three years and not less than six
months prior to an application for contract renewal,
assignment or extension of term, Contractor shall conduct a
representative survey or surveys of Customers within the
Franchise Area to determine satisfaction with service,
including, without limitation, response to customer
complaints. The survey methodology, format and content shall
be subject to the prior review and approval of the Director of
Community Development. A copy of the survey results shall be
sent to the County within sixty (60) days of completion of the
survey. Nothing in this paragraph shall limit the right of
the County to conduct additional surveys. The Contractor
shall cooperate with the County in such cases.
Upon initiation of service, and at least once a year,
Contractor shall send or deliver to Customers information
concerning the conditions of service, including, but not
limited to, rates, fees, charges, service options, payment
options, discounts (if any) , days of collections, the amount
and manner of refuse to be collected, service level and
inquiry/complaint procedures, including the name, address and
local telephone number of Contractor and the name, address and
telephone number of the County Community Development
Department. The form and content shall be subject to the
review and approval of the Director of Community Development.
LOCAL ADVISORY BODY. To advise the Board on the performance
of the Contractor in the Kensington community, on local
service interests and needs, and on rate applications, the
Board of Supervisors may designate an existing committee to
also represent the Franchise Area and/or appoint Kensington
residents to be on that committee. Alternatively, the Board
may form a new advisory body. Such new advisory body may be
for the Kensington Franchise Area only or combined with other
unincorporated franchise areas at the determination of the
Board of Supervisors. In all cases, the committee or advisory
body shall hold its meetings at a time and place convenient to
the public. The committee or advisory body shall keep a
record of all public comments and submit such comments when
reporting to the County.
CUSTOMER COMPLAINTS. Contractor shall develop and implement
policy and procedure for responding to and recording Customer
complaints, including dispute resolution. The policy and
procedure shall be subject to the approval of the Director of
Community Development.
BILLING. The form and content of customer bills shall be
subject to the review and approval of the Director of
Community Development.
Bills for services will be sent three times per year for every
four months (September, January, May) , unless otherwise
A:\FRNCHISE.AMD 10
• !
determined by the County. The County may establish billing
period options for Customers upon a finding that such options
are cost-effective and meet a community need.
Full payment for drop boxes may be required by Contractor
prior to delivery of the drop box to the Customer.
The County shall have the right to direct the Contractor to
change or alter its billing system in which event the marginal
additional expenses incurred by the Contractor in the
implementation of the change, with regard to the accounting,
printing, mailing, loss of use of funds, or otherwise, shall
be recoverable by the Contractor through the rates allowed by
the County provided such expenses are reasonable. Contractor
shall inform Customers of all rate changes at least 30 days
prior to their effective date. A copy or facsimile of such
notice shall be provided to County at the time of Customer
notification.
RECYCLING. County grants to Contractor the right and
obligation to operate recycling programs, including curbside
pickup of recyclable materials, as determined and designated
by County, subject to County's right to terminate this grant
to Contractor pursuant to the provisions of this section.
Contractor has already instituted and implemented a recycling
program including regular curbside pickup at all single family
residences of at least aluminum, tin, newsprint, glass
bottles, non-colored HDPE and PET, as more fully set forth in
Exhibit B. The current program will be supplemented by
cardboard and mixed paper with the implementation of this
contract. Greenwaste will be added January 1997; however,
County has the right at any time to modify said program or
require new programs as provided at section 12 .b hereinabove.
Contractor shall maintain and provide to the County, records
relating to its recycling programs as directed by the Director
of Community Development.
Contractor's provision of recycling service shall be reviewed
in approximately one year and thereafter within three (3)
years of the effective date of this Agreement and, at County's
discretion, every five years thereafter. If County determines
that continuation of such service by Contractor is not
consistent with the County's ratepayers best interest, but not
as a result of Contractor's failure to satisfactorily provide
recycling services, Contractor shall be allowed to recoup its
unamortized capital expenditures as follows. Contractor shall
make a good faith effort to sell all disposable assets
acquired in furtherance of the program for their fair market
value. If income derived from the sale is insufficient to
cover the unamortized costs of such assets, Contractor may
transfer those losses together with net operations profits or
A:\FRNCHISE.AMD 11
losses to its general account and submit a rate application to
cover such losses.
If County determines that Contractor has failed to
satisfactorily provide and perform recycling services, County
may terminate this grant to Contractor of the right and
obligation to provide and operate recycling programs, at no
cost or further obligation on the part of the County or
County's ratepayers.
FREE SERVICE FOR COUNTY. Contractor shall provide Solid Waste
collection and disposal services at those County buildings
designated by the Director of Community Development from time
to time, at no charge to the County.
FRANCHISE AREA-WIDE COLLECTION. Unless otherwise determined
by the Community Development Director, in addition to its
regular collections, commencing in January, 1997, Contractor
shall provide three scheduled green waste curbside pickups and
one on call curbside general pickup (two yards, bundled, tied
or bagged) . Said collections shall be made each year
throughout the term of this Agreement in accordance with
practices and procedures established by Contractor and subject
to the approval of the Community Development Director. If the
Community Development Director determines that one more green
waste pickup. is desirable, then Contractor shall provide it at
no additional cost. The increased cost of the pickups and any
changes in the recycling program may be considered as part of
the next rate review. Customers shall be timely notified on
the dates of the scheduled green waste pickups.
PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS. Contractor
shall provide, upon direction of the Community Development
Director, Solid Waste drop boxes or equivalent containers for
community or other clean-up projects within the Franchise
Area. The Contractor's obligation shall be limited to the
equivalent of ten (10) 20-cubic yards drop boxes per year in
the Franchise Area.
DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be solely
responsible for the disposal of the Solid Waste collected
pursuant to this Agreement. County has complete authority and
control over the Franchise Area waste stream. County may, at
its sole discretion upon providing 60 days notice to
Contractor, direct the Solid Waste collected under this
Agreement to be delivered to any site or facility of its
choosing. This shall include the right of the County to
direct the Solid Waste to be delivered to any County
designated transfer station, disposal site, transformation
facility and/or resource recovery facility. It is understood
that County may contract with any party, public or private, to
commit the waste stream from the Franchise Area, and that
Contractor's contracts may not bind County, nor need County
consider such other contracts for any purpose.
A:IFRNCHISE.AMD 12
Notwithstanding the above, Contractor may propose, and County
may but need not consider, waste management and/or disposition
alternatives which are cost effective. In determining or
comparing costs, County shall consider all relevant factors,
including but not limited to, transportation costs, closure
and postclosure requirements, costs and liabilities, disposal
fees, fees levied by governmental entities, including benefits
to Contractor's customers from paying such fees, costs of
compliance with ordinances and other local requirements, and
long-term costs, including degree of control over future
costs.
MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor shall
assist County in its enforcement of its mandatory subscription
ordinance by providing County with the addresses of properties
not subscribing to collection service within the Franchise
Area and by providing collection service to such properties
upon written request by the County.
ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor shall
pay to the County for (a) the services provided by the County
in administering this Agreement, (b) for services and programs
pertaining to Solid Waste provided by the County, and (c)
additionally as directed by the County, a percentage of its
gross annual revenues generated from the performance of such
waste collection services under this Agreement. Unless
otherwise subsequently determined by the County, the total
amount for such administration services and franchise fees
shall be 5% of the commercial and residential bills for each
calendar year, commencing in September, 1996. Such
percentage, time and frequency of payment may be adjusted by
County from time to time. Said sums shall be payable from the
Contractor to the County on a four month basis (January, May
and September for the respective four preceding months'
billings) . Such administrative and program services and any
franchise fees shall be considered a reasonable cost and
subject to pass-through as described in section 8 on Rates.
HAZARDOUS WASTE. The parties hereto recognize that federal,
state and local agencies with responsibility for defining
hazardous waste and for regulating the collection, handling or
disposing of such substances are continually providing new
definitions, tests and regulations concerning these
substances. Under this Agreement, it is Contractor's
responsibility to keep current with the regulations on such
substances and to identify such substances and to comply with
all federal, state and local regulations concerning such
substances.
Contractor agrees to provide to County upon its request,
Contractor's program for identifying hazardous waste and
complying with all federal, state and local statutes and
regulations dealing with hazardous waste.
A:\FRNCHISE.AMD 13
Contractor shall make every reasonable effort to prohibit the
collection and the disposal of hazardous waste in any manner
inconsistent with applicable law.
25. PRELIMINARY DISPUTE RESOLUTION. If Contractor has a
question as to the interpretation of this Agreement, it shall
submit a written request to the Director of Community
Development for a determination of the issue. The Contractor
shall provide and submit such information as the Director of
Community Development may request or require to make the
requested determination. The written determination of the
Director of Community Development on such interpretation, or
as any other determination by the Director, other County
official, then Director of Community Development, then appeal
to the Board of Supervisors may be appealed to the Board of
Supervisors pursuant to Ordinance Code Chapter 14-4 .
26. FAITHFUL PERFORMANCE BOND. Contractor shall submit to
County simultaneously with the execution of this Agreement a
corporate surety bond in the amount of $10, 000, provided
however, that the Board may increase this amount not more
often than every three years to reflect changes in the
Consumer Price Index for All Urban Consumers for the San
Francisco Bay Area. The bond shall be executed by a surety
company licensed to do business in the State of California and
acceptable to County. The bond shall be approved by the
County and shall be payable to County. The condition of the
bond shall be that Contractor will faithfully perform the
duties imposed by ordinance, this Agreement and the rules and
regulations of County. Any action by County to proceed
against the Bond shall not limit or affect the right of County
to use other remedies available to County under the agreement
or in courts of law or equity, not withstanding the foregoing.
In lieu of the corporate surety bond, Contractor may provide
to County a letter of credit, cash bond or other security
acceptable to the County Administrator's Office and in a form
satisfactory to the County.
27 . INSURANCE. Contractor shall procure and maintain in full
force and effect at all times during the entire term of this
Agreement the following coverage:
a. Public liability and property damage insurance including
completed operations, products, contractual, broad form
property damage, personal injury and owned and non-owned
automobile liability with such coverages and limits as
may be reasonably requested by County from time to time,
but in no event with limits not less than the sum of $3
million (increased from $1 million) combined single limit
for each occurrence arising from the services as stated
in the Agreement herein. County shall be named as an
additional insured under such liability insurance policy
or policies, if commercially available.
AAFRNCHISE.AMD 14
b. Contractor shall carry workers' compensation insurance
for all its employees.
Evidence of liability and workers' compensation insurance
shall be provided by Contractor by filing with County a
certificate of insurance indicating that County is
endorsed as an additional named insured under the
liability policy. All policies shall include a provision
that written notice of cancellation or any material
change in coverage shall be delivered to County thirty
(30) days in advance of the effective date thereof. No
cancellation, alteration or change of beneficiary shall
be made without written notice to County.
County reserves the right to examine all policies from
time to time to ensure appropriate conformity to
prevailing practices and standards of the insurance
industry.
Such insurance shall be obtained from a company or
companies licensed to do business in the State of
California and acceptable to County. Failure of
Contractor to maintain insurance in the manner and amount
stated herein and as directed by County Administrator,
subject to the approval of the Board, will constitute a
material breach of this Agreement.
28. INDEMNIFICATION.
a. Complete Indemnification of County. All work and
performance covered by this Agreement shall be at the
risk of Contractor.
Contractor agrees to save, indemnify and keep harmless
the County, its officers, employees, agents and assigns
against any and all liability, claims, judgments, or
demands, including demands arising from injuries or
deaths of persons and damage to property, including
environmental damage, arising directly or indirectly out
of the obligations herein undertaken or out of the
operations conducted by Contractor, save and except
claims or litigation arising through the sole negligence
or willful misconduct of County, and will make good to
and reimburse County for any expenditures, including
reasonable attorney's fees, that County may make by
reason of such matters and, if requested by County shall
defend any such suit at the sole cost and expense of
Contractor.
The above promise by Contractor to indemnify, hold
harmless and defend the County expressly includes, but is
not limited to, all claims, damages (including but not
limited to special and consequential damages) , natural
A:\FRNCHISE.AMD 15
resources damages, punitive damages, injuries, costs,
response, remediation and removal costs, losses, demands,
debts, liens, liabilities, causes of action, suits, legal
administrative proceedings, interest, fines, charges,
penalties and expenses (including but not limited to
attorney's and expert witness fees and costs incurred in
connection with defending against any of the foregoing or
in enforcing this indemnity) of any kind whatsoever paid,
incurred or suffered by, or asserted against, County, its
officers, employees or agents arising from or attributed
to any repair, cleanup or detoxification, or preparation
and implementation of any removal, remedial, response,
closure or other plan (regardless of whether undertaken
due to governmental action) concerning any hazardous
substances or hazardous waste at any place where
municipal solid waste is or has been transported,
transferred, processed, stored, disposed of or otherwise
come to be located by Contractor under Agreement, or the
activities of Contractor pursuant to this Agreement
resulting in a release of hazardous substances or waste
into the environment. The foregoing is intended to
operate in part as an agreement, pursuant to section 107
(e) of the Comprehensive Environmental Response,
Compensation and Liability Act, ICERCLA,J 42 U. S.C.
. section .9607 (e) , and California Health and Safety Code
section 26364, to defend, protect, hold harmless and
indemnify County. The intent of the section is to
provided County with the highest level of protection
possible under existing and future laws.
b. Defense of Agreement. Should any party successfully
challenge the validity of this Agreement, the procedure
by which this Agreement was entered into or the validity
of any County ordinance which authorizes the County to
enter into this Agreement, then in such case the
Contractor shall have no cause of action for damages or
any other relief against County as a result of such
successful challenge.
Contractor has the right to defend this Agreement and
County. County has no duty to Contractor to defend the
validity of this Agreement or any provision hereof.
29. ATTORNEY'S FEES. In the event of litigation between the
parties arising hereunder, each party shall be responsible for
and pay its own litigation expenses, including attorney's
fees.
30. ASSIGNABILITY. Contractor shall not sell, assign, subcontract
or transfer this Agreement or any part hereof, or any
obligation hereunder, without the written consent of County.
The term assignment shall include any dissolution, merger,
A:\FRNCHISE.AMD 16
consolidation or other reorganization of Contractor, which
results in change of control of Contractor, or the sale or
other transfer by probate proceeding or otherwise of a
controlling percentage of Contractor's capital stock to a
person not a shareholder on the date of the execution of this
Agreement. The term lassignmento does not include internal
business reorganizations or formations of new companies by
Contractor, formation of trusts by Contractor or transfers of
any interest of Contractor as a result of death, disability or
estate planning by one or more of the principals of
Contractor, so long as essential management decisions are
retained by Lewis Figone, his spouse, his children, and/or
their spouses.
It is understood and agreed by the parties that corporations
that are 100% owned by Lewis Figone, his spouse, his children,
and/or their spouses may presently and in the future perform
obligations and responsibilities of the Contractor in the
Franchise Area. Performances of obligations and
responsibilities of the Contractor by such companies shall not
be deemed an assignment under this section.
Consent to assignment may not be unreasonably withheld.
However, it is understood that County's grant of his franchise
to Contractor is partly persuaded by the Contractor's
financial strength and background in the field of waste
management. Therefore, assuming Contractor maintains its
ability to faithfully carry out its duties hereunder, it is in
the County's ratepayers best interest for Contractor to
continue under this Agreement.
Following a public hearing, County may assign or transfer any
or all of its rights under this Agreement without the consent
of Contractor to any legally authorized public entity. In the
event Contractor herein attempts to assign or subcontract this
Agreement or any part hereof or any obligations hereunder in
a manner inconsistent with the foregoing, County shall have
the right to elect to terminate this Agreement forthwith,
without suit or other proceeding.
31. INVOLUNTARY ASSIGNMENT. No interest of Contractor in this
Agreement shall be assignable by operation of law. Each or
any of the following acts shall be considered an involuntary
assignment providing County with the right to elect to
terminate the Agreement forthwith, without suit or other
proceedings:
(1) If Contractor is or becomes insolvent, or makes an
assignment for the benefit of creditors;
(2) If writ of attachment or execution is levied on
this Agreement or other property of Contractor such
that would affect Contractor's ability to perform
AAFRNCHISE.AMD 17
its duties and obligations under this Agreement.
(3) If in any proceeding to which Contractor is a
party, a receiver is appointed with authority to
take possession of Contractor's property such that
would affect Contractor's ability to perform its
duties and obligations under this Agreement.
(4) Except as otherwise provided in section 31
(Assignability) , in the event of a probate
proceeding where the rights of Contractor under the
Agreement would pass to another individual or other
individuals.
32 . NOTICE PROVISIONS. Any notice required or permitted under
this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or ten (10) days after
posted by certified mail, return receipt requested, addressed
as appropriate either to Contractor:
Bay View Refuse and Recycling Services, Inc.
Attn: Lewis Figone
P.O. Box 277
E1 Cerrito, CA 94530
or to County:
Attention: Director of Community Development
651 Pine Street, 4th Floor, North Wing
Martinez, CA 94553
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES.
Contractor shall give notice to County by January 30 of the
next calendar year of any geographic area in the Franchise
Area or immediately contiguous to the Franchise Area, in which
Contractor has commenced service within the preceding year,
notwithstanding whether Contractor deems that area to be
regulated or unregulated.
Contractor realizes that the public agency boundaries may be
altered by virtue of actions taken by the Contra Costa County
Local Agency Formation Commission (LAFCO) . Contractor agrees
that should a municipal corporation lawfully annex territory
which is within the Franchise Area, County may make such
alterations to the Franchise Area as the annexation
necessitates. Should the Franchise Area boundaries be
amended, Contractor agrees that it will abide by any change
resulting from the Franchise Area change. Contractor agrees
that the Board of Supervisors may make such alterations to the
Franchise Area as are necessitated by such Local Agency
Formation Commission actions and shall have no right or claim
to damages or other relief against the County for such
alterations to the Franchise Area. However, nothing herein is
intended to abrogate Contractor's rights under Public
Resources Code Section 49520 or any successor or similar
AAFMCHISRAMD 18
statute.
34 . AFFILIATED ENTITIES. Contractor shall provide information
necessary to reasonably satisfy County that the charges made
by any Affiliated Entity are reasonable in accordance with the
provisions of section 8 (Contractor's Duty to Maintain
Records; County's Right to Examine Records) . Information
gained from examination of books and records pertaining to
operations not regulated by the County shall be treated by the
County and its Agents as confidential information.
Affiliated Entity shall be defined, for purposes of this
section, as any entity which provides products or services to
Contractor and in which either Contractor or the affiliated
entity owns a ten percent (10%) or greater interest in the
other, or where one person or entity owns ten percent (10%) or
greater interest in both. For purposes of this section, the
term 11contractors shall include Contractor, and if Contractor
is an individual or a group of individuals (partnership) , all
immediate family members, or if a corporation, major
shareholders, and if any major shareholder is an individual,
said individuals immediate family members. For the purpose of
this paragraph, limmediate family includes spouses and
relatives of the first degree of sanguinity, and their
spouses.
35. BREACH AND TERMINATION. The Director of Community Development
shall have authority, subject to review by the Board of
Supervisors upon appeal, to determine whether a breach of any
provision of this Agreement by Contractor has occurred. Any
waiver of a breach shall not be deemed to be a waiver of any
subsequent breach or to be construed as approval of a course
of conduct. In the event that the Director determines that a
breach has occurred, County shall give Contractor written
notice of the breach setting forth the breach or default.
Contractor shall have a reasonable period to cure the noticed
breach, said period not to exceed 60 days. In the event the
breach or default is cured to the satisfaction of the Director
of Community Development within the period of time allotted,
the breach shall not be deemed a material breach. In the
event that the Director of Community Development determines
that Contractor has failed to satisfactorily cure the breach
or default within the period of time allotted, the Director of
Community Development may determine such breach or default to
be material.
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the Director of Community
Development, in his discretion, to declare any subsequent
breach to be material, notwithstanding whether that breach is
ultimately cured by Contractor.
A:\FRNCHISE.AMD 19
If such a determination of material breach is made, the
Director of Community Development's determination shall be
automatically appealed to the Board of Supervisors for final
action.
A material breach shall be cause for termination of this
Agreement by the Board of Supervisors.
In the event of a termination pursuant to this section, County
shall have the right to temporarily assume the obligations of
Contractor and shall have the right to forthwith take
possession of all trucks and other equipment of Contractor and
exercise Contractor's right to enter and use any disposal
facilities for the purpose of performing the services agreed
to be performed by Contractor herein until such time as County
can make other arrangements for the performance of said
services. However, such temporary assumption of Contractor's
obligations under the Agreement shall not be continued by
County for a period exceeding twelve (12) months from the date
such operations are undertaken by County.
During any period in which County has temporarily assumed the
obligations of Contractor under this Agreement, County shall
be entitled to the gross revenue attributable to operations
during such period and shall pay therefrom only those costs
and expenses applicable or allocable to said period, including
the reasonable rental value of the trucks and equipment to be
paid to Contractor. County shall be entitled to the excess,
if any, of revenue over applicable or allowable costs and
expenses during such period. The loss, if any, during such
period shall be a charge against Contractor, and shall be paid
to County by Contractor on demand. Final adjustment and
allocation of gross revenue, costs, and expenses to the period
during which County temporarily assumed the obligations of
Contractor shall be determined by an audit by a Certified
Public Accountant and prepared in report form with his
unqualified opinion attached thereto.
Nothing in this Agreement shall prevent County during any
period in which County temporarily assumes the obligations of
Contractor under this Agreement, from employing persons who
were employed by the Contractor for the collection of Solid
Waste under this Agreement.
Upon the occurrence of a material breach and the declaration
of such and termination of this Agreement by the Board of
Supervisors, this Agreement and the franchise granted
thereunder shall be of no further force and effect, excepting
these provisions concerning County's right to temporarily
assume Contractor's obligations and to use Contractors
facilities, and section 28 (Indemnification) . County then
shall be free to enter into whatever other arrangements are
deemed justified and necessary for the collection, removal and
A:IFRNCHISE.AMD 20
disposal of Solid Waste within the Franchise Area.
36. EMERGENCY. Notwithstanding Contractor's exclusive
franchise rights set forth in section 5 (Exclusive Privilege
and Duty) , in the event of an emergency due to natural
disaster or labor strike which interrupts the collection of
Solid Waste by Contractor, the Board of Supervisors shall have
the right to declare a temporary suspension of this Agreement
for the reasonable duration of the emergency and until such
time as County determines that Contractor is able to reassume
all obligations under this Agreement. Should Contractor fail
to demonstrate to the satisfaction of the Board of Supervisors
that required services can be resumed by Contractor prior to
the expiration of a six (6) month period, this Agreement may
be terminated at the direction of the Board.
37. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. Contractor
shall be responsible for and shall comply with all applicable
laws, rules, and regulations that are now in effect or may be
promulgated or amended from time to time by the Government of
the United States, the State of California, the County and any
other agency now authorized or which may be authorized in the
future to regulate the services to be performed herein
regarding the collection, removal and disposal of Solid Waste
and recycling of material. This includes County Ordinance
Code Chapter 418-6 (on mandatory subscription to Solid Waste
collection service) , and the County's Materials Diversion
Ordinance.
38 . AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified upon written agreement of the parties hereto. The
parties agree to meet and confer in good faith if amendments
or modifications are proposed.
39 . POLICE POWERS. Nothing in this Agreement is intended to or may
limit County authority pursuant to its police power.
40. CONTEST OF AGREEMENT'S TERMS. In the event either party to
this Agreement attempts to challenge the validity of any
portion of this Agreement, such action in attempting to
challenge the Agreement shall constitute a material breach of
this Agreement and the non-breaching party shall have the
right to elect to terminate this Agreement forthwith without
suit of other proceeding.
This section shall not be construed to prevent either party
from seeking redress from the courts for the purpose of legal
review of administrative proceedings regarding rate setting or
County actions taken pursuant to this Agreement, or for the
purpose of interpreting or enforcing the provisions contained
in this Agreement.
41. SEVERABILITY. In the event legal action is brought by a
A:\FRNCHISE.AMD 21
• •
person or entity, other than the parties to this Agreement, to
challenge, invalidate, contest or set aside any of the
provisions of this Agreement, each and every term and
condition, and each and every section and paragraph is
severable from the remaining terms, conditions, sections, and
paragraphs. The invalidation of any term, condition, section
or paragraph as a result of a legal action, brought by a
person or entity not a party to this Agreement shall not
affect the validity or enforceability of the remaining
provisions. However, if material provisions hereof are
affected, the parties agree to negotiate in good faith to
reach agreement on revisions which preserve the substance
hereof to the greatest extent allowed by law.
42 . WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be
deemed to be a waiver of any breach or violation of any other
provision nor of any subsequent breach or violation of the
same or any other provision. The acceptance of any monies
which become due hereunder shall not be deemed to be a waiver
of any pre-existing or concurrent breach or violation by the
other party of any provision of this Agreement.
43 . SURVIVAL OF OBLIGATIONS. Obligations of this Agreement which
embody continuing obligations, including but not limited to
section 28 (indemnification) shall survive the termination or
expiration of this Agreement.
44 . NEW AGREEMENT lContractor acknowledges that County has
provided notice to Contractor pursuant to Public Resource Code
section 49520. Pursuant to said notice and Chapter 418-7 or
the County Ordinance Code, effective no later than August 7,
1996, Con-tractor's Franchise Agreement with the Kensington
Police Protection and Community Services District is
terminated and of no force or effect
45. ENTIRE AGREEMENT. This Agreement represents the full and
entire agreement between the parties hereto with respect to
the matters covered herein.
A:\FRNCHISE.AMD 22
46. OPERATIVE DATE. This Agreement becomes operative on the
effective date in section 1 (Effective Date, Parties) .
COUNTY OF CONTRA COSTA
CHAIR, BOARD OF SUPERVISORS Date
ATTEST, Phil Batchelor,
Clerk of the Board
and County Administrator
By:
DEPUTY
CONTRACTOR
BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
a California Corporation
By: LEWIS FIGONE Date
PRESIDENT
Taxpayer I.D. No.
A:\FRNCHISE.AMD 23
This Page Left
Intentionally Blank
FRANCHISE AGREEMENT
WITH BAY VIEW REFUSE AND. RECYCLING SERVICES, INC.
1. EFFECTIVE DATE, PARTIES. This Agreement is binding between
the County and the below named Contractor and is effective on
August 7, 1996.
2. DEFINITIONS. As used herein, the following terms shall have
the meanings set forth below:
a. Agreement. Agreement means this Agreement by and between
the County and Contractor for the collection, removal and
disposal of solid waste and the recycling of material.
b. Act. Act means the California Integrated Waste
Management Act of 1989 (Public Res. Code, § 40000 et
seq. ) and all rules and regulations adopted under any of
those sections, as such sections, rules and regulations
may be amended from time to time in the future.
C. Board. Board means the Board of Supervisors for the
County of Contra Costa.
d. Commercial Solid Waste. Commercial Solid Waste means
Solid Waste routinely originating from stores, business
offices and other commercial and light industrial sources
excluding residences and any wastes from heavy industry
(i.e. , industry that manufactures or processes petroleum,
lumber, steel, chemicals, explosives, fertilizers, gas,
rubber, cement, sugar and other such products (see
section 84-60.402 of the Contra Costa County Ordinance
Code. ] ) .
e. Contractor. Contractor means Bay View Refuse and
Recycling Services, Inc. , a California Corporation. It
is the entity which has been granted an exclusive
franchise pursuant to the terms and conditions set forth
herein. Lewis Figone is president and owns 100% of the
stock in Bay View Refuse and Recycling Services, Inc.
Lewis Figone is also president and owns 100% of the stock
in Bay View Refuse Service, Inc. , the corporation that is
providing waste collection and recycling services to the
Kensington franchise area up to the effective date of
this Agreement, based on a contract with the Kensington
Police Protection and Community Services District.
f. County. County means the County of Contra Costa.
q. Customers. Customers means those who receive service
from the Contractor for the collection of materials for
recycling and/or for the collection, removal, or disposal
of Solid Waste, pursuant to this Agreement and applicable
A:\FRNCHIS2.AMD 1
ordinances of County, including mandatory subscription
ordinances.
h. Designated Waste. Designated Waste as used herein has
the meaning set forth in section 2522 of Title 23 of the
California Code of Regulations, as amended from time to
time.
i. Franchise Area. Franchise Area means the geographic area
generally known as the unincorporated community of
Kensington in West Contra Costa County described in
Exhibit A to this Agreement with Bay View Refuse and
Recycling Services, Inc. The Community Development
Department may maintain six hundred (600) -scale maps
reflecting the Franchise Area. Exhibit A and/or the six
hundred (600)-scale maps may be amended from time to time
to reflect changes of boundaries of the Franchise Area in
such a manner as to identify each alteration to the
Franchise Area and the effective date thereof.
j . Hazardous Waste. Hazardous Wastes include any waste
material or mixture of wastes which is toxic, corrosive,
flammable, an irritant, or a strong sensitizer, which
generates pressure through decomposition, heat or other
means, if such a waste or mixture of wastes may cause
substantial personal injury, serious illness or harm to
humans, domestic animals, or wildlife, during or as an
approximate result of any disposal of such wastes as
defined in Article 2 , Chapter 6.5, Section 26117 of the
Health and Safety Code. The terms "toxic," "corrosive,"
"flammable," irritant," and "strong sensitizer" shall be
given the same meaning as in the California Hazardous
Substances Act (Chapter 13 commencing with Section 28740
of Division 21 of the Health and Safety Code and 14
Cal.Code Regs. , § 17225. 32) .
k. Industrial Waste. Industrial Waste includes all types
of Solid Waste which result from industrial processes and
manufacturing operations and/or which originates from
such facilities.
1. Infectious Waste. Infectious Wastes include:
(1) Equipment, instruments, utensils and other fomites
of a disposable nature from the rooms of patients who are suspected
to have or have been diagnosed as having a communicable disease and
must, therefore, be isolated as required by public health agencies;
(2) laboratory wastes, including pathological specimens
(i.e. , all tissues, specimens of blood elements, excreta and
secretions obtained from patients or laboratory animals) and
disposable fomites (any substances that may harbor or transmit
pathogenic organisms) attendant thereto;
A:\FRNCHIS2.AMD 2
(3) surgical operating room pathologic specimens -
including recognizable anatomical parts, human tissue, anatomical
human remains and disposable materials from hospital, clinics,
outpatient areas and emergency rooms, as is also defined in Section
314 (4) of the California Administrative Code, Title 17 (14 Cal.Code
Regs. , § 17225. 36) .
M. Recycle or Recycling. Recycle or Recycling means the
process of collecting, sorting, cleaning, treating and
reconstituting materials and recovering them so that they
may be used in the form of raw material for new, reused,
or reconstituted products.
n. Residential Solid Waste. Residential Solid Waste means
Solid Waste routinely originating from single family or
multiple family dwellings. Residential Solid Waste
includes household hazardous waste, but does not include
septage.
o. Septage. Septage means non-sewered liquid or semi-liquid
waste which may be trucked to treatment facilities for
disposal, to include, but not be limited to, waste from
residential septic tanks, commercial grease clean-outs,
and industrial waste holding facilities.
P_ Solid Waste. Solid Waste has the meaning set forth in
Section 40191 of the California Public Resources Code as
of the date of execution of this Agreement. Solid Waste
includes, but is not limited to, all putrescible and
nonputrescible solid, semisolid, and liquid wastes,
including garbage, trash, refuse, paper, rubbish, ashes,
demolition and construction wastes, abandoned vehicles
and parts thereof, discarded home and industrial
appliances, dewatered, treated, or chemically fixed
sewage sludge which is not hazardous waste, manure,
vegetable or animal solid and semisolid wastes and other
discarded solid and semisolid wastes. "Solid Waste" does
not include infectious, designated, and hazardous waste,
except household hazardous waste.
q. Waste Stream. Waste Stream means the Solid Waste to be
collected under this Agreement from the time of its
collection by the Contractor to its disposal at a
landfill or, at County's discretion, delivery to a
transfer facility or other facility by Contractor.
3. TERM. Subject to section 33 (Annexation and Change of
Franchise Area Boundaries) and section 35 (Breach and
Termination) , the term of this Agreement and the exclusive
franchise granted hereunder shall be 20 years, commencing on
the effective date first mentioned in section 1 of this
Agreement.
A:\FRNCHIS2.AMD 3
•
4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID
WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The parties hereto
agree that County currently has jurisdiction to regulate the
collection, removal and disposal of all Solid Waste, and the
recycling of all material in the Franchise Area. The intent
of this Agreement is to regulate Solid Waste handling service
and recycling of material in the Franchise Area. Consistent
with State law and County ordinance, this Agreement is
intended to and shall supersede the Contract With Relation To
Collection And Disposal Of Garbage Between Bay View Refuse
Service, Inc. and the Kensington Community Services District
as amended.
5. EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by law,
County hereby grants to Contractor the exclusive privilege and
.duty within the Franchise Area to collect, and remove for
disposal and recycling, all residential and commercial Solid
Waste, including recyclable materials, and to charge and
receive charges therefor, pursuant to and subject to the terms
of this Agreement. Contractor promises and agrees to perform
the responsibilities and duties set forth herein.
The Franchise Area may be expanded or reduced in size by
mutual agreement of the parties, or as provided in section 33
(Annexation and Change of Franchise Area Boundaries) of this
Agreement.
6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive privilege
granted by this Agreement shall not apply if:
a. A person or entity generates Solid Waste, including
recyclable materials, and personally collects, removes
and disposes or recycles such in a clean and sanitary
manner in conformance with all applicable laws and
regulations, including mandatory subscription ordinances.
This exception shall not apply to a person who incurs a
net cost of collection to a third person in the above
described activities; or
b. A person or entity contracts with a third person for the
removal and disposal or recycling of inorganic refuse or
garden waste (a "Non-Franchised Contractor") and such
removal and disposal or recycling is solely incidental to
work such as remodeling or gardening occasionally
performed by or for the customer. This exception shall
not apply if the Non-Franchised Contractor incurs a net
cost of collection to any third person in connection with
its collection and/or disposal of said Solid Waste.
7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S RIGHT TO
EXAMINE RECORDS. Contractor shall maintain a proper set of
books and records in accordance with generally accepted
accounting principles, accurately reflecting the business done
by it under this Agreement.
A:\FRNCHIS2.AMD 4
Contractor shall further maintain and make available to
County, upon its request, records as to number of Customers,
total and by type, route maps, service records and other
materials and operating statistics in such manner and with
such detail as County may require. County shall treat the
information required by this paragraph that affects the
competitive position of the company as confidential
information to the extent permitted by law.
County may at any time during the term of this Agreement, have
the books and records of the Contractor examined by a County
Agent or Agents (as defined hereinbelow) appointed for that
purpose by the County. County shall give thirty (30) days
written notice to the Contractor of such examination date.
County expenses incurred under this section shall be paid by
Contractor subject to their recovery through the rates allowed
by the County hereunder.
The information required by this section shall pertain to
Contractor's operations covered and regulated by this
Agreement, and nothing contained herein shall require the
Contractor to provide the County with information pertaining
to the Contractor's operations which are not regulated by the
County, except in conformance with this section.
County's Agents may examine Contractor's books, records and
financial statements pertaining to operations not regulated by
the County as may be reasonably required for the sole purpose
of gathering information necessary to allow the Agents to
ascertain whether income, expenses, assets and liabilities are
reasonably and consistently allocated among operations
regulated by County and those not regulated by the County.
Contractor shall obtain County's written approval of its
method of segregating its financial records between County-
regulated and non-County regulated operations. County shall
not unreasonably withhold such approval.
To the extent allowed by law, information. gained from
examination of records pertaining to operations not regulated
by the County shall be treated by County and its Agents as .
confidential information.
For the review of books and other financial records necessary
to verify the Contractor's income, expenses, assets and
liabilities, "County Agent" shall mean County employees or any
independent Certified Public Accountant or public accountancy
firm. For all other information or records, including the
results of financial verification, "County Agent" shall mean
any consultant designated by the County or County employees.
A:\FRNCHIS2.AMD 5
� s
Nothing in this section will prevent County from allowing
public access. to County records' as provided for under the
California Government Code, and in the event any dispute
arises as to the public access to information provided by
Contractor under the terms of this Agreement, the County shall
in its discretion provide public access to said information
according to law or tender the defense of any claims made
against the County concerning said information to Contractor.
Prior to releasing any information pursuant to this paragraph,
County shall make a good faith effort to notify Contractor of
the intended release.
S. RATES. Rates shall be fixed by the County from time to time.
In determining the rates, the County shall consider fairness
to both Contractor and the Customers. Reasonable costs
incurred by Contractor pursuant to this Agreement shall be
designated as "pass-through" or "subject to reasonable profit"
as determined by the County during the rate review process.
Rates fixed by County shall be maximum rates which Contractor
may charge the Customers. The maximum rates fixed by the
County at this time shall be the current rates set forth on
Exhibit B to this Agreement. Future modifications in said
maximum rates pursuant to section 9 (Rate Applications)
hereinbelow shall not require an amendment to this Agreement
to be allowed.
Following consultation with the Contractor and examination of
industry norms and trends, the County, in its sole discretion,
shall determine the method of determining Contractor
profitability.
All costs associated with County review and processing of rate
applications shall be paid by Contractor and shall be allowed
as a pass-through cost in the rate application process.
Contractor shall offer a mini-can program at reduced rates.
9. RATE APPLICATIONS. Rate applications shall be prepared in
accordance with such forms and in such detail as required by
the County. The application shall include one reproducible
hard copy, 15 hard copies bound in an appropriate manner and
one copy on disk formatted pursuant to County specifications.
All rate applications shall include information from the
previous rate change to the present, or such other period of
time as is selected by the County. Beginning with the first
rate application and then at least every three years, any rate
application shall be accompanied by an audited financial
statement covering the entire period since the last audited
rate application together with supporting documentation as
required to segregate its County regulated activities from
other business activities.
A:\FRNCHIS2.AMD 6
• •
The Community Development Director may, in writing, allow the
rate application to be submitted without an audited financial
statement provided the Community Development Director is
satisfied that the level of verifiable detail allows for
adequate assessment of the Contractor's income, expenses,
assets and liabilities.
Rate changes may be initiated by County at any time or by
Contractor under the conditions allowed in this section. In
either case, Contractor shall prepare a rate application in
accordance with the requirements of this section.
If the rate change is initiated by County, the Contractor
shall submit its rate application to County within 60 days of
County's notice to Contractor.
If the rate change is initiated by Contractor, it shall be
submitted no more than once a year under normal operating
conditions (but see also section 12 .c below regarding
implementation of new programs) . The date of Contractor
initiated applications shall reasonably relate to the fiscal
year of Contractor and be standard, year by year. Unless
otherwise agreed by the parties, rate applications will be
submitted in June of any year and any new rate shall be
applied to the September 1st billing (the bill for September
through December service) . Such a mutual agreement on rate
application submittal dates does not require an amendment to
this Agreement.
In the event that the rate change that would be requested by
Contractor is no more than the change in the Consumer Price
Index for All Urban Consumers for the San Francisco Bay Area
for that fiscal year of Contractor, Contractor may increase
its rate up to such amount and not request a rate change from
the County. Contractor may defer a rate application pursuant
to this paragraph for a maximum of two consecutive years.
In the event that Contractor must make significant changes in
its operations or experiences significant changes in costs or
revenue not under its control, Contractor may submit a rate
application at any such time thereafter. Contractor shall
provide documentation for the need for such rate application
relative to those changes. The application will thereafter be
considered by the Board.
10. OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary equipment(excluding containers for weekly Solid
Waste service) for services provided pursuant to this
Agreement in the Franchise Area and shall maintain such
equipment in a sanitary condition at all times. Contractor
shall furnish all necessary labor in connection with the
operation of a Solid Waste collection system in the Franchise
Area.
A:\FRNCHIS2.AMD 7
r
The Contractor, in performance of this Agreement, shall use
trucks with covered, water-tight truck bodies constructed of
sufficient strength to withstand a fire within the truck body,
and not endanger adjacent property. Trucks, drop boxes, bins, .
or similar types of equipment owned and operated by the
Contractor shall be kept clean and in good repair. Contractor
shall have its name and telephone number on the side of each
truck and on each drop box, bin or similar type equipment
provided by Contractor.
11. LIMITATION ON TIME AND MANNER OF COLLECTION. Contractor shall
systematically collect Solid Waste, and to the extent
permitted by this Agreement, materials for recycling from its
Customers. Frequency, place of pickup (backyard service for
weekly Solid Waste and curbside service for recycling,
greenwaste and periodic clean-ups unless otherwise approved by
the County) or any other manner of collection shall be subject
to the review and approval of the Director of Community
Development. Upon commencement of service and upon changes in
collection day schedules, Contractor shall provide each
customer with notice of the scheduled collection day.
Contractor shall not collect Solid Waste from an inhabited
dwelling or dwelling unit between the hours of 6: 00 p.m. and
6: 00 a.m.
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION.
a. From time to time, at its discretion, County may examine
Contractor's operation in order to evaluate whether the
Contractor is operating at a satisfactory level of
efficiency and customer satisfaction. Contractor agrees
to cooperate in any such examination and shall permit
County representatives to inspect, at Contractor's
principal place of business, such information pertaining
to Contractor' s obligations hereunder as County may
require, including, but not limited to, such things as
customer inquiry records, collection routes and equipment
records. Access to Contractor's records shall be subject
to section 7 (Contractor's Duty to Maintain Records;
County's Right to Examine Records) .
b. Notwithstanding any contrary provision in this Agreement,
the County shall have the right to direct Contractor to
compile information, develop plans for and/or conduct
programs on alternative methods of Solid Waste and
recyclable material collection and management, or to take
any other action requested by the County for the purpose
of meeting the source reduction, recycling and composting
requirements of the Act, and any other applicable
federal, state ' or local laws regarding Solid Waste
collection, recycling and disposal, including, without
limitation, the County's Materials Diversion Ordinance.
A:\FRNCHIS2.AMD 8
Contractor agrees to indemnify and hold the County
harmless from and against any and all liability to the
State of California for the County's noncompliance with
the requirements of the California Integrated Waste
Management Act due in whole or material part to the
material failure of Contractor to properly carry out the
reasonable directives of the County to Contractor
regarding collection and disposition of Solid Waste and
recyclable material; provided, however, that Contractor
shall not be obligated to carry out any such directive
(and shall not indemnify nor hold the County harmless
from any resulting liability) if the County fails to
agree to allow Contractor its reasonable costs (including
a reasonable profit) associated with carrying out such
directives.
C. County may require Contractor to develop plans for and
conduct programs on alternative methods of Solid Waste
collection, including pilot programs of limited scope, or
may require additional programs, for the purpose of
improving service, increasing customer satisfaction, and
meeting diversion requirements. County may also require
Contractor to implement efficiencies in its operation
upon written notice from County. The notice shall allow
Contractor a reasonable period of time to implement the
specified service (or efficiency) . Should County require
commencement of such a program as outlined in this
paragraph, Contractor agrees not only to do those things
specified herein, but also to act at the direction of the
County on other matters that may be necessary for the
success and efficiency of the project, such as public
information and notification. In the event that County
elects to direct Contractor to discontinue any service
theretofore performed by Contractor at the direction of
County hereunder, County shall allow Contractor to
recover its reasonable capital equipment costs and other
reasonable costs arising upon termination of the service.
Rate adjustments applicable solely to programs instituted
pursuant to this subsection initially shall be
established at the time the County authorizes
implementation of the program or efficiency.
13. CUSTOMER SERVICE STANDARDS. Contractor shall provide prompt,
efficient, continuous and professional service to its
Customers. Contractor shall have a phone system with
sufficient capacity to promptly respond to telephone calls for
at least 8 hours a day during weekdays, excluding those
holidays observed by Contractor, plus a 24-hour answering
service. All vehicles shall be radio equipped. Telephone
numbers for customer service shall be located in the local
telephone directory. All telephone lines for customer service
shall be toll free to Customers.
A:\FRNCHTS2.AMD 9
Not less than once every three years and not less than six
months prior to an application for contract renewal,
assignment or extension of term, Contractor shall conduct a
representative survey or surveys of Customers within the
Franchise Area to determine satisfaction with service,
including, without limitation, response to customer
complaints. The survey methodology, format and content shall
be subject to the prior review and approval of the Director of
Community Development. A copy of the survey results shall be
sent to the County within sixty (60) days of completion of the
survey. Nothing in this paragraph shall limit the right of
the County to conduct additional surveys. The Contractor
shall cooperate with the County in such cases.
upon initiation of service, and at least once a year,
Contractor shall send or deliver to Customers information
concerning the conditions of service, including, but not
limited to, rates, fees, charges, service options, payment
options, discounts (if any) , days of collections, the amount
and manner of refuse to be collected, service level and
inquiry/complaint procedures, including the name, address and
local telephone number of Contractor and the name, address and
telephone number of the County Community Development
Department. The form and content shall be subject to the
review and approval of the Director of Community Development.
14: LOCAL y"110
BODY The Board of Supervisors shall establish
aLoOal Advisory Body to advise; the board ori rssues relating
to the administration of the franchise The members of the
local advisory body may consist of he members of the
governing„body of the existing municipal advisory councal or
the Kensington Community Services District. The local
advisory ;body shall be responsible for; reveiwng and
recommending rate :changes according to the approved County
Rate Setting Methodology,] assurin07
g that the requirements of
the County ordinance regarding Recycling Requirements for
Landf l 13zsposal are met, fulf�ll the program development
requirements, as outlined �n the State appra�red SRRE as
indicated below, provide for HHW program or funding as neede''
collect detailed information from the hauler regarding the
amount of solid waste disposed xn a landfill and a bareakdown
of the amount and „types rnof, materials recycled.;
as UTILIZEhCOUNTY RATE
...............E...................
....
............-'T..
.
-.-.-...
IMETHODOLOGY The
CO unty hall set the initial rate for solid
F aste and recyclarig pickup; Future tate
modifycations shall be approved by the Board
of -; Supervisors after being reu�ewed and
recommeded by the Local Advisory Body using
the; methodology ,establrshed by_, the County.
A:\FRNCHIS2.AMD 10
b» tTTILIZE DIVERSION ` CRITERIA = � The' Local.
44-
C,0
dvcostaff, programs as indicated in
the County SRRE to assure that the State
mandated diversion Qf 50% is accomplished by
the year 2040 Due to the difficulty in
determxnang the „exact amount of waste.
generated by fthe subject area in !1994 and` the
current daffaculties an tracking all wash
coming from the area due to elf hauling and
special non franchised loads, the Authority
shall implement source reduction and recycling
programs an a txmelyamannex on a schedule that
reflects that of the maoraty of the County
population including the Cities and, Reg :ona
Agencaes wa,thin the ,County.,,
1 QUANTITY AT VARTOOS„ %'s ' ,
2 MATERIALSRECYCLED The following
materials shall be recycled as„required
P
by county ordinance
a) aluminum cans,
b), glass containers:
newsprint
d) PET bottles
e) clear HDPE bottles
f). colored; HDPE bottles
g.) steel and t n platedh cans
h) cardboard
I) polystyrene
;�) plastid film
k) yardwaste
1) mixed paper
3,• METHOD of RECYCLING (CURBSIDE/
TRANSFER STATION ETC) The Local
/
Advisory Body shall work with the!
county and: the hauler, ao determine.
the most cost effective method of
accomplishing= the= required
recychxng Poss ble methods_;. to
consider area
ani picking up at curbside, different
materials on different days,
b) allow for mixed `curbside pickup
tc be :sorted at a ransfer station
or central sorting area or,`
c) designated containers for each
material to be picked up at :curbside
A:\FRNCHIS2.AMD 1
FRANCHISE FEES:
a). Z� to COUNTY_ For managing and administering
the: Franchise agreement with; the hauler, -. for
coordination with the :Local Advisory
Committee; for tracking ;and reporting to the
state on compliance :w�.th AB9:39 requirements,
,for developx.ng and coordinating unincorporated
county area:: and. countywa.dey,source „reduction
and �ecycl�ng...program
bS UP TO 2� TO LOCAL AD"rl`I30RY BODY For managing'
day` to day concerns, of the Hauler and l or
customers, for us�.ng the County Rate; Sett�.ng
Methodology to recommend the setting of new
rates as needed;' for assu.rzng compliance` with
the HHWE, for assisting in the deUelopment and
pub] zcity of SRRE programsn the local area;
for; cacrdinat�.on with :haul"er re• detailed
reporting„ nformat�.on ,for„ the Kensington area.;
c): 1 TO TRUST” For development of rate setting
methodology ;and ;for any future modifications;
for:- the development of,,, Countyw�.de„ programs;,.
other,.,,»,
HOIISEHOLD IiAZARDOUB WASTE METHOD; OF DEALING TaITH
HHW , REQUIREMENTS In order to : meet State:
requirements each city and county xs requireel to
provide Household Hazardous ` Waste disposal for
thear residents. The County mobale HHW program is
F urrently providing for a moble drop; off service
that �.s � f�.nanced in var�.ous ways throughout : the
county. The- Local Adv�.sory Board shall detcrm�.ne
the meth.od, of payment for the countywide mobile
program„for„the Kensngton ,area.
A8�39 TMkLEMENTATION AND TRACRINC
op DATAk,COLLECTION
REPORTS FROM HAOLERTO LOCAL ENTITY AND COUNTY
REGARDING SOLID WASTE DISPOSED: AND MATERIALS
RECYCLED The = Local Adv2sory Body shall be
resp;ons�.ble for obtaining reports from the hauler
that proeakdown by material/ tonhage and
sales priceof all materials recycled and of the
amount of waste disposed and >at what location fob
the Kensington area. Such report information shall
be forwarded' to the county in the required format
for compilation „i.nto„ ,the„ Countyw>.,de record>.ng
A:\FRNCHIS2.AMD 12
)= COUNTYWIDE COLLECTYON OF DATA AND SREPORTING. TO
STATE The County shall- be responsible for. the
collection and cons`olidatxon of all recycling
information for the unincorporated county, and: for
collection and reporting : to each county
�ur�:sdxctxon of disposal information and for the
AB939 ,reportng to the StaterR
8 PROGRAM �EVELOPMEN't
COUNTY INITIATIVE The County will be responsible
for setting up programs in all parts of =the. county
to meet : the requirements of the state approved
SRRE As part of that responsibility the County
will; provide Source Reduction and Recycl�.ng
programs: to individual communities, An example is
compost workshops The County will also provide
coordinatxon< to :provide for variable can rates,::
mini; can rates, source reduction programs { eShop
Smart) , Commercial recycling programs, collection
Porograms. for reusable items, develop full scale
recycling programs for both single :- family and
multifamily: , residential. and commercial.
developments, The Board of Supervisors will,. make
all „final decisions on any changes in„rates.:
} LOCAL INITIATIVE The Localidv sort' Board will
provide local publicity and generate local interest
in solid waste and recycling programs, provide
locationsfor activities such as cgmpost workshops,
determine any special; needs that the community may
have in regards to sol waste pickup services,
either garbage or recycling, work with county staff
to develop reduce, reuse and recycle programs that
will be effective in the Kensington community The
hocal advisory Board, using the methodology
approved' by the county, will review any rate change
requests and make recommendations; to the Board of
Supervisors They will. determine the preferred
method of paying for Household Hazardous Waste
services and maintain records of :amounts of {Solid
Waste and recyclables collected,_;
} EXISTING RECYCLING REQUIREMENTS The prior
Franchise agreement with the Kensington Community
Services; District fourth Amendment;, ,effective
9/11/9Q, ; contained Exhibit A "Recycling Service To
Be ProvidedBy Bayu�.ew",, In order to maintain
continuity of services the requirements of said
exhibit 'shall continue to apply. The exception
will: be where this ;agreement , provides fory,r more
stringent requirements_.
A:\FRNCHIS2.AMD 13
15. CUSTOMER COMPLAINTS.. Contractor shall develop and implement
policy and procedure for responding to and recording Customer
complaints, including dispute resolution. The policy and
procedure shall be subject to the approval of the Director of
Community Development.
16. BILLING. The form and content of customer bills shall be
subject to the review and approval of the Director of
Community Development.
Bills for services will be sent three times per year for every
four months (September, January, May) , unless otherwise
determined by the County. The County may establish billing
period options for Customers upon a finding that such options
are cost-effective and meet a community need.
Full payment for drop boxes may be required by Contractor
prior to delivery of the drop box to the Customer.
The County shall have the right to direct the Contractor to
change or alter its billing system in which event the marginal
additional expenses incurred by the Contractor in the
implementation of the change, with regard to the accounting,
printing, mailing, loss of use of funds, or otherwise, shall
be recoverable by the Contractor through the rates allowed by
the County provided such expenses are reasonable. Contractor
shall inform Customers of all rate changes at least 30 days
prior to their effective date. A copy or facsimile of such
notice shall be provided to County at the time of Customer
notification.
17. RECYCLING. County grants to Contractor the right and
obligation to operate recycling programs, including curbside
pickup of recyclable materials, as determined and designated
by County, subject to County's right to terminate this grant
to Contractor pursuant to the provisions of this section.
Contractor has already instituted and implemented a recycling
program including regular curbside pickup in five-gallon
buckets at all single family residences of at least aluminum,
tin, newsprint, glass bottles, non-colored HDPE and PET, as
more fully set forth in Exhibit B. The current program will
be supplemented by cardboard, mixed paper and other
collections with the implementation of this Agreement, so that
items listed in County Ordinance Section 418-10. 604, as it may
be amended from time to time, are collected, contractor will
provide additional five-gallon buckets if necessary. Separate
greenwaste pickups will be added effective January 1997, the
County has the right at any time to modify said program or
require new programs as provided at section 12 .b hereinabove.
At the written request of contractor, the Community
Development Director may delete a material from recycling if
A:\FRNCHIS2.AMD 14
the Director determines that there is no market to accept the
material (See Article 418-10.8 for exemptions and findings. )
Contractor shall maintain and provide to the County, records
relating to its recycling programs as directed by the Director
of Community Development.
Contractor's provision of recycling service shall be reviewed
in approximately one year and thereafter within three (3)
years of the effective date of this Agreement and, at County's
discretion, every five years thereafter. If County determines
that continuation of such service by Contractor is not
consistent with the County's ratepayers best interest, but not
as a result of Contractor's failure to satisfactorily provide
recycling services, Contractor shall be allowed to recoup its
unamortized capital expenditures as follows. Contractor shall
make a good faith effort to sell all disposable assets
acquired in furtherance of the program for their fair market
value. If income derived from the sale is insufficient to
cover the unamortized costs of such assets, Contractor may
transfer those losses together with net operations profits or
losses to its general account and submit a rate application to
cover such losses.
If County determines that Contractor has failed to
satisfactorily provide and perform recycling services, County
may terminate this grant to Contractor of the right and
obligation to provide and operate recycling programs, at no
cost or further obligation on the part of the County or
County's ratepayers.
18. FREE SERVICE FOR COUNTY. Contractor shall provide Solid Waste
collection and disposal services at those County buildings
designated by the Director of Community Development from time
to time, at no charge to the County.
19. FRANCHISE AREA-WIDE COLLECTION. Unless otherwise determined
by the Community Development Director, in addition to its
regular collections, commencing in January, 1997, Contractor
shall provide three scheduled green waste curbside pickups and
one on call curbside general pickup (two yards, bundled, tied
or placed in boxes or trash containers (no plastic bags) ) .
Said collections shall be made each year throughout the term
of this Agreement in accordance with practices and procedures
established by Contractor and subject to the approval of the
Community Development Director. If the Community Development
Director determines that one more green waste pickup is
desirable, then Contractor shall provide it at no additional
cost until the next rate review. The increased cost of the
pickups and any changes in the recycling program may be
considered as part of the next rate review. Customers shall
be timely notified on the dates of the scheduled green waste
pickups.
A:\FRNCHIS2.AMD 15
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS. Contractor
shall provide, upon direction of the Community Development
Director, Solid Waste drop boxes or equivalent containers for
community or other clean-up projects within the Franchise
Area. The Contractor's obligation shall be limited to the
equivalent of ten (10) 20-cubic yards drop boxes per year in
the Franchise Area. .
21. DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be solely
responsible for the disposal of the Solid Waste collected
pursuant to this Agreement. County has complete authority and
control over the Franchise Area waste stream. County may, at
its sole discretion upon providing 60 days notice to
Contractor, direct the Solid Waste collected under this
Agreement to be delivered to any site or facility of its
choosing. This shall include the right of the County to
direct the Solid Waste to be delivered to any County
designated transfer station, disposal site, transformation
facility and/or resource recovery facility. It is understood
that County may contract with any party, public or private, to
commit the waste stream from the Franchise Area, and that
Contractor's contracts may not bind County, nor need County
consider such other contracts for any purpose.
Notwithstanding the above, Contractor may propose, and County
may but need not consider, waste management and/or disposition
alternatives which are cost effective. In determining or
comparing costs, County shall consider all relevant factors,
including but not limited to, transportation costs, closure
and postclosure requirements, costs and liabilities, disposal
fees, fees levied by governmental entities, including benefits
to Contractor's customers from paying such fees, costs of
compliance with ordinances and other local requirements, and
long-term costs, including degree of control over future
costs.
22. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor shall
assist County in its enforcement of its mandatory subscription
ordinance by providing County with the addresses of properties
not subscribing to collection service within the Franchise
Area and by providing collection service to such properties
upon written request by the County.
23. ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor shall
pay to the County for (a) the services provided by the County
in administering this Agreement, (b) for services and programs
pertaining to Solid Waste provided by the County, and (c)
additionally as directed by the County, a percentage of its
gross annual revenues generated from the performance of such
waste collection services under this Agreement. Unless
otherwise subsequently determined by the County, the total
amount for such administration services and franchise fees
A:\FRNCHIS2.AMD 16
shall be 5% of the commercial and residential bills for each
calendar year, commencing in September, 1996. Such
percentage, time and frequency of payment may be adjusted by
County from time to time. Said sums shall be payable from the*--
Contractor to the County on a four month basis (January, May
and September for the respective four preceding months'.
billings) . Such administrative and program services and any
franchise fees shall be considered a reasonable cost and
subject to "pass-through" as described in section 8 on Rates.
24. HAZARDOUS WASTE. The parties hereto recognize that federal,
state and local agencies with responsibility for defining
hazardous waste and for regulating the collection, handling or
disposing of such substances are continually providing new
definitions, tests and regulations concerning these
substances. Under this Agreement, it is Contractor's
responsibility to keep current with the regulations on such
substances and to identify such substances and to comply with
all federal, state and local regulations concerning such
substances.
Contractor agrees to provide to County upon its request,
Contractor's program for identifying hazardous waste and
complying with all federal, state and local statutes and
regulations dealing with hazardous waste.
Contractor shall make every reasonable effort to prohibit the
collection and the disposal of hazardous waste in any manner
inconsistent with applicable law.
25. PRELIMINARY DISPUTE RESOLUTION. If Contractor has a
question as to the interpretation of this Agreement, it shall
submit a written request to the Director of Community
Development for a determination of the issue. The Contractor
shall provide and submit such information as the Director of
Community Development may request or require to make the
requested determination. The written determination of the
Director of Community Development on such interpretation, as
with any other determination by the Director, may be appealed
to the Board of Supervisors pursuant to Ordinance Code Chapter
14-4.
26. FAITHFUL PERFORMANCE BOND. Contractor shall submit to
County simultaneously with the execution of this Agreement a
corporate surety bond in the amount of $10, 000, provided
however, that the Board may increase this amount not more
often than every three years to reflect changes in the
Consumer Price Index for All Urban Consumers for the San
Francisco Bay Area. The bond shall be executed by a surety
company licensed to do business in the State of California and
acceptable to County. The bond shall be approved by the
County and shall be payable to County. The condition of the
bond shall be that Contractor will faithfully perform the
A:\FRNCHIS2.AMD 17
duties imposed by ordinance, this Agreement and the rules and
regulations of County. Any action by County to proceed
against the Bond shall not limit or affect the right of County
to use other remedies available to County under the agreement
or in courts of law or equity, not withstanding the foregoing.
In lieu of the corporate surety bond, Contractor may provide
to County a letter of credit, cash bond or other security
acceptable to the County Administrator's Office and in a form
satisfactory to the County.
27. INSURANCE. Contractor shall procure and maintain in full
force and effect at all times during the entire term of this
Agreement the following coverage:
a. Public liability and property damage insurance including
completed operations, products, contractual, broad form
property damage, personal injury and owned and non-owned
automobile liability with such coverages and limits as
may be reasonably requested by County from time to time,
but in no event with limits not less than the sum of $3
million combined single limit for each occurrence arising
from the services as stated in the Agreement herein.
County shall be named as an additional insured under such
liability insurance policy or policies, if commercially
available.
b. Contractor shall carry workers' compensation insurance
for all its employees.
Evidence of liability and workers' compensation insurance
shall be provided by Contractor by filing with County a
certificate of insurance indicating that County is
endorsed as an additional named insured under the
liability policy. All policies shall include a provision
that written notice of cancellation or any material
change in coverage shall be delivered to County thirty
(30) days in advance of the effective date thereof. No
cancellation, alteration or change of beneficiary shall
be made without written notice to County.
County reserves the right to examine all policies from
time to time to ensure appropriate conformity to
prevailing practices and standards of the insurance
industry.
Such insurance shall be obtained from a company or
companies licensed to do business in the State of
California and acceptable to County. Failure of
Contractor to maintain insurance in the manner and amount
stated herein and as directed by County Administrator,
subject to the approval of the Board, will constitute a
material breach of this Agreement.
28. INDEMNIFICATION.
AA1FRNCHIS2.AMD 18
a. Complete Indemnification of County. All work and
performance covered by this Agreement shall be at the
risk of Contractor.
Contractor agrees to save, indemnify and keep harmless
the County, its officers, employees, agents and assigns
against any and all liability, claims, judgments, or
demands, including demands arising from injuries or
deaths of persons and damage to property, including
environmental damage, arising directly or indirectly out
of the obligations herein undertaken or out of the
operations conducted by Contractor, save and except
claims or litigation arising through the sole negligence
or willful misconduct of County, and will make good to
and reimburse County for any expenditures, including
reasonable attorney's fees, that County may make by
reason of such matters and, if requested by County shall
defend any such suit at the sole cost and expense of
Contractor.
The above promise by Contractor to indemnify, hold
harmless and defend the County expressly includes, but is
not limited to, all claims, damages (including but not
limited to special and consequential damages) , natural
resources damages, punitive damages, injuries, costs,
response, remediation and removal costs, losses, demands,
debts, liens, liabilities, causes of action, suits, legal
administrative proceedings, interest, fines, charges,
penalties and expenses (including but not limited to
attorney's and expert witness fees and costs incurred in
connection with defending against any of the foregoing or
in enforcing this indemnity) of any kind whatsoever paid,
incurred or suffered by, or asserted against, County, its
officers, employees or agents arising from or attributed
to any repair, cleanup or detoxification, or preparation
and implementation of any removal, remedial, response,
closure or other plan (regardless of whether undertaken
due to governmental action) concerning any hazardous
substances or hazardous waste at any place where
municipal solid waste is or has been transported,
transferred, processed, stored, disposed of or otherwise
come to be located by Contractor under Agreement, or the
activities of Contractor pursuant to this Agreement
resulting in a release of hazardous substances or waste
into the environment. The foregoing is intended to
operate in part as an agreement, pursuant to section 107
(e) of the Comprehensive Environmental Response,
Compensation and Liability Act, "CERCLA," 42 U.S.C.
section 9607 (e) , and California Health and Safety Code
section 26364, to defend, protect, hold harmless and
indemnify County. The intent of the section is to
provided County with the highest level of protection
possible under existing and future laws.
A:\FRNCHIS2.AMD 19
b. Defense of Agreement. Should any party successfully
challenge the validity of this Agreement, the procedure
by which this Agreement was entered into or the validity
of any County ordinance which authorizes the County to
enter into this Agreement, then in such case the
Contractor shall have no cause of action for damages or
any other relief against County as a result of such
successful challenge.
Contractor has the right to defend this Agreement and
County. County has no duty to Contractor to defend the
validity of this Agreement or any provision hereof.
29. ATTORNEY'S FEES. In the event ofalitigation between the
parties arising hereunder, each party shall be responsible for
and pay its own litigation expenses, including attorney's
fees.
30. ASSIGNABILITY. Contractor shall not sell, assign, subcontract
or transfer this Agreement or any part hereof, or any
obligation hereunder, without the written consent of County.
The term assignment shall include any dissolution, merger,
consolidation or other reorganization of Contractor, which
results in change of control of Contractor, or the sale or
other transfer by probate proceeding or otherwise of a
controlling percentage of Contractor's capital stock to a
person not a shareholder on the date of the execution of this
Agreement. The term "assignment" does not include internal
business reorganizations or formations of new companies by
Contractor, formation of trusts by Contractor or transfers of
any interest of Contractor as a result of death, disability or
estate planning by one or more of the principals of
Contractor, so long as essential management decisions are
retained by Lewis Figone, his spouse, his children, and/or
their spouses.
It is understood and agreed by the parties that corporations
that are 100% owned by Lewis Figone, his spouse, his children,
and/or their spouses may presently and in the future perform
obligations and responsibilities of the Contractor in the
Franchise Area. Performances of obligations and
responsibilities of the Contractor by such companies shall not
be deemed an assignment under this section.
Consent to assignment may not be unreasonably withheld.
However, it is understood that County's grant of his franchise
to Contractor is partly persuaded by the Contractor's
financial strength and background in the field of waste
management. Therefore, assuming Contractor maintains its
ability to faithfully carry out its duties hereunder, it is in
the County's ratepayers best interest for Contractor to
continue under this Agreement.
A:\FRNCHIS2.AMD 20
Following a public hearing, County may assign or transfer any
or all of its rights under this Agreement without the consent
of Contractor to any legally authorized public entity. In the
event Contractor herein attempts to assign or subcontract this
Agreement or any part hereof or any obligations hereunder in
a manner inconsistent with the foregoing, County shall have
the right to elect to terminate this Agreement forthwith,
without suit or other proceeding.
31. INVOLUNTARY ASSIGNMENT. No interest of Contractor in this
Agreement shall be assignable by operation of law. Each or
any of the following acts shall be considered an involuntary
assignment providing County with the right to elect to
terminate the Agreement forthwith, without suit or other
proceedings:
(1) If Contractor is or becomes insolvent, or makes an
assignment for the benefit of creditors;
(2) If writ of attachment or execution is levied on
this Agreement or other property of Contractor such
that would affect Contractor's ability to perform
its duties and obligations under this Agreement.
(3) If in any proceeding to which Contractor is a
party, a receiver is appointed with authority to
take possession of Contractor's property such that
would affect Contractor' s ability to perform its
duties and obligations under this Agreement.
(4) Except as otherwise provided in section 31
(Assignability) , in the event of a probate
proceeding where the rights of Contractor under the
Agreement would pass to another individual or other
individuals.
32 . NOTICE PROVISIONS. Any notice required or permitted under
this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or ten (10) days after
posted by certified mail, return receipt requested, addressed
as appropriate either to Contractor:
Bay View Refuse and Recycling Services, Inc.
Attn: Lewis Figone
P.O. Box 277
E1 Cerrito, CA 94530
Or to County:
Attention: Director of Community Development
651 Pine Street, 4th Floor, North Wing
Martinez, CA 94553
A:\FRNCHTS2.AMD 21
33. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES.
Contractor shall give notice to County by January 30 of the
next calendar year of any geographic area in the Franchise
Area or immediately contiguous to the Franchise Area, in which
Contractor has commenced service within the preceding year,,
notwithstanding whether Contractor deems that area to be
regulated or unregulated.
Contractor realizes that the public agency boundaries may be
altered by virtue of actions taken by the Contra Costa County
Local Agency Formation Commission (LAFCO) . Contractor agrees
that should a municipal corporation lawfully annex territory
which is within the Franchise Area, County may make such
alterations to the Franchise Area as the annexation
necessitates. . Should the Franchise Area boundaries be
amended, Contractor agrees that it will abide by any change
resulting from the Franchise Area change. Contractor agrees
that the Board of Supervisors may make such alterations to the
Franchise Area as are necessitated by such Local Agency
Formation Commission actions and shall have no right or claim
to damages or other relief against the County for such
alterations to the Franchise Area. However, nothing herein is
intended to abrogate Contractor's rights under Public
Resources Code Section 49520 or any successor or similar
statute.
34. AFFILIATED ENTITIES. Contractor shall provide information
necessary to reasonably satisfy County that the charges made
by any Affiliated Entity are reasonable in accordance with the
provisions of section 8 (Contractor's Duty to Maintain
Records; County's Right to Examine Records) . Information
gained from examination of books and records pertaining to
operations not regulated by the County shall be treated by the
County and its Agents as confidential information.
"Affiliated Entity" shall be defined, for purposes of this
section, as any entity which provides products or services to
Contractor and in which either Contractor or the affiliated
entity owns a ten percent (10%) or greater interest in the
other, or where one person or entity owns ten percent (10%) or
greater interest in both. For purposes of this section, the
term "Contractor" shall include Contractor, and if Contractor
is an individual or a group of individuals (partnership) , all
immediate family members, or if a corporation, major
shareholders, and if any major shareholder is an individual,
said individuals immediate family members. For the purpose of
this paragraph, "immediate family" includes spouses and
relatives of the first degree of sanguinity, and their
spouses.
35. BREACH AND TERMINATION. The Director of Community Development
shall have authority, subject to review by the Board of
Supervisors upon appeal, to determine whether a breach of any
A:\FRNCHIS2.AMD 22
provision of this Agreement by Contractor has occurred. Any
waiver of a breach shall not be deemed to be a waiver of any
subsequent breach or to be construed as approval of a course
of conduct. In the event that the Director determines that a
breach has occurred, County shall give Contractor written
notice of the breach setting forth the breach or default.
Contractor shall have a reasonable period to cure the noticed
breach, said period not to exceed 60 days. In the event the
breach or default is cured to the satisfaction of the Director
of Community Development within the period of time allotted,
the breach shall not be deemed a material breach. In the
event that the Director of Community Development determines
that Contractor has failed to satisfactorily cure the breach
or default within the period of time allotted, the Director of
Community Development may determine such breach or default to
be material.
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the Director of Community
Development, in his discretion, to declare any subsequent
breach to be material, notwithstanding whether that breach is
ultimately cured by Contractor.
If such a determination of material breach is made, the
Director of Community Development's determination shall be
automatically appealed to the Board of Supervisors for final
action.
A material breach shall be cause for termination of this
Agreement by the Board of Supervisors.
In the event of a termination pursuant to this section, County
shall have the right to temporarily assume the obligations of
Contractor and shall have the right to forthwith take
possession of all trucks and other equipment of Contractor and
exercise Contractor's right to enter and use any disposal
facilities for the purpose of performing the services agreed
to be performed by Contractor herein until such time as County
can make other arrangements for the performance of said
services. However, such temporary assumption of Contractor's
obligations under the Agreement shall not be continued by
County for a period exceeding twelve (12) months from the date
such operations are undertaken by County.
During any period in which County has temporarily assumed the
obligations of Contractor under this Agreement, County shall
be entitled to the gross revenue attributable to operations
during such period and shall pay therefrom only those costs
and expenses applicable or allocable to said period, including
the reasonable rental value of the trucks and equipment to be
paid to Contractor. County shall be entitled to the excess,
if any, of revenue over applicable or allowable costs and
A:\FRNCHIS2.AMD 23
a �
expenses during such period. The loss, if any, during such
period shall be a charge against Contractor, and shall be paid
to County by Contractor on demand. Final adjustment and
allocation of gross revenue, costs, and expenses to the period
during which County temporarily assumed the obligations of
Contractor shall be determined by an audit by a Certified
Public Accountant and prepared in report form with his
unqualified opinion attached thereto.
Nothing in this Agreement shall prevent County during any
period in which County temporarily assumes the obligations of
Contractor under this Agreement, _ from employing persons who
were employed by the Contractor for the collection of Solid
Waste under this Agreement.
Upon the occurence of a material breach and the declaration of
such and termination of this Agreement by the Board of
Supervisors, this Agreement and the franchise granted
thereunder shall be of no further force and effect, excepting
these provisions concerning County's right to temporarily
assume Contractor's obligations and to use Contractors
facilities, and section 28 (Indemnification) . County then
shall be free to enter into whatever other arrangements are
deemed justified and necessary for the collection, removal and
disposal of Solid Waste within the Franchise Area.
36. EMERGENCY. Notwithstanding Contractor's exclusive
franchise rights set forth in section 5 (Exclusive Privilege
and Duty) , in the event of an emergency due to natural
disaster or labor strike which interrupts the collection of
Solid Waste by Contractor, the Board of Supervisors shall have
the right to declare a temporary suspension of this Agreement
for the reasonable duration of the emergency and until such
time as County determines that Contractor is able to reassume
all obligations under this Agreement. Should Contractor fail
to demonstrate to the satisfaction of the Board of Supervisors
that required services can be resumed by Contractor prior to
the expiration of a six (6) month period, this Agreement may
be terminated at the direction of the Board.
37. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. Contractor
shall be responsible for and shall comply with all applicable
laws, rules, and regulations that are now in effect or may be
promulgated or amended from time to time by the Government of
the United States, the State of California, the County and any
other agency now authorized or which may be authorized in the
future to regulate the services to be performed herein
regarding the collection, removal and disposal of Solid Waste
and recycling of material. This includes County Ordinance
Code Chapter 418-6 (on mandatory subscription to Solid Waste
collection service) , and the County's Materials Diversion
Ordinance.
A:\FRNCHIS2.AMD 24
38. AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified upon written agreement of the parties hereto. The
parties agree to meet and confer in good faith if amendments
or modifications are proposed.
39. POLICE POWERS. Nothing in this Agreement is intended to or may
limit County authority pursuant to its police power.
40. CONTEST OF AGREEMENT'S TERMS. In the event either party to
this Agreement attempts to challenge the validity of any
portion of this Agreement, such action in attempting to
challenge the Agreement shall constitute a material breach of
this Agreement and the non-breaching party shall have the
right to elect to terminate this Agreement forthwith without
suit of other proceeding.
This section shall not be construed to prevent either party
from seeking redress from the courts for the purpose of legal
review of administrative proceedings regarding rate setting or
County actions taken pursuant to this Agreement, or for the
purpose of interpreting or enforcing the provisions contained
in this Agreement.
41. SEVERABILITY. In the event legal action is brought by a
person or entity, other than the parties to this Agreement, to
challenge, invalidate, contest or set aside any of the
provisions of this Agreement, each and every term and
condition, and each and every section and paragraph is
severable from the remaining terms, conditions, sections, and
paragraphs. The invalidation of any term, condition, section
or paragraph as a result of a legal action, brought by a
person or entity not a party to this Agreement shall not
affect the validity or enforceability of the remaining
provisions. However, if material provisions hereof are
affected, the parties agree to negotiate in good faith to
reach agreement on revisions which preserve the substance
hereof to the greatest extent allowed by law.
42. WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be
deemed to be a waiver of any breach or violation of any other
provision nor of any subsequent breach or violation of the
same or any other provision. The acceptance of any monies
which become due hereunder shall not be deemed to be a waiver
of any pre-existing or concurrent breach or violation by the
other party of any provision of this Agreement.
43. SURVIVAL OF OBLIGATIONS. Obligations of this Agreement which
embody continuing obligations, including but not limited to
section 28 (indemnification) shall survive the termination or
expiration of this Agreement.
44. NEW AGREEMENT.
A:\FRNCHIS2.AMD 25
"Contractor acknowledges that County has provided notice to
Contractor pursuant to Public Resource Code section 49520.
Pursuant to said notice and Chapter 418-7 or the County
Ordinance Code, effective no later than August 7, 1996, Con-
tractor's Franchise Agreement with the Kensington Community
Services District is terminated and of no force or effect."
45. ENTIRE AGREEMENT. This Agreement represents the full and
entire agreement between the parties hereto with respect to
the matters covered herein.
46. OPERATIVE DATE. This Agreement becomes operative on the
effective date in section 1 (Effective Date, Parties) .
COUNTY OF CONTRA COSTA
CHAIR, BOARD OF SUPERVISORS Date
ATTEST, Phil Batchelor,
Clerk of the Board
and County Administrator
By:
DEPUTY
CONTRACTOR
BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
a California Corporation
By: LEWIS FIGONE Date
PRESIDENT
Taxpayer I.D. No.
ANFRNCHISIAMD 26
EXHIBIT A
RECYCLING SERVICES TO BE PROVIDED BY BAYVIEW
The work to be done by Bayview shall include the
furnishing of all labor, supervision, equipment, materials,
supplies, and all other items necessary to perform the services
required.
1. Materials to be Collected for Recycling ("Recyclable
Materials")
Bayview shall collect the following materials:
a. Glass containers, including bottles and jars;
b. Aluminum cans, aluminum foil, "flattened" tin
cans and "flattened" plastic polyethalene
terapthalate ("PET") containers; and
C. Newspapers.
EXHIBIT A, Page 1
2. Sorting and Delivery for Collection
The Recyclable Materials must be sorted by residents and
placed at the curbside. Materials must be placed in appropriate
containers to be provided by Bayview, except for newspapers,
which may be tied in bundles no more than nine (9) inches high.
3 . Locations From Which the Recyclable Materials Will be
Collected
Bayview will provide curbside collection of Recyclable
Materials from all single-family residences and all multiple unit
residential dwellings of up to and including four units within
the District.
4. Collection Schedule
Bayview shall collect Recyclable Materials from each
dwelling unit once each week on a Monday through Friday schedule,
on the same day that refuse is collected from that dwelling unit
for disposal. Recyclable Materials must be placed at the
curbside by 5:00 a.m. of the day for which service has been
designated for that particular dwelling, in order for Bayview to
make the collection for that week.
. EXHIBIT A, Page 2
•5. Hours of Collection
Collection of Recyclable Materials may not begin earlier
than regular refuse collection (currently 6:00 a.m. ) nor continue
later than 6:00 p.m.
6. Containers
Bayview shall provide, without cost or charge, each single-
family residence and each dwelling unit in multiple-unit
residential buildings of up to and including four units, . three
containers per household for materials storage. The containers
must be labeled to indicate that they are for the curbside
recycling program.
Bayview shall replace any damaged or lost containers at
cost.
7 . Disposition of Recyclable Material
Recyclable Materials collected by Bayview shall be sold or
otherwise conveyed to legitimate recycling facilities. - The
Recyclable Materials shall not be disposed of through
incineration nor deposited at a landfill.
EXHIBIT A, Page 3
S. Promotion M
Prior to delivery of the containers to the eligible
dwellings, Bayview shall mail to each household, promotional
information pertaining to the curbside recycling program.
Bayview shall allow District to review such material prior to
mailing and shall make any changes reasonably requested by
District. Bayview shall distribute written promotional material
two times per year as necessary to maintain participation in the
program and more frequently, if agreed to by both parties.
9. Standards of Performance
The work to be done by Bayview shall be accomplished in a
thorough and workmanlike manner so that the residents of the
District are provided reliable, courteous and high-quality
recycling service.
Bayview shall provide the services in compliance withithe
following standards:
EXHIBIT A, Page 4
• A. Customer Complaints. Bayview shall maintain a
telephone and message line to receive and respond to calls by
District residents. The phone number will be posted on all
containers provided the customers by Bayview, and on all
promotional literature distributed by Bayview. Bayview shall be
responsible for the prompt and courteous attention to, and prompt
and reasonable resolution of, all customer complaints relating to
service.
B. Employee Conduct and Courtesy. Bayview shall use its
best efforts to assure that all employees present a neat
appearance and conduct themselves in a courteous manner. Bayview
shall train its employees in customer courtesy, shall prohibit
the use of loud or profane language, and shall instruct
collection crews to perform the work as quietly as possible.
C. Safety Training. Bayview shall provide suitable
operational and safety training for all of its employees who
operate vehicles or equipment for collection of recyclable ,
materials or who are otherwise directly involved in such
collection.
D. Equipment Cleanliness, Maintenance, and Repair.
Bayview shall maintain all of its vehicles and other equipment
used in providing service under this Contract in a safe, neat,
clean and operable condition at all times. Vehicles used in the
EXHIBIT A, Page 5
collection of Recyclable Materials shall be thorcughly washed at
least once every week. District may inspect vehicles at any time
to determine compliance with sanitation requirements.
Bayview shall (i) inspect each vehicle regularly to
insure that all equipment is operating properly; and (ii) perform
all scheduled maintenance functions in accordance with the
manufacturer's specifications and schedule.
E. Noise. All collection of recyclable materials shall be
conducted as quietly as possible and vehicles and equipment used
shall conform to federal, state or county noise level
regulations.
F. Litter Abatement. Bayview shall use due care to
prevent Recyclable Materials from being spilled or scattered
during the collection or transportation process. If any material
is spilled, Bayview shall promptly clean up all spilled
materials. Each collection vehicle shall carry a broom and
shovel at all times for this purpose.
Bayview shall clean up litter in the immediate vicinity
of any Recyclable Materials areas where collection bins are
placed for collection. Bayview shall discuss instances of
repeated spillage not caused by it directly with the District
resident responsible and will report such instances to the
EXHIBIT A, Page 6
District. The District will attempt to rectify such situations
with the District resident if Bayview has already attempted to do
so without success.
G. Missed Pick-ups. District residents may report missed
pick-ups by calling the phone number provided by Bayview.
Bayview will return and make all missed pick-ups no later than
the following working day.
10. Reports
Bayview shall provide the District with periodic reports on
the recycling program which shall include:
(a) Participation level (i.e. , the number of residences
participating in the recycling program) based on one sample week
during each calendar quarter.
(b) Quantity of materials collected, in tons, by typo- of
material (e.g. , newspaper, glass, plastic and metal) , by calendar
quarter.
(c) Revenues received by Bayview for each type of material
and total revenues received, by calendar quarter.
EXHIBIT A, Page 7
r
Reports shall be provided quarterly and annually. The
quarterly reports shall be due by the 15th of the month following
the close of the quarter and shall cover the preceding three
months. For example, the first quarterly report shall be due
April 15, 1991 and shall cover January, February and March, 1991.
The first annual report shall be due by March 15 of 1992, and
shall cover the preceding calendar year.
EXHIBIT A, Page 8
Draft
dated April 22 1996
tP Br` :
Euhibit B
MONTHLY MAXIMUM RESIDENTIAL AND COMMERCIAL RATES IN KENSINGTON
• Residential Rates:
30 ,gallon cans Monthly Fee
1 can once a week $16.25
2 cans once a week $27.50
3 cans once a week $39.00
4 cans once a week $50.00
5 cans once a week $61.30
40 gallon cans Monthly Fee
1 carr once a week $36.60
45 gallon cans Monthly Fee
1 can once a week $39.75
• Commercial Rates:
30 gallon can once a week $15.50
Material other than can use (bulk rate)
Dry $16.50/cubic yard
Wet $17.00/cubic yard
• These rates represent the current rates in Kensington. tessu� �st
�d�ustment�,�hen�rtin��can��n� �igher �nu�tf�le scan�.gyrates ��re
p3eme�tet� ��the >Coun��wjth�ie intent�,-that �otsl revenue �cc�3lectec3
-�s�Cu�� pprox�ate.1 the dame,°
G
BINTON SERVICE INFORMATION
;..
• Yearly 4 month billing cycles: bills sent our in January, May and
September for next 4 months service beginning with billing month.
• Designated month to file standard applications for rate changes: June.
Earliest rate review request by Bay View would be June, 1997. Any
such approved rate request may take effect in September. W51
hermu1t leancates.;
• Containers: residential and commercial customers provide their own
cans for the weekly solid waste collection service. 3 five-gallon
buckets provided by Bay View for weekly recycling service (customers
charged at cost for any replacement buckets) . ecVcincceas
i
l�.aws: {a�1�,�lum� sum�cans, �b)�glass q�cantai�s,�{c) ewsprznt, fid)
�`1aot�ties, �e) �clear; iDPEbatt3es;, � (f) colored HDPEbattles; {g)
feel °andta:n latecl `cans� fii car
lm {k yardwaste, nd {1 j paper {includes xna at
�cia .�� ab �p�.ck �ps<�{e g a1d �efr3:r�ex�tor�}�":may�be�'sche�u�led �'ora
171 MI
.,�..a`. .:.0s��,�: �...:,,.:��;�fi,'c'°�,xia:`.35��,�,raa -�',..:�:.�s„e.�s«.,ra,,.r r„ .. ''� c;�.. ,� ;r✓seiz�,aw,u ��.c ".tt ,�' a' .�Hdrw,;..
P-Mar�xte charge:
��t�caunty� d=irect�.�an;��Bay View �w�3l�i�provde��otzce of schedul�ed� 'ck
fps by Bay 9View of reusable matersais 5=�e,,c� ald clote , toy in
bordnatonw th arganzat3anslikeGoad Will Industries
• Pick up locations: backyard weekly service for cans; frontyard weekly
recycling service.
• Green waste pick ups effective January 1, 1997: frontyard scheduled
green waste pick ups; 3 pick ups annually on customer's regular
garbage day; each pick up- fer {no yeardaghmit77$74jbundled, tied
or I d n boxes or trash conta�nets (no aplastic bags)- aggee�.
General pick up effective January 1, 1997: 1 frontyard on call pick up
annually on customer's regular garbage day; 2 yards bundled, tied or
bagged of general waste IR afar green waste; up to eight such on
call pick ups per day in the Franchise Area scheduled on first call
basis. [Mary, if you prefer, one week for general pick up could be
scheduled for entire area; county can select the week. Let me know
which you prefer. ]
• In 1996 there will be one general pick up in November.
FACL IL.A\28117RATE.DOC
A
D. 10
Draft dated April 22 , 1996
Modified June 5, 1996
Option 3/Local Solid Waste
Authority / June 17, 1996
FRANCHISE AGREEMENT WITH
BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
Draft Option #3
CONTRA COSTA COUNTY
A:\FRNCHIS3.AMD
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TABLE OF CONTENTS
1. EFFECTIVE DATE, PARTIES . . . . . . . . . . . . . . . . . 1
2 . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
a. Agreement . . . . . . . . . . . . . . . . . . . . . . 1
b. Act . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. Board . . . . . . . . . . . . . . . . . . . . . . 1
d. Commercial Solid Waste . . . . . . . . . . . . . . . 1
e. Contractor . . . . . . . . . . . . . . . . . . . . . 1
f. County . . . . . . . . . . . . . . . . . . . . . . . 1
g. Customers . . . . . . . . . . . . . . . . . . . . . . 1
h. Designated Waste . . . . . . . . . . . . . . . . . . 2
I. Franchise Area . . . . . . . . . . . . . . . . . . . 2
j . Hazardous Waste . . . . . . . . . . . . . . . . . . . 2
k. Industrial Waste . . . . . . . . . . . . . . . . . . 2
1. Infectious Waste . . . . . . . . . . . . . . . . 2
m. Recycle or Recycling . . . . . . . . . . . . . . . . 3
n. Residential Solid Waste . . . . . . . . . . . . . . . 3
0. Septage . . . . . . . . . . . . . . . . . . . . . . . 3
p. Solid Waste . . . . . . . . . . . . . . . . . . . . . 3
q. Waste Stream . . . . . . . . . . . . . . . . . . . . 3
3 . TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4 . INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID
WASTE COLLECTION, REMOVAL AND/OR DISPOSAL . . . . . . . . 4
5. EXCLUSIVE PRIVILEGE AND DUTY . . . . . . . . . . . . . . . 4
6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE . . . . . . . . . . . . 4
7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S RIGHT TO
EXAMINE RECORDS . . . . . . . . . . . . . . . . . . . . . 4
8. RATES . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9. RATE APPLICATIONS . . . . . . . . . . . . . . . . . . . . 6
10. OPERATION BY CONTRACTOR . . . . . . . . . . . . . . . 7
11. LIMITATION ON TIME AND MANNER OF COLLECTION . . . . . . . 8
12 . CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13 . CUSTOMER SERVICE STANDARDS . . . . . . . . . . . . . . . . 9
14. LOCAL ADVISORY BODY . . . . . . . . . . . . . . . . . . 10
15. CUSTOMER COMPLAINTS . . . . . . . . . . . . . . . . . . 14
A:\FRNCHIS3.AMD i
16. BILLING . . . . . . . . . . . . . . . . . . . . . . . 14
17 . RECYCLING . . . . . . . . . . . . . . . . . . . . . 14
18 . FREE SERVICE FOR COUNTY . . . . . . . . . . . . . . . . 15
19. FRANCHISE AREA-WIDE COLLECTION . . . . . . . . . . . . . 15
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS . . . . . . 16
21. DISPOSAL AND WASTE STREAM CONTROL . . . . . . . . . . . 16
22. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR . . . 16
23 . ADMINISTRATIVE SERVICES AND FRANCHISE FEES . . . . . . . 16
24 . HAZARDOUS WASTE . . . . . . . . . . . . . . . . . . . . 17
25. PRELIMINARY DISPUTE RESOLUTION . . . . . . . . . . . . . 17
26. FAITHFUL PERFORMANCE BOND . . . . . . . . . . . . . . . 17
27. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . 18
28. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 18
a. Complete Indemnification of County . . . . . . . . 19
b. Defense of Agreement . . . . . . . . . . . . . 20
29 . ATTORNEY'S FEES . . . . . . . . . . . . . . . . . . . . 20
30. ASSIGNABILITY . . . . . . . . . . . . . . . . . . . . . 20
31. INVOLUNTARY ASSIGNMENT . . . . . . . . . . . . . . . . . 21
32 . NOTICE PROVISIONS . . . . . . . . . . . . . . . . . . . 21
33 . ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES . . . 22
34 . AFFILIATED ENTITIES . . . . . . . . . . . . . . . . . . 22
35. BREACH AND TERMINATION . . . . . . . . . . . . . . . . . 22
36. EMERGENCY . . . . . . . . . . . . . . . . . . . . . . . 24
37. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS . . . . . 24
38 . AMENDMENT OR MODIFICATION . . . . . . . . . . . 25
39. POLICE POWERS . . . . . . . . . . . . . . . . . . . . . 25
40. CONTEST OF AGREEMENT'S TERMS . . . . . . . . . o 25
41. SEVERABILITY . . . . . . . . . . . . . . . . . . . . 25
A:\FRNCHIS3.AMD ii
42. WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . 25
43 . SURVIVAL OF OBLIGATIONS . . . . . . . . . . . . . . . . 25
44 . NEW AGREEMENT . . . . . . . . . . . . . . . . . . . . . 25
45. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . 26
46. OPERATIVE DATE . . . . . . . . . . . . . . . . . . . . . 26
A:\FRNCHIS3.AMD 111
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FRANCHISE AGREEMENT
WITH BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
1. EFFECTIVE DATE, PARTIES. This Agreement is binding between
the County and the below named Contractor and is effective on
August 7, 1996.
2. DEFINITIONS. As used herein, the following terms shall have
the meanings set forth below:
a. Agreement. Agreement means this Agreement by and between
the County and Contractor for the collection, removal and
disposal of solid waste and the recycling of material.
b. Act. Act means the California Integrated Waste
Management Act of 1989 (Public Res. Code, § 40000 et
seq. ) and all rules and regulations adopted under any of
those sections, as such sections, rules and regulations
may be amended from time to time in the future.
C. Board. Board means the Board of Supervisors for the
County of Contra Costa.
d. Commercial Solid Waste. Commercial Solid Waste means
Solid Waste routinely originating from stores, business
offices and other commercial and light industrial sources
excluding residences and any wastes from heavy industry
(i.e. , industry that manufactures or processes petroleum,
lumber, steel, chemicals, explosives, fertilizers, gas,
rubber, cement, sugar and other such products [see
section 84-60.402 of the Contra Costa County Ordinance
Code. ] ) .
e. Contractor. Contractor means Bay View Refuse and
Recycling Services, Inc. , a California Corporation. It
is the entity which has been granted an exclusive
franchise pursuant to the terms and conditions set forth
herein. Lewis Figone is president and owns 100% of the
stock in Bay View Refuse and Recycling Services, Inc.
Lewis Figone is also president and owns 100% of the stock
in Bay View Refuse Service, Inc. , the corporation that is
providing waste collection and recycling services to the
Kensington franchise area up to the effective date of
this Agreement, based on a contract with the Kensington
Police Protection and Community Services District.
f. County. County means the County of Contra Costa.
g. Customers. Customers means those who receive service
from the Contractor for the collection of materials for
recycling and/or for the collection, removal, or disposal
of Solid Waste, pursuant to this Agreement and applicable
AAFMCHISIAMD 1
ordinances of County, including mandatory subscription
ordinances.
h. Designated Waste. Designated Waste as used herein has
the meaning set forth in section 2522 of Title 23 of the
California Code of Regulations, as amended from time to
time. '
i. Franchise Area. Franchise Area means the geographic area
generally known as the unincorporated community of
Kensington in West Contra Costa County described in
Exhibit A to this Agreement with Bay View Refuse and
Recycling Services, Inc. The Community Development
Department may maintain six hundred (600) -scale maps,
reflecting the Franchise Area.. Exhibit A and/or the six
hundred (600)-scale maps may be amended from time to time
to reflect changes of boundaries of the Franchise Area in
such a manner as to . identify each alteration to the
Franchise Area and the effective date thereof.
j . Hazardous Waste. Hazardous Wastes include any waste
material or mixture of wastes which is toxic, corrosive,
flammable, an irritant, or a strong sensitizer, which
generates pressure through decomposition, heat or other
means, if such a waste or mixture of wastes may cause
substantial personal injury, serious illness or harm to
humans, domestic animals, or wildlife, during or as an
approximate result of any disposal of such wastes as
defined in Article 2, Chapter 6.5, Section 26117 of the
Health and Safety Code. The terms "toxic," "corrosive,"
"flammable," irritant," and "strong sensitizer" shall be
given the same meaning as in the California Hazardous
Substances Act (Chapter 13 commencing with Section 28740
of Division 21 of the Health and Safety Code and 14
Cal.Code Regs. , § 17225. 32) .
k. Industrial Waste. Industrial Waste includes all types
of Solid Waste which result from industrial processes and
manufacturing operations and/or which originates from
such facilities.
1. Infectious Waste. Infectious Wastes include:
(1) Equipment, instruments, utensils and other fomites
of a disposable nature from the rooms of patients who are suspected
to have or have been diagnosed as having a communicable disease and
must, therefore, be isolated as required by public health agencies;
(2) laboratory wastes, including pathological specimens
(i.e. , all tissues, specimens of blood elements, excreta and
secretions obtained from patients or laboratory animals) and
disposable fomites (any substances that may harbor or transmit
pathogenic organisms) attendant thereto;
A:\FRNCHIS3.AMD 2
(3) surgical operating room pathologic specimens -
including recognizable anatomical parts, human tissue, anatomical
human remains and disposable materials from hospital, clinics,
outpatient areas and emergency rooms, as is also defined in Section
314 (d) of the California Administrative Code, Title 17 (14 Cal.Code
Regs. , § 17225. 36) .
M. Recycle or Recycling. Recycle or Recycling means the
process of collecting, sorting, cleaning, treating and
reconstituting materials and recovering them so that they
may be used in the form of raw material for new, reused,
or reconstituted products.
n. Residential Solid Waste. Residential Solid Waste means
Solid Waste routinely originating from single family or
multiple family dwellings. Residential Solid Waste
includes household hazardous waste, but does not include
septage.
o. Septage. Septage means non-sewered liquid or semi-liquid
waste which may be trucked to treatment facilities for
disposal, to include, but not be limited to, waste from
residential septic tanks, commercial grease clean-outs,
and industrial waste holding facilities.
P_ Solid Waste. Solid Waste has the meaning set forth in
Section 40191 of the California Public Resources Code as
of the date of execution of this Agreement. Solid Waste
includes, but is not limited to, all putrescible and
nonputrescible solid, semisolid, and liquid wastes,
including garbage, trash, refuse, paper, rubbish, ashes,
demolition and construction wastes, abandoned vehicles
and parts thereof, discarded home and industrial
appliances, dewatered, treated, or chemically fixed
sewage sludge which is not hazardous waste, manure,
vegetable or animal solid and semisolid wastes and other
discarded solid and semisolid wastes. "Solid Waste" does
not include infectious, designated, and hazardous waste,
except household hazardous waste.
q. Waste Stream. Waste Stream means the Solid Waste to be
collected under this Agreement from the time of its
collection by the Contractor to its disposal at a
landfill or, at County's discretion, delivery to a
transfer facility or other facility by Contractor.
3. TERM. Subject to section 33 (Annexation and Change of
Franchise Area Boundaries) and section 35 (Breach and
Termination) , the term of this Agreement and the exclusive
franchise granted hereunder shall be 20 years, commencing on
the effective date first mentioned in section 1 of this
Agreement.
A\FRNCHIS3.AMD 3
� s
4. INTENT TO REGULATE ALL RECYCLING AND RESIDENTIAL AND SOLID
WASTE COLLECTION, REMOVAL AND/OR DISPOSAL. The parties hereto
agree that County currently has jurisdiction to regulate the
collection, removal and disposal of all Solid Waste, and the
recycling of all material in the Franchise Area. The intent
of this Agreement is to regulate Solid Waste handling service
and recycling of material in the Franchise Area. Consistent
with State law and County ordinance, this Agreement is
intended to and shall supersede the Contract With Relation To
Collection And Disposal Of Garbage Between Bay View Refuse
Service, Inc. and the Kensington Community Services District
as amended.
5. EXCLUSIVE PRIVILEGE AND DUTY. To the extent allowed by law,
County hereby grants to Contractor the exclusive privilege and
duty within the Franchise Area to collect, and remove for
disposal and recycling, all residential and commercial Solid
Waste, including recyclable materials, and to charge and
receive charges therefor, pursuant to and subject to the terms
of this Agreement. Contractor promises and agrees to perform
the responsibilities and duties set forth herein.
The Franchise Area may be expanded or reduced in size by
mutual agreement of the parties, or as provided in section 33
(Annexation and Change of Franchise Area Boundaries) of this
Agreement.
6. EXCEPTIONS TO EXCLUSIVE PRIVILEGE. The exclusive privilege
granted by this Agreement shall not apply if:
a. A person or entity generates Solid Waste, including
recyclable materials, and personally collects, removes
and disposes or recycles such in a clean and sanitary
manner in conformance with all applicable laws and
regulations, including mandatory subscription ordinances.
This exception shall not apply to a person who incurs a
net cost of collection to a third person in the above
described activities; or
b. A person or entity contracts with a third person for the
removal and disposal or recycling of inorganic refuse or
garden waste (a "Non-Franchised Contractor") and such
removal and disposal or recycling is solely incidental to
work such as remodeling or gardening occasionally
performed by or for the customer. This exception shall
not apply if the Non-Franchised Contractor incurs a net
cost of collection to any third person in connection with
its collection and/or disposal of said Solid Waste.
7. CONTRACTOR'S DUTY TO MAINTAIN RECORDS; COUNTY'S RIGHT TO
EXAMINE RECORDS. Contractor shall maintain a proper set of
books and records in accordance with generally accepted
accounting principles, accurately reflecting the business done
by it under this Agreement.
A:\FRNCHIS3.AMD 4
Contractor shall further maintain and make available to
County, upon its request, records as to number of Customers,
total and by type, route maps, service records and other
materials and operating statistics in such manner and with
such detail as County may require. County shall treat the
information required by this paragraph that affects the
competitive position of the company as confidential
information to the extent permitted by law.
County may at any time during the term of this Agreement, have
the books and records of the Contractor examined by a County
Agent or Agents (as defined hereinbelow) appointed for that
purpose by the County. County shall give thirty (30) days
written notice to the Contractor of such examination date.
County expenses incurred under this section shall be paid by
Contractor subject to their recovery through the rates allowed
by the County hereunder.
The information required by this section shall pertain to
Contractor's operations covered and regulated by this
Agreement, and nothing contained herein shall require the
Contractor to provide the County with information pertaining
to the Contractor's operations which are not regulated by the
County, except in conformance with this section.
County's Agents may examine Contractor's books, records and
financial statements pertaining to operations not regulated by
the County as may be reasonably required for the sole purpose
of gathering information necessary to allow the Agents to
ascertain whether income, expenses, assets and liabilities are
reasonably and consistently allocated among operations
regulated by County and those not regulated by the County.
Contractor shall obtain County's written approval of its
method of segregating its financial records between County-
regulated and non-County regulated operations. County shall
not unreasonably withhold such approval.
To the extent allowed by law, information gained from
examination of records pertaining to operations not regulated
by the County shall be treated by County and its Agents as
confidential information.
For the review of books and other financial records necessary
to verify the Contractor's income, expenses, assets and
liabilities, "County Agent" shall mean County employees or any
independent Certified Public Accountant or public accountancy
firm. For all other information or records, including the
results of financial verification, "County Agent" shall mean
any consultant designated by the County or County employees.
A:\FRNCHIS3.AMD 5
Nothing in this section will prevent County from allowing
public access to County records as provided for under the
California Government Code, and in the event any dispute
arises as to the public access to information provided by
Contractor under the terms of this Agreement, the County shall
in its discretion provide public access to said information
according to law or tender the defense of any claims made
against the County concerning said information to Contractor.
Prior to releasing any information pursuant to this paragraph,
County shall make a good faith effort to notify Contractor of
the intended release.
S. RATES. Rates shall be fixed by the County from time to time.
In determining the rates, the County shall consider fairness
to both Contractor and the Customers. Reasonable costs
incurred by Contractor pursuant to this Agreement shall be
designated as "pass-through" or "subject to reasonable profit"
as determined by the County during the rate review process.
Rates fixed by County shall be maximum rates which Contractor
may charge the Customers. The maximum rates fixed by the
County at this time shall be the current rates set forth on
Exhibit B to this Agreement. Future modifications in said
maximum rates pursuant to section 9 (Rate Applications)
hereinbelow and shall not require an amendment to this
Agreement to be allowed.
Following consultation with the Contractor and examination of
industry norms and trends, the County, in its sole discretion,
shall determine the method of determining Contractor
profitability.
All costs associated with County review and processing of rate
applications shall be paid by Contractor and shall be allowed
as a pass-through cost in the rate application process.
Contractor shall offer a mini-can program at reduced rates.
9. RATE APPLICATIONS. Rate applications shall be prepared in
accordance with such forms and in such detail as required by
the County. The application shall include one reproducible
hard copy, 15 hard copies bound in an appropriate manner and
one copy on disk formatted pursuant to County specifications.
All rate applications shall include information from the
previous rate change to the present, or such other period of
time as is selected by the County. Beginning with the first
rate application and then at least every three years, any rate
application shall be accompanied by an audited financial
statement covering the entire period since the last audited
rate application together with supporting documentation as
required to segregate its County regulated activities from
other business activities.
A:\FRNCHIS3.AMD 6
The Community Development Director may, in writing, allow the
rate application to be submitted without an audited financial
statement provided the Community Development Director is
satisfied that the level of verifiable detail allows for
adequate assessment of the Contractor's income, expenses,
assets and liabilities.
Rate changes may be initiated by County at any time or by
Contractor under the conditions allowed in this section. In
either case, Contractor shall prepare a rate application in
accordance with the requirements of this section.
If the rate change is initiated by County, the Contractor
shall submit its rate application to County within 60 days of
County's notice to Contractor.
If the rate change is initiated by Contractor, it shall be
submitted no more than once a year under normal operating
conditions (but see also section 12 .c below regarding
implementation of new programs) . The date of Contractor
initiated applications shall reasonably relate to the fiscal
year of Contractor and be standard, year by year. Unless
otherwise agreed by the parties, rate applications will be
submitted in June of any year and any new rate shall be
applied to the September 1st billing (the bill for September
through December service) . Such a mutual agreement on rate
application submittal dates does not require an amendment to
this Agreement.
In the event that the rate change that would be requested by
Contractor is no more than the change in the Consumer Price
Index for All Urban Consumers for the San Francisco Bay Area
for that fiscal year of Contractor, Contractor may increase
its rate up to such amount and not request a rate change from
the County. Contractor may defer a rate application pursuant
to this paragraph for a maximum of two consecutive years.
In the event that Contractor must make significant changes in
its operations or experiences significant changes in costs or
revenue not under its control, .Contractor may submit a rate
application at any such time thereafter. Contractor shall
provide documentation for the need for such rate application
relative to those changes. The application will thereafter be
considered by the Board.
10. OPERATION BY CONTRACTOR. Contractor shall furnish all
necessary equipment(excluding containers for weekly Solid
Waste service) for services provided pursuant to this
Agreement in the Franchise Area and shall maintain such
equipment in a sanitary condition at all times. Contractor
shall furnish all necessary labor in connection with the
operation of a Solid Waste collection system in the Franchise
Area.
A:\FRNCHIS3.AMD 7
0 •
The Contractor, in performance of this Agreement, shall use
trucks with covered, water-tight truck bodies constructed of
sufficient strength to withstand a fire within the truck body
and not endanger adjacent property. Trucks, drop boxes, bins,
or similar types of equipment owned and operated by the
Contractor shall be kept clean and in good repair. Contractor
shall have its name and telephone number on the side of each
truck and on each drop box, bin or similar type equipment.
provided by Contractor.
11. LIMITATION ON TIME AND MANNER OF COLLECTION. Contractor shall
systematically collect Solid Waste, and to the extent
permitted by this Agreement, materials for recycling from its
Customers. Frequency, place of pickup (backyard service for
weekly Solid Waste and curbside service for recycling,
greenwaste and periodic clean-ups unless otherwise approved by
the County) or any other manner of collection shall be subject
to the review and approval of the Director of Community
Development. Upon commencement of service and upon changes in
collection day schedules, Contractor shall provide each
customer with notice of the scheduled collection day.
Contractor shall not collect Solid Waste from an inhabited
dwelling or dwelling unit between the hours of 6: 00 p.m. and
6: 00 a.m.
12. CUSTOMER SATISFACTION, AB 939 AND EFFICIENCIES IN OPERATION.
a. From time to time, at its discretion, County may examine
Contractor's operation in order to evaluate whether the
Contractor is operating at a satisfactory level of
efficiency and customer satisfaction. Contractor agrees
to cooperate in any such examination and shall permit
County representatives to inspect, at Contractor' s
principal place of business, such information pertaining
to Contractor's obligations hereunder as County may
require, including, but not limited to, such things as
customer inquiry records, collection routes and equipment
records. Access to Contractor's records shall be subject
to section 7 (Contractor' s Duty to Maintain Records;
County's Right to Examine Records) .
b. Notwithstanding any contrary provision in this Agreement,
the County shall have the right to direct Contractor to
compile information, develop plans for and/or conduct
programs on alternative methods of Solid Waste and
recyclable material collection and management, or to take
any other action requested by the County for the purpose
of meeting the source reduction, recycling and composting
requirements of the Act, and any other applicable
federal, state or local laws regarding Solid Waste
collection, recycling, and disposal, including, without
limitation, the County's Materials Diversion Ordinance.
A:\FRNCHIS3.AMD 8
• s
Contractor agrees to indemnify and hold the County
harmless from and against any and all liability to the
State of California for the County's noncompliance with
the requirements of the California Integrated Waste
Management Act due in whole or material part to the
material failure of Contractor to properly carry out the
reasonable directives of the County to Contractor
regarding collection and disposition of Solid Waste and '
recyclable material; provided, however, that Contractor
shall not be obligated to carry out any such directive
(and shall not indemnify nor hold the County harmless
from any resulting liability) if the County fails to
agree to allow Contractor its reasonable costs (including
a reasonable profit) associated with carrying out such
directives.
C. County may require Contractor to develop plans for and
conduct programs on alternative methods of Solid Waste
collection, including pilot programs of limited scope, or
may require additional programs, for the purpose of
improving service, increasing customer satisfaction, and
meeting diversion requirements. County may also require
Contractor to implement efficiencies in its operation
upon written notice from County. The notice shall allow
Contractor a reasonable period of time to implement the
specified service (or efficiency) . Should County require
commencement of such a program as outlined in this
paragraph, Contractor agrees not only to do those things
specified herein, but also to act at the direction of the
County on other matters that may be necessary for the
success and efficiency of the project, such as public
information and notification. In the event that County
elects to direct Contractor to discontinue any service
theretofore performed by Contractor at the direction of
County hereunder, County shall allow Contractor to
recover its reasonable capital equipment costs and other
reasonable costs arising upon termination of the service.
Rate adjustments applicable solely to programs instituted
pursuant to this subsection initially shall be
established at the time the County authorizes
implementation of the program or efficiency.
13. CUSTOMER SERVICE STANDARDS. Contractor shall provide prompt,
efficient, continuous and professional service to its
Customers. Contractor shall have a phone system with
sufficient capacity to promptly respond to telephone calls for
at least 8 hours a day during weekdays, excluding those
holidays observed by Contractor, plus a 24-hour answering
service. All vehicles shall be radio equipped. Telephone
numbers for customer service shall be located in the local
telephone directory. All telephone lines for customer service
shall be toll free to Customers.
A:\FRNCHIS3.AMD 9
0
shall be 5% of the commercial and residential bills for each
calendar year, commencing in September, 1996. Such
.percentage, time and frequency of payment may be adjusted by
County from time to time. Said sums shall be payable from the
Contractor to the County on a four month basis (January, May
and September for the respective four preceding months'
billings) . Such administrative and program services and any
franchise fees shall be considered a reasonable cost and
subject to "pass-through" as described in section 8 on Rates.
24. HAZARDOUS WASTE. The parties hereto recognize that federal,
state and local agencies with responsibility for defining
hazardous waste and for regulating the collection, handling or
disposing of such substances are continually providing new
definitions, tests and regulations concerning these
substances. Under this Agreement, it is Contractor's
responsibility to keep current with the regulations on such
substances and to identify such substances and to comply with
all federal, state and local regulations concerning such
substances.
Contractor agrees to provide to County upon its request,
Contractor's program for identifying hazardous waste and
complying with all federal, state and local statutes and
regulations dealing with hazardous waste.
Contractor shall make every reasonable effort to prohibit the
collection and the disposal of hazardous waste in any manner
inconsistent with applicable law.
25. PRELIMINARY DISPUTE RESOLUTION. If Contractor has a
question as to the interpretation of this Agreement, it shall
submit a written request to the Director of Community
Development for a determination of the issue. The Contractor
shall provide and submit such information as the Director of
Community Development may request or require to make the
requested determination. The written determination of the
Director of Community Development on such interpretation, as
with any other determination by the Director, may be appealed
to the Board of Supervisors pursuant to Ordinance Code Chapter
14-4.
26. FAITHFUL PERFORMANCE BOND. Contractor shall submit to
County simultaneously with the execution of this Agreement a
corporate surety bond in the amount of $10, 000, provided
however, that the Board may increase this amount not more
often than every three years to reflect changes in the
Consumer Price Index for All Urban Consumers for the San
Francisco Bay Area. The bond shall be executed by a surety
company licensed to do business in the State of California and
acceptable to County. The bond shall be approved by the
County and shall be payable to County. The condition of the
bond shall be that Contractor will faithfully perform the
A:\FRNCHIS3.AMD 17
0
duties imposed by ordinance, this Agreement and the rules and
regulations of County. Any action by County to proceed
against the Bond shall not limit or affect the right of County
to use other remedies available to County under the agreement
or in courts of law or equity, not withstanding the foregoing.
In lieu of the corporate surety bond, Contractor may provide
to County a letter of credit, cash bond or other security
acceptable to the County Administrator's. Office and in a form
satisfactory to the County.
27. INSURANCE. Contractor shall procure and maintain in full
force and effect at all times during the entire term of this
Agreement the following coverage:
a. Public liability and property damage insurance including
completed operations, products, contractual, broad form
property damage, personal injury and owned and non-owned
automobile liability with such coverages and limits as
may be reasonably requested by County from time to time,
but in no event with limits not less than the sum of $3
million combined single limit for each occurrence arising
from the services as stated in the Agreement herein.
County shall be named as an additional insured under such
liability insurance policy or policies, if commercially
available.
b. Contractor shall carry workers' compensation insurance
for all its employees.
Evidence of liability and workers' compensation insurance
shall be provided by Contractor by filing with County a
certificate of insurance indicating that County is
endorsed as an additional named insured under the
liability policy. All policies shall include a provision
that written notice of cancellation or any material
change in coverage shall be delivered to County thirty
(30) days in advance of the effective date thereof. No
cancellation, alteration or change of beneficiary shall
be made without written notice to County.
County reserves the right to examine all policies from
time to time to ensure appropriate conformity to
prevailing practices and standards of the insurance
industry.
Such insurance shall be obtained from a company or
companies licensed to do business in the State of
California and acceptable to County. Failure of
Contractor to maintain insurance in the manner and amount
stated herein and as directed by County Administrator,
subject to the approval of the Board, will constitute a
material breach of this Agreement.
28. INDEMNIFICATION.
A:\FRNCHIS3.AMD 18
0 0
a. Complete Indemnification of County. All work and
performance covered by this Agreement shall be at the
risk of Contractor.
Contractor agrees to save, indemnify and keep harmless
the County, its officers, employees, agents and assigns
against any and all liability, claims, judgments, or
demands, including demands arising from injuries or
deaths of persons and damage to property, including
environmental damage, arising directly or indirectly out
of the obligations herein undertaken or out of the
operations conducted by Contractor, save and except
claims or litigation arising through the sole negligence
or willful misconduct of County, and will make good to
and reimburse County for any expenditures, including
reasonable attorney's fees, that County may make by
reason of such matters and, if requested by County shall
defend any such suit at the sole cost and expense of
Contractor.
The above promise by Contractor to indemnify, hold
harmless and defend the County expressly includes, but is
not limited to, all claims, damages (including but not
limited to special and consequential damages) , natural
resources damages, punitive damages, injuries, costs,
response, remediation and removal costs, losses, demands,
debts, liens, liabilities, causes of action, suits, legal
administrative proceedings, interest, fines, charges,
penalties and expenses (including but not limited to
attorney's and expert witness fees and costs incurred in
connection with defending against any of the foregoing or
in enforcing this indemnity) of any kind whatsoever paid,
incurred or suffered by, or asserted against, County, its
officers, employees or agents arising from or attributed
to any repair, cleanup or detoxification, or preparation
and implementation of any removal, remedial, response,
closure or other plan (regardless of whether undertaken
due to governmental action) concerning any hazardous
substances or hazardous waste at any place where
municipal solid waste is or has been transported,
transferred, processed, stored, disposed of or otherwise
come to be located by Contractor under Agreement, or the
activities of Contractor pursuant to this Agreement
resulting in a release of hazardous substances or waste
into the environment. The foregoing is intended to
operate in part as an agreement, pursuant to section 107
(e) of the Comprehensive Environmental Response,
Compensation and Liability Act, "CERCLA," 42 U. S.C.
section 9607 (e) , and California Health and Safety Code
section 263641 to defend, protect, hold harmless and
indemnify County. The intent of the section is to
provided County with the highest level of protection
possible under existing and future laws.
A:\FRNCHIS3.AMD 19
b. Defense of Agreement. Should any party successfully
challenge the validity of this Agreement, the procedure
by which this Agreement was entered into or the validity
of any County ordinance which authorizes the County to
enter into this Agreement, then in such case the
Contractor shall have no cause of action for damages or
any other relief against County as a result of such
successful challenge.
Contractor has the right to defend this Agreement and
County. County has no duty to Contractor to defend the
validity of this Agreement or any provision hereof.
29. ATTORNEY'S FEES. In the . event of litigation between the
parties arising hereunder, each party shall be responsible for
and pay its own litigation expenses, including attorney's
fees.
30. ASSIGNABILITY. Contractor shall not sell, assign, subcontract
or transfer this Agreement or any part hereof, or any
obligation hereunder, without the written consent of County.
The term assignment shall include any dissolution, merger,
consolidation or other reorganization of Contractor, which
results in change of control of Contractor, or the sale or
other transfer by probate proceeding or otherwise of a
controlling percentage of Contractor's capital stock to a
person not a shareholder on the date of the execution of this
Agreement. The term "assignment" does not include internal
business reorganizations or formations of new companies by
Contractor, formation of trusts by Contractor or transfers of
any interest of Contractor as a result of death, disability or
estate planning by one or more of the principals of
Contractor, so long as essential management decisions are
retained by Lewis Figone, his spouse, his children, and/or
their spouses.
It is understood and agreed by the parties that corporations
that are 100% owned by Lewis Figone, his spouse, his children,
and/or their spouses may presently and in the future perform
obligations and responsibilities of the Contractor in the
Franchise Area. Performances of obligations and
responsibilities of the Contractor by such companies shall not
be deemed an assignment under this section.
Consent to assignment may not be unreasonably withheld.
However, it is understood that County's grant of his franchise
to Contractor is partly persuaded by the Contractor's
financial strength and background in the field of waste
management. Therefore, assuming Contractor maintains it's
ability to faithfully carry out its duties hereunder, it is in
the County's ratepayers best interest for Contractor to
continue under this Agreement.
A:\FRNCHIS3.AMD 20
Following a public hearing, County may assign or transfer any
or all of its rights under this Agreement without the consent
of Contractor to any legally authorized public entity. In the
event Contractor herein attempts to assign or subcontract this
Agreement or any part hereof or any obligations hereunder in
a manner inconsistent with the foregoing, County shall have
the right to elect to terminate this Agreement forthwith,
without suit or other proceeding:
31. INVOLUNTARY ASSIGNMENT. No interest of Contractor in this
Agreement shall be assignable by operation of law. Each or
any of the following acts shall be considered an involuntary
assignment providing County with the right to elect to
terminate the Agreement forthwith, without suit or other
proceedings:
(1) If Contractor is or becomes insolvent, or makes an
assignment for the benefit of creditors;
(2) If writ of attachment or execution is levied on
this Agreement or other property of Contractor such
that would affect Contractor's ability to perform
its duties and obligations under this Agreement.
(3) If in any proceeding to which Contractor is a
party, a receiver is appointed with authority to
take possession of Contractor's property such that
would affect Contractor's ability to perform its
duties and obligations under this Agreement.
(4) Except as otherwise provided in section 31
(Assignability) , in the event of a probate
proceeding where the rights of Contractor under the
Agreement would pass to another individual or other
individuals.
32. NOTICE PROVISIONS. Any notice required or permitted under
this Agreement shall be in writing and shall be deemed to have
been given if delivered personally or ten (10) days after
posted by certified mail, return receipt requested, addressed
as appropriate either to Contractor:
Bay View Refuse and Recycling Services, Inc.
Attn: Lewis Figone
P.O. Box 277
El Cerrito, CA 94530
Or to County:
Attention: Director of Community Development
651 Pine Street, 4th Floor, North Wing
Martinez, CA 94553
A:\FRNCHIS3.AMD 21
33. ANNEXATION AND CHANGE OF FRANCHISE AREA BOUNDARIES.
Contractor shall give notice to County by January 30 of the
next calendar year of any geographic area in the Franchise
Area or immediately contiguous to the Franchise Area, in which
Contractor has commenced service within the preceding year,
notwithstanding whether Contractor deems that area to be
regulated or unregulated.
Contractor realizes that the public agency boundaries may be
altered by virtue of actions taken by the Contra Costa County
Local Agency Formation Commission (LAFCO) . Contractor agrees
that should a municipal corporation lawfully annex territory
which is within the Franchise Area, County may make such
alterations to the Franchise Area as the annexation
necessitates. Should the Franchise Area boundaries be
amended, Contractor agrees that it will abide by any change
resulting from the Franchise Area change. Contractor agrees
that the Board of Supervisors may make such alterations to the
Franchise Area as are necessitated by such Local Agency
Formation Commission actions and shall have no right or claim
to damages or other relief against the County for such
alterations to the Franchise Area. However, nothing herein is
intended to abrogate Contractor's rights under Public
Resources Code Section 49520 or any successor or similar
statute.
34. AFFILIATED ENTITIES. Contractor shall provide information
necessary to reasonably satisfy County that the charges made
by any Affiliated Entity are reasonable in accordance with the
provisions of section 8 (Contractor's Duty to Maintain
Records; County's Right to Examine Records) . Information
gained from examination of books and records pertaining to
operations not regulated by the County shall be treated by the
County and its Agents as confidential information.
"Affiliated Entity" shall be defined, for purposes of this
section, as any entity which provides products or services to
Contractor and in which either Contractor or the affiliated
entity owns a ten percent (10%) or greater interest in the
other, or where one person or entity owns ten percent (10%) or
greater interest in both. For purposes of this section, the
term "Contractor" shall include Contractor, and if Contractor
is an individual or a group of individuals (partnership) , all
immediate family members, or if a corporation, major
shareholders, and if any major shareholder is an individual,
said individuals immediate family members. For the purpose of
this paragraph, "immediate family" includes spouses and
relatives of the first degree of sanguinity, and their
spouses.
35. BREACH AND TERMINATION. The Director of Community Development
shall have authority, subject to review by the Board of
Supervisors upon appeal, to determine whether a breach of any
A:\FRNCHIS3.AMD 22
i
provision of this Agreement by Contractor has occurred. Any
waiver of a breach shall not be deemed to be a waiver of any
subsequent breach or to be construed as approval of a course
of conduct. In the event that the Director determines that a
breach has occurred, County shall give Contractor written
notice of the breach setting forth the breach or default.
Contractor shall have a reasonable period to cure the noticed
breach, said period not to exceed 60 days. In the event the
breach or default is cured to the satisfaction of the Director
of Community Development within the period of time allotted,
the breach shall not be deemed a material breach. In the
event that the Director of Community Development determines
that Contractor has failed to satisfactorily cure the breach
or default within the period of time allotted, the Director of
Community Development may determine such breach or default to
be material.
Multiple or repeated breaches, or a pattern of breaches and
subsequent attempts to cure said breaches by Contractor shall
provide an adequate basis for the Director of Community
Development, in his discretion, to declare any subsequent
breach to be material, notwithstanding whether that breach is
ultimately cured by Contractor.
If such a determination of material breach is made, the
Director of Community Development's determination shall be
automatically appealed to the Board of Supervisors for final
action.
A material breach shall be cause for termination of this
Agreement by the Board of Supervisors.
In the event of a termination pursuant to this section, County
shall have the right to temporarily assume the obligations of
Contractor and shall have the right to forthwith take
possession of all trucks and other equipment of Contractor and
exercise Contractor' s right to enter and use any disposal
facilities for the purpose of performing the services agreed
to be performed by Contractor herein until such time as County
can make other arrangements for the performance of said
services. However, such temporary assumption of Contractor's
obligations under the Agreement shall not be continued by
County for a period exceeding twelve (12) months from the date_
such operations are undertaken by County.
During any period in which County has temporarily assumed the
obligations of Contractor under this Agreement, County shall
be entitled to the gross revenue attributable to operations
during such period and shall pay therefrom only those costs
and expenses applicable or allocable to said period, including
the reasonable rental value of the trucks and equipment to be
paid to Contractor. County shall be entitled to the excess,
if any, of revenue over applicable or allowable costs and
A:\FRNCHIS3.AMD 23
0 . 0
expenses during of such period. The loss, if any, during such
period shall be a charge against Contractor, and shall be paid
to County by Contractor on demand. Final adjustment and
allocation of gross revenue, costs, and expenses to the period
during which County temporarily assumed the obligations of
Contractor shall be determined by an audit by a Certified
Public Accountant and prepared in report form with his
unqualified opinion attached thereto.
Nothing in this Agreement shall prevent County during any
period in which County temporarily assumes the obligations of
Contractor under this Agreement, from employing persons who
were employed by the Contractor for the collection of Solid
Waste under this Agreement.
Upon the occurrence of a material breach and the declaration
of such and termination of this Agreement by the Board of
Supervisors, this Agreement and the franchise granted
thereunder shall be of no further force and effect, excepting
these provisions concerning County's right to temporarily
assume Contractor's obligations and to use Contractors
facilities, and section 28 (Indemnification) . County then
shall be free to enter into whatever other arrangements are
deemed justified and necessary for the collection, removal and
disposal of Solid Waste within the Franchise Area.
36. EMERGENCY. Notwithstanding Contractor's exclusive
franchise rights set forth in section 5 (Exclusive Privilege
and Duty) , in the event of an emergency due to natural
disaster or labor strike which interrupts the collection of
Solid Waste by Contractor, the Board of Supervisors shall have
the right to declare a temporary suspension of this Agreement
for the reasonable duration of the emergency and until such
time as County determines that Contractor is able to reassume
all obligations under this Agreement. Should Contractor fail
to demonstrate to the satisfaction of the Board of Supervisors
that required services can be resumed by Contractor prior to
the expiration of a six (6) month period, this Agreement may
be terminated at the direction of the Board.
37. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. Contractor
shall be responsible for and shall comply with all applicable
laws, rules, and regulations that are now in effect or may be
promulgated or amended from time to time by the Government of
the United States, the State of California, the County and any
other agency now authorized or which may be authorized in the
future to regulate the services to be performed herein
regarding the collection, removal and disposal of Solid Waste
and recycling of material. This includes County Ordinance
Code Chapter 418-6 (on mandatory subscription to Solid Waste
collection service) , and the County's Materials Diversion
Ordinance.
A:\1FRNCHIS3.AMD 24
38. AMENDMENT OR MODIFICATION. This Agreement may be amended or
modified upon written agreement of the parties hereto. The
parties agree to meet and confer in good faith if amendments
or modifications are proposed.
39. POLICE POWERS. Nothing in this Agreement is intended to or may
limit County authority pursuant to its police power.
40. CONTEST OF AGREEMENT'S TERMS. In the event either party to
this Agreement attempts to challenge the validity of any
portion of this Agreement, such action in attempting to
challenge the Agreement shall constitute a material breach of
this Agreement and the non-breaching party shall have the
right to elect to terminate this Agreement forthwith without
suit of other proceeding.
This section shall not be construed to prevent either party
from seeking redress from the courts for the purpose of legal
review of administrative proceedings regarding rate setting or
County actions taken pursuant to this Agreement, or for the
purpose of interpreting or enforcing the provisions contained
in this Agreement.
41. SEVERABILITY. In the event legal action is brought by a
person or entity, other than the parties to this Agreement, to
challenge, invalidate, contest or set aside any of the
provisions of this Agreement, each and every term and
condition, and each and every section and paragraph is
severable from the remaining terms, conditions, sections, and
paragraphs. The invalidation of any term, condition, section
or paragraph as a result of a legal action, brought by a
person or entity not a party to this Agreement shall not
affect the validity or enforceability of the remaining
provisions. However, if material provisions hereof are
affected, the parties agree to negotiate in good faith to
reach agreement on revisions which preserve the substance
hereof to the greatest extent allowed by law.
42. WAIVER. The waiver by either party of any breach or
violation of any provisions of this Agreement shall not be
deemed to be a waiver of any breach or violation of any other
provision nor of any subsequent breach or violation of the
same or any other provision. The acceptance of any monies
which become due hereunder shall not be deemed to be a waiver
of any pre-existing or concurrent breach or violation by the
other party of any provision of this Agreement.
43. SURVIVAL OF OBLIGATIONS. Obligations of this Agreement which
embody continuing obligations, including but not limited to
section 28 (indemnification) shall survive the termination or
expiration of this Agreement.
44 . NEW AGREEMENT."Contractor acknowledges that County has
A:\FRNCHIS3.AMD 25
provided notice to Contractor pursuant to Public Resource Code
section 49520. Pursuant to said notice and Chapter 418-7 or
the County Ordinance Code, effective no later than August 7,
1996, Con-tractor's Franchise. Agreement with the Kensington
Community Services District is terminated and of no force or
effect."
45. ENTIRE AGREEMENT. This Agreement represents the full and
entire agreement between the parties hereto with respect to
the matters covered herein.
46. OPERATIVE DATE. This Agreement becomes operative on the
effective date in section 1 (Effective Date, Parties) .
COUNTY OF CONTRA COSTA
CHAIR, BOARD OF SUPERVISORS Date
ATTEST, Phil Batchelor,
Clerk of the Board
and County Administrator
By:
DEPUTY
CONTRACTOR
BAY VIEW REFUSE AND RECYCLING SERVICES, INC.
a California Corporation
By: LEWIS FIGONE Date
PRESIDENT
Taxpayer I.D. No.
A:\FRNCHIS3.AMD 26
EXHIBIT A
RECYCLING SERVICES TO BE PROVIDED BY BAYVIEW
The work to be done by Bayview shall include the
furnishing of all labor, supervision, equipment, materials,
supplies, and all other items necessary to perform the services
required.
1. Materials to be Collected for Recycling ("Recyclable
Materials")
Bayview shall collect the following materials:
a. Glass containers, including bottles and jars;
b. Aluminum cans, aluminum foil, "flattened" tin
cans and "flattened" plastic polyethalene
terapthalate ("PET") containers; and
C. Newspapers.
EXHIBIT A, Page 1
2. Sorting and Delivery for Collection
The Recyclable Materials must be sorted by residents and
placed at the curbside. Materials must be placed in appropriate
containers to be provided by Bayview, except for newspapers,
which may be tied in bundles no more than nine (9) inches high.
3 . Locations From Which the Recyclable Materials Will be
Collected
Bayview will provide curbside collection of Recyclable
Materials from all single-family residences and all multiple unit
residential dwellings of up to and including four units within
the District.
4. Collection Schedule
Bayview shall collect Recyclable Materials from each
dwelling unit once each week on a Monday through Friday schedule,
on the same day that refuse is collected from that dwelling unit
for disposal. Recyclable Materials must be placed at the '
curbside by 5:00 a.m. of the day for which service has been
designated for that particular dwelling, in order for Bayview to
make the collection for that week.
EXHIBIT A, Page 2
5. Hours of Collection
Collection of Recyclable Materials may not begin earlier
than regular refuse collection (currently 6:00 a.m. ) nor continue
later than 6:00 p.m.
6. Containers
Bayview shall provide, without cost or charge, each single-
family residence and each dwelling unit in multiple-unit
residential buildings of up to and including four units, . three
containers per household for materials storage. The containers
must be labeled to indicate that they are for the curbside
recycling program.
Bayview shall replace any damaged or lost containers at
cost.
7. Disposition of Recyclable Material
Recyclable Materials collected by Bayview shall be sold or
otherwise conveyed to legitimate recycling facilities. The
Recyclable Materials shall not be disposed of through
incineration nor deposited at a landfill.
EXHIBIT A, Page 3
• 18. Promotion
Prior to delivery of the containers to the eligible
dwellings, Bayview shall mail to each household, promotional
information pertaining to the curbside recycling program.
Bayview shall allow District to review such material prior to
mailing and shall make any changes reasonably requested by
District. Bayview shall distribute written promotional material
two- times per year as necessary to maintain participation in the
program and more frequently, if agreed to by both parties.
9. Standards of Performance
The work to be done by Bayview shall be accomplished in a
thorough and workmanlike manner so that the residents of the
District are provided reliable, courteous and high-quality
recycling service.
Bayview shall provide the services in compliance withithe
following standards:
r
EXHIBIT A, Page 4
• A. Customer Complaints. Bayview shall maintain a
telephone and message line to receive and respond to calls by
District residents. The phone number will be posted on all
containers provided the customers by Bayview, and on all
promotional literature distributed by Bayview. Bayview shall be
responsible for the prompt and courteous attention to, and prompt
and reasonable resolution of, all customer complaints relating to
service.
B. Employee Conduct and Courtesy. Bayview shall use its
best efforts to assure that all employees present a neat
appearance and conduct themselves in a courteous manner. Bayview
shall train its employees in customer courtesy, shall prohibit
the use of loud or profane language, and shall instruct
collection crews to perform the work as quietly as possible.
C. Safety Training. Bayview shall provide suitable
operational and safety training for all of its employees who
operate vehicles or equipment for collection of recyclable ,
materials or who are otherwise directly involved in such
collection.
D. Equipment Cleanliness, Maintenance, and Repair.
Bayview shall maintain all of its vehicles and other equipment
used in providing service under this Contract in a safe, neat,
clean and operable condition at all times. Vehicles used in the
EXHIBIT A, Page 5
collection of Recyclable Materials shall be thorcughly washed at
least once every week. District may inspect vehicles at any time
to determine compliance with sanitation requirements.
Bayview shall (i) inspect each vehicle regularly to
insure that all equipment is operating properly; and (ii) perform
all scheduled maintenance functions in accordance with the
manufacturer's specifications and schedule.
E. Noise. All collection of recyclable materials shall be
conducted as quietly as possible and vehicles and equipment used
shall conform to federal, state or county noise level
regulations.
F. Litter Abatement. Bayview shall use due care to
prevent Recyclable Materials from being spilled or scattered
during the collection or transportation process. If any material
is spilled, Bayview shall promptly clean up all spilled
materials. Each collection vehicle shall carry a broom and
shovel at all times for this purpose.
Bayview shall clean up litter in the immediate vicinity
of any Recyclable Materials areas where collection bins are
placed for collection. Bayview shall discuss instances of
repeated spillage not caused by it directly with the District
resident responsible and will report such instances to the
EXHIBIT A, Page 6
District. The District will attempt to rectify such situations
with the District resident if Bayview has already attempted to do
so without success.
G. Missed Pick-ups. District residents may report missed
pick-ups by calling the phone number provided by Bayview.
Bayview will return and make all missed pick-ups no later than
the following working day.
10. Reports
Bayview shall provide the District with periodic reports on
the recycling program which shall include:
(a) Participation level (i.e. , the number of residences
participating in the recycling program) based on one sample week
during each calendar quarter.
(b) Quantity of materials collected, in tons, by typd of
material (e.g. , newspaper, glass, plastic and metal) , by calendar
quarter.
(c) Revenues received by Bayview for each type of material
and total revenues received, by calendar quarter.
EXHIBIT A, Page 7
r
Reports shall be provided quarterly and annually. The
quarterly reports shall be due by the 15th of the month following
the close of the quarter and shall cover the preceding three
months. For example, the first quarterly report shall be due
April 15, 1991 and shall cover January, February and March, 1991.
The first annual report shall be due by March 15 of 1992, and
shall cover the preceding calendar year.
EXHIBIT A, Page 8
ted April 22, !996
Exhibit B
MONTHLY MAXIMUM RESIDENTIAL AND COMMERCIAL RATES IN KENSINGTON
• Residential Rates:
30 gallon cans Monthly Fee
1 can once a week $16.25
2 cans once a week $27.50
3 cans once a week $39.00
4 cans once a week $50.00
5 cans once a week $61. 30
40 gallon cans Monthly Fee
1 can once a week $36.60
45 gallon cans Monthly Fee
1 can once a week $39.75
• Commercial Rates:
30 gallon can once a week $15.50
Material other than can use (bulk rate)
Dry $16.50/cubic yard
Wet $17.00/cubic yard
• These rates represent the current rates in Kensington. tessubect;
,,..: _. _
�n �ad3 n whence mini can. ._.. nd higher„ tjpZe Ef gra s aze
�r�pZemerited�by the County��,wi�th the Zntent thattotaZ revenue c5Zlected
S.main -aPProx�mat,�ly the�same
$NSINGTON SERVICE INFORMATION
• Yearly 4 month billing cycles: bills sent our in January, May and
September for next 4 months service beginning with billing month.
• Designated month to file standard applications for rate changes: June.
Earliest rate review request by Bay View would be June, 1997. Any
such approved rate request may take effect in September. Matte
�eaxl�lo�ationamongjcustomer�s� may occ�rearlie`r w%th new mini can rate'
«xa x<Y'::.c..c..,��..w'w.3�..»vt .......:5:�' ,.» anH �.ac..:dHSlarvmr»,.g.� 3C,4'^�.u�1„, .,.�... '"q��” ,.W.«,.:..� ^`" esti,y s�nsA..',w�d )a....��...�' ",•K+�=��a,.;,..
rvd�hgher�multiplecan rates:
• Containers: residential and commercial customers provide their own
cans for the weekly solid waste collection service. 3 five-gallon
buckets provided by Bay View for weekly recycling service (customers
charged at cost for any replacement buckets) . ME=ecyclri ncr�eass
i �r i11 pro a addi t anal buckets, ba e.ra a*2ablemmater� ¢a sarsmas
. -
l�l�a�rsz��{a}� alum�num=��cans �t�b}glass canta�.ners �`{c} newspr�int {d,}
�1✓.��u'a `.s-uaa� vt� -�+.ai.+�.•+w7§�iSr r -ma..r..a.S...�� 3s�a.>a�.:9 w,�`k .0 * .,a'r. C+ sx�£.� € r� ik°..,s.
pETatt�:es;' {e}� "C1ear��HDPE� i�otties, �{�f�`); col�"Ored«�HDPEatt}lE:s�i� {�g}
teel�and�4tin �plated�cans,' ?{h} °cardboard, `{�I�}�polystyrene,l {��}�p2astie
�?�.-� {k} � ardwastend� {�1},��papera�{�n�ludes$,maaz�nes�) ..
fal icku s /e oldrefrigeratgrs:}� ,ybe scheduled :or�a
aratecharge
fit, buntdirectiYon; sayviewwizl;provides notice of =sch cul wick
�ps" by� sBay� Yiew' of� reusable materials k,{e.g�.�, ald clothes,�xtoys) n
tnw�.th'�=or anizat�.ons�like Good Wi11r ,Industries.
! Pick up locations: backyard weekly service for cans; frontyard weekly
recycling service.
e Green waste pick ups effective January 1, 1997: frontyard scheduled
green waste pick ups; 3 pick ups annually on customer's regular
garbage
days, �each piocrk� turpa--s€-herc-Qo-n-yta-axnerItsn ;yard,4
lsticmi�tgs_bundled,ed, tied
m bo �
or l
c,
• General pick up effective January 1, 1997: 1 frontyard on call pick up
+ garbage day; 2 yards bundled, tied or
annually on customer s regular g green waste , up to eight such on
bagged of general waste (n g Le
call pick ups per day in the Franchise Area scheduled
n ral pi k call
basis. [Mary, if you prefer, one week for g P
scheduled for entire area; County can select the week. Let me know
which you prefer. ]
• In 1996 there will be one general pick up in November,
FACLMLAi2812 71KATE.DOC
0 0
Not less than once every three years and not less than six
months prior to an application for contract renewal,
assignment or extension of term, Contractor shall conduct a
representative survey or surveys of Customers within the
Franchise Area to determine satisfaction with service,
including, without limitation, response to customer
complaints. The survey methodology, format and content shall
be subject to the prior review and approval of the Director of
Community Development. A copy of the survey results shall be
sent to the County within sixty (60) days of completion of the
survey. Nothing in this paragraph shall limit the right of
the County to conduct additional surveys. The Contractor
shall cooperate with the County in such cases.
Upon initiation of service, and at least once a year,
Contractor shall send or deliver to Customers information
concerning the conditions of service, including, but not
limited to, rates, fees, charges, service options, payment
options, discounts (if any) , days of collections, the amount
and manner of refuse to be collected, service level and
inquiry/complaint procedures, including the name, address and
local telephone number of Contractor and the name, address and
telephone number of the County Community Development
Department. The form and content shall be subject to the
review and approval of the Director of Community Development.
14. DELEGATION TO LOCAL SOLID WASTE AUTHORITY The Board of
S,uperv�sars shall establish a Local Solid Waste Authority for
thepurposeof assisting;. in the administration of the
Franchise Agreement, revaewing and setting rates according to
the approved County Rate Setting Methodology, assuring that
the requirements of the Caunty ordinance regarding Recycling
Requirements for Landfill Disposal are met, fulfill the
..
program develipment requirements, as outlined in the State
approved SRRE, as indicated below, provide for HHW program or
funding as needed;; collect detailed information from : the
h"aider regarding the amount of solid :waste disposed xn a
landfall and a breakdown of the amount and types of materials
_.
recycled" at curbside within ,the L S" ,W.A ,,boundary„”
a.; UTILI�ECOIINTY RATE SETTING METHODOLOGY The
county shall set the in>tia] rate for solid
waste and recycling pickup. Future rate
modifications shall be set by the Local Solid
Waste Authority using the, ":,, methodology
estab7.�.shed„ by_the County«.;
b UTILIZE DIVERSION CRITERIA The Local Solid
Waste Authority shall be responsible for
develvpYng with the County conservation staff,:
programs as inch Gated""" n "the County SRRE to
A:\FRNCHIS3.AMD 10
• i
assure that the' State mandated diversion of
50�- i�.s accompla.shed by the year 2000. Due to
the difficulty in determining the exact amount
of waste generated by the sub�ectarea in 1990
and the current difficulties in trackYng„ all
waste coming from the area due to self hauling
and special ::non franchised __,loads, : the
Authority shall implement source reductYoi and
recycling programs �.n a timely ;manner on a
`schedule that reflects that of the ma�orxty of
the County population including the C�.t�.es; and
w.
RegzonaZv Agencies_within the„County_.
2.' MATERIALS TO BE RECYCLED The following
materials shall. be 'recycled as,,,required
bycourity ordinance,
aj alum�.ntimt cans
b) glass containers
c} newsprint
d)- PET bottles
e) clear HDPE bottles
f� colored. HDPE bottles
gj' steel and tYn plated cans
h) cardboard
z) polystyrene--
�j, pla`st�.c film
k) yardwaste
1) mixed„,paper
3 METHOD OF RECYCLING: (CURBSIbEJ
TRANSFER STATIONJETC) The Authority
shall determYne, with ' the hauler,
the most cost effective method of
accomplishing.. the :: required
recycl�.ng, Possible, methods to
consider are,
aj' pYcking up at curbside different
materials on dffeentdays,
b} allow for mixed. curbside pa.ckup
to be sorted at a ransfer- station
or central sorttngarea or,
c) designated containers for each
material a to be_picked up kat„__,curbside
_� FRANCHISE FEES:
ay 2� to COUNTY For managing and administering
the: Franchise agreement with; the; hauler; for
coordination w: ,th the Local -- Solid Waste.
Authority, for '`Ttrackng anc reporting ......athe
A:\FRNCHIS3.AMD 11
state an compliance wArth AB9'39 requirements,
for developing and coordinating unincorporated
county area and countywde. _source reduction
and recyc��.ng„ progr„ams
b) IIP -TO 2� TO ;LOCAL 84LID WASTE AIITHORITY Fol
managing day to day concerns of the Hauler and
l ur customers;; for us�,ng ::the County Rate
setting,: Methodology to set new rates_: as
needed; for assuring compliance with the HHWE
for: assisting in the development and
for
publicity
of SRRE pxogramsn the ]oval area,
coordination with the haulier re. detailed
reportrlguforuthe Local__Sol�d Waste,Authority
a) 1 TO TRUST For development of 'rate setting
methodology and for any future modifications;
for the< development,.; of , Countywide„„programs,,;;
other
X HOUSEHOLD HAZARDOUS WASTE: METHOD► OF ::DEALING WITH
HHW REQIIIREMENTS Tn order to meet State:
requirements` eachjcity and county is; required to
provide .,; Household Hazardous Waste disposal for
their residents. The County mobile HHW picogram is
currently providYng for a mobile drop off service
that isfinanced in various ways throughout the
county, The Local „Solid Waste Authority shall
determine the method t”"payment for the Kensington
area
APPEAL RIGHTSt (HAIILER CAN APPEAL LOCAL SOLID WASTE
AIITHORITY DECISIONS TO COUNTY) If the hauler is
dissatisfied with ,a ;decision:: of the::: Local Solid
Waste Authority it can appea] the decrision to the
Board of Supervisors The issue would be brought
to :.: the ': Ad Hoc So11.c1 'Waste - Committee far
recommenclat ,on, to the, cul]. „Board..;
�� AB939IMPLEMENTATION AND TRACKING
A., DATA COLLECTION
1j- REPORTS FROM HAULER TO LOCAL ENTITY AND COUNTY
REGARDING SOLID WASTE DISPOSED AND MATERIALS
RECYCLED The Local $olid Waste Authority shall be
responsible for obtaining reports„ from the hauler
that provide a breakdown by material/ tonnage:: and
sales price of all 9etil recycled and of the
amount of waste disposed and at what lovatxon,
Such report information„ shalx be forwarded to the
county in the required format; for `compilat�on a,nto
the,Countywide, recording system ;
A:\FRNCHIS3.AMD 12
2) COUNTYWIDE COLLECTION OF' BATA AND REPORTING- =TO
STATE ::The County shall. be :responsible for thee
collection and cansolxdatxan of all disposal and
recycling informatio» for the unincorporated county
and : for coliectlon :and reporting to " each county
�ursdictxon` of elisposal informat on, and far y the
AB93,9„reporta.»g___to„the State
S,, PROGRAM,.DEVELOPMENT
.�; COUNTY INITIATIVE The Cou»ty will be respons�.ble
for setting up programs in all parts of the county
to meet the requirements of the state approved
SRRE. 3 As part of that responsiblity the County
will' provide Source Reduction' and Recyc] ing
programs to individual communities An example is
compost ;workshops. The County will also protide
coordination to provide ;forvar�able can rates,
minx can rates, source reduction programs die: Shop
Smart) , Commercial recycling programs, collection
programs for reusable items, develZpI51515zfull scale
recycling programs for both single family and
multifamily _ residential and commerc>al
developments:-
2) LOCAL INIT�A'1"IVE The Local Solid Waste Authority
will provide local publicity and generate 1oca1
interesti
xn sold waste and. recycling programs,r
provde locations for activities such as compost
workshops, determine any; special needs that the
community may haus in :regards to solid waste pickup
. services:, either garbage or recycling, work with
county s aff to develop reduce, reuse and recycle
progam
rs that will be effective in the Kensington
community The Local Solid Waste Authority, using
the methodology approved by the county, wil review
any : rate change requests `and . transmit their
decision on the request to the county= They will
determine the preferred method of paying fori
Household Hazardous Waste services and maintan
records of amounts,, of SoYd Wa_ste, 'and recyclables
3,� EXISTING:: RECYCLING REQUIREMENTS The prior
Franchise Agreement withthe Kensington Community.
Services District, fourth amendment, effective
9/11/90, contained Exhibit A "Recycling Service Td
Be Provided By Bayview” In order to maintain
continuity of services, the requirements of said
exhbitshall continue to apply, The exception
W,
ill be where this agreement provides for more
strnge»t reguireme»ts,
A:\FRNCHIS3.AMD 13
15. CUSTOMER COMPLAINTS. Contractor shall develop and implement
policy and procedure for responding to and recording Customer
complaints, including dispute resolution. The policy and
procedure shall be subject to the approval of the Director of
Community Development.
16. BILLING. The form and content of customer bills shall be
subject to the review and approval of the Director of
Community Development.
Bills for services will be sent three times per year for every
four months (September, January, May) , unless otherwise
determined by the County. The County may establish billing
period options for Customers upon a finding that such options
are cost-effective and meet a community need.
Full payment for drop boxes may be required by Contractor
prior to delivery of the drop box to the Customer.
The County shall have the right to direct the Contractor to
change or alter its billing system in which event the marginal
additional expenses incurred by the Contractor in the
implementation of the change, with regard to the accounting,
printing, mailing, loss of use of funds, or otherwise, shall
be recoverable by the Contractor through the rates allowed by
the County provided such expenses are reasonable. Contractor
shall inform Customers of all rate changes at least 30 days
prior to their effective date. A copy or facsimile of such
notice shall be provided to County at the time of Customer
notification.
17. RECYCLING. County grants to Contractor the right and
obligation to operate recycling programs, including curbside
pickup of recyclable materials, as determined and designated
by County, subject to County's right to terminate this grant
to Contractor pursuant to the provisions of this section.
Contractor has already instituted and implemented a recycling
program including regular curbside pickup in. five-gallon
buckets at all single family residences of at least aluminum,
tin, newsprint, glass bottles, non-colored HDPE and PET, as
more fully set forth in Exhibit B. The current program will
be supplemented by cardboard, mixed paper and other
collections with the implementation of this Agreement, so that
items listed in County Ordinance Section 418-10. 604, as it may
be amended time to time, are collected. Contractor will
provide additional five-gallon buckets if necessary. Separate
greenwaste pickups will be added effective January 1997. The
County has the right at any time to modify said program or-
require new programs as provided at section 12 .b hereinabove.
At the written request of contractor, the Community
Development Director may delete a material from recycling if
A:\FRNCHIS3.AMD 14
the Director determines that there is no market to accept the
material (See Article 418. 10.8 for exemptions and findings) .
Contractor shall maintain and provide to the County, records
relating to its recycling programs as directed by the Director
of Community Development.
Contractor's provision of recycling service shall be reviewed
in approximately one year and thereafter within three (3)
years of the effective date of this Agreement and, at County's
discretion, every five years thereafter. If County determines
that continuation of such service by Contractor is not
consistent with the County's ratepayers best interest, but not
as a result of Contractor's failure to satisfactorily provide
recycling services, Contractor shall be allowed to recoup its
unamortized capital expenditures as follows. Contractor shall
make a good faith effort to sell all disposable assets
acquired in furtherance of the program for their fair market
value. If income derived from the sale is insufficient to
cover the unamortized costs of such assets, Contractor may
transfer those losses together with net operations profits or
losses to its general account and submit a rate application to
cover such losses.
If County determines that Contractor has failed to
satisfactorily provide and perform recycling services, County
may terminate this grant to Contractor of the right and
obligation to provide and operate recycling programs, at no
cost or further obligation on the part of the County or
County's ratepayers.
18. FREE SERVICE FOR COUNTY. Contractor shall provide Solid Waste
collection and disposal services at those County buildings
designated by the Director of Community Development from time
to time, at no charge to the County.
19. FRANCHISE AREA-WIDE COLLECTION. Unless otherwise determined
by the Community Development Director, in addition to its
regular collections, commencing in January, 1997, Contractor
shall provide three scheduled green waste curbside pickups and
one on call curbside general pickup (two yards, bundled, tied
or placed in boxes or trash containers (no plastic bags) ) .
Said collections shall be made each year throughout the term
of this Agreement in accordance with practices and procedures
established by Contractor and subject to the approval of the
Community Development Director. If the Community Development
Director determines that one more green waste pickup is
desirable, then Contractor shall provide it at no additional
cost until the next rate review. The increased cost of the
pickups and any changes in the recycling program may be
considered as part of the next rate review. Customers shall
be timely notified on the dates of the scheduled green waste
pickups.
A:\FRNCHIS3.AMD 15
! i
20. PARTICIPATION IN COMMUNITY CLEAN-UP PROJECTS. Contractor
shall provide, upon direction of the Community Development
Director, Solid Waste drop boxes or equivalent containers for
community or other clean-up projects within the Franchise
Area. The Contractor's obligation shall be limited to the
equivalent of ten (10) 20-cubic yards drop boxes per year in
the Franchise Area.
21. DISPOSAL AND WASTE STREAM CONTROL. Contractor shall be solely
responsible for the disposal of the Solid Waste collected
pursuant to this Agreement. County has complete authority and
control over the Franchise Area waste stream. County may, at
its sole discretion upon providing 60 days notice to
Contractor, direct the Solid Waste collected under this
Agreement to be delivered to any site or facility of its
choosing. This shall include the right of the County to
direct the Solid Waste to be delivered to any County
designated transfer station, disposal site, transformation
facility and/or resource recovery facility. It is understood
that County may contract with any party, public or private, to
commit the waste stream from the Franchise Area, and that
Contractor's contracts may not bind County, nor need County
consider such other contracts for any purpose.
Notwithstanding the above, Contractor may propose, and County
may but need not consider, waste management and/or disposition
alternatives which are cost effective. In determining or
comparing costs, County shall consider all relevant factors,
including but not limited to, transportation costs, closure
and postclosure requirements, costs and liabilities, disposal
fees, fees levied by governmental entities, including benefits
to Contractor's customers from paying such fees, costs of
compliance with ordinances and other local requirements, and
long-term costs, including degree of control over future
costs.
22. MISCELLANEOUS OBLIGATIONS OF CONTRACTOR. Contractor shall
assist County in its enforcement of its mandatory subscription
ordinance by providing County with the addresses of properties
not subscribing to collection service within the Franchise
Area and by providing collection service to such properties
upon written request by the County.
23. ADMINISTRATIVE SERVICES AND FRANCHISE FEES. Contractor shall
pay to the County for (a) the services provided by the County
in administering this Agreement, (b) for services and programs
pertaining to Solid Waste provided by the County, and (c)
additionally as directed by the County, a percentage of its
gross annual revenues generated from the performance of such
waste collection services under this Agreement. Unless
otherwise subsequently determined by the County, the total
amount for such administration services and franchise fees
A:\FRNCHIS3.AMD 16
Draft dated June 18, 1996
Option 4/ MOU
MEMORANDUM OF UNDERSTANDING WITH
KENSINGTON COMMUNITY SERVICES DISTRICT
DRAFT OPTION # 4
CONTRA COSTA COUNTY
A\kensingto.mou
This Page Left
Intentionally Blank
A
0 •
MEMORANDUM OF UNDERSTANDING BETWEEN
THE KENSINGTON COMMUNITY SERVICES DISTRICT
AND THE COUNTY OF CONTRA COSTA
FOR MEETING THE REQUIREMENTS OF THE
CALIFORNIA INTEGRATED WASTE MANAGEMENT ACT OF 1989
This Memorandum of Understanding ("MOU") is made and entered into between the Kensington
Community Services District, a public agency formed pursuant to California Government Code
Sections 61000, et seq. (Hereinafter"DISTRICT") and the County of Contra Costa, a general
law county, (hereinafter"COUNTY") and shall be effective on the date of its execution by both
parties.
RECITALS
This MOU is entered into in consideration of the following matters:
A. The COUNTY Board of Supervisors and the DISTRICT Board of Directors
represent, within their respective boundaries, the residents in the unincorporated area of the
COUNTY.
B. DISTRICT is a community services district providing solid waste management,
resource recovery and disposal services to the public, as well as businesses, within the
unincorporated area of Contra Costa County known as Kensington.
C. The California Legislature has enacted the California Integrated Solid Waste
Management Act of 1989, Chapter 1095, Statutes of 1989 (hereinafter"the ACT"). Additional
amendments to the ACT have been adopted or will be adopted in the future. The ACT is codified
in the California Public Resources Code, Sections 40000, et seq.
D. The ACT requires that the COUNTY prepare and adopt a Source Reduction and
Recycling Element (hereinafter"SRRE") and a Household Hazardous Waste Element )hereinafter
"HHWE") for the unincorporated areas of the COUNTY. The ACT further mandates the
diversion of twenty-five percent (25%) of identified solid waste from land disposal by January 1,
1995 and the diversion of fifty percent (50%) of said solid waste by January 1, 2000. The
COUNTY is also designated within the ACT as the responsible agency for meeting these waste
reduction goals for the unincorporated areas of the county.
E. The ACT specifically enables a city or county to enter into a memorandum of
understanding with another city, county, regional planning agency, agency formed under a joint
exercise of powers agreement, or district established to manage solid waste, for the purpose of
preparing and implementing the SRREs and the HHWEs, or a Countywide Integrated Waste
Management Plan. (Public Resources Code Sec 41823.) Moreover, the COUNTY and the
DISTRICT have general or other statutory powers to contract and enter into agreements for
performing solid waste activities in a joint or cooperative manner.
• 0
F. The COUNTY has adopted Ordinance 91-31 (Solid Waste Collection, Disposal
and Recycling Agreements) providing for the franchising of solid waste activities within the
unincorporated areas of Contra Costa County unless memoranda of understanding (MOUS) are
entered into by the current franchisors and the COUNTY. Further, the COUNTY has prepared
the SRRE and HHWE for the unincorporated areas of the COUNTY.
G. The DISTRICT is authorized and empowered by State of California Community
Services District Law, Sections 61000, et sec. of the California Government Code, to collect and
dispose of waste and garbage. The DISTRICT currently is a party to a franchise agreement
pursuant to which solid waste collection and disposal is currently provided by Bay View Refuse
and Recycling Inc..
H. The DISTRICT and COUNTY wish to enter into a MOU for the purpose of
meeting the mandates of the ACT with regard to the unincorporated territory of the COUNTY
within the jurisdictional boundaries of the DISTRICT, and further coordinate with each other to
facilitate the COUNTY's achievement of the countywide goals pursuant to the ACT.
NOW, THEREFORE, the COUNTY and the DISTRICT enter into this MOU to define
their respective roles and responsibilities regarding the provision of solid waste collection service
within the boundaries of the district.
ARTICLE 1: PURPOSE OF THE MOU
1.1 General. The purpose and intent of this MOU is to provide a representative,
economical and effective means by which the unincorporated areas of the COUNTY may achieve
the waste reduction goals set forth in the ACT.
1.2 SRRE and HHWE The ACT mandates that the COUNTY prepare and implement
a SRRE and a HHWE for the unincorporated portion of the county. The COUNTY, prior to the
effective date of this MOU, has prepared the SRRE and HHWE for the unincorporated areas of
the COUNTY, which have been approved by the California Integrated Waste Management Board.
ARTICLE 2: DISTRICT'S AUTHORITY
2.1 The DISTRICT shall maintain a Franchise Agreement with the hauler; shall set
rates at a level no higher than the average of the remainder of the unincorporated County; shall
assure that the requirements of the County Ordinance regarding Recycling Requirements for
Landfill Disposal are met; fulfill the program development requirements, as outlined in the State
approved SRRE; provide for HI-1W program or funding as needed to comply with the
requirements of the approved HHWE; collect detailed information from the hauler that provides
a breakdown by material, tonnage, sales price and buyer of all materials recycled and of the
amount of waste disposed and at what location for the Kensington area. Such report information
shall be forwarded to the county in the required format for compilation into the countywide
recording system.
2.1 DISTRICT Responsibility. The DISTRICT shall be responsible for developing, in
coordination with the County conservation staff, programs as indicated in the county SRRE to
assure that the State mandated diversion of 50% is accomplished by the year 2000. Due to the
difficulty in determining the exact amount of waste generated by the subject area in 1990 and the
current difficulties in tracking all waste coming from the area due to self hauling and special non-
franchised loads, the DISTRICT shall implement source reduction and recycling programs in a
timely manner on a schedule that reflects that of the majority of the County population, including
the Cities and Regional Agencies within the County.
2.2 Coordinating_Committee. The DISTRICT shall form a coordinating committee
which consists of two Kensington residents, one Kensington staff person, one representative of
the hauler, one County staff person and one County Board member. The coordinating committee
shall be responsible for establishing programs as needed to assure that SRRE and HHWE
programs are established at an acceptable rate and as required by County Ordinance and the
approved SRRE and HHWE.
2.3 Data Collection. The DISTRICT shall adopt and modify as requested by the
County, uniform monitoring, reporting and data collection methodologies. The County is subject
to reporting disposal, recycling and program information to the State on a regular basis. The
DISTRICT shall provide information to the COUNTY in the computerized or noncomputerized
form as requested by COUNTY in a timely manner.
2A Public Information. The DISTRICT shall provide for a means to disseminate
information to individual customers at the direction of the COUNTY. Customers shall be kept
informed regarding rate change requests, program implementation and goals and their progress
toward meeting those goals.
2.5 Programs and Rates. The DISTRICT, with direction from the coordinating
committee, shall design and modify programs and establish rates to pay for those programs as
needed to meet the overall SRRE goals for the Kensington area.
2.6 Franchise Fees. The DISTRICT shall include in the rates, a Franchise Fee in the
amount of 3% for the COUNTY to pay for County expenses in preparing and implementing the
County SRRE and HHWE. Any additional unanticipated costs or fines shall be added to the
rates, if directed by the COUNTY.
ARTICLE 3: COUNTY AUTHORITY
3.1 County Responsibility. The ACT, other California statutes and the California
Constitution, authorize the COUNTY to undertake a number of activities involving solid waste
handling and disposal. The ACT specifically empowers the COUNTY to undertake certain
planning functions including the development of SRRE's, HHWE's and the Countywide
Integrated Waste Management Plan. The COUNTY also has the authority to authorize recycling
agents(s) for the unincorporated county areas and to fix designated collection locations for the
purposes of collection and recycling.
3.2 Memorandum of Understanding. The COUNTY may enter into a memorandum
of understanding or other joint agreement with another local agency to assist with implementing
SRREs or HHWEs. The COUNTY may, through such a memorandum of understanding or joint
exercise of power agreement, delegate to another local agency the authority and/or the
responsibility to implement the SRREs and HHWEs.
T'he C+CJUNT'Y:h� �>�y �elgates such autlr��r�ty;�nd respr�ri�ibtl�ty a�t��sec�fi�,lly,�e
fo�h: n: s:;:l'�1+CAH€o:�he::DISTR�! �'::tn.c� .der..tc�..achiev�.certain.s�licl..kva�te..tizver��on. o�,ls
r nd d by the ACT Th x T +CT xs hereby ex..�awei�cl fia carry'ou..certain programs
requred xprzt the wtC1e51 slu�rscctpa .boude
3.3 Data Collection. The COUNTY shall be responsible for tracking all waste
originating from within the County and waste deposited in County landfills; shall report the
amounts to all Cities and Counties and to the State for the purpose of determining overall
compliance with the waste diversion goal of 50% by 2000; shall report to the state the amounts of
various materials recycled and waste reduction programs instituted in the unincorporated County.
3.4 `Program Development. The COUNTY shall establish Countywide source
reduction and recycling progams and shall work with the coordinating committee to aid them in
establishing appropriate progams in the Kensington area.
ARTICLE 4: RESPECTIVE RESPONSIBILITIES FOR FULFILLING ACT
4.1 Coordination. The COUNTY and the DISTRICT shall freely exchange
information available to each with regard to their respective solid waste activities to enable the
County to prepare such documents necessary to comply with the ACT and to enable the
DISTRICT to establish effective waste reduction programs.
4.2 Information and Data Collection. The DISTRICT shall provide to COUNTY,
upon request, all available information relevant to the implementation of the SRREs and HHWEs
within the DISTRICT's jurisdictional boundaries. DISTRICT shall assist the COUNTY on such
matters as requested by the county such as adopting uniform monitoring, reporting and data
collection methodologies to comply with the requirements of the ACT, determining the content of
information to be disseminated to individual customers regarding the ACT; designing and
implementing programs to carry out the SRREs and HHWEs and such other matters requested by
the County to meet the requirements of the ACT.
4.3 Staffing and Coordination DISTRICT accepts the responsibility for utilizing
existing staff as may be required to perform the scope of the DISTRICT's services as set forth
herein. In order to assure services are coordinated, DISTRICT shall make staff available, as
needed, to meet and confer jointly with the staff of the COUNTY as well as the staffs of each
contiguous city and with the Hauler.
4.4 Annual Report. The District shall assist the COUNTY in preparing the required
annual report to the CIWMB by providing data regarding the solid waste activities in the
unincorporated area within the DISTRICT's jurisdictional boundaries.
4.5 Significant Changes. Prior to the COUNTY making any program change
significantly affecting the DISTRICT's jurisdictional area, the COUNTY shall notify the
DISTRICT of the proposed change and provide an opportunity to comment on said proposal. To
the extent practically possible, the COUNTY shall integrate the DISTRICT's comments into any
significant program change prior to its implementation.
ARTICLE 5: DIRECTION OF WASTE STREAM
5.1 COUNTY Control of Waste Stream. The COUNTY through it's franchise
agreement, (THROUGH ORDINANCE 91-311??) controls the waste stream within the
unincorporated area within the DISTRICT's boundaries.
ARTICLE 6: TERMINATION
6.1 Termination by Either Party_ Either party may terminate this MOU following the
provision of 30 days notice to the other.
ARTICLE 7: INSURANCE INDEMNITY, FINES AND ALLOCATION OF LIABILITY
7.1 Insurance and Indemnity. Neither the COUNTY nor the DISTRICT, as a
condition of the execution of this MOU, shall be required to provide direct insurance coverage or
protection to the other, or to contractually indemnify the other against damages to any person or
property not a party to this MOU.
ARTICLE 8: GENERAL PROVISIONS
8.1 Joint Agreements. The DISTRICT and COUNTY may enter into such additional
joint agreements and/or additional joint efforts appropriate with this MOU and the mandates of
the ACT. These additional joint agreements may provide for, but are not limited to,joint efforts
with regard to market development for recyclables and compost,joint composting projects,joint
household hazardous waste programs, and/or joint public relations efforts.
8.2 Severability. Should a court of competent jurisdiction find any portion of this
MOU invalid or unenforceable, such finding shall affect only that provision, and all remaining
provisions shall remain enforceable.
8.3 Modification . This MOU constitutes the entire agreement between the parties
with regard to the items discussed herein. A party may modify this MOU only by subsequent
mutual written agreement executed by both the COUNTY and the DISTRICT.
8.4 Assignment and Delegation. Except as provided herein, neither COUNTY nor
DISTRICT shall assign any rights nor delegate any obligations as provided under this MOU
without written notice to and consent of the other party to this MOU.
8.5 California Law. This MOU, its interpretation and all work performed thereunder,
shall be governed by the laws of the State of California.
8.6 Notices. All notices and communications deemed by either party to be necessary
or desirable to be given to the other party shall be in writing and may be given by personal
delivery to a representative of the parties or by mailing the same postage prepaid, addressed as
follows:
If to the DISTRICT: Kensington Community Services District
217 Arlington Avenue
Kensington, California 94707-1498
Attention: General Manager
If to the COUNTY: Contra Costa County
Community Development Department
County Administrative Building
651 Pine Street
4th Floor, North Wing
Martinez, California 94553-0095
Attention: Solid Waste Program Manager
The address to which mailings may be made may be changed from time to time by notice
mailed as described above. Any notice given by mail shall be deemed given on the day after that
on which it is deposited in the United States Mail as provided above.
1
ATTEST: The participating parties have executed this Memorandum of Understanding
on the date shown.
DISTRICT: COUNTY:
Kensington Community Services County of Contra Costa
District
By: By
President, Board of Directors
Date: Name:
Title:
Attest: Secretary
Date: Date:
kcnsingto.mou
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RA Y VIEW
• I CITY—COUNTY—GOVERNMENT CO
NTR RS
y P.O.BOX 277—EL CERRITO,CALIFORNIA 94530—PHONE 237-4614
4(3
SERVICE, ill
LEWIS FIGONE, PRESIDENT
ffRE�CEIVFED
v
June 25, 1996 CLERK BOARD OF SUPERVISORS
CONTRA COSTA CO.
To: Contra Costa County Board of Supervisors
Subject: Survey results received with payments from our
second billing of 1996 . (May, June, July and August) 2075
statements were mailed to all customers with the exception of
six customers who were paid in advance and ten others whose
statements were paid by property owners and not residents of
the property. Currently we have 2086 customers.
The attached information is as follows :
Item 1 : Copies of the two thousand seventy-five letters
enclosed with statements, questionnaire and other rates in
the County. Please note, in the letter, notification of the
possible responsibility of the County in the near future.
Item 2: Copy of questionnaire mailed to customers .
Item :3 & 4: Number of returned questionnaires and percentage
of answers to the 5 questions. There only remains 319
payments and possible answers to be returned.
-Mailed--2075 Payments Returned--1756 Percentage of
Questionnaires Returned--1283 Questionnaires
Returned--73 .06%
In addition we have delivered to Mary Fleming, copies
of all returned questionnaires with a customer address on
each.
Sincerely,
Bay View Refuse and Recycling Svcs, Inc.
Bye,-�
Lewis Figore, President
• Item 2
DAY VIEW REFUSE SERVICE
CUSTOMER SURVEY
PLEASE RETURN WITH PAYMENT
1. flow would you rate our service
overall? Excellent riGood Dair ❑Poor
Comments:
i
i
' 1
2. [low is our courtesy in dealing
with customers? Excellent QGood nFair QPoor
Comments:
3. Iiow do you think we are
performing with regard to gExcellent QGood oFair Opoor
recycling? Comments:
4. Ilow do you feel about the
value you receive for the E]ExcellendlGood QFair F]Poor
amount we charge? Comments:
5. Collectors: How is their
courtesy and service? EJExcellentpGood uFair QPoor
Comments:
G. If you have marked any .item "poor" please give use a call or .indicate
your phone number on the questionnaire and we shall call you' in an
attempt to solve any problems you are having.
Thank You Very much,
Date! Signature and address (optional):
PLEASE RETURN WITH PAYMENT
b.i
^ Item 1
VA Y VIEW
CITY-COUNTY-GOVERNMENT CONTRACTORS
REFUSE
Y.2
'` P.O.BOX 277-EL CERRITO,CALIFORNIA 94530-PHONE 237-4614
hr � SERVICE/ I.�
/- d <`f LEWIS FIGONE,PRESIDENT
PLEASE SEE ENCLOSED QUESTIONNAIRE. THANK .YOU.
INC. 11
1:# PLEASE SEE REVERSE SIDE.
Dear Customer :
From time-to-time, we like to ask our customers how we are doing
in serving the Kensington Community. Enclosed is a Customer
Survey form which we hope you will take a moment to fill out and
return to us with payment at your convenience .
Bay View Refuse has served Kensington since 1944 . We believe we
have done an excellent job, both in garbage collection and more
recently in recycling. The recycling reduction rate in
Kensington today is approximately 26 .99 percent and we thank you
for your excellent participation! The mandated goal by the State
(AB939) was 25 percent effective January 1 , 1995 . The mandate
shall be increased to 50 percent by the year 2000, and we have
plans, subject to regulatory approval, that we expect will allow
us to meet this mandate. The County is the local agency C..Q�%�`�`��l
responsible to see that these state mandates are timely met.
Therefore, in the near future our service agreement may well be
with the County. In any event, our customers will continue to
receive quality service at a- fair• price. Community input always
will be encouraged .
Please see reverse for other current West County rates, and find
the enclosed questionnaire and your current statement for May,
June, July and August 1996. Also enclosed , in appreciation for
your participation with this questionnaire, is a stamped return
envelope. In thanking you again we remain,
Appreciatively Yours,
Bay View Refuse Service, Inc.
WES CONTRA COSTA COUNTY GARBA RATES
(Rates subject to change
CITY SINGLE CAN RATE TWO CAN RATE CLEAN-UPS BACKYARD
OR
CURBSIDE?
1 . E1 Sobrante $23 .08 $46 . 16 1 plus 1 on Backyard
call only
2 . San Pablo $19 .80 $42 .76 2 on call Backyard
only
3 . Richmond $20. 18 $42 . 14 1 plus 1 on Backyard
call only
4 . Hercules $21 . 16 $39 . 26 1 plus 1 on Backyard
call only
5. Pinole $21 .08 $39 . 33 1 plus 1 on Backyard
call only
El Cerrito $16 . 73 $33 .46 2 Backyard
Kensington $16 . 25 $27 . 50 4 Backyard
Distance Charges:
Items 1-5 : An additional $1 . 50 per month for cans more than 100 feet
from the street.
El Cerrito: An additional $2 .00 per month for cans more than 50 feet
from the street .
Central Contra Costa: For backyard service there is an additional
charge of $6 .00 per month.
Kensington : No distance charges .
Kensington: Changes in our free clean ups, perhaps 3 or 4 green waste
only and one additional pickup on an on call basis , will
help meet state and county recycling diversion goals for
the year 2000 of 50%.
- Item 3 (gym 4 attached)
q
BAY VIEW
CITY—COUNTY—GOVERNMENT CONTRACTORS
REFUSE
P.O.BOX 277—EL CERRITO,CALIFORNIA 94530—PHONE 237-4614
S`!//C
;S
i Q ':':i LEWIS FIG ONE,PRESIDENT
htc� INC. '#
Kensington 1996 Survey Daily Results
Update of Kensington Customer Survey: 2075 questionnaires mailed
Billing period : 5/1/96 to 8/31/96
Date 5/1/96 thru 6/22/96
Number of Payments 1756
Number of Survey Answers 1283
Results
-Service E 731 G 492 F 39 ` p 5
704 451 28 7
Con rfp Ry $ G F P
-Recyclina F 459 G 491 F 207 P 47
-Coss} F 366 G 611 F 202 P 36
-Collectors E 776 G 377 F 33 P 10
r ItE
BAY VIEW
CITY-COUNTY-GOVERNMENT CONTRACTORS
REFUSE '•"` P.O.BOX 277-EL CERRITO,CALIFORNIA 94530-PHONE 237-4614
Satc ICE •'%a LEWIS FIGONE,PRESIDENT
Y INC Y
Kensington 1996 Percentage of Daily Surveys
Update of Kensington Customer Survey : 2075 questionnaires mailed
Billing period: 5/1/96 to 8/31/96
Date May 1 , 1996 thru June 22, 1996
% Returns 73 .06%
Results
Answered/ 57,70% 38 . 83% 3 .0.839�°
-Service E G F P '
Answered/ 59 . 16% 37 . 90% 2 .44% 50/
°
-Courtesy E G F P •
Answered/ 38 . 12% 40 .78% 17 . 19.% 3 .91%
-Recycling E G F P
Answered/ 30. 12% 50 . 29% 16 .63% 2 .96%
-Cost E G F P
Answered/ 64 . 88% 31 . 52% 2 .76% . 84%
-Collectors E G F P
KENSINGTON POLICE PROTECTI ,� ✓�y� ��
o9
6
AND COMMUNITY SERVICES DIST
June 17, 1996
Jeff Smith, President
and Members of the Board of Supervisors
Contra Costa County
651 Pine Street
Martinez, CA 94553
Subject: Solid waste Collection
Dear President Smith and Supervisors :
On April 22, Mark Armstrong, one of the attorneys representing Lewis
Figone, wrote to County staff with an extraordinary proposal . Mr.
Armstrong' s letter proposed that the County abrogate the existing
contract between the Kensington Police Protection and Community Services
District ("District") and Bay View Refuse Service, Inc. , a company wholly
owned by Mr. Figone ("Bay View") and replace that contract with a new,
20-year exclusive contract between the County itself and another of Mr.
Figone Is wholly-owned corporations, called Bay View Refuse and Recycling
Services, Inc. ("Bay View #211) .
This proposal was considered briefly by the :Board' s "Ad Hoc" Solid Waste
Committee at a meeting on April 24 . On June 10, the earliest date County
staff were available to meet representatives from the District, one of
our directors, David Anton, and our District Manager, James Bray, met
with the following County staff members: Val Alexeef, Mary Fleming. and
Diedre Dingman. They had been led to believe that the purpose of this
meeting was to discuss developing a "solid waste franchise Memorandum of
Understanding" between the County, and Kensington. Instead, Mr. Anton and
Mr. Bray were presented with three variations of the contract between the
County and Bay View #2 that Mr.,!Armstrong initially had drafted. Despite
the County' s failure to involve Kensington .in the development of these
proposals, and despite the fact the District Board believes that none of
these options is in our community's best interest, County staff will
present these proposals to the Board' s Ad Hoc Committee on June 19 . We
have been told that, on June 25, the Board will consider which option
to select. All of these actions will have :occurred without the County
seeking or incorporating input from Kensington.
The reasons behind Mr. Figone Is effort to persuade the Board to shoulder
the District aside are obvious to us, though they may not be as apparent
to all Supervisors: Mr. Figone' s application for an 11% rate increase
starting in January 1996 was not immediately granted. Instead, our Board
requested financial information about Mr. Figone' s operations, to which
it is entitled under its franchise contract with Bay View. The
District' s simple attempts to gain a fuller understanding of the
company' s costs of operations and its relationship to affiliates so upset
Mr. Figone that he instructed his other attorneys (based in San Rafael)
to withdraw the request for a rate increase in January of this year.
217 Arlington Avenue Kensington, California 94707-1401 (510) 526-4141
Board of Supervisors
June 17, 1996
Page 2
It seems clear that Mr. Figone expects that the County, and specifically
the Board of Supervisors, will be more responsive to his interests, and
less concerned about those of the ratepayers and voters in Kensington,
than the District Board of Directors.
The purpose of this letter is to urge the Board to reject Mr. Figone' s
request, which is both illegal and unwise.
1. The County does not have lecral authority to abrociate the franchise
contract between the District and Bay View.
As a community services district, the District has statutory authority
to collect and dispose of solid waste and garbage. (California
Government Code Section 61600 . )
The District has provided for solid waste collection and disposal (and
more recently, recycling) through a legally binding franchise agreement
entered into in 1981 .
The California Integrated Waste Management Act confirms, rather than
limits, the District' s authority in this field. Public Resources Code
Section 40002 declares the need, for the state to authorize and require
"local agencies" to 'provide adequate solid waste handling services.
Section 40150 defines "local governing body" as the legislative body of
the city, county or special district which has authority to provide solid
waste handling services. Consistent therewith, Section 40057 is
addressed to each county, city, district or other local government agency
which provides solid waste handling services . Section 40059 (a) provides
that "notwithstanding any other provision of law, each county, city,
district . . .may determine all of the following. . . . " In none of these
basic sections, does the Legislature indicate any preference or priority
for counties in comparison to independent special districts with
statutory authorization to act in the field of solid waste management .
Finally, Section 40059 (b) provides that :
"Nothing in this Division [i .e. , Public Resources Code Section
40000-496201 modifies or abrogates either of the following:
(1) Any franchise previously granted or extended by any county or
other local governmental entity. "
The County' s "police power" does not extend to actions inconsistent with
general law. (See, e.g. , 67 Opinions of the Attorney General 145
(1984) . )
To the extent that County Ordinance 91-31 purports to allow the County
to abrogate the District' s franchise with Bay view, it is ultra vires and
illegal .
Board of Supervisors
June 17, 1996
Page 3
2. Even if the County did have legal authority to supplant the
District's contractual oversight of solid waste management in
Kensington (which it does not) , it would be unwise for the County
to do so.
A. It is unnecessary.
Kensington residents, acting through the District, have been quite
capable of managing solid waste matters for many years . The 25%
diversion rate required by 1995 was achieved in Kensington, with room to
spare. (Moreover, solid waste generated within Kensington accounts for
less than 2% of the. solid waste generated in the County as a whole. )
And, while Mr. Figone may be upset by the District' s recent requests for
financial information, the long relationship between the District and Bay
View has not been characterized by contentiousness nor litigation. In
addition, Kensington residents place a high value on local oversight, are
pleased with the District' s performance in this capacity, and would not
look favorably on an effort to remove the District from this role.
There is no reason to think that those services will improve under County
administration. To the contrary, remote County staff are less likely to
be responsive to local residents' concerns. Indeed, Kensington was the
first in establishing curbside recycling, before any County-administered
area. Kensington achieved over a 35% diversion rate within the first two
years after enactment of AB 939, far beyond the results achieved in
County-administered areas in that time period. These excellent results
have been achieved with rates consistently below those in any County-
administered area. As to rates, since the contract proposed by Mr.
Armstrong gives the County a new "fee" equal to 50-. of revenues, on top
of covering its actual costs, the County has an incentive to see rates
increased. *
B. It is bad crovernment.
In a time of increasing cynicism regarding public service and public
officials, I know that all of the Supervisors want to work hard to avoid
even the appearance of impropriety. As a fellow elected representative
in this County, I trust that none of the Supervisors would be engaged in
"sweetheart" deals . However, perceptions are important . You must be
aware that an extraordinary abrogation of a long-term, well-functioning
contract between the District and Bay View will expose all the
Supervisors to suspicion of acting in other than the public interest,
especially given the rapidity and apparent eagerness with which the Board
is taking up this issue, the lack of input our community is being
provided, and the degree to which several Supervisors have accepted
campaign contributions from private garbage companies, owners, employers
and agents (including Mr. Armstrong and his law partners) .
* There is an important question as to whether a fee of this kind
constitutes an illegal tax since, under Proposition 13, such fees must
be justified as covering associated costs. If the Board decides to oust
the District and installs Bay View #2 with. a contract which gives the
County %5 of revenues, it should do so knowing that it is liable to have
the contract challenged on these grounds .
Board of Supervisors
June 17, 1996
Page 4
Conclusion
we have always been willing to work cooperatively with the County in
implementing the Act . For example, in April 1992, we sent to Mr. Alexeef
a draft MOU between the County and the District spelling out the roles
of the two agencies . In the ensuing four years, we never received any
response from anyone at the County.
We remain ready and willing to work with the County within a context
which respects the existing franchise contract and the District' s right
to oversee its implementation. For example, if the County believes that
it requires a contribution from Kensington residents to meet AB 939 goals
and can demonstrate that a surcharge on rates would in fact be dedicated
to implementing a cost-based solid waste reduction plan, we are happy to
discuss with you the mechanics of implementing a surcharge commensurate
with those in effect in other areas of the County.
But we are firm on one point : unless and .until our residents tell us
they prefer the County to set rates, and otherwise manage solid waste
collection and recycling in Kensington, we. will vigorously oppose any
attempt by the County to set rates, determine services, or to award an
exclusive long-term contract to Bay View #2 without public bidding, as
proposed by Mr. Armstrong, on Mr. Figone' s behalf .
Vel r ly yours, -
avid J. Fike, President
cc: Board of Directors, Kensington Police. Protection and Community
Services District
Mr. Lewis _Figone
Senator Nicholas Petris
Assemblyman Tom Bates
California Integrated Waste Management Board
California Fair Political Practices Commission
Phil Batchelor, County Administrator :
Contra Costa County Community Development Department,
Attn: Val Alexeef, Mary Fleming, Diedre Dingman
Central Contra Costa Sanitary District
Ironhouse Sanitary District
Diane Gossard, Editor, Kensington Outlook
California Special Districts Association
West County Times
4 �
o
{'.;';<:;: c June 24, 1996
Jeff Smith, M.D., Chairman ,
Board of Supervisors
Contra Costa County
651 Pine St.
Martinez, CA 94553p� P�
Dear Dr. Smith,
The Kensington Property Owners Association(KPOA) opposes the County's intention to
directly contract with Bay View Refuse Company for solid waste services in Kensington. The
Kensington Community Services District has provided regulation and rate setting for hauling
under their current franchise with Bay View Refuse for over twenty five years. The District has
negotiated services with the hauler which include recycling in an effort to meet the solid waste
reduction requirements under AB 939 and has successfully been meeting its goals. The District
is an elected body and as such is responsive to the needs of the community and has adequately
provided this role in the area of garbage services.
The County's current proposals to take over Kensington's franchise appears to be the result of
Bay View Refuse trying seek protection from releasing financial information regarding the
company's charges for garbage service. The County is evidently not planning to request
justification for rate setting under their purposed franchise agreement with Bay View. The
requests of the Kensington District Board to review the company's financial information is a
valid attempt to evaluate the rates being charged to customers. This type of evaluation and rate
setting is done in most Bay Area counties and cities. The current franchise agreement with the
District provides access to that information as well.
The KPOA represents over 600 households and approximately 1200 voters in Kensington. We
strongly believe that Kensington should have local control over our refuse service. We would
support a cooperative working relationship with the county to achieve AB 939 goals and believe
that should be accomplished through a memorandum of understanding which has been developed
with the Kensington District Board, not by the County, Bay View Ref-ase and their attorney.
Sincerely,
Donald Kip Meader
President, KPOA
cc: All Contra Costa Board of Supervisors
Phil Batchelor,County Administrator
KCSD Board of Directors
Janet Gotch,CIWMB
Bay View Refuse
DKM:GF ConCos.BOS
�oJ
!► "it}, Owe � � �5��� S�. 1c)
<„ June 24, 1996
Jeff Smith, M.D., Chairman
Board of Supervisors
Contra Costa County IPO
651 Pine St.
Martinez, CA 94553
Dear Dr. Smith.
The Kensington Property Owners Association (KPOA) opposes the County's intention to
directly contract with Bay View Refuse Company for solid waste services in Kensington. The
Kensington Community Services District has provided regulation and rate setting for hauling j
under their current franchise with Bay View Refuse for over twenty five years. The District has
negotiated services with the hauler which include recycling in an effort to meet the solid waste
reduction requirements under AB 939 and has successfully been meeting its goals. The District j
is an elected body and as such is responsive to the needs of the community and has adequately
provided this role in the area of garbage services.
The County's current proposals to take over Kensington's franchise appears to be the result of
Bay View Refuse trying seek protection from releasing financial information regarding the
company's charges for garbage service. The County is evidently not planning to request
justification for rate setting under their purposed franchise agreement with Bay View. The
requests of the Kensington District Board to review the company's financial information is a j
valid attempt to evaluate the rates being charged to customers. This type of evaluation and rate j
setting is done in most Bay Area counties and cities. The current franchise agreement with the
District provides access to that information as well.
The KPOA represents over 600 households and approximately 1200 voters in Kensington. We
strongly believe that Kensington should have local control over our refuse service. We would
support a cooperative working relationship with the county to achieve AB 939 goals and believe
that should be accomplished through a memorandum of understanding which has been developed j
with the Kensington District Board, not by the County, Bay View Refuse and their attorney. I
Sincerely,
r
Donald Kip Meader
President, KPOA
cc: All Contra Costa Board of Supervisors
Phil Batchelor,County Administrator
KCSD Board of Directors
Janet Gotch,CIWMB
Bay View Refuse
DKNI:GF Co.cos.BOS
0 SFO
KENSINGTON POLICE PROTECTI neo p�
AND COMMUNITY SERVICES DIST q o,�
cs
June 17, 1996
Jeff Smith, President
and Members of the Board of Supervisors
Contra Costa County
651 Pine Street
Martinez, CA 94553
Subject: Solid Waste Collection
Dear President Smith and Supervisors :
On April 22, Mark Armstrong, one of the attorneys representing Lewis
Figone, wrote to County staff with an extraordinary proposal . Mr.
Armstrong's letter proposed that the County abrogate the existing
contract between the Kensington Police Protection and Community Services
District ("District") and Bay View Refuse Service, Inc. , a company wholly
owned by Mr. Figone ("Bay View") and replace that contract with a new,
20-year exclusive contract between the County itself and another of Mr.
Figone's wholly-owned corporations, called Bay View Refuse and Recycling
Services, Inc. ("Bay View #211) .
This proposal was considered briefly by the Board' s "Ad Hoc" Solid waste
Committee at a meeting on April 24 . On June 10, the earliest date County
staff were available to meet representatives from the District, one of
our directors, David Anton, and our District Manager, James Bray, met
with the following County staff members: Val Alexeef, Mary Fleming and
Diedre Dingman. They had been led to believe that the purpose of this
meeting was to discuss developing a "solid waste franchise Memorandum of
Understanding" between the County and Kensington. Instead, Mr. Anton and
Mr. Bray were presented with three variations of the contract between the
County and Bay View #2 that Mr. Armstrong initially had drafted. Despite
the County' s failure to involve Kensington :in the development of these
proposals, and despite the fact the District Board believes that none of
these options is in our community's best interest, County staff will
present these proposals to the Board' s Ad Hoc Committee on June 19 . we
have been told that, on June 25, the Board will consider which option
to select . All of these actions will have occurred without the County
seeking or incorporating input from Kensington.
The reasons behind Mr. Figone Is effort to persuade the Board to shoulder
the District aside are obvious to us, though they may not be as apparent
to all Supervisors: Mr. Figone's application for an ilk rate increase
starting in January 1996 was not immediately:granted. Instead, our Board
requested financial information about Mr. Figone's operations, to which
it is entitled under its franchise contract with Bay View. The
District' s simple attempts to gain a fuller understanding of the
company's costs of operations and its relationship to affiliates so upset
Mr. Figone that he instructed his other attorneys (based in San Rafael)
to withdraw the request for a rate increase in January of this year.
217 Arlington Avenue Kensington, California 94707-1401 (510) 526-4141
Board of Supervisors
June 17, 1996
Page 2
It seems clear that Mr. Figone expects that the County, and specifically
the Board of Supervisors, will be more responsive to his interests, and
less concerned about those of the ratepayers and voters in Kensington,
than the District Board of Directors.
The purpose of this letter is to urge the Board to reject Mr. Figone's
request, which is both illegal and unwise.
1. The County does not have legal authority to abrogate the franchise
contract between the District and Bay View.
As a community services district, the District has statutory authority
to collect and dispose of solid waste and garbage. (California
Government Code Section 61600 . )
The District has provided for solid waste collection and disposal (and
more recently, recycling) through a legally binding franchise agreement
entered into in 1981 .
The California Integrated waste Management Act confirms, rather than
limits, the District' s authority in this field. Public Resources Code
Section 40002 declares the need for the state to authorize and require
"local agencies" to provide adequate solid waste handling services.
Section 40150 defines "local governing body" as the legislative body of
the city, county or special district which has authority to provide solid
waste handling services. Consistent therewith, Section 40057 is
addressed to each county, city, district or other local government agency
which provides solid waste handling services. Section 40059 (a) provides
that "notwithstanding any other provision of law, each county, city,
district. . .may determine all of the following. . . ." In none of these
basic sections, does the Legislature indicate any preference or priority
for counties in comparison to independent special districts with
statutory authorization to act in the field of solid waste management.
Finally, Section 40059 (b) provides that:
"Nothing in this Division (i .e. , Public Resources Code Section
40000-496201 modifies or abrogates either of the following:
(1) Any franchise previously granted or extended by any county or
other local governmental entity. "
The County's "police power" does not extend to actions inconsistent with
general law. (See, e.g. , 67 Opinions of the Attorney General 145
(1984) . )
To the extent that County Ordinance 91-31 purports to allow the County
to abrogate the District's franchise with Bay view, it is ultra vires and
illegal .
` Board of Supervisors
June 17, 1996
Page 3
2. Sven if the County did have legal authority to supplant the
District's contractual oversight of solid waste management in
Kensington (which it does not) , it would be unwise for the County
to do so.
A. It is unnecessary.
Kensington residents, acting through the District, have been quite
capable of managing solid waste matters for many years. The 25t
diversion rate required by 1995 was achieved in Kensington, with room to
spare. (Moreover, solid waste generated within Kensington accounts for
less than 2%, of the solid waste generated in the County as a whole. )
And, while Mr. Figone may be upset by the District's recent requests for
financial information, the long relationship between the District and Bay
View has not been characterized by contentiousness nor litigation. In
addition, Kensington residents place a high value on local oversight, are
pleased with the District' s performance in this capacity, and would not
look favorably on an effort to remove the District from this role.
There is no reason to think that those services will improve under County
administration. To the contrary, remote County staff are less likely to
be responsive to local residents' concerns . Indeed, Kensington was the
first in establishing curbside recycling, before any County-administered
area. Kensington achieved over a 35% diversion rate within the first two
years after enactment of AB 939, far beyond the results achieved in
County-administered areas in that time period. These excellent results
have been achieved with rates consistently below those in any County-
administered area. As to rates, since the contract proposed by Mr.
Armstrong gives the County a new "fee" equal to 5%- of revenues, on top
of covering its actual costs, the County has an incentive to see rates
increased.*
B. It is bad government.
In a time of increasing cynicism regarding public service and public
officials, I know that all of the Supervisors want to work hard to avoid
even the appearance of impropriety. As a fellow elected representative
in this County, I trust that none of the Supervisors would be engaged in
"sweetheart" deals. However, perceptions are important . You must be
aware that an extraordinary abrogation of a long-term, well-functioning
contract between the District and Bay View will expose all the
/ Supervisors to suspicion of acting in other than the public interest,
especially given the rapidity and apparent eagerness with which the Board
is taking up this issue, the lack of input our community is being
provided, and the degree to which several Supervisors have accepted
campaign contributions from private garbage companies, owners, employers
and agents (including Mr. Armstrong and his law partners) .
* There is an important question as to whether a fee of this kind
constitutes an illegal tax since, under Proposition 13, such fees must
be justified as covering associated costs. If the Board decides to oust
the District and installs Bay View #2 with a contract which gives the
County t5 of revenues, it should do so knowing that it is liable to have
the contract challenged on these grounds.
Board of Supervisors
June 17, 1996
Page 4
Conclusion
we have always been willing to work cooperatively with the County in
implementing the Act. For example, in April 1992, we sent to Mr. Alexeef
a draft MOU between the County and the District spelling out the roles
of the two agencies. In the ensuing four years, we never received any
response from anyone at the County.
We remain ready and willing to work with the County within a context
which respects the existing franchise contract and the District's right
to oversee its implementation. For example, if the County believes that
it requires a contribution from Kensington residents to meet AB 939 goals
and can demonstrate that a surcharge on rates would in fact be dedicated
to implementing a cost-based solid waste reduction plan, we are happy to
discuss with you the mechanics of implementing a surcharge commensurate
with those in effect in other areas of the . County.
But we are firm on one point : unless and until our residents tell us
they prefer the County to set rates, and otherwise manage solid waste
collection and recycling in . Kensington, we will vigorously oppose any
attempt by the County to set rates, determine services, or to award an
exclusive long-term contract to Bay View #2 without public bidding, as
proposed by Mr. Armstrong, on Mr. Figone' s behalf .
eprt}ly yours,
avid J. Fike, President
cc: Board of Directors, Kensington Police; Protection and Community
Services District
Mr. Lewis .Figone
Senator Nicholas Petris
Assemblyman Tom Bates
California Integrated waste Management Board
California Fair Political Practices Commission
Phil Batchelor, County Administrator
Contra Costa County Community Development Department,
Attn: Val Alexeef, Mary Fleming, Dedre Dingman
Central Contra Costa Sanitary District
Ironhouse Sanitary District
Diane Gossard, Editor, Kensington Outlook
California Special Districts Association
West County Times
KENSINGTON OPPOSES COUNTY TAKEOVER OF SOLID WASTE COLLECTION
June 24, 1996
The Board of Directors of Kensington Police Protection and
Community Services District ( "District") opposes efforts by Bay View
Refuse ( 11BVR11) -- the company which collects garbage in Kensington -- to
persuade the County Board of Supervisors to assume control over garbage
rates.
In a June 19 letter to the Board of Supervisors, the District
directors argued that the proposed ouster was illegal and unwise. The
background to the dispute and the reasons for the District' s position are
summarized.
1. THE DISTRICT HAS RECENTLY GRANTED BAY VIEW REQUESTS FOR RATE HIRES
From 1992 to 1995, BVR has been granted rate increases totalling
49%. At roughly the same time (1991-1995) , BVR's revenues from the sale
of recyclables increased 670-. (from $28, 000 to $46, 000) . (All figures are
rounded. ) Expenses for this same time period remained basically flat .
2 . BVR 1995 RATE APPLICATION
In 1995, BVR requested a further ll% rate increase. If this had
been granted by the District, the company' s rates would have increased
by 62% in just four years .
3. DISTRICT REVIEWS RATE APPLICATION
A. Recruest for Financial Information. Like other monopolies,
BVR's exclusive franchise agreement requires it to get approval from
elected officials (the District' s Board) before increasing rates . The
District requested financial information about BVR under provisions of
the franchise agreement recently agreed. to by BVR when its rates were
raised in 1994 .
BVR' s response was disappointingly slow and incomplete . And the
records that BVR did provide were not audited, as the franchise agreement
requires.
B. Expert Advice. The District engaged Hilton Farnkopf & Hobson
("HFH") , an East Bay-based management consulting firm with statewide
experience in the solid waste industry. HFH advised the BVR' s rates were
already too high,' even before the 11% increase requested. For example,
BVR included in its expenses $143, 000 in salary and benefits for its
President and sole shareholder. HFH discovered that the same individual
owns and operates other garbage companies, including one (Bay Cities)
with gross revenues ($4 .2 million) nearly seven times larger than BVR
($620, 000) . In HFH' s opinion, the salary and benefits ($143, 000) charged
to Kensington was excessive since the President hadn' t demonstrated that
he devoted full time to the job.
C. Preliminary Conclusions . The District evaluated BVR' s rates
two ways : both approaches suggested that the current rates $16 .25 for
one can per month) were already too high.
1 . The Operating Ratio ("OR") Method. One method widely
used in the garbage industry is the operating ratio (expenses as percent
of total revenues) . Using an OR of 93% (i .e. , allowing profits of 7%) ,
and reducing excessive salary expenses, indicted that the single can rate
should be reduced to about $10 .40 per month.
2 . Comparative Rate Method. The District also looked
at rates in the adjacent community of El Cerrito: A per can rate of
$10 , 96 results when those expenses which do not apply to Kensington are
subtracted from El Cerrito' s rate ($16 .73)
Rate $16 . 73 per month
Franchise Fee of 6 .5% - 1 . 09
(Kensington receives almost none)
Subsidy to pay for recycling center - 1 . 07
Charge to pay for new IRRF (sorting - 2 . 73
facility)
Cost for recycling cardboard (est . ) - 1 . 00
Two more yard pick/ups in Kensington + .75
+$10 .96
4. BVR RESPONSE -- HIRE NEW LAWYER AND ASR COUNTY SUPERVISORS TO TAKE
OVER
BVR withdrew its application for an 110-. rate increase . It then
hire a new law firm. Through those lawyers it has asked the County to
take over control of rates in Kensington.
The County staff has drawn up a contract between the County and a
new company, also owned and controlled by the same individual who owns
BVR. This contract, prepared with help from BVR' s lawyers, appears to
be favorable to the garbage company and the County, but not Kensington
residents and businesses .
Terms of Proposed County-Bay View Refuse Contract
* 20 year contract .
* 5% franchise fee to County (This is at least $30 , 000
additional expense, which will be charged to Kensington
ratepayers . This equals approximately $11 .20 per can
annually. ) ($30, 000 - 2, 676 cans = $11 .21)
* Rate increases by County at any time, without Kensington' s
approval .
* Bay View can request increases annually.
* Automatic CPI increases, without review.
* Free service for County.
* Kensington' s role will be advisory only.
'�► •
* The County can send our trash to the most expensive dump and
pass the cost on to Kensington.
* Audited financial statements are not required.
* New contract starts August 7, 1996 .
5. COUNTY FRANCHISED RATES ARE EXTREMELY HIGH
The County is responsible for solid waste service in the
unincorporated west County areas of El Sobrante, Montalvin Manor, Tara
Hills and North Richmond. According to Bay View' s recent survey, the
monthly per can rate for curbside service in these areas, is $23 . 08 . Of
the over 50 Bay Area communities for which we have compiled data, only
one (Clayton) pays more, at $25 . 04 per month for a single can.
6. CONCLUSION
That the County is considering this proposal is of great concern
to the District' s Board. The terms of this agreement will result in a
loss of local control and will be costly for Kensington residents and
business owners . The District has asked the County Board of Supervisors
to reject BVR' s attempt to oust the District, and not to award a 20-year
monopoly contract . without the opportunity for competitive bidding.
For more information call Jim Bray, General Manger,
(510) 526-4141 .
June "-h Agenda Item D. 10
- LAW OFFICES OF
GAGEN, MCCOY,' MCMAHON & ARMSTRONG
WILLIAM E. GAGEN, JR. A PROFESSIONAL CORPORATION DANVILLE OFFICE
GREGORY L. MCCOY
279 FRONT STREET
PATRICK J. MCMAHON
P. O. BOX 218
MARK L. ARMSTRONG DANVILLE, CALIFORNIA 94526-0218
LINN K. COOMBS TELEPHONE: (510) 837-0585
STEPHEN W. THOMAS ® FAX: (SIO) 838-5985
CHARLES A. KOSS
MICHAEL J. MARKOWITZ ](�=L7 NAPA OFFICE
MICHAEL W. CARTER �4j
�/ 1001 SECOND STREET, SUITE 315
RICHARD C. RAIN ES O IL NAPA, CALIFORNIA 94559-3017
VICTOR J. CUVA Uj w. O June 20 1996 TELEPHONE: (707) 224-8396
BARBARA M.
FANU JEWELL ' ` V a / FAX: (707) 224-S817
ROBERT M. FANUCCI v
ALLAN C. MOORE PLEASE REPLY TO'.
PATRICIA E. CURTIN �O
STEPHEN T. BUEHL U
ALEXANDER L. SCHMID
CHARLES A. KLINGE Danville
DANIEL A. MULLER (�
Chair Jeff Smith and Members of the Board of Supervisors
c/o Clerk of the Board Contra Costa County
651 Pine Street, Room 106
Martinez, CA 94553
Re: Kensington Area Franchise Agreement
Bay View Refuse and Recycling Services, Inc.
Dear Chair Smith:
The relationship between Lewis Figone and the Kensington Police
Protection and Community Services District officials has
irretrievably broken down. District officials at public meetings,
in a solid waste subcommittee memorandum, in correspondence to Bay
View, and in statements quoted in the local press, have accused
Lewis Figone of bilking his customers over the years and
profiteering as a result of unreasonably high rates. They have
concluded, based on their "independent .investigation" that the
single can rate for backyard service, with weekly recycling and
with green waste and general pick ups, should be around $10. 00 per
month instead of the current rate of $16.25. Incredibly, the
current "excessive" rates were agreed to by the District in March,
1994 following a rate review.
The rate comparisons provided to your Ad Hoc Solid Waste Committee
last week confirm that Bay View now has the lowest rate in the
County for backyard service. It is six dollars less than the RSS
rates. Kensington rates are low due to Mr. Figone' s experience in
serving this residential hilly area with its narrow, tree-lined
streets, significant street parking and virtually no commercial
base. Mr. Figone has kept the rates low without resorting to
automated front yard service that would be inappropriate for this
unique community. He provides traditional three man service
tailored to the Kensington community.
District officials claim that Mr. Figone's hostility is based on
their request for financial records. They are wrong. In fact, Mr.
Figone has offered in writing to submit to an audit. District
officials have not responded to that offer.
Chair Jeff Smith •
June 20, 1996
Page 2
The real reason for the fundamental breakdown in the relationship
between the District and Bay View is that they have falsely and
publicly attacked Lewis Figone's personal and business integrity
and his reputation built up over fifty years of service. District
solid waste subcommittee members failed to develop a personal and
friendly dialogue with Mr. Figone. Instead, they wanted to make an
independent assessment of records and comparative . rates without
that dialogue or exchange. In so doing, they met and conducted
business as a committee without public notice or participation. As
might be expected, they did not get all the facts before making
their false, public accusations. To compound matters, after their
independent, private review District officials did not have the
courtesy or common sense to address their concerns with Mr. Figone
before going public with their false claim that Bay View is grossly
overcharging its customers.
These ill-advised actions by District officials have consequences.
To the extent that the District may lose control of solid waste
collection services in the Kensington area as a result of the
breakdown in their relationship with the community' s long term
hauler, District officials only have to look among themselves to
blame. Certainly, the Board of Supervisors did not cause this
problem. Instead, State law and County ordinance require the Board
to deal with this situation and now determine the means of
regulating solid waste collection and recycling services that will
be best for Kensington ratepayers. That may not be what is best
for the District.
The Board of Supervisors should know that regardless of what
District officials may think, their comments and demands do not
reflect the views of a vast majority of Bay View's customers. In
fact, Bay View sent to its customers a questionnaire with its May
billing asking for their opinons. The questionnaires were filled
out and returned by approximately 75% of Bay View's customers.
The survey results were impressive. On service, courtesy,
recycling and rates, the averaged approval rating of fair, good or
excellent is more than 98%. The excellent and good ratings
averaged 90%. Even District officials and other individuals who
support the District position acknowledge the fine service provided
by Mr. Figone and his employees over the years. Kensington
residents like their traditional garbage service. The attached
letters dated November 10, 1994 from Jim Bray, the current General
Manager and November 21, 1995 from his predecessor, Jack
Christiansen, confirm their opinions that over the years Kensington
has enjoyed high quality service and low rates from Bay View and
that Mr. Figone has cooperated well with District officials.
Chair Jeff Smith
June 20, 1996
Page 3
In a cover letter to the questionnaire, Bay View specifically
stated:
The recycling reduction rate in Kensington
today is approximately 26.99% and we thank you
for your excellent participation! The main
goal by the State (AB 939) was 25% effective
January 1, 1995. The mandate shall be
increased to 50% by the year 2000 and we will
have plans, . subject to regulatory approval,
that we expect will allow us to meet this
mandate. The County is the local agency
responsible to see that these State mandates
are timely met. Therefore, our service
agreement may well be with the County. In any
event, our customers will continue to receive
quality service at a fair price. Community
input always will be encouraged.
As part of the survey, customers were made aware of the potential
change in regulation from the District to the County. They did not
seem to care. Rather, they care about continuing good service at
fair rates. In the conclusion of their letter to the Board of
Supervisors, District officials say they want to hear from their
residents about who should regulate Bay View. The survey would
suggest that customers recognize that they will receive high
quality service at low rates no matter who regulates Bay View. I
suspect Bay View's customers would be very upset if it was not the
service provider in the future.
Bay View's customers in Kensington have a good thing in their solid
waste collection company and they know it. It is too bad that some
current District officials have not recognized that fact and acted
accordingly, too. It is too bad they have not treated Mr. Figone
with the respect his fifty years of service deserves. Mr. Figone
wants to continue his good relationship with his Kensington
customers. The overzealous and inappropriate actions of District
officials do not help Kensington residents. Instead, if District
officials were allowed to continue on their present course in
controlling waste collection services, future complaints from
ratepayers are the most likely result.
Consistent with the direction from the Ad Hoc Solid Waste
Committee, the Community Development Department has identified
basic options for the Board of Supervisors to consider. Those
options include:
1) a County franchise agreement with Bay View and the
possibility for a local advisory committee;
Chair Jeff Smith
June 20, 1996
Page 4
2) a County franchise agreement with Bay View with a
required local committee making recommendations to the
Community Development Department and the Board of
Supervisors on all solid waste matters, analogous to a
municipal advisory council;
3) a County franchise agreement with Bay View with full
delegation to a separate local solid waste authority with
appeal to the Board of Supervisors, analogous to a
planning commission; and
4) a memorandum of understanding with the District giving
the District full regulatory authority control except for
County oversight on AB 939 compliance.
Staff is asking the Board to identify which approach it prefers and
then refer the matter back to staff to complete a final document
based on the selected approach, following additional input from Bay
View and District representatives as may be appropriate. That
final document would then be brought back to the Board for its
decision. Bay View supports Options 1 and/or 2 and vigorously
opposes Options 3 and 4 as unworkable, contentious and costly under
the particular circumstances here for this small service area.
Option 2 will give Kensington residents local input similar to a
municipal advisory council, only tailored to address solid waste
matters. Similar programs to provide local input and control on
other matters have worked well in the County. Bay View does not
support the particular draft language prepared by staff as an
example of Option 2 . The process outlined in that draft is
unnecessarily complicated. It does not seem appropriate to divide
up the County franchise fee and give part of it to that committee,
especially if the Community Development Department staffs the
committee. However, those issues can be addressed after the Board
has made a basic policy selection. Contrary to the assertions by
District officials, there is no need to continue the Board hearing
to fully define the details of all these options. Rather, the
decision on which basic approach to take should instead be made
first by the Board before addressing such details.
District officials complain that they have not had sufficient time
to address issues internally and with the County before the June
25th Board hearing. In fact, Bay View' s application has been on
file for over two months. The concepts to be considered by the
Board on Tuesday are straightforward and have been at issue since
Bay View first made its request. A copy of the application letter,
the draft franchise agreement patterned after the BFI and Garaventa
agreements, and related documents were provided right away to the
r i
Chair Jeff Smith
June 20, 1996
Page 5
District General Manager. We have been at three District Board
meetings since then when these issues have been discussed. Their
solid waste subcommittee has been actively addressing these issues.
The District knows where Bay View stands on these basic regulatory
control issues. In the application letter, I clearly stated that
Bay View opposes a memorandum of understanding or a provision in
the County franchise agreement that would give the District or some
other entity the authority to administer the new County franchise
agreement. I have explained that such overlapping administration
increases Bay View's overhead costs, complicates regulatory
oversight and under the circumstances here would be contentious and
would result in costs that would be inappropriate for this limited
rate base of 2, 000 residential customers and very few, small
commercial customers. It is not necessary to provide reasonable
and effective local input. In our opinion County officials are
well experienced in administrating and regulating waste collection
and recycling services performed by private companies throughout
the unincorporated areas of the County. We expect no less than
objective and professional rate review and administration of solid
waste, recycling and diversion services.
As set forth in the preamble to the 1991 County ordinance on
franchises for solid waste collection, disposal and recycling
services, the County is responsible for achieving diversion goals
in the unincorporated area. In Kensington, the 1995 diversion
goals have been achieved at a reasonable cost because the District
in the past followed Bay View's suggestions. However, when Mr.
Figone asked for a rate increase to help pay for the cost of more
diversion to meet the 50% goal, he was accused of already
overcharging customers. District officials do not appear to have
a good sense of how to help Bay View achieve the higher diversion
goal at a reasonable cost. Under these circumstances achievement
in Kensington of the year 2000 diversion goals is at risk if the
District controls recycling and diversion services. The County
should take responsibility for such diversion through a County
franchise agreement.
The claim by the District in its letter to the Board that the
County franchise agreement would be "bad government" and appears to
be a "sweetheart deal," based on campaign contributions from me or
others does not dignify a response. In truth, this matter is
before the Board of Supervisors because District officials have
blown it. Under the circumstances now, the best way for Kensington
ratepayers to be assured that they will continue to receive high
quality service at low rates, just like they have for fifty years,
is for the County to issue a long term franchise agreement to Bay
View. In that way, the County will help keep in tact Kensington's
Chair Jeff Smith
June 20, 1996
Page 6
traditional high quality garbage service at low rates to the
benefit of Kensington ,ratepayers.
Frankly, if the District continued to regulate Bay View, in all
probability matters sooner or later would degenerate into something
like the Brentwood situation. Copies of newspaper articles
chronicling that unfortunate situation are attached. Just like
here, some Brentwood officials alleged misconduct by Brentwood
Disposal Service. The hauler was deeply offended by these false
accusations. The relationship between Brentwood and the hauler
irreparably broke down. The end result was an arbitration award
against Brentwood for approximately one million dollars and
Brentwood's take over of solid waste collection at a high cost to
the City and with increased customer complaints. Citizens and
ratepayers in the end were stuck with the misjudgements of
Brentwood officials. The Board should not let that happen in
Kensington just to placate the demands by some for "local control"
by the District.
By their letter and in their comments, some District officials seem
to be threatening litigation against the County and Bay View if the
Board of Supervisors approves along term franchise agreement
without delegating authority to the District through a memorandum
of understanding or otherwise in a manner satisfactory to District
officials. In its letter to the Board, the District alleges that
any such County franchise agreement would be illegal. Their claim
is without any merit. Such a, franchise agreement is authorized by
Chapter 418-7 of the County Code and by the California Integrated
Waste Management Act. Courts have recognized that the State
Constitution and solid waste statutes have granted to counties and
cities the primary authority to regulate solid waste services
within their boundaries, even where such services have already been
regulated by special districts. The California Integrated Waste
Management Act of 1989 reaffirms a county' s authority to
exclusively regulate local aspects of solid waste management in the
unincorporated area.
The powers of special districts relating to solid waste are subject
to the superior authority of cities and counties. It is counties
and cities who are responsible for developing integrated waste
management plans and for achieving mandated waste diversion goals.
They are the public entities subject to hefty fines by the State if
the goals are not acheived. A county has the ability to delegate
such authority to a special district, but is under no legal
requirement to do so.
Chair Jeff Smith
June 20, 1996
Page 7
The contract between Bay View and the District is subject to the
County's control and authority as provided by County ordinance and
State law. That is clearly the case when the private service
provider in contract with the service district has no objection to
a change to local agency regulation by the County. The special
district regulator has no statutory basis to legally challenge a
continued provision of service to the community by that consenting
hauler under County regulation.
These issues have been raised by other service districts over the
last few years. County Counsel has previously confirmed the
County's authority to award a franchise agreement after expiration
of the five year notice period to hauler and special district. See
enclosed copy of Attachment A prepared by County Counsel and
included with a Community Development Department report to the
Board of Supervisors in 1995. That notice period expires this
August..
Special districts are presently involved in solid waste collection
regulation in different areas in the County. The appropriate
regulatory approach in each such service area should be based on
the facts and circumstances unique to that area. Under the
circumstances in the Kensington franchise area, it is in the best
interest of the ratepayers for the County to enter into a long term
franchise agreement with Bay View. Mr. Figone has demonstrated
over the years his ability to deliver quality service at low rates.
He is convinced that his customers would be best served by such a
regulatory arrangement. He is convinced that in the short term and
over the long run his customers will suffer lower quality service,
inconsistent with their traditional expectations, less recycling
and higher rates if District officials autonomously impose their
misguided, albeit well meaning, vision of regulatory oversight.
Very truly yours,
NkL. Armstrong
MLA:kh
Enclosures
cc wfencs. : Lewis Figone
Kensington Community Services District
Attn: Jim Bray
Val Alexeeff
Mary Fleming
Lillian Fujii
P ACLXCA\28117TB OARD.L TR
KE
N*. ..CON POLICE PRO r-1ON
r' AND COMMUNITY SERVICES ISTWCT
NoveinUr 10, 1994f
Mr. Lewis Figone, President
Bay View Refuse Service
•P.•O. Box .277
El'.Cerrito, Ca 94530
:Dear bar. Figorner
Please accept this letter as an endorsement of the quality;of work your company has provided
to the community of Kensington, As you are aware, Bay View ,Refuse Service has provided
refuse service to our community for well oveefor(y years, during which, the past nine years
I have personally worked with you and your staff.
Through mutual cooperation, Kensington has enjoyed one of the lowest refuse and recycling
rates in Contra Costa County. In fact, our latest survey indicated we have the thins lowest
rate in the county. Our low rates, coupled with the fact that you provide four annual
cleanups, clearly shows flow well the two districts work together.
In closing, I want to thank you and your sngf for your willingness to provide quality service
to our community and I look forward to working with Bay View Refuse for years to come.
y,(:'�
m es Bray
neral Manager
217 Arlington Avenue • Kensington, CaLiforn-la 94707-1401 • (5101526-4141
KENSINGTON COMMUNITY SERVICE DISTRICT ArPrItRUNCIE
526-4141 217 ARI_IN13TON AVENUE Hl(N BtR
KENSINGTON, CALIFORNIA 94707
November 21, 1985
Lewis Figone
P.O. Box 277
E1 Cerrito, CA 94530
Dear Mr. Figone:
As you are aware, I'll be retiring November 30, 1985. it has
been a pleasure to- work with you. I appreciated the manner in
which you worked with me and the Board during the renewal of the
Refuse Agreement and rate changes. Your cooperation and
consistency in answering my questions no matter how trivial they
seemed, resulted in a favorable conclusion for both of us.
I sincerely enjoyed working with you and appreciated your
friendship. Thank you and I know my successor will be left in
good hands.
Sincerely,
,
Jack I. Christian
General Manager
lRentwood a
battle demes to end
By Ednotyn Baia "1'111 not sure we have a choice,"
resident Slew- Gregory said. "I
scare writer think we're Treacly paying high
BRI,NTWOOD — The Califor- rates. But big mistakes werr. nincl:
nin Suprcme Cour t deviled the and we have to live with thein."
city's requost fora hearing on a "I think the City Coulicil ex-
garhngp rate dispute witli its fur- Imusted every opportunity it could
nler trash (miller, ending a lengthy to tvark it out," resident Barbara
battle that will rnaL the city about Botinicksun said. "But it (higher
$1,5 tniilioll. rates) is all that's left for its, then
"We're disappointed, but lint it's the only an9wtr thea; is."
surprised," Mayor kill Ilill said in a While the Supreme Court con-
press release issued Wednesday, sidered the cily's rerlcrist for o
"The Suprcine Court appeal leas a hearing, an attempt last Month by
long shot, blit we needed to ex- Counc(1 members Qtihitin Kidd and
haust every rrasomible possibility urcg Sherman and Corey to reach
on behalt of our customers." a settlement with the trash cotrlpa-
'I'hc city requested the heoring uy failed.
after the First District Court of Ap- "Brentwood Disposal was very
peals in San Franr.isco reverscit nn firm in what it wanted alld tilt City
Alameda County Superior Court was-unwilling to bend that far,"
ruling that an arbitrator, hired by Greg Shern,nn arid. "We had
the city and Brentwood Disposal reached a stalemate."
Service to settle (lie rate dispute, Sherman and Kidd declined to
had a conflict of interest. comment on details of the nCgotis-
The high court matte its decision tions, because there still nlay he an
May 24 WIL11 only uric of 111C seven opporttlility to teach a selllCn1e111.
judges,Justice Stanley Mosk,want- "If we look at it strictly on a
ing to grant.a hearing. The justices business stnndlx)int, 15 (lie (city's)
gave no reason for the (IcOsiun, garbage business wouth $1 lnil-
"I think it's nver," said Pill Gn- lion?," Kiehl asked. "if ),(Ili look at
gen, a genera) counsel for Gara• the amount of money the residents
yenta Eiiterprises, Brenlw•ncw.l will kave Lind clic 1%;V0 err service,
Disposal's parent company. "The the answer is yrs."
court of last resort has spoken anti Kidd calculated residorit.e
it's time [lir the city to pay." wouldn't have to pay more than on
---� The.Superior Court is expected atlditionnl$7 a month to pay off the
to relnstatc the arbiliot.ur's award settlenlent., and over time, the rate
and the city could receive a bill would decrease as more people
next month. Gagen er;tiuiatcs tlic move to the city,
city will owe about $1.5 million. "The current council has no in-
The set[lement represents the tent to get out of the garbage busi-
$550,502 the arbitrator awarded Hess," Kidd said.'"A new contract
[lie trash company in October With Dc cwtwcnod Disposal Service is
1993, puts interest and attorney 11et on the table."
m
es accuulated since then. The The city took over lhu garbage
city'a awn legal fees nee about Lo collection service in May last year,
$ The judgement i3 cxpcct
0. in part, ice counter rate bilk-3 pro-
The e,l
result in a rate increase,.but the posed by Brentwood Disposal.
amount won't hr. known until legal Arbitrator Charles 1t. Antics
matters are finalized, according to ruled tllc city owed the trash coln-
City Manager Jay Corey. piny $550,502 bccitiw it hadn't
"We're going to explore pay- approved gniUnge rates high
tient options and look to utilizing enough in make n profit no guaran-
wh atever meths possible to pay teed in its cziaract with the conipa-
ttlis out in a timely fashion Lhnt ny.
do03n't scm-ely irupact our rate The city took the matter to the
payers," hill said Wednesday. Superinr Court, claiming Antes had
Some residents liave vcsigued a conflict of inierest because he has
themselves to digging deeper into a business relationship with a for.
their pockets to pay the settle- nice attorney fur Garaventa Inter- ;
omenta prises. j
.1
Council urged
fight trash hauler
By Dare Roberts $100,000 in legal fees by going
dens Starr Witter ahead now.
"It would be a shame if we did do
BRENTWOOD—An outspoken a study and after weighing all the
critic of trash rate hikes his urged alternatives the council determined
the City Council to pursue its fight the best option would be to renego-
against the city garbage hauler. date something with Brentwood
"I don't feel that thearbitration Disposal," Adams told the council.
should he held over the council or "Then we have: already spent
the city's head or the residents' $100,000 for nothing."
heads based on whether or not Mr. Vice Mayor Bill Hill and Council-
Greedy Garaventa gets a renewal," man Bill Doheney strongly die
said city resident Milan "Pete" Pe- agreed,however,They feel that the
trovich, who has stopped his trash dispute with Brentwood Disposal
pickup service in protest against the should be settled this summer and
recent rate increases. should not tarot the decision on who
Last week the council appeared will pick up city trash in the future.
to shift its previous position to go to "If they are of a mood to go
binding arbitration this summer abbad and pursue this ridiculous
with Brentwood Disposal Company claim that has no basis in law except
regarding the company's claimed to the smallest degree and spend all
past losses of $700,000-$900.000. this money and make the city go
In an informal poll a majority of through all this effort at the same
council members -- Mayor Art time we are coming to a conclusion
Gonzales and Councilwomen Barba- about who to have haul our garbage,
ra Guise and Karene Gottfried --- then they should enjoy the cone-
weed to delay the arbitration at querims of that action," Aoheney
least two or three months while the . said,
city's future trash pickup options "The day after we entered into
are Studied. that agreement (to go to at'bitra-
council could then either Once the study is complete the tion)J thought,'Holy smokes,Gara-
ther decide to vents just played his hand and that's
at ahead with the arbitration or to all he has left. He's played Ws last
attempt n work out a compromise card.' That's a good position for us
with Brentwood Disposal. to be in because if he's going to play
nyPblyrniguhmtaagree to notgpressmpte "'those kinds of games: We*
=.goj4*
$700:000-plus claim in exchange for or anwhatever io
he do adea t
getting a renewal of the city s exclu- do."
sive trash pickup franchise.'1 he cur-
rent contract runs out April 30, Dobeney was also concerned
1994, about whether the delay in the arbi-
Agreeing to delay the arbitration tration would lead the company to
was a shift from the council's view further increase its loss claim. But
at its May 25 meeting. At that Adams said he didn't think that
meeting several council members would happen because the two re-
angrily rejected any delay or hint of cent rate hikes should currently be
compromise.calling it an attempt by providing the company with a profit.
the company to blackmail the city ,.I,he problem with this company
into granting a new contract.
However, at the)tine 22 councilis that you have to think in the most
meeting — with the discussion ac-t crooked, twisted ways to think of
tually taking place about 1 a.in. on r how their delays will impact us, t
June 23 — some council members Doheney said in exasperation. _J I
appeared to have a change of heart Garaventa was out of town last
after Adams' presented the proposal week and unable to respond.But he
once more. has said in the past that lxls company
The city loses nothing by delaying has merely sought to make a profit
the arbitration, Adams argued, but as guaranteed in its contract with
could utuiccessarily lase at least the city.
service
runsde �cl,'Trash .
_._ from
-• —'Continued from page 1 — sewer funds.That audit is expected.-
would have an income of$21,000 a n the coming months.
month:Obviously,the revenue was We will adjust them all to thea
m .
Rate cuts unlikely as city ces overstated." rate they need to be based on the
�.} r ry� Y �} When asked about-Vice Mayor cost of the service,' Doheney said.
gUal lel—1 11IIIIO� �OIIaI SI1OI ILII Bill Doheney's estimate a half-year City Manager Jay ,Corey has
ago that the city-will make enougli warned the council that'the city
money_on its trash service so that sewer the will probably need.to
By Dave Roberts rates.can bl cut, Mom71 said, "I increase in the coming year klue to .
News staff writer don't see how he's:going`tp"do ongoing deficits in the sewer fund.
66 If I once was that„ : This year's deficit is estimated at
BRENTWOOD—The city trash And Doheney"is now not as opti- •about $199,000.
service is expected to run up more (optimistic) I.. mistic about reducing trash rates.. Doheney, who had originally.
than a quarter million dollar deficit He cites increased costs from the hoped to propose a trash rate re-
in its first year,dashing hopes for a was envisioning city's expanded recycling service, duction this summer,sought to put
trash rate reduction and increasing which exceeds that formerly of- a good face on the likeUob� that '
concern about a possible rate hike something fered by the Garaventa,run Brent- that will not h2ppen anytime soon
in the coming.Year. wood Disposal Service.. if ever. '
"I see rate increases in the fu different from "If I once was (optimistic about "We are now 14 months without
ture,"said former City Councilman rate reductions) I was envisioning any kind of(trash rate)increase,"
John Morrill after Tuesday night'.s something different from what we
Cit Council meeting. what we have.. g he said."And I don't see One on-the
City ghave now;" Doheney said. "That horizon. That's not bad given our
During the meeting council ■ was more like what Garaventa was
members were informed that an now. �./ history.,,
initial estimated deficit of$152,000 doing. u supple operation like that In March and May of last year.
in the city solid waste enterprise you would have had to lower rates.
— BiII.Doheney the council raised trash rates ap
fund haste_ ballooned to But the operation have here is proximately a collective 50 'per-
On trash rate reductions' not that. Less optimistic? Yeah."• cent.
$281,000,based on more accurate. Despite this reduced'optimism, Any future trash rate hikes
calculations. "The community should be look- Doheney does not share,Morrill's µ An likely utbe .less than that.
The city"trash operation-i§i ex ing very closely at the solid:waste concern that rates may need to go
petted to take in approximately enterprise fund," warned Morrill. up to,avoid,future deficits in the Corey has championed a•plan of
$1.3 million from rate payers in the "When the garbage issue was.sold city trash" operation. Doheney getting all city Yates up to where
coming year'while expending about to the public we were told`they blames part of the deficit on one- they meet expenses and then to
$1.6 million on equipment and op time start-up:costs such asur- increase the rates moderately on c.
erating costs. — See TRASH, page 14 chasing new trucks and trash cans. regular schedule to keep up with
inflation and new expenses.:
-- However, only 65,000 of.the ,
additional $167,000 in expendi- boheney anticipates that the
tures recently:calculated by city trash rate situation will sort itself
Assistant Finance Director Anita . out and get.to a point where reve-
Jones'consists of equipment pur- nues from new growth in the city I
chases. will begin.absorbing and offsetting
The remaining $102,000 con- much of'the initial start-up costs.
sisis of expenses which may recur., "I am not worried at all about
such as overtime pay, holiday pay, the rate structuie," he said.
special supplies,equipment mainte- "There isn't•going to be any
nance, equipment rental,.special' breathtaking increase• coming
services,dumping fees,contractual around the corner like we have
services and legal services. been used to.There will be nothing
Doheney said that presently no 'but reasonable business practices in
one isaeally sure what the financial every(city)enterprise fund as soon
figures will mean until an audit is as we finish the (accounting) work,
done of the city's trash, water and that needs to be done there.".
' f
Doheneyheattakes f®r garbage flasco
Critics say councilman's style
of negotiating cost Brentwood July 14
1963
Art
BRENTWOOD— Earlier this year City for approximately$900,000 owed to Brent City of Brentigood Br@ntWood Dis"r�osal:;Service,`
Councilman Bill Doheney essentially declared wood Disposal as well as an additional 't. P,
war on Brentwood Disposal Services in its $200,000 incurred in city legal expenses. Dear Mayor Oonzates
rate dispute with the city. On Feb.10 in a phone interview,Doheney .. ,,8....,,..>:
Now the war is over �,, essentially declared war on Brentwood Dis- ..,:.In order..to.provide..a reasonable.torum.for resolution of this dispute,.our.
and Brentwood rest �,- -� posal. company has agreed to an arbltratlon process with the Clty Politica ands..
dents have been massa __ _ "Make no mistake about it,i am going to personal sgendo w111.not be a.part.of,that process
cred with a$1.1 million war for the rate payer by forcing an accurate
arbitration settlement accounting and forcing a recognition of their :Your City At'o'ney:asked our"attorney to extend the arbltratlon by,ninety y
Some are pointing to -', `- duty to control their costs,"Doheney said. days 1n order to allow addttldiisa tlme�wdlscusa w;settlemeni.ofrour:claim:
Doheney as Brent 7 "In pursuit of that information I am going to With some.reluctance I was.initlally willing to.go along with such an
'` s';Aif'o 'extension Ifthere a eared to bean opporturilty Lo re�olv�4our.olatm wltlout
wood's General Custer war."
Critics blame Do- Garaventa Jr.responded in a Feb.16 n additional arbltratlon hosts being incurradby the City and our co- pav",
heney for failing to seek terview,"I think it's inappropriate for Bill to ultiiaateiy the citizens and ratepayars'o£Brentwood would brlri'g
a compromise with " declare war.He hasn't even heard from the
Brentwood Disposal offs- DCHENEY
(city-hired rate) consultant. It seems to However, >n Ilght of comments at the]astGCStq Cotmcll meeting bx.Mr
cials in March 1992 con- smack of politics and that whole thing." Doheney when the extension was discussed sad his eommenLa"elsewhere I
cerning the company's 61 percent rate hike Garaventa Jr. went on in that February am:no longer willing,to extend.rthis,,arbitration .Mr Doheneq. eays purr•;.
request when he and then Councilman John interview to cite Doheney's non-compromis ertiltrattori claim for recovery of pa t losaes:;la ridieul¢tfa and that fillies;,no j
Morrill served on the council's rate tie otiat- in attitude during the negotiations with basis to law"He says that garaventa is playing gahos '88iri�ayhat our
ing committee. g company officials in March and April of last compa� l/thuikst,ln RCS okedp�`Wryulstjryd, 811�4.Y�fiyli �l(! ��_i�tGRR41� ���r,R � ,1
This hostile attitude against the company year as a major contributor to the impasse
got relations off to a bad start from which that ended so badly for the city. 2 have.had enough of this,public mudslinging If Ile does not wa.ntitor:
[hey never recovered.In fact,tensions only "One of the reasons I am a little critical of extend Lhe arbltratlon then fine It won tbelextended W'
escalated with occasional exchanges between Bill is that he told us in the fust meeting it , " P
company executive Sil Garaventa Jr.and Do- was not in h s political platform to vote for We mane Yt a practice to do everything we reasonably can to develop and
heney(and occasionally other council mem- garbage increases," Garaventa Jr. said mafn[ain Hood r,iations':with Local-officials 1n tba oommttnitles that we sere,
bers) at council meetings. "That goes along with his no-tax issues TtyaL,fe not'always'eaay!8om'etimea-there•are'dlssgceemeiitsiHowever;^1ri•all F
In addition, a letter this summer from which I don't think is politically responsible my--years I have never experienced comments from•&local elected official;'`
company head Sil Garaventa Sr.places the or fiscally responsible for the city." -anything close to the steady,stream of baselese,,charges and personal insults
blame entirely on Doheney for pushing the Some of Doheney's fellow council'mem- made by Mr,Doheney My patieifce ls'at'sfi end If;thfa process ends:.poorlq;
company to go ahead with arbitration instead bers are also pointing the finger of blame at for,the,Cfty of Brentwood then ha 1s to blame I am trtt>,y sorry.¢hat we have r�
of seeking a compromise and saving money Doheney. reached this point
for city ratepayers. "The problem is last year there was a Sincerely,SOvio garaventa 9r }.
That arbitration ended badly for the city's
ratepayers,who have been stuck with a bill —See GARBAGE, page 10 (Excerpts_hnm xtue4ietter);(
Page 10—BRENTWOOD NEWS, Brentwood, Calif., Tuesday. October 26, 1993
Continued
Garbage
— Continued from page 1 — said. "Bill was grandstanding and gotiate with Garaventa Jr., but no "He said, 'I will take responsibil-
problem with negotiations and he was playing pure politics. He progress was made. ity (for my actions).' They were
that's what prompted the lawsuit acted in a way that's cost this city "I am not sure what happened threatening cls with another law-
(by Brentwood Disposal)," said half a million in (legal) fees. Bill's under Don Russell,"Gonzales said. suit. I said, 'That's fine, but you
Councilwoman Barbara Guise."It's approach was unbusinesslike and.it "We never got any reports back. can't say something that's slander-
too bad we got to this point. It all was inappropriate.I was very frus- We wanted to negotiate this on our ous. When they sue any of us they i
could have been avoided last year." trated with Bill Doheney and his own — that's what we had been are suing the city of Brentwood.
And Mayor Art Gonzales also is approach on the matter. doing (in the past) — and (this Keep in mind when you make any ,
critical of Doheney's negotiating I voiced that at one point: 'The time) it didn't work. Eventually it statements on your own. If you
tactics and subsequent critical question was what's better,Bill,us had to come to a head." have an opinion tell him it's your ,
statements that exacerbated the giving higher garbage rates (now) Tensions continued to escalate in opinion.'
tensions between the city and its or to pay double or triple that in late 1992 and throughout 1993 as "He said, 'I will handle this.' I
trash hauler. lawyer's expenses?' His more or verbal jousts took place between said, 'Fine, 1. just wanted you to
Gonzales said that after he found less response was, 'We have to do company officials and Doheney and know where I am coming from.We
out the negotiations were stalemat- What they (city .residents) want, to a lesser extent other council have this letter and they seem to
ed in the spring of 1992 he re- Which is not to pay higher rates.'" members at council meetings. lay the blame on you totally.We do
moved Doheney from theMorrill said he was willing to After Garaventa Sr.sent his July have to be careful what we say in
increase to 14 letter to the city placing the public in terms of personal attacks.
negotiating committee. The coni grant a reasonable rate inc
nmitteeegotiating
was then disbanded after Brentwood Disposal and negoti- blame on Doheney's attitude and Not in terms of our opinions and
Morrill told the mayor he didn't ate an extension of the contract in statements,city officials feared the policies but personal attacks."
want to continue on the committee. exchange for dropping any threats Garaventas might file a slander suit The Garaventas never followed
"Our negotiating team fell of arbitration or a lawsuit over the against Doheney and the city,Gon- through on the slander suit.
apart," Gonzales said. "Bill — I company's past losses. zales said. This prompted a lecture "It's probably just as well, it
had to remove him because he was by Gonzales to Doheney at a closed would have been silly," Gonzales
not,they didn't feel he was negoti- "Politically, that would have door session. said. "I am not going to blame Bill
ating in good faith, whatever that been another nail in my coffin," "That kind of an attitude doesn't for anything.I think he did the best
means." said Morrill,who was not re-elect- solve problems," Gonzales said. lie could.But he does tend to get a
Morrill.charged in a phone inter- ed, in part because of support for "That's what I was concerned little over-rambunctious in the
view Friday that Doheney's failure the unpopular landscaping mainte- about.Not so much the fact that he world according to Bill. But I have
to bargain in good faith in the be- nance tax. was belligerent towards (Gaya- seen him calm down a little more
ginning has now led to the city's With the council committee dis- vents).I said(to Doheney), 'We do than he has been.This goes toward
costly debacle. banded, Gonzales then appointed have a responsibility in that we are not jumping into things without
"Bill was off the wall," Morrill City Manager Donald Russell to ne- speaking for the city of Brentwood. thinking things through."
ll ' %f 4(rACHMENT 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 authored local agencies to rral<e provision for
solid waste handling, which est;blished autiiori for Count's
to take over.franc::ises.
► 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)
t n:as
auuth.11 ,
(J%2895)
Kensington Improvement Club
KENSINGTON, CALIFORNIA
aMAI
�dlso�VH 03 ly 11, 1996
sao3�o
Jeff Smith, M.D.; Chairman Board of Supervisors ContraCosta County
651 Pine St.
Martinez, CA 94553
Dear Dr. Smith:
The Kensington Improvement Club (KIC)joins with the Kensington Property Owners Association
in opposition to the County's contracting directly with Bay View Refuse and Recycling Services,
Inc. for solid waste services in Kensington. The Kensington Community Services District has
provided regulation and rate setting for garbage services for over twenty-five years under its
franchise agreement with Bay View Refuse Service, Inc. The District has negotiated services with
the hauler, including recycling, which have been successful in meeting solid waste reduction goals
mandated by AB 939.
The County's proposal to take over Kensington's franchise appears to be the result of Bay View
Refuse seeking protection from having to release financial information regarding the company's
charges for garbage service to the District. In 1995 Bay View requested an I I% increase in rates
which would have resulted in fan increase in revenue to Bay View of approximately $70,000 a.year
without any increase in ser`vicesloKerisington. The request of the Kensington District Board to
review Bay View's financial information is a valid attempt to evaluate rates being charged
Kensington residents and is a type of evaluation and rate setting done in most Bay Area counties
and cities. The current franchise contract with Bay View provides for access to this information.
The District is an elected body and as such is responsive to the needs of the community and has
adequately fulfilled this role in the area of garbage services. In requesting supporting financial
information, the District was exercising its fiduciary responsibility to the residents of Kensington.
The KIC represents 724 households and approximately 1400 voters in Kensington. We strongly
believe that Kensington should retain local control over our refuse service and that the best way to
achieve AB .939 goals is by a cooperative working relationship with the County through a
memorandum of understanding developed with the Kensington Community Services District
Board, not a franchise agreement imposed on Kensington by the County and Bay View Refuse.
Sincerely.
Marianne Loring, President
274 Willamette Ave.
Kensington, CA 94708
cc: —'Al.I Contra Costa County Supervisors 1
Phil Batchelor;County„Administrator
KCSD Board ofDirectors
Janet Gotch, CIWMB
Bay View Refuse
West County Times; ATTN om Lochner
DP
(1,0,
� I �
-, 137 Cambridge Avenue
Kensington, CA 94708
10 Jul. 1996
Jeff Smith, M.D., Chairman
Board of Supervisors RECEIVED
Contra Costa County
651 Pine St. JUL 1 51996
Martinez, CA 94553
CLERK BOARD OF SUPERVISORS
Dear Dr. Smith: CONTRA COSTA CO.
I am writing as a Kensington resident to oppose the County's contracting directly with
Bay View Refuse and Recycling Services, Inc. for solid waste services in Kensington.
The Kensington Community Services District has provided regulation and rate setting
for garbage services for over twenty-five years under its franchise agreement with Bay
View Refuse Service, Inc. The District has negotiated services with the hauler, including
recycling, which have been successful in meeting solid waste reduction goals mandated
by AB 939.
The request of the Kensington District Board to review Bay View's financial information
was a valid attempt to evaluate Bay View's request for a rate increase and is a type of
evaluation and rate setting done in most Bay Area counties and cities. Kensington's
current franchise contract with Bay View provides for access to this information. The
Board is an elected body and as such is responsive to the needs of the community and
has adequately fulfilled this role in the area of garbage services. In requesting supporting
financial information, the District was exercising its fiduciary responsibility to the
residents of Kensington.
Kensington should retain local control over our refuse service and has a valid contract
with Bay View Refuse Service to provide that service. The best way to achieve AB 939
goals is by a cooperative working relationship with the County through a memorandum
of understanding developed with the Kensington Community Services District Board,
not a franchise agreement imposed on Kensington by the County and Bay View Refuse.
Sincerely.
i�
cc: All Contra Costa County Supervisiors
Phil Batchelor, County Administrator
KCSD Board of Directors
West County Times: Attn Tom Lochner
�c
Cpl
v
LAW OFFICES OF
LAWRENCE E. SMITH
CENTERPOINT BUILDING
18 CROW CANYON COURT, SUITE 280
SAN RAMON, CALIFORNIA 94583
TELEPHONE (510) 820-4310
July 8 , 1996
R
ECEIVED
L -:91996
Jeff Smith, Chair ARDOFSUPERvtSORS
Board of Supervisors CONTRA r0STA CO.
Contra Costa County
651 Pine Street
Room 106
Martinez, California 94553
Bay View Refuse Company -- Kensington Franchise
Dear Mr. Smith:
I- understand that the Board of Supervisors has
scheduled a hearirig"on` various 'matters.-pertaining tto the Bay View
Refuse Company' s collection service in the :Kensington ,community.
I have been a resident of Kensington since 1981 and
want to express my complete satisfaction with Bay View' s
performance during that time . The men who collect the refuse are
infallibly courteous and collect the refuse from my backyard so
that I am not forced to move my garbage can to the street on a
weekly basis (to be attacked by neighborhood dogs) . I have a lot
of trees (and falling pine needles) at my home and the company
collects as much of anything as I can put on the street in its
quarterly special pickups, even though it has no obligation to
collect more than a small amount per household. When I have had
occasion to deal with Bay View' s office staff, they have been
responsive, and Bay View' s principal, Lou Figone, has become
personally involved on occasion to insure that I was happy with
his company' s service.
In summary, I am entirely happy with the service.
provided by Bay View Refuse and believe- it is well. worth the
1 ,
Jeff Smith, Chairperson
July 8 , 1996
Page 2
collection fees charged by the company. I hope that the Board
will take any action necessary to insure that over the long term
Kensington continues to be serviced by the company.
Respectfully submitte ,
Lawrence E . Smith