HomeMy WebLinkAbout2010.1104.TCRM.Minutesz:\council packets\2010\r12-2-10\110410m.docx Page 1 of 29
TOWN OF FOUNTAIN HILLS
MINUTES OF THE REGULAR SESSION OF THE
FOUNTAIN HILLS TOWN COUNCIL
November 4, 2010
* CALL TO ORDER AND PLEDGE OF ALLEGIANCE – Mayor Jay T. Schlum called the meeting to order at
6:40 p.m., in the Fountain Hills Council Chambers.
* INVOCATION – Mayor Jay T. Schlum
* ROLL CALL – Present for roll call were the following members of the Town Council: Mayor Schlum, Vice Mayor
Brown, Councilmember Dickey, Councilmember Hansen, Councilmember Elkie, Councilmember Contino and
Councilmember Leger. Town Manager Rick Davis, Town Attorney Andrew McGuire and Town Clerk Bev Bender
were also present.
* MAYOR’S REPORT
i) Recognition of service to the Town of Fountain Hills by Captain John Kleinheinz of the Maricopa County Sheriff’s
Office.
Mayor Schlum stated that Captain Kleinheinz had been with the Town for seven years and had served Fountain Hills
with a great deal of heart and professionalism. He added that Captain Kleinheinz had been involved in all elements
of the community and said that the Town was going to miss him greatly. The Mayor read a plaque that he presented
to Captain Kleinheinz in appreciation for all he has done for the Town of Fountain Hills. Mayor Schlum wished him
the best on his new assignment.
Captain Kleinheinz stated that he wanted to thank those in Town who put themselves out to ensure his success,
beginning with former Mayor Wally Nichols and Rick Melendez talking to Sheriff Joe about bringing someone into
Town that would become part of the fabric and "live the Town." He thanked everyone he has worked with,
including Fire Chief LaGreca, Randy Roberts and his friends on the Council and said they will always be
remembered by him.
ii) Introduction of Captain Joe Rodriquez as the new Commander of District 7 by Maricopa County Sheriff Joe Arpaio.
Mayor Schlum introduced and welcomed Captain Joe Rodriquez and said that he and the other members of the
Council look forward to working with him.
Maricopa County Sheriff Joe Arpaio stated that the Town was losing a great guy who would be missed and added
that he had hired Captain Rodriquez 17 years ago. The Sheriff said that he asked Captain Rodriquez to assume this
critical assignment and he agreed to do so and Sheriff Arpaio stated that Captain Rodriquez will do a wonderful job
serving the citizens of the Fountain Hills. He said while one guy leaves another guy comes aboard and he also
thanked Town Manager Rick Davis for working together with the Sheriff's Office and selecting Captain Rodriquez.
Sheriff Joe also wished Captain Kleinheinz the best of luck in his new position.
Captain Rodriquez thanked the citizens of Fountain Hills for inviting him into their Town and allowing him to
become a part of the community. He added that he looked forward to the experience and getting out into the
community.
iii) Introduction of Mitchell S. Eisenberg as the Town’s new Municipal Court Judge.
Mayor Schlum advised that Mitchell S. Eisenberg was the Town's new Municipal Court Judge and congratulated him
on his appointment. The Mayor said that they were very fortunate to have a great man and his family coming to
Fountain Hills to serve the citizens and stated that they had been greatly served by their judges in the past and that he
knew that Judge Eisenberg would continue that tradition. The Mayor said that they had hosted a brief reception prior
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to this meeting for the Judge and his family and he provided brief background information on the Judge's career. He
wished him good luck in his new position.
iv) Proclamation declaring “Red Shirt Fridays” in the Town of Fountain Hills.
Mayor Schlum read a proclamation into the record declaring “Red Shirt Fridays” in the Town. He noted that the
Fountain Hills Veterans of Foreign Wars, American Legion and AmVets wished to honor and show support for
American servicemen and women by designating this Friday and all future Fridays in Fountain Hills as “Red Shirt
Fridays.” The Mayor said that each serviceman and woman contributes to the liberty and freedom that Americans
enjoy and to freedoms around the world. He added that by wearing red every Friday we are announcing silently that
we are grateful to our servicemen and women for their bravery and sacrifice and that we would not forget them. He
noted that the shirts were sponsored by the Veterans’ groups of Fountain Hills and stated, “We are Free, Because of
the Brave.” Mayor Schlum stated that it was his honor to proclaim each and every Friday “Red Shirt Friday" in the
Town of Fountain Hills to honor American servicemen and women.
Mayor Schlum welcomed representatives of the Veteran's organizations in Town and said that they were blessed to
have such strong organizations. John, one of the representatives, informed citizens how they could obtain their red
shirts, thanked them for their past support and encouraged future support for this very worthy cause. He stressed the
importance of never forgetting our troops.
v) Recognition of the Take Pride Committee and Town staff for their organization and participation in the Take Pride
Day on October 23, 2010.
Mayor Schlum thanked the members of the Take Pride Committee, citizens and Town staff for their organization and
participation in the Take Pride Day event that had taken place on October 23, 2010. The Mayor provided a brief
overview of the tremendous work that was done in the Town as a result of this event. He thanked Town Manager
Rick Davis for spearheading this event last year.
Mr. Davis stated that this was an event that from the beginning this project was about connecting people with the
community. He said that he saw friendships being formed that day as people volunteered their time and efforts to
enhance the community as a whole and commended everyone for their willingness to work together for a worthwhile
cause.
The Mayor commended Town staff for their efforts in this regard, particularly Mark Mayer who was out on
vacation and acknowledged their great contributions.
Councilmember Elkie commented that he was impressed with the number of staff and citizens who had come out and
volunteered and accomplished a great deal of work. He also commended Mr. Mayer, Mr. Clark, Mr. Rees, Mr.
Hughes and others for their outstanding efforts.
* SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS
None.
CALL TO THE PUBLIC
None.
CONSENT AGENDA
AGENDA ITEM #1 – CONSIDERATION OF APPROVING THE TOWN COUNCIL MEETING MINUTES
FROM OCTOBER 7 AND 12, 2010.
AGENDA ITEM #2 – CONSIDERATION OF APROVING A LIQUOR LICENSE APPLICATION SUBMITTED
BY MATILDE SALAZAR, OWNER OF TERRA NOSTRA ITALIAN RESTAURANT, LOCATED AT 13014 N.
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SAGUARO BOULEVARD, SUITE #101, FOUNTAIN HILLS, AZ. THIS IS FOR A SERIES 12 LICENSE
(RESTAURANT).
AGENDA ITEM #3 – CONSIDERATION OF RESOLUTION 2010-39, ABANDONING WHATEVER RIGHT,
TITLE OR INTEREST THE TOWN HAS IN THE CERTAIN SLOPE, PUBLIC UTILITY AND DRAINAGE
EASEMENTS LOCATED AT THE NORTHERLY AND WESTERLY PROPERTY LINES OF PLAT 201-A,
BLOCK 1, LOT 8 (AND A PORTION OF PARCEL B) (11824 N. OASIS DR.) AS RECORDED IN BOOK 150 OF
MAPS, PAGE 32, RECORDS OF MARICOPA COUNTY, ARIZONA. EA2010-05 (DI NASO).
AGENDA ITEM #4 - CONSIDERATION OF RESOLUTION 2010-33, A REQUEST FROM MCO PROPERTIES
TO CHANGE THE PRIVATE STREET NAME OF E. GOLDEN EAGLE BOULEVARD WITHIN THE
EAGLES NEST GATED SUBDIVISION (I.E. FROM THE EAGLES NEST GATE TO DESERT TORTOISE
TRAIL), TO E. MOUNTAIN PARKWAY.
AGENDA ITEM #5 - CONSIDERATION OF A UTILITY DISTURBANCE PERMIT TO ALLOW A UTILITY
TRENCH AND INSTALLATION WITHIN A NON-DISTURBANCE AREA AT 15535 FIREROCK COUNTRY
CLUB DRIVE. CASE #UDP2010-01.
AGENDA ITEM #6 – CONSIDERATION OF APPROVING THE PURCHASE AGREEMENT BETWEEN THE
TOWN OF FOUNTAIN HILLS AND GEN-TECH FOR DIESEL FUELED STANDBY GENERATORS IN THE
AMOUNT OF $52,497.58.
Councilmember Elkie MOVED to approve the Consent Agenda as listed and Councilmember Dickey SECONDED the
motion. The Mayor advised that Vice Mayor Brown would refrain from any discussion/action on the Consent Agenda
Items due to a potential conflict of interest.
A roll call vote was taken with the following results:
Councilmember Dickey Aye
Mayor Schlum Aye
Councilmember Leger Aye
Councilmember Hansen Aye
Councilmember Contino Aye
Vice Mayor Brown Abstain
Councilmember Elkie Aye
The motion CARRIED UNANIMOUSLY by those voting (6-0) with Vice Mayor Brown abstaining from the vote.
REGULAR AGENDA
AGENDA ITEM #7 – CONSIDERATION OF RESOLUTION 2010-28, DECLARING AS A PUBLIC RECORD
THAT CERTAIN DOCUMENT FILED WITH THE TOWN CLERK AND ENTITLED THE “TOWN OF
FOUNTAIN HILLS SOLID WASTE DISPOSAL AND RECYCLING REGULATIONS.”
Mayor Schlum advised that they would hear one report on Agenda Items 7, 8 and 9 since they were all tied together.
Environmental Planner Raymond Rees addressed the Council and provided a brief chronology of the significant studies,
meetings and work on this issue that has brought them to this point. (Copy of the presentation available in the office of
the Town Clerk.)
Mr. Rees advised that on October 21, 2010, staff presented the proposed contract with Allied Waste to Council for
discussion with the intent of bringing it back for approval at this evening's meeting. He noted that the Town Attorney and
Allied Waste had discussed Council's comments made at the October 21st meeting and had incorporated the discussed
changes to the proposed contract. Mr. Rees highlighted a PowerPoint presentation that depicted the scoring criteria and
methodology utilized to rate the various bidders as well as the contract highlights that described base service ($11.44 a
month with one trash and one recycle on the same day) and optional service ($16.46 a month with one trash and one
recycle on the same day and a second trash on another day). He noted that the prices on the proposed contract with Allied
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Waste, the winner of the bid, were fixed until 2014 with a 5% maximum annual increase after 2014. He emphasized that
these were total costs to the customers, including applicable taxes.
Mr. Rees advised that the five haulers they currently use had a suspension cost that ranged anywhere from zero to a $5.00
reactivation fee to a $20 vacation hold or a $25 vacation hold. He reported that Allied Waste had graciously waived any
fee for a vacation hold and citizens who were only here part time would be able to put their trash services on hold for up
to six months without that additional cost.
Mayor Schlum thanked Mr. Rees for his review of the process to date.
Councilmember Dickey MOVED to approve resolution 2010-28, declaring as a public record that certain document filed
with the Town Clerk and entitled the "Town of Fountain Hills Solid Waste Disposal and Recycling Regulations" and Vice
Mayor Brown SECONDED the motion.
Mayor Schlum advised that a number of citizens had submitted requests to speak on this issue.
Town Clerk Bev Bender advised that in addition to those who wished to speak that she had also received cards from
citizens who indicated their position on this issue in writing but do not wish to speak this evening [eleven citizens were in
opposition and that twenty-five citizens were in support].
The following citizens spoke in opposition/and or made the following comments/recommendations regarding this agenda
item for the following reasons in order of presentation:
The Town did not need additional government interference; refer for additional citizen input; make the following
modifications: exempt HOA's that had signed single-hauler contracts and allow them to renew their contracts or at a
minimum allow them to maintain their current contracts until the normal expiration date, two pickups a week should be a
standard rather than an option, if the bid was faulty it should be rebid and handled as a separate issue, move the start date
from July 1st when a lot of people were out of Town to the end of the year or beginning of next; allow voluntary
participation with the Recycle Bank not mandatory; fear that costs associated with this would get out of control like cable
bills had; allowing free choice so if citizens were not happy with a hauler they could contract with someone else; citizens
in Surprise who had the same program as what was being proposed were very unhappy with it and felt it was extremely
restrictive; the rules, particularly regarding fines, needed to be clarified; the importance of allowing free enterprise to
remain in place; concerns regarding the recycling aspect; current system works fine and should be left in place and
citizens should be able to recycle on a voluntary basis; putting the issue to a public vote; particularly in the current
economy the costs could not be justified; suspend the vote pending Council attendance at the November 16th Town Hall
where additional discussion could take place; foul odors would result which might attract wildlife and endanger public
safety and health; would locks be provided to secure the cans; would the fine revenue that was generated go to the Town
or to the garbage company; regulations were poorly written; violations would result in an extreme number of calls to Code
Enforcement officials; the fact that people's trash cans would be subject to inspections and customers must use clear
plastic bags or face fines; a customer's previous negative customer service/billing experience with Allied Waste; more
trucks would be picking up the recyclables so the road savings amount was inflated; questions regarding whether Allied
Waste was a member of the Better Business Bureau; who received the recycling revenues; impacts on senior citizens who
could not comply with all the requirements or people with lower incomes; the fact that according to the Mayor citizens
could hire someone with a pickup truck to haul their garbage if they refused to comply with the current proposal; another
citizen's negative experience with Allied Waste and complaints filed against the company; legal threats received from the
company during past experiences; fears regarding unintended consequences including costly legal ramifications; tabling
the issue until concerns could be addressed; impacts on charitable organizations that generate monies by recycling; costs
associated with concealing cans; represents an invasion of privacy (if haulers go through citizens' cans); the importance of
listening to the citizens and providing them the option to decide what they wanted; not taking away peoples' right to
choose for themselves; the RFP was deficient; the proposal would result in resistance; the document was too complicated
and a non-enforced law was worse than no law at all; many winter residents had not been given a chance to voice their
opinions; other trucks such as grocery delivery trucks carry weight but were not regulated; if the Town had not been in
compliance to date, they should have been called to task; big town regulations were for big towns, not Fountain Hills;
there were too many outstanding issues to allow a vote to take place this evening; the price would only be locked in for six
months when you looked at when the contract was to go into effect; streets were pristine and not in as bad a shape as
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described; monopolies and the importance of avoiding them; garbage truck noise had never been a problem; concerns
about the low bidder being so much lower than the high bidder; trucks did not damage roads unless they were overweight;
water usage and the fact that the proposal requires residents to had clean cans and bottles and in order to achieve that, they
were going to have to wash them (this in a Town that took away grass lawns and restricted citrus in order to save water);
costs associated with recycling which offsets savings; the fact that majority rules but if this passed everyone had to
comply with the decision so the Council needed to really look at what they were imposing on a lot of people who might
not want to do it; there was no landfill crisis in this state; people across the nation had shown resentment over too much
regulation and this would only add to it; there was one water company in Town and people up the hill were paying more
for their water but they had no recourse because the company set that cost and that would happen with this as well; single
monopolies cause problems; over half the cans had open lids after they have been emptied and who would get fined for
that; a suggestion that the Town be subdivided into regions and assign no more than three different haulers (that could be
reviewed on an annual basis) to service them in a more efficient manner; determine whether the current haulers could
come up with a better plan to serve the Town; examples of road damage due to the number of trucks traveling the roads;
citations received by residents for open cans; at a recent meeting two people supported the program and twenty five
opposed it; the bid should be reconsidered based on previous concerns expressed about the process and the long lasting
effects of tonight's scheduled vote:
Boe James
John Winter
Steve Thompson
Hugh Henry
Sherman Abrahamson
Gerald Booth
Peter Bardow
Linda Bardow
Bob Deppe
Dina Galassini
Brian Briggerman
Mrs. Sharrit
Shawn Dow
Joe Arpaio
Chad Harr
Leo Zabella
Cindy Bonomolo
Frank Serpico
Dennis Reed
Anders Lundin
Virginia Paulsen
Randy Paulsen
Brian Paulsen
John Kavanagh
Lina Bellenir
Alonzo Shattuck
Anthony Van Den Heuvel
Mike Maloney
Allen Hunt
John Ewald
The following citizens spoke in support of this agenda for the following reasons and/or made the following
comments/recommendations in the order of presentation:
Politics should remain out of this matter; the fact that every American should be recycling to better the environment; the
many trucks that currently carry out this service harm the roads and the environment; the proposal represents cost savings
and was a good environmental idea; recycling would greatly reduce the amount of trash; a citizen's positive experiences
with single-hauler programs in the past; a request that the Council set up a parks recycling bank for all of Fountain Hills
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and set a good example; suggestions from the public have been incorporated in the proposal; misinformation and negative
rumors that were circulating regarding the single-hauler issue; single hauling was successfully operating in Queen Creek;
it was not difficult to separate trash from recycle items and it would cut down on trash; costs would actually be less than
what was being paid by the citizens; reduce the need for more landfills that could negatively impact the community and
reduce the quality of life; it could save the Town and residents up to $1 million per year; less trucks increase public safety;
most City Code violations were misdemeanors and the proposed ordinance de-criminalizes these and results in a civil
violation and the only things that were misdemeanors should be misdemeanors; the need for the type of regulations
contained in the proposed ordinance for health, safety and aesthetic reasons; the recycling component provides everyone
an opportunity to do their part to help the environment; the importance of setting a good example for our children; the
Council had done a good job and should be trusted to make the right decision; four days out of seven there are trash cans
on the street so the current method was not perfect; there had been more passion expressed about trash than recreation or
education; the importance of saving money particularly during these difficult economic times; more positives to be
realized than negatives and the importance of remaining focused on the facts; the importance of mitigating road damage;
savings, recycling, speed reduction on we are all positives; the fact that a lot of time, effort and energy had gone into this
and the need to diffuse conspiracy theories circulated by those who did not take the time to become better informed;
sufficient time had elapsed and an extraordinary amount of work done and the vote should take place tonight; there were
certain decisions that should be made by the Council because that was why they were elected; the Strategic Plan said that
the cornerstone of success was financial stability and the proposal currently before them would save a lot of money;
questions/concerns about the low bid that was submitted by Allied Waste and the fact that this was a community and they
had to work together and support a plan such as this that benefited everyone:
Linda Schwaba
Steve Jacobs
Bill Luzinski
Jennie Gorrell
John Belatti
Angela Davis
Robert Tripp
Sharon Dennis
Francesca Carozza
Joe Bill
Mike Archambault
Alan Magazine
Phillip Blackerby
Charles Fox
(Note: Copies of any written comments submitted by the various speakers are on file in the office of the Town Clerk and
considered part of the official record.)
The following citizens did not wish to speak but submitted speaker cards in support of the proposal:
Annie Belatti
Alice Brovan
Al Smith
Estelle Mazzotta
Karl Gaardsmoe
Bob Couture
Debbie Duckro
Cindy Couture
Kathleen Stolz
Karen Downey
Douglas Downey
Kathryn Pyke
Kimberly Bartman
Jean Jaeger
Nancy Bill
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Cathy Bertucci
Jim Bertucci
Dave Long
Donna Tripp
Frank Jakubs
Grace Jakubs
Al Montalbano
Patti Montalbano
Dennis Thompson
Curt Dunham
The following citizens did not wish to speak but submitted speaker cards in opposition to the proposal:
Sharon DuBose
Dennis DuBose
Gloria Hostak
John Hostak
George Larson
Jean Briggerman
Tom Jensen
Carol Crane
Richard Crane
Edward Zahig
Debbie Yin
Mayor Schlum thanked all of the speakers for their input. Mayor Schlum declared a brief recess at 9:08 p.m. and the
meeting resumed at 9:22 p.m.
Councilmember Hansen thanked all of the many citizens who have called the Council, e-mailed them, contacted Town
Hall and attended the two Council meetings to weigh in on this topic. She said that it was very clear that the citizens were
passionate about this issue and both sides felt that their opposing opinion was in the minority. The last forty-eight hours
before this meeting she had received 73 emails, 47 opposed and 26 in favor of the proposed program. She tried to answer
most of them but it just was not possible and she apologized for that. If she had been keeping count since the last Council
meeting the count would have been much higher and she did not remember ever receiving this much feedback on what
had become a very divisive issue in the community. Residents were raising some very good questions to be discussed and
examined. The details of this proposed program were only made public at the last Council meeting and some residents had
contacted her because they could not find the ordinance and contract on line and they wanted to read them.
Councilmember Hansen further stated that provisions of the proposed ordinance were not fully presented at the last
Council meeting and many people were getting their information or misinformation from the paper, by word of mouth or
through e-mail. Some people thought that the Town was going to save $1 million and that was not true and should be
clarified. There had been no opportunity for public discourse for back and forth discussion with the residents on the nuts
and bolts of the proposed program, much like the earlier Town Hall when the general idea of a single hauler was
discussed and she thought it would have been good to have that same type of meeting again to really go through what was
in this ordinance. She tended to agree with one of the suggestions made by a resident that this should be tabled for a
couple of months to allow emotions to die down and to take the opportunity to hold public meetings at the Community
Center to try and come up with a compromise that the majority could live with. She was not comfortable with the
language that made this program sound permanent. The Town Attorney had told her that it was drafted to indicate
permanency with respect to the service being handled by the Town. She said this action should not be taken quickly
without clearly vetting the unintended consequences noting that in 2001, the Town took over Fire Protection services
thereby eliminating the Fire District and the adverse impact on the Town's budget remained to this day. She felt as though
this decision was being rushed at this point and more time should be allowed to vet the proposed program, the
methodology used to get to this point and the ordinance itself, which she had a number of issues with, many of which she
had forwarded to the Town Attorney.
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Councilmember Hansen stated that she wanted to feel more comfortable that this decision would not result in potential
litigation and as of today she was not convinced or ready to move forward. Mayor Schlum thanked Councilmember
Hansen for her comments.
Mayor Schlum suggested that they go through some of the comments that the citizens made and asked staff to respond to
their questions and concerns.
Councilmember Dickey asked for information about the clear plastic garbage bags and Town Attorney Andrew McGuire
advised that the clear plastic bag requirement was for shredded paper put into a recycling bin. The purpose of that was
that the facilities that work with the recyclables did not want paper that is shredded put in there without being identified or
separated because it messes up their machinery. They preferred that shredded paper be put into a clear bag so they could
identify it, pull it away and deal with it separately. Other garbage could be bagged in any form.
Councilmember Dickey clarified that citizens did not have to use clear plastic bags for the regular trash, they did not have
to bag recyclables and they did not have to bag trimmings but they do have to bag regular garbage, which was the law
today and Mr. McGuire concurred with her statement.
Mayor Schlum asked whether that was a State law and Mr. McGuire advised that it was; the Maricopa County
Environmental Services Division, when they adopted the Maricopa County Health Code and the Environmental Code,
also paralleled that same provision.
Councilmember Elkie referred to Section 10-1-15(F)(1) of the Code and said that the previous proposal by Town staff was
if someone was found responsible for a civil infraction there was a flat $500 fine and he sees that staff has made some
adjustments based on the discussion at the previous meeting and it now said "It shall be punishable by a base fine of not
more than $500" so basically there is a $500 cap. He asked if the residents who received civil citations had a choice of
just paying the fine or going to court to plead their case and Mr. McGuire stated that those were the options and the fine
would be set at the time of the issuance of the citation. Councilmember Elkie asked who would be determining what the
amount of the fines would be and said without the Council giving some direction as to what the fines would be a lot of
discretion was placed in the hands of the Code Enforcement Officers. He requested additional input.
Mr. McGuire stated that following the last meeting staff was attempting, as much as possible, to follow the State law in
the Arizona Administrative Code and in Arizona Statutes the fine was no more than $1,000. Staff has used the same
language as that in the State law in order to meet the Council's request using the $500. Whether the discretion was with
the Code Enforcement Officer or the court that exists in many of the Town's current requirements/Code provisions and he
did not know if they were going to be able to resolve that unless the Council wants to set an exact fine, which could be
done. He noted that staff was open to Council suggestions/revisions.
In response to a question from Mayor Schlum, Mr. McGuire advised that the only provisions that the current Town Code
has adopted pursuant to State regulation were several provisions that were put into place that talked about revocation and
potential civil penalties and the three items that were in the Code originally that were Class 1 Misdemeanors, illegal
dumping of hazardous waste, etc., that were still going to be in effect. Staff was attempting to make sure that everyone
understood what was already in place under other codes rather than have people have to look at State law, the Arizona
Administrative Code and the Maricopa County Environmental Services Health Code, they had placed everything in one
place so people could easily find out what was in place. Other provisions were clarifications of things that were vague in
those codes (i.e. the cans would be placed in a convenient location -- that was verbatim from the Administrative Code and
so staff had tried to make what that meant a little clearer. This was an attempt to give people a "one stop shop" to see
what requirements were applicable to them.
Mr. McGuire confirmed that the Administrative Code was a State Code.
Mayor Schlum said that since these regulations have been in place for some time he would like to know if people had
been fined or had infractions and had to go to court.
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Mr. Rees addressed the Council and stated that he was a Code Enforcement Officer for four years and during that time he
was also in charge of the inspection program and he never wrote a citation for trash violation relating to a trash receptacle
(or brought anyone to court.).
Mayor Schlum asked whether they were proposing to add something that could result in bringing people to court or being
fined because it appeared that they were mimicking what has been in place and, in addition, have added clarifications to
better explain vague laws.
Mr. McGuire responded that the primary change to the Code Enforcement provisions were to add a level before civil
citations and that was the major difference between what currently existed in the Code and what existed under State law.
Under State law it was a civil penalty up to $1,000 and it did not provide for a Notice of Violation, which has no civil
penalty attached. Staff added one word to make sure that people who had concerns about the Notice provisions -- Notices
were always required to be personally delivered or by sent first class mail and staff added "certified" first class mail on the
Notice of Violation so prior to a civil citation, they had to go through that first step and that was what Code Enforcement
was there to do -- to obtain compliance without ever getting to the civil citation point. That was the primary difference
between the State law and the Town's provisions -- we added a layer below it before you even get to the civil citations.
The only things that remained criminal were the current ones (i.e. the dumping of hazardous waste, illegal dumping, and
dumping on someone else's property). These had all been in place since that Code was adopted probably in 1989.
Councilmember Elkie stated that there was the potential for a disparity regarding the fines and it would ultimately be up to
Town's newly appointed Judge to see what that fine was going to be. The individuals might choose to simply pay the fine
and he was sure that Code Enforcement is going to apply the laws equally but then again there was a wide disparity
regarding what the fine could be.
Councilmember Dickey asked if there was something like a checklist in existence that governed this or did it just go
according to what the Code Enforcement Officers decided. This spanned just about every regulation in place and so if,
someone could go down a list and see that something was defined as minor, that was so much money and if someone
continued to do something over and over again that would be considered to be infringing on their neighbors' rights and
then the fine went up. Was there some kind of process that could be followed that would make people comfortable that
it's not just up to someone's discretion?
Mr. Rees replied that in the Code Enforcement world they generally tried to work with citizens over and over again before
any sort of letters or anything really went to them. It was really only the people that they had difficulties with getting into
compliance that other steps might be taken against. Most of the time additional action was not needed and most did not
go to court.
Councilmember Dickey said that the way she looked at this was it was there as a protective measure to protect neighbors
and residents so that everyone was living in a way that was not infringing on others. There were a lot of things included
that the Town should have been doing all along but staff's experience all along was that people comply and they had not
had to get to this level very often and Mr. Rees concurred with Councilmember Dickey's comments.
Councilmember Leger said that he wrote down every comment that was made this evening and it appeared that the notion
of inspections came up a lot from all kinds of perspectives. People were concerned about protecting their privacy and
asked why they inspect, who asks the Town to inspect, why was inspection currently in the ordinance and how did they go
about inspecting the cans and what were the outcomes. This was a deep concern and his intention in looking at this whole
situation had nothing to do about caring about what was in peoples' trashcans and he did not believe that there was a trash
hauler in Town who was focused on that; they were simply focused on getting the job done. He has had to stop them to
ask them to come back so he could ask them a question related to trash. He requested answers to his questions and further
clarification on this issue.
Mr. McGuire explained that the requirement for inspection of the cans is in the Town's variance with Maricopa County's
Environmental Services Division. Unless a variance was obtained, they could not have anything less than two waste
pickups per week. The default provision requirement under State law was two waste pickups wherever residents were
residing. In order to get recycling, they had to apply for a variance and a variance was requested and obtained he believed
prior to 2001(mid 90's). They obtained a variance to allow recycling and in order to obtain a variance, there must be an
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inspection program in place. The Town's variance was 25% inspection in order to have it and that inspection used to be
carried out by Mr. Rees and a 20 hour part time person and what was required in the current contract, which was up for
consideration this evening, was to shift that burden and the cost of both the variance and the inspections over to Alex who
would be responsible to ensure that the Town meets its variance requirements because the Town no longer has that
position (the 20-hour position has been eliminated and the Town was down to one Code Enforcement Officer).
Councilmember Leger asked Mr. Rees to describe how he inspected trash cans and what he was looking for (the criteria)
when he worked in Code Enforcement and Mr. Rees advised that when he did Code Enforcement they did not do
inspections on trash cans -- it was when the inspections started up for environmental purposes. The inspector was out
looking for lids that were broken, over-filled cans, making sure that the cans were in good condition and if the cans were
in poor repair, they would call up the hauler and ask them to get a good working can out to the resident. It was more for
the benefit of the residents and they did look to see, if the lid was up, if the items needed to be bagged. The entire time
that the inspection program was in place there was never a violation letter sent to any resident.
Councilmember Leger said that the intent then was not to go through the contents of the trash cans themselves then; Mr.
Rees agreed and explained that the intent was to do the minimal amount they had to do to satisfy their variance. They
wanted to be as less intrusive to the residents as possible and still meet the requirements of the variance.
Councilmember Leger asked if the inspections were more of a visual inspection and Mr. Rees said absolutely.
Mayor Schlum noted that it was a Maricopa County requirement; Mr. Rees agreed and said they did an inspection of the
Town on a periodic basis and then they send the Town reports with addresses and violations (they had a numbering
system that showed what violations they were referring to). The Mayor commented further on inspections of contents and
said that if there was a concern about hazardous waste he did not know how they looked into that.
Mr. Rees replied that they would just open up the lid but they would not search it; just a quick visual. Mayor Schlum
asked if that was currently being done by the Town and Mr. Rees stated that currently they were not doing the inspection
program because he was a one man operation and it was very difficult. Earlier this year they had submitted their report to
Maricopa County to meet the variance requirement.
Councilmember Dickey commented on the lids being open and said that when the trash was gone people were saying that
the lids remained open and asked if that would be a violation.
Mr. McGuire advised that the lid requirement was in response to a requirement from the State that people keep a "fly
tight" container and that was important when the can had trash in it but if the hauler leaves the lid open, there obviously
would not be a violation because there was nothing in the can.
Mayor Schlum asked whether recycling was being forced upon people and Mr. McGuire responded that no one would be
required to recycle. There would be two things that people would be required to do -- either have the base service and
have one trash pickup (they would have to have both cans otherwise the hauler would be required to pick up their trash
twice to meet the variance or the State law requirement) and if someone decided not to put anything in the blue can that
was perfectly fine, they could recycle anywhere they wanted. The idea of the recycling program was to ensure that
curbside recycling was available to all residents and no one would be forced to put anything in the cans. There was no
violation for placing recyclables in the solid waste can but there was a violation for placing solid waste materials in a
recycling can because that affected the streaming of the recyclables.
Mayor Schlum pointed out that residents were going to be paying for two pickups and if they choose not to recycle they
were still paying for both pickups.
Councilmember Hansen asked if people were required to take the recycling can even if they were not going to use it and
Mr. McGuire said that if they did not accept the blue recycling can, then they would have to go to a two day trash
collection schedule because otherwise the hauler would not be in compliance with the two pickups. The only way you
could get away with not having two trash pickups was to have a recycling pickup and if there was no recycling can at the
location then they could not meet the variance requirements.
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In response to a question from Councilmember Dickey, Mr. McGuire stated that if citizens rejected the blue can, the trash
would be picked up twice a week and Allied had indicated that if someone rejected the blue can, they could do so but the
company would be required under law to pick the trash up twice.
Councilmember Dickey advised that they were previously told that they had to accept the blue can on their property and
for some that became a storage issue.
Mr. McGuire said staff clarified the issue again with the company this week.
Councilmember Dickey noted that one citizen mentioned a July start date and asked what could be done to mitigate the
problem of people being out of Town -- how would they actually phase it in.
Mr. McGuire stated that that was an excellent point and explained that in setting the schedule staff was trying to provide a
sufficient amount of time for implementation in order to limit any problems and perhaps an October or November 1st date
would be better. He added that they were trying to have it happen as soon as possible because what the hauler had
committed to was if the contract is approved with these rates, everyone who was currently an Allied customer, regardless
of what their rate was, was going back to this so they had committed to that rate and they did not want implementation for
everybody else to be lagging behind. They also did not want to condense the schedule too much and have insufficient
time for implementation because as reflected in the Code provision, they had given until the end of February for
everybody currently under contract to bring those contracts to the Town Manager so that everyone was aware of the
terms. Staff could ask how they felt about moving it out to October or November; he reiterated that was an excellent
point.
Councilmember Dickey commented on the fact that there were going to be some people out of Town no matter when this
rolls out and stated that she would imagine that there was some kind of process in place to deal with this and, if not, at
least now the issue had been raised.
Councilmember Leger said that in the contract (4.6 Part-Time Residents) it said that residents could cancel their service
and his thinking was that the service would probably be cancelled at the time that they were away and so they would not
miss the trash not being dropped off because they had cancelled their service. He was not opposed to moving that date
back but for example in his neighborhood he has four neighbors who go away for the summer and they cancel their
service. A neighbor recently asked him to watch their house because the day before they were coming back their new
trash can was being dropped off so he thought that the service providers, under the cancellation policy, probably would
not be dropping the cans off if the residents canceled their service.
Councilmember Elkie asked if residents who had a dumpster (HOAs, condos and apartments) would be exempt from this
contract and Mr. McGuire confirmed that they would be exempt.
Councilmember Dickey advised that she lived in a place like that and would not be able to take advantage of this but she
currently recycled and would continue to recycle with the charitable organizations. She believed there would still be a lot
of people who will have to utilize the bins placed around Town.
Discussion ensued relative to the fact that people can continue to recycle with whoever they wish and there was no
prohibition against people deciding not to use the cans and going to the charities instead; Councilmember Contino's
comment that per his discussion with Mr. McGuire, he was advised that HOAs and gated communities could not be
exempted and yet he heard Mr. McGuire say that the dumpsters would be exempt and his question was to why the
disparity; Mr. McGuire's response that there was a change in the type of service that they are discussing -- the Town was
entering into the residential solid waste curbside collection business and the Town has not been acting as commercial
haulers and the Town could not preempt commercial haulers; the fact that there was a distinction between the types of
service and the Town was not in the commercial hauling business; Councilmember Contino's question as to whether the
gated communities and HOAs that would have to comply with it would be able to keep renewing their contracts with the
people they utilize now and Mr. McGuire's response that the provision of the Code currently allowed for contracts that
were entered into prior to the end of this year and presented to the Town prior to February to continue with those contracts
until years beyond the regular implementation date for everyone else (July 1, 2011 right now); the fact that the two-year
extension period was July 1, 2013 and that date was picked because during the initial discussions with the HOAs and
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haulers, the longest contract out there was out to 2013 so the Town used that as the date; the fact that subsequent to those
discussions it had come to staff's attention that there was an HOA contract that extended beyond that date and that would
have to be dealt with as they approached that deadline; Councilmember Contino's comment relative to the fact that some
have just renewed for five years and he said that he would look into that and find out if there was a penalty who would be
responsible for paying it; Mr. McGuire's response that he had no knowledge of the contents of those contracts other than
what they had been told about today so he could not provide an opinion on that at this time; Vice Mayor Brown's
comments relative to the Recycle Bank and recycling by the non-profits and his opinion that the Recycle Bank should be
able to take his points and actually apply them to a non-profit organization as opposed to applying them to his account and
Mr. McGuire's response that yes, this was one of the programs that was discussed during talks with the Recycle Bank; the
Vice Mayor's question as to whether someone would be able to just set their recycling bin outside of their house and
request that the Recycle Bank automatically credit those points to a non-profit organization of the person's choice and the
convenience associated with such a program as well as the benefits (preventing the non-profits from losing revenue they
gain as a result of this); Laura Gariss's (representative of Recycle Bank) response that the company did have a local
charity program and donate to "Green Schools" -- schools in communities such as Fountain Hills where schools apply for
a grant for environmental education and once the grant is approved people in Town can donate their points to the schools;
the fact that they also had a local partner program where they signed up businesses that points could go to but she could
not speak to individual charities; the fact that their program was geared more towards education and "Green Schools;" the
Vice Mayor's comment that if he wanted to donate his points to the Kiwanis organization he would not be able to do so at
this time and Ms. Gariss's confirmation of that fact; Ms. Gariss's willingness to discuss that proposal with the Recycle
Bank; Johnnie Perkins of Allied Waste's remark relative to the fact that they could make that happen and they had a
number of programs in other communities where there were options for organizations such as Kiwanis; and the fact that
that was not discussed when they were putting together the proposal for Fountain Hills but if that was something that the
Town would like to see in place, they could certainly make that happen.
In response to a question from Councilmember Elkie relative to the fact that the Recycle Bank was a for-profit company
and whether the company maintained a portion of the profits, Mr. Perkins advised that they did not. He said that the
hauler was the one that gained the profits from that, not the Recycle Bank. The Recycle Bank's partnership with Allied
Waste was strictly a rewards program that created rewards points that could be used by non-profit organizations or local
businesses in Town. Mr. Perkins advised that the points could be used for a number of things (i.e., they could designate a
school and donate those points to it or they could use them towards gift cards or prizes at fundraisers). Recycle Bank
points could be used at local businesses in Town to enhance economic development and rewards could equate on a
monthly basis to as much as a person pays for recycling services or more if they actively participated in the program. He
said that the Recycle Bank program not only encourages recycling, it also added local economic benefit and value to
communities.
Mayor Schlum commented that the Recycle Bank was not a Town program or an Allied Waste program, it was a company
that was currently leveraging an opportunity to meet their mission with the use of recycling and the use of and the
distribution of rewards and Mr. Perkins concurred and added that they utilize it as a partnership.
The Mayor said that if there was some program that tied into local charities the benefit would be that a greater number of
people could contribute towards that charity through recycling at their curbs rather than bringing it in. He added that this
could be different in the future and it was not something that he felt too comfortable talking about now as far as it being a
value to the Town --- it sounded like a good program but it was not the Town's program.
Councilmember Dickey commented on the fact that a number of citizens talked about difficulties they had previously
experienced as customers of Allied Waste and brought up the Better Business Bureau and said others questioned the low
bid. She requested that Mr. Perkins respond to those comments.
Mr. Perkins advised that the comments made about customer service also concerned him and he had written down the
names of the people who spoke on that issue. He would like to talk to them himself and find out what their experiences
were. The two things that were most important to Allied Waste were safety and customer service and so if there were past
customer service issues he needed to know about them so they could be addressed and not reoccur in the future. He added
that there were just as many comments about positive customer service received by the company but they needed to take
care of any unacceptable customer service issues. As far as the cost, the company sat down and looked at the Town and
how it related to their business structure and one of the things they had focused on when they looked at all of the
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communities that they were currently servicing was the issue of pricing for the customers and they had looked very
carefully at that. The goal was to provide a high level of quality service while charging a fair market competitive price
that made sense and that the citizens of Fountain Hills would find acceptable. Their bid was 100% accurate and the
company did not fudge their numbers. They were a Wall Street company and they looked very carefully at what the
service levels should be and what the routes should be and came up with what they believed to be a fair and equitable bid
for everyone involved.
Councilmember Dickey said that this Town did not ask to share in any of the recycling benefits and that the Town was not
benefitting at all; Mr. Perkins confirmed that that was true.
Councilmember Hansen asked Mr. Perkins how many homes in Town the company services at the current time and he
responded approximately 2,500 after conferring with his staff.
Councilmember Hansen asked if they could just go ahead and make a change regarding how long the contracts could
continue, full term rather than identifying a specific date (referring to previous discussion regarding HOA contracts).
Mr. McGuire responded that the Town Code provision could be anything that the Council collectively decided upon. The
term was chosen initially because that left all of the HOAs held harmless, outside of the term of their contracts, and the
reason why deadlines were put in there was to address extensive extensions of contracts so that they could get everybody
onto the Town's service in as timely a manner as possible. One option was to have everyone "drop dead" July -- like it or
not they would be on the service but staff did not believe that was very workable and wanted to find a middle ground.
They had found out just today that one HOA, since staff's first discussions with them, had extended their contract and he
did not have an immediate solution for that. They also did not know who else was out there (with extended contracts) and
that was why they had put a provision in the contract that people had to bring their individual contracts to the Town so
they could work with them on the timing aspect.
Mayor Schlum said he did not have an opinion on this right now but what he was hearing sounds a bit ironic (that those
benefitting from a single hauler are trying to keep the Town from going to a single hauler). He noted that the Town
communicated what they were doing and engaged everyone for input throughout the entire process. He asked whether
staff specifically communicated with the HOAs regarding the process.
Mr. Rees advised that early on, especially with the larger HOAs, he contacted them directly and spoke to them and let
them know what the Town's intentions were. He did not get a response back past the 2013 date for contract expiration.
Councilmember Elkie stated that it was also important to recognize that it was not just HOAs; they were also talking
about the residents. The Code did not specifically state HOAs so if Joe Smith has a contract with a hauler for five years
that would apply here as well (not just the HOAs).
Mayor Schlum brought up hauler regulating and asked if the Town was looking for the hauler to do anything different
from what the Town had done in the past. Mr. McGuire replied that they were looking for them to do more than the Town
has done in the past. He believed they had fallen short of the 25% requirement and under the contract Allied Waste was
required to meet the Town's statutory variance requirement on this.
The Mayor said it would be a concern to him if the dollars were going to Allied (monies generated from fines) and Mr.
McGuire stated that Allied was going to be conducting the inspections required under the variance but they were not
going to be doing any Code Enforcement, citations of Notice of Violations. Allied has a very robust program of education
to try to ensure that people were meeting their requirements already so they were going to do what they do with all of their
customers -- provide people with educational materials when they find violations and the Town's violations were
completely separate and apart from that. The Town would only become involved if something was reported to them. All
of the Code Enforcement now was complaint based because there are not enough people to go out and do active
enforcement. The requirements for Allied were backed up by about 20 liquidated damages varying from $25 to over a
couple thousand dollars per violation (if Allied did not deal with customer service issues by the prescribed deadlines in
those sections). Those revenues (if Allied was charged liquidated damages for whatever reason) would be monies that
came back to the Town. Only the Town would be doing Code Enforcement and monitoring Allied's performance
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according to the contract and Allied would only be doing the Town's requirements to maintain the variance from
Maricopa County.
Mayor Schlum stated that they would probably have to go back and spend some more time on the fines and added if they
were not doing the inspections and someone else is personally he did not want to see things change too much. He agreed
that they needed to meet their commitment but hopes there were not going to be more inspections than they have had in
the past.
Councilmember Elkie referred to Section 10-1-1.0(7) and noted that this particular paragraph dealt with what the
contractor may do regarding cans that were in ill repair or unsanitary condition and said that this appeared to allow the
contractor to issue a notice, not a civil citation. Mr. McGuire advised that that was probably just a poorly used term
(contractor) in that section and explained that it was intended to allow the Town to do its Code Enforcement, either with
its own staff or other staff as other municipalities do. He said that he would be happy to modify the wording to clarify any
confusion (would change the wording to "Town").
Mr. McGuire advised that the Administrative Code as well as the Maricopa County Health Code required that the cans be
kept in repair and good sanitary condition.
Additional discussion ensued relative to cost increases and starting dates; the current change over date for non-Allied
customers was July 1, 2011 and Allied's current customers would be going earlier; the price was fixed in the contract until
2014 and after the first three years the contracts were subject to a 5% maximum increase a year and that was a blend of
calculations; the rate was not guaranteed to go up but 5% is the maximum cap; current clients would be subject to this rate
after the contract was executed; a total of approximately 8,110 residential units would be affected if the contract was
approved; every fine in the Code was "not to exceed $2,500" and every violation under the Code was subject to the
general penalty and they could lower that number and make it a fixed amount if the Council so desires; the fact that the
language was intended to provide flexibility for the Judge but added that Councilmember Elkie made a good point when
he said that some people would just pay it; Mr. Rees's input that the Town has had a couple of businesses that were cited
for sign violations and the fine was a maximum of $10 (fixed to the ordinance they are being cited on); the fines were
assessed by the Court; although the maximum penalty has been "not to exceed $2,500" people have not been assessed that
amount and this has not been a problem; the only three items that are still criminal misdemeanors and still exist and will
continue to exist are dumping of refuse, spilling of refuse during transit and dumping of hazardous waste materials; the
fact that there would be two trash pickups using the same can but on different days so if people choose not to recycle they
would not have to store a second can; all of Section 18 in the contract deals with Allied Waste's requirements and
liquidated damages that would be assessed if the requirements were not met in an appropriate manner; Allied would file
reports with the Town on how complaints were received, dealt with and the time involved in addressing the various
issues; the citizens would call Allied with complaints and Allied was required to let the Town know and the citizens
would let the Town know if their issues had not been addressed in a satisfactory manner; the contract might be terminated
for cause or for convenience with a 120 day notice; the 120 day notice period would provide time to secure a different
hauler within that period; items listed in a letter from Mr. Deppe and the fact that Mr. McGuire did not have an
opportunity to review that document but did make notes on two of his comments and said that both items are directly from
the Administrative Code; Mr. McGuire's willingness to review the remaining items and address them as well;
Councilmember Hansen's reference to Section 10-1-5, the access issue, and the fact that A & G are part of the
Administrative Code but she questioned the remaining five items because a lot of it was how to make sure that your
garbage can was accessible to the trash hauler (most citizens know what to do with their trash cans in order to get them
picked up so it seems a little superfluous); Mr. McGuire's statement that the provisions referred to by Councilmember
Hansen and noted that A & G are required by State law and the remaining provisions are not so if there was an
amendment that did not affect A & G that would be fine; the other items were added for clarification and the fact that the
Administrative Code used a lot of general terms like "convenient access;" Councilmember Dickey's question as to
whether these items had been included to be more protective of the people (i.e. if someone parks a car too close to a
person's trash can prohibiting access); most of the claims that the Town received were for the drivers trying to be helpful
and bringing trucks into places they should not and running things over; the fact that it did not appear that there had been
access complaints received by the haulers; and the fact that they were trying to anticipate everything that could possibly
happen and that was what gave the contract the appearance of being heavy handed.
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Councilmember Leger questioned if they needed to make a motion to determine whether there were going to be
amendments to this.
Mr. McGuire explained that this was the time if there were changes to the document to make motions because adopting it
by reference meant they would be adopting whatever form it was in so amendments to the main motion should occur and
then move on to the next motion so that all of the changes the Council wanted were made.
Councilmember Leger MOVED to amend Section 10-1-5, removing all Sections with the exception of Sections A & G
and Mayor Schlum SECONDED the motion.
Councilmember Elkie asked whether Councilmember Leger's motion was to amend Councilmember Dickey's motion to
accept the proposal as is and the Mayor advised that they were not voting on the final motion yet, they were voting on
amendments to the main motion at this time.
Councilmember Elkie MOVED to table this issue so that they have some more opportunity for discussion and input from
the residents and Councilmember Hansen SECONDED the motion.
Councilmember Leger stated that as has been pointed out, they had been having this discussion for over two years now
and he thought it was time to work through this even if he has to work through every line item. He indicated that he had a
draft copy in front of him from a Councilmember with numerous awesome changes and they were going through each
citizen's comment and the list that he has was validated by the e-mails that he had received and the comments he has heard
over the last two years. He thought it was time for them to step up and make a decision -- exercise the political will to
make a decision. He did not believe they were being non-responsive to the citizens and his peer Councilmembers have
had ample time to review everything that is on the table this evening. He reiterated that he was willing to go through each
and every one of the line items if need be and added that he would not be supporting the motion to table.
Mayor Schlum noted that the process has certainly taken a long while and they have moved very slowly on purpose. The
feedback has been terrific and they have had great discussion on this item as well. The arguments are pretty clear and he
believes they are addressing everything. They have made some good improvements to the document and he believes it is
time to move forward and make something happen so he would not be in favor of tabling this item unless he hears
something more compelling than just wanting to have more time.
Councilmember Elkie stated that what he felt was compelling is the number of people they have at the meeting this
evening. People were engaged in this and for them to press forward with a decision tonight, without allowing an
opportunity for citizen input on what they have heard at this meeting, he believes would be a disservice to the citizens.
Mayor Schlum said it was great to see more and more citizens show up at the meetings because they always add value.
The citizens have been heard and the Council has been addressing their questions and concerns and has done a good job.
The one thing that had not been addressed was the fact that people wanted to maintain their choice and there were a lot of
comments related to fees but he was looking through the list and trying to identify items that would be really significant.
Unintended consequences were mentioned more than once and that was always something to prepare for. Most of the
comments that were of the utmost concern had already been addressed and minimized in the form of the Code
improvements and they talked about tweaking them even further and are going through them. Choice was the major issue
and concerns about more government involvement and regulation and that was something he would be willing to discuss.
It was an issue of taking away a choice but free enterprise had also been brought up and the bidding process where
everyone was invited to bid and just like other things in Town government, you bring things forward for a bid, select the
best price for the public's good, and then move forward on it. That had been exercised here in the bidding process and
both the haulers and the public had been engaged in that. It had also been addressed with some of the clarifications that
have been provided this evening like having a second trash pickup that some of the people were concerned about and that
has been added. The Town would have one hauler to work with and the pricing, to him, would be the ultimate issue and if
they were taking choice away they had to make sure they were getting as good a price as they could and they were and the
terms of the contract locked the prices in pretty significantly and lowered the price for the vast majority of the people they
have heard from. The contract addressed customer service issues should they arise and it would not be in their best
interest to have such issues if they wanted to remain the Town's hauler. Just like with the issue of signage, the Council
had a responsibility to regulate things for the betterment of the community and the same was true in this case. The Mayor
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said that he was comfortable moving forward with this tonight and did not support tabling the issue and added that he
would prefer going through the different items and making sure that they were comfortable with the terms of the Code.
Vice Mayor Brown stated the opinion that the majority of the citizens asked the Strategic Planning Commission to place
the single hauler recyclable issue into the plan and he believed that they were asking the Council to make that choice. He
did not believe that they were taking the choice away from anyone; he believed they were putting this important decision
in the Council's hands.
Mayor Schlum concurred and noted that the Strategic Plan was clear and going to a single hauler was high on the list of
priorities that the citizens desired.
Vice Mayor Brown stated that he was in favor of moving on with this issue.
Councilmember Dickey pointed out that there had been a lot of input and over the last couple of months the Council had
received a large volume of increasing comments from the citizens (she had received at least 85 contacts, many from years
ago that she saved because of working on the Strategic Plan in 2005 and moving forward; she always kept in mind what
she believed people want the Council to do). Tonight was almost a split as far as who was in this room.
Mayor Schlum clarified that a number of citizens submitted cards in support of or opposition to the item but did not wish
to speak.
Councilmember Dickey stated that it had been a very long process and when they did discuss it during the Strategic
Planning process a lot of discussion had taken place about it costing the Town to do this and now this concern had been
totally eliminated. The desire to do it was there and now none of the costs were there so she did not want to table this
because they had talked about it for a long time and she wanted to get through this.
Councilmember Hansen agreed that this issue has been discussed for a number of years but noted that this particular
ordinance was only provided to the Council at their last Regular meeting. The citizens only saw this at the last meeting as
well and actually they did not see it at the last meeting because a presentation was not given on this amendment and the
proposals that were contained in the document. One of her reasons for allowing more time on this issue was to conduct a
Town Hall where people actually had copies of the document and could review it and discuss/ask questions regarding the
proposal. She believed they should just take a deep breath. People were very emotional about this issue and if they just
keep pounding away at this people were not going to believe that they really heard what they were saying and would think
that they had already had their minds made up. She added that they needed to give this issue a little more time and let
things calm down a little bit. She said that to her there was a "legal cloud" here and she would like to have that totally
cleared up.
Councilmember Elkie stated that as Councilmember Hansen said, they just saw a copy of it at the last meeting and now
they were going over a new version and looking to pass it so in essence by the time the people at home see this it would
already have been passed (the final product). The fact that so many people showed up tonight to speak on this issue and
raised very valid points (criminal penalties, etc.), which were incorrect and not the way that the Code was really being
presented but again the residents were not being given an opportunity to see something that at least was very close before
the Council voted on it. He did not think that an additional two or three weeks was too much to ask for such a significant
decision that was going to affect nearly every resident in Town. He urged the members of the Council not to be hasty. He
agreed that there had been a lot of analysis by staff and a lot of discussion and reports but this was not a small step and
once this Council made a decision (if they decided to move forward with this) in his opinion there was no going back
from it (going back to five haulers).
Councilmember Leger said that by not supporting the motion to table this he was in no way not interested in hearing what
the citizenry has to say. He has heard this evening to a certain extent the same things that he heard two weeks ago and the
things he heard prior to that. He indicated that he had written down every concern and the Council was beginning to
address every one of them. Whether the citizens were present in the audience this evening or not, their concerns were still
being addressed. As far as the Code and health/safety as they related to trash hauling, that Code had been in effect for a
long time and frankly, what the Town Attorney has done, is simply expand the Sections in order to achieve greater clarity.
This was not new and the notion about this being the first time they have had a full house, that was correct and it was
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great to see people get involved and this has been a very spirited debate but there needs to be a point in time where when
things get repetitive that they need to hear what people are saying and have the willingness to work through it as they are
doing now. They could hold several Town Halls and there were people who were e-mailing him and talking to him and
he respected their opinions but some had zero tolerance towards this initiative and would not support it regardless of how
the Council changed the contract or the Code. That being said, he did not believe that they were rushing through it and he
thought it was a matter of being focused and making decisions. He still had a list of things that he would like to talk about
and suggested to his peer Councilmembers that if there was something they had concerns about in the Code or if they have
heard certain concerns from constituents, they had the responsibility and the authority to change it and that was what he
believed this process was all about. He said he respects those who want to table the issue but he feels they should
continue on.
Mayor Schlum commented that what they were talking about was the Town Code, the fact that they were not adding items
that were more restrictive and they had removed criminal elements from it (they had softened it in essence). He said that
the tabling was on the discussion of the Code and Mr. McGuire agreed and added that it was Item #7, which was declaring
the regulations as a public document, which Item #8, the ordinance, actually adopts.
The Mayor asked if there were any more comments/discussion regarding the tabling of this item and there being none he
called for a vote on the motion.
A roll call vote was taken with the following results:
Vice Mayor Brown Nay
Councilmember Hansen Aye
Councilmember Contino Aye
Councilmember Ekie Aye
Councilmember Leger Nay
Councilmember Dickey Nay
Mayor Schlum Nay
The motion FAILED by majority vote (4-3).
Mr. McGuire clarified that the Council was now back to the proposed amendment (there was a motion and second to
delete sections B through F of Section 10-1-5 and allow Sections A & G to remain). There being no further discussion on
this motion, the Mayor called for a vote.
The motion CARRIED by majority vote (6-1 with Councilmember Elkie voting Nay).
In response to a question from the Mayor, Mr. McGuire stated that the one amendment that was suggested by
Councilmember Elkie was to change the language in Section 10-1-10(7) striking the phrase "Or its contractor" to clarify
that they were talking about the Town.
Councilmember Dickey MOVED to approve the amendment as stated and Councilmember Leger SECONDED the
motion and the motion CARRIED UNANIMOUSLY (7-0).
Councilmember Leger said that one of the things he had heard a lot about today, last week, the week before and for some
time now had to do with Section 10-1-15, which talked about regulations and citations; he said that there was law perhaps
that defined some of the amounts in there so he wanted to speak to that. He said that for example, in Section F, Civil
Penalties, they have had discussion on this and it states, "Shall be punishable by a base fine not more than $500" and
asked whether that amount was arbitrary.
Mr. McGuire responded that the number was and it was a number staff picked that was substantially less than the $1,000
penalty outlined in the State Code.
Councilmember Leger stated that it would then be allowable to amend the Section and lower the amount and Mr.
McGuire concurred as long as the amount was under the $1,000 amount.
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Councilmember Leger MOVED to amend Section 10-1-15(F)(1) lowering the amount of the fine to a maximum of $250
and Councilmember Dickey SECONDED the motion.
There being no further discussion on the proposed amendment, the Mayor called for a vote.
The motion CARRIED UNANIMOUSLY (7-0).
Councilmember Hansen said that she had a question regarding the contract and added that when Mr. McGuire stated that
the Town would be responsible for the Code Enforcement, on Page 25 of the contract it referred to "development, printing
and distribution of improper set out notice." She advised that she wanted to clarify what an improper set out notice was
because it said that the contractor shall develop, print and distribute at contractor's own expense an improper set out
notice. This was one where it should be approved by the Council and it included an original and two copies and the
improper set out notice shall include the date, the reason for non-collection, the contractor's customer service telephone
number and any information the Town requests. This shall be put on the handle of the cart and the contractor will take a
digital photo of the set out that receives an improper set out notice. She asked if this meant the contractor was in fact
doing some Code Enforcement.
Mr. McGuire replied that that was the Town's requirement of them (the contractor) to try and make sure that the Town did
not have to do any Code Enforcement. If a recycling can was set out, for example, on a solid waste day the contractor was
not going to pick it up and when they did not pick it up, rather than having the Town receive a call at Town Hall they had
to put a notice on the can letting the citizen know the reason why the can was not picked up.
Councilmember Hansen added that Mr. McGuire stated previously that the Town was specifically responsible for Code
Enforcement and this provision in the Code made it sound as though the contractor would have some enforcement.
Mr. McGuire explained that this was not intended to be Code Enforcement at all, the intent was to stem the amount of
calls that were received at Town Hall from customers who have not had their cans picked up for one reason or another.
Councilmember Leger referred to Section 10-1-15(G), Criminal Penalties, where it talked about a Class 1 Misdemeanor
punishable by not more than six months imprisonment and not more than $2,500 and said that in that this was a
Misdemeanor defined by law he would like to know if there was any flexibility there with respect to the Town Code
(removing something or lowering the amount).
Mr. McGuire responded that unless the Council wanted to define it as something other than a Class 1 Misdemeanor with a
lesser penalty, Class 1 Misdemeanors were defined by State law.
Councilmember Hansen advised that she would like to make an amendment to change the wording regarding all of the
HOAs that have entered into agreements prior to December 1, 2010, so that their contracts may be allowed to remain in
place during the duration of their agreements (Section 10-1-3(D).
In response to a request from the Mayor to restate her amendment, Councilmember Hansen MOVED to allow the
contracts of all HOAs that have entered into agreements prior to December 1, 2010, to remain in place during the duration
of their agreements and Councilmember Elkie SECONDED the motion.
Mr. McGuire clarified the procedure that the Council should be following regarding the amendments and Councilmember
Hansen WITHDREW her motion.
Councilmember Elkie said he would like to amend the motion to include the homeowners (HOAs and homeowners as
well). Councilmember Elkie MOVED to allow the contracts of all HOAs and homeowners that have entered into
agreements prior to December 1, 2010 to remain in place during the duration of their agreements and Councilmember
Hansen SECONDED the motion.
Mr. McGuire explained that essentially what this provision would do was remove Subsection D of that Section.
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Councilmember Dickey said that if a homeowner right now signed a five-year contract with a different hauler then that
contractor would come in to Town and just do that one house and Mr. McGuire said that this provision, without the cap on
years, would allow homeowners to sign a ten-year contract. Councilmember Dickey added that if a HOA wanted to
extend their contract right now for a long period of time with a cost that was higher than this for their residents then they
would potentially be making a decision that would force those residents to live with that higher cost even if the rest of the
Town went to $11.44 a month.
Mr. McGuire stated that Councilmember Dickey was correct but added that his bigger concern with taking the cap
provision out was that it then placed the "nobody knows what anyone else is bidding competition" prices and puts them
(the bids) out there for anyone to see and be undercut by anyone who wanted to. He said that the original thought was to
move that date back prior to the date of this Council meeting to prevent that from happening.
Councilmember Dickey advised that the bid then and the understanding of the company and the waste hauler could be
severely changed by something like this (their intention or their understanding of what they were bidding on would be
changed by having the cap removed).
Mr. McGuire commented that he believed that was correct and added that they have no way of knowing the breadth of it
because they have not reached the deadline -- they did not know how many people this would impact.
Councilmember Hansen asked if the original number that was quoted was 12,000 household units and Mr. McGuire
responded that the original RFP included an estimate of 12,000 and then questions came back in the first and second
addendum about what that included and the answer was provided back to the contractors that the numbers that were
included were inclusive of all multi-family so that meant some commercial was included in the number and it would need
to be adjusted downward. He added that it was very clearly put into the addendum that each contractor would need to
come to their own determination as far as the number of units to be serviced. Obviously the contractors that have been in
business out here for a number of years have had an advantage in that area because they would very likely have a
customer marketing list that was much more thorough than what the Town was able to obtain.
In response to a request from the Mayor, Mr. McGuire advised that the proposed amendment as stated above would
eliminate Subsection D of Section 10-1-3 (unless Councilmember Elkie disagrees with that language revision).
Councilmember Elkie MOVED to eliminate Subsection D of 10-1-3 and Councilmember Hansen SECONDED the
motion.
Councilmember Dickey said that the idea of the savings or mitigation of wear and tear on the roads without having an
implementation date made that go away too.
Mayor Schlum agreed and asked what the latest date was for someone to enter into another contract. Mr. McGuire
advised the current deadline for which the contracts would have had to have been entered into is December 1st and that
was done out of courtesy to make sure that the Town was not trying to cut anyone off. He added that it concerned him
that now the December 1st deadline appeared to have been utilized to the detriment of this process and he believed that
the removal of Subsection D exasperated that problem and they did not know now whether certain groups will ever
participate; the contracts that can be entered into prior to that date may automatically renew for whatever periods of time.
Councilmember Dickey commented that one of the things that came up about HOAs was the fact that they collect fees
from their residents that go towards the trash and that there was some concern that when the price went down the HOAs
might not translate that into their homeowners' dues so she felt that by doing this they could also exacerbate that problem
(the Associations may never have to change and the savings would not be available to those people). She said that by
adding single-family homes they were absolutely changing the nature of what they were doing here. She advised that she
would not be in favor of this.
Mayor Schlum stated that this would "water it down" and if Subsection D was eliminated, this would not apply to the
HOAs and homeowners with contracts.
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Mr. McGuire explained that the provision was drafted with the specific intent of trying to accommodate the HOAs'
contracts and to not have this problem. It appeared that staff was wrong in their assumption that everyone would stay on
the same page with that and now removing this provision opened that door even more and having December 1, 2010, as
the date was at risk as well.
Mayor Schlum said that it would appear that with the amendment they would need to change the Subsection C date to
December 1st or something along those lines. He added that they talked about now perhaps knowing that there were
HOAs beyond that date, how to deal with that. He asked if that was something that the Council needed to deal with in
regards to this motion.
Mr. McGuire advised that because the information about that contract had not been provided to them in detail he would
not want to try and make a Code determination or recommend that the Council make a Code determination.
Mayor Schlum stated that in order to understand the impact of the amendment, anyone who entered into a contract
(residential home or HOA) before December 1st, would not fall potentially within the contract and Mr. McGuire
concurred.
Mayor Schlum added that part of the amendment was not to change the date in Subsection C and Mr. McGuire noted that
the amendment as stated was to remove Subsection D.
Vice Mayor Brown commented that he was not in favor of deleting the single families and he thought they were opening a
huge box by saying December 1st and letting the homeowners have the opportunity to sign up for ten-year contracts.
The Mayor asked whether they had any leverage or flexibility as far as HOAs versus single-family homes and Mr.
McGuire replied that when he initially drafted that provision it was just for HOAs. He really did not have a good
distinction between HOAs and other homeowners in Town. He thought that every resident should be treated equally and
that was why he drafted it as Homeowner or Homeowners' Association, depending upon who was under contract with
haulers.
Mayor Schlum said that he believed this amendment would potentially render a good part of the community to not be
under this agreement or contract ultimately. Mr. McGuire stated that the larger concern was that people will bid without
bidding.
There being no further discussion on this issue, the Mayor called for a vote on the amendment to remove Subsection D.
The motion FAILED (3-4) with Councilmembers Hansen, Contino and Elkie voting Aye.
Mayor Schlum asked if there was any further discussion on the main amendment.
Mr. McGuire stated that after seeing what has happened with this one contract he was compelled to recommend that the
Council move that date back so that they did not have other contractors out there who were in full view of all the bids
provided able to now go out and under bid the amount. The December 1st date had clearly not been used in this particular
case as intended.
Councilmember Dickey MOVED to change the cutoff date from December 1, 2010 to November 4, 2010 and Vice
Mayor Brown SECONDED the motion (Section 10-1-3(C)).
There being no discussion on the amendment, the Mayor called for a vote.
The motion CARRIED by majority vote (5-2) with Councilmembers Elkie and Contino voting Nay.
Vice Mayor Brown noted that there was some language in the contract that it had to be presented to the Town Manager
and Mr. McGuire said that the presentation date was still February 1, 2011. That was intended to give as much time as
possible and probably would still work in terms of implementation by July 1.
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The Vice Mayor said that he could write contracts all day long and put any date in them that he wanted to and he thought
the contracts needed to be presented to the Town in some manner and that was his concern. He added that they needed to
see the contracts.
Councilmember Dickey advised that they moved the date from December 1st to today so there was a two-month period of
time and asked if that was sufficient.
Mr. McGuire stated that whatever date the Council chooses was fine and he believed the Vice Mayor's concern had to do
with people actually back dating contracts. He added that he did not know that whatever date they choose would mitigate
that particular problem and if they picked a date that was closer in time to the date that they were required to be entered
into it made the timeframe for something like that to occur shorter but that was the only way to address that.
Councilmember Elkie said that he believed the whole point of Subsection D was to not have to get bogged down in these
details and it was to give everyone a pass so to speak so their current contracts could remain in place knowing they will
terminate in July 2013, no matter what. So people were not going to have five or ten-year contracts. He added that he did
not think they should be getting into all of that detail.
Vice Mayor Brown concurred.
Councilmember Hansen referred to Section 10-1-8 - Use of Another's Containers - and read that it was unlawful for any
person to deposit any refuse or recyclable materials in any collection container not assigned to that person by the Town.
She stated the opinion that this needs further clarification because it makes it sound like you could not go to any of the
non-profits although Mr. McGuire had advised that that was not the intent of this Section.
Mr. McGuire advised that the intent was to keep people from depositing something they did not want in their own can into
someone else's can. The term collection containers means recycling carts, solid waste carts or green waste carts that are
delivered to the homes so it really was the residential side they were interested in and it did not prohibit anyone from
going down to Kiwanis for example and making a drop off.
Councilmember Hansen referred to Section 10-1-9 - Tampering with Container and Contents - and noted that it was
adding provisions such as it was unlawful to tip over a collection container or climb into a recycling cart, etc. She
assumes this was inserted to address vandalism issues that are apparently encountered in other areas. She was not aware
of the Town experiencing any of these problems right now.
Mr. McGuire confirmed that the language referred to by Councilmember Hansen did not exist in State law, the
Administrative Code or the regulations. It was intended to help residents by having a provision that can be applied if
youths, for example, remove a lid and are using it to slide down a wash.
Councilmember Dickey stated that she was not sure whether having that included is over-bearing for people who would
not do those kinds of things in the first place.
Mr. McGuire noted that there were ample opportunities for the Town's law enforcement officers to enforce criminal
damage and would find some way to cite someone who had damaged someone else's property.
Councilmember Hansen MOVED to strike Section 10-1-9 and Councilmember Dickey SECONDED the motion.
Councilmember Dickey asked if something had happened in the past that was objectionable to the neighbors and Mr.
McGuire replied that they have had people spray paint cans whatever way they wanted to sometimes convey messages
(sometimes with interesting gestures).
There being no further discussion on the proposed amendment, the Mayor called for a vote.
The motion CARRIED UNANIMOUSLY (7-0).
Mayor Schlum asked if there were any other amendments to the motion.
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Councilmember Elkie referred to Section 10-1-12 that dealt with hours of collection and noted that it specifically stated
that it was unlawful to provide solid waste collection services outside of that timeframe and asked what the enforcement
component of that was.
Mr. McGuire responded that that fell under one of the provisions that had been toned down to first have a Notice of
Violation and then a civil citation. The hours were left in there for consistency sake.
Discussion ensued relative to the hours of collection and Mr. McGuire's public safety preference that they use the term
"sunrise to sunset" but exact times were probably clearer for the public; Vice Mayor Brown's suggestion that it state
"sunrise but not earlier than 6:00 a.m." because the sun came up at 4:30 in the morning during the summer; resulting route
changes that would occur and the fact that the purpose of a fixed time was to eliminate confusion; Councilmember
Hansen's comment that the hours of 7:00 p.m. to 6:00 a.m. were listed but the contract lists the time constraints as being
6:00 a.m. to 5:00 p.m. and Mr. McGuire's statement that staff did recognize that under the contract they did not want any
truck out after 5:00 p.m. in the evening; the provision as requested by the Council at the last meeting, was left alone (7:00
p.m. to 6:00 a.m.) but on the contract side of it they wanted to have the haulers done earlier than that (all waste services
completed by the time people came home from work); Councilmember Hansen's point that they were specifying solid
waste collection services , they were not saying all trucks, and her question as to why they just could not change it so it
was consistent with the contract; and Mr. McGuire's response that they certainly could and his statement that he was just
trying to comply with the Council's request to keep things as they were.
Councilmember Hansen stated that she would like to keep the contract at 5:00 p.m. to 6:00 a.m. because 7:00 p.m. was too
late.
Councilmember Dickey MOVED to amend and state that it is unlawful to provide solid waste collection services to take
place between the hours of 5:00 p.m. and 6:00 a.m. unless approved in advance in writing by the Director and
Councilmember Hansen SECONDED the amendment.
Councilmember Elkie urged the Council not to forget that they are talking about the residential hauling and this pertains to
everybody -- commercial trucks that come into Town whether they were picking up at businesses or residences.
Councilmember Hansen asked if they could add "residential solid waste collection services."
Councilmember Dickey asked whether she could withdraw a motion that had already been seconded and Mr. McGuire
advised that she could. She stated that she would like to do that because she had not considered the point raised by
Councilmember Elkie.
Councilmember Dickey WITHDREW the previous amendment motion.
Councilmember Elkie said that in some ways Mr. McGuire's suggestion of "sunrise to sunset" is appropriate because it
will vary from month to month and as they know it is getting much lighter in the mornings and that just might be an easier
fix for this. He believes the Council's intent is not to have them out there after dark so if they took Mr. McGuire's
suggestion "sunrise to sunset" that should work.
Councilmember Hansen commented that then they would have trucks out on the street in the summer time at 7:00 p.m. at
night.
Mayor Schlum advised that the hours seem to have worked in the past and he did not believe they have had much of an
issue with that. The only thing would be to potentially change the contract when they get to that to be in line with their
intent.
Councilmember Hansen referred to Section 10-1-15(B) - Violations and Citations - where it said "the owners, occupants,
customers and authorized agents in violation of this article may be held individually and jointly responsible for the
violation" and said if they were looking at a household and it may include everybody (from an infant to an elder). She
suggested that clearer language is needed and perhaps it could just state just "the customer" because they were the ones
responsible for the service.
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Councilmember Dickey commented that the language allows for all or one so she was not sure how it would be amended
to make sure what Councilmember Hansen was talking about did not happen but she would wanted to keep the authorized
agents of the property part. She added that perhaps it was just the "occupants" part that they could remove.
In response to a question from the Mayor, Mr. McGuire stated the opinion that rather than using the agents if they wanted
to make a modification "adult occupants" would probably be better language to use because the word "agent" carried with
it a number of legal ramifications and most landlords would not consider their tenants their agents.
The Mayor asked if "adult customer" would suffice.
Mr. McGuire confirmed that this was the Town's language and in reading the definition of "customers" against this, he
believed that Councilmember Hansen would catch the people she was intending to catch and not others like the toddler or
someone visiting the household. He said that he believed the amendment being proposed was to just make it "customers"
and not everyone else.
Councilmember Hansen MOVED to amend the language to state that the customers of the household may be held
responsible for the violation (removing "owners, occupants and authorized agents") and also removing the words
"individually and jointly" from the language and Councilmember Leger SECONDED the motion.
Mr. McGuire explained that "customers" was a plural term so it meant everybody and so that would change it (the way it
was written now the landlord and tenant could both be held responsible) and that was important to them because of the
bank-owned property issue.
Mayor Schlum asked if Councilmember Hansen's motion included "individually and jointly" and she replied that if it
covers everyone listed in the definition of customer that implies that any one of those parties could be held responsible.
Mr. McGuire advised that they try to leave no questions when they are assessing liability under the Code violations.
Councilmember Elkie said that it was really saying the same thing if they strike out "owners, occupants and authorized
agents" and just leave customers. As far as "individually and jointly" he thought it was important from a legal standpoint
to make sure that they had everybody on the hook and he trusts that their Code Enforcement isn't going to run around an
cite everyone, they were going to cite the people who were inside the residence. In the event you have an owner pointing
his finger at a renter who was no longer there and the problem had to get fixed, he would hope that Code Enforcement
would exercise some discretion and not issue citations for everybody.
Councilmember Hansen clarified the motion and MOVED that customers of the property in violation of this Article may
be held individually and jointly responsible for the prescribed civil penalties and violation and Councilmember Leger
stated that he SECONDED the motion, which CARRIED UNANIMOUSLY (7-0).
Mayor Schlum referred to 10-1-15(C) and asked if this was new language.
Mr. McGuire responded that it was.
The Mayor said that he did not much care for that section but maybe there was a reason they added "public nuisance" that
he did not understand.
Mr. McGuire stated that the section had been entirely provided to account for the things that amount to creative ways to
get around other sections that people might come up with. He added that it did not have any immediate need and if they
wanted to take the risk that someone would find something that they had not covered he was perfectly fine with that.
Mayor Schlum said that they might find that something else covered it and Mr. McGuire advised that they had provisions
in the Code that defined nuisances because in order to abate a nuisance or enforce against a nuisance they first have to
define it.
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Mayor Schlum MOVED to remove Section 10-1-15(C) and Councilmember Hansen SECONDED the motion, which
CARRIED UNANIMOUSLY (7-0).
The Mayor asked if there were any other Code items that the Council would like to discuss and there being none, he called
for a vote on the motion as amended.
A roll call vote was taken with the following results:
Mayor Schlum Aye
Councilmember Contino Aye
Vice Mayor Brown Aye
Councilmember Dickey Aye
Councilmember Hansen Nay
Councilmember Elkie Nay
Councilmember Leger Aye
The motion CARRIED by majority vote (5-2) with Councilmembers Hansen and Elkie voting Nay.
Mayor Schlum declared a brief recess at 11:55 p.m. and the meeting reconvened at 12:05 a.m.
AGENDA ITEM #8 – CONSIDERATION OF ORDINANCE 10-08, ADOPTING THE “TOWN OF FOUNTAIN
HILLS SOLID WASTE DISPOSAL AND RECYCLING REGULATIONS” BY REFERENCE AND AMENDING
THE FOUNTAIN HILLS TOWN CODE, CHAPTER 10, HEALTH AND SANITATION, RELATING TO SOLID
WASTE DISPOSAL AND RECYCLING SERVICES.
Mayor Schlum asked if there was a motion on this item.
Councilmember Dickey MOVED to adopt the Town of Fountain Hills Solid Waste Disposal and Recycling Regulations
by reference and amend the Fountain Hills tow Code, Chapter 10, Health and Sanitation, relating to solid waste disposal
and recycling and Vice Mayor Brown SECONDED the motion.
Councilmember Elkie said that he was not going to go on and on because it was very late but one of the things that he had
concerns about was right now, the Town did not have any legal entanglements. Certainly, as Mr. McGuire pointed out
before, anyone can get sued for any reason but it did not necessarily mean that they were going to be successful. He
thought that one of the gentlemen that came up to the dais earlier and spoke regarding the RFP and the RFP process very
succinctly said that they should make sure that they dot every "i" and cross every "t" and if there was any doubt in our
Town's Legal Counsel's mind as far as whether the RFP process was faulty, he would like to know about it now.
Everything that was touched on amounts to the fact that there was certainly the potential to put a trash collection business
in the Town out of business, one or two that were currently in Town. This would definitely affect them and possibly put
them out of business. He said that they were talking about choice here and that was echoed time and time again by the
residents. One of the other things that they did not hear about but that he thought was certainly something for this Council
to consider was that he knew there was no tax associated with this and the Town was not getting anything and he was not
trying to imply otherwise. He added that by consolidating this into a single-trash hauler he believes that it was a step in
that direction as many towns do use the trash hauling service as a revenue generator and he thought that by consolidating
this and moving in that direction that they were ultimately moving in that direction (i.e., the Council applying a tax on that
particular service). It was here in this very Chamber that it was proposed that the Town go into the hauling business and it
was looked upon as a proposed revenue source. He added that his comments were not farfetched and that by bringing
these points up he believed he gets a sense of where this was going.
Councilmember Elkie stated that as far as the road analysis was concerned, there was a discussion about that and he pulled
some minutes from December 4, 2003, when this issue was brought up. There was discussion back then that there was
$91,000 a year being spent on road maintenance because of the trash trucks and now it was $92,000. He noted that over
the past seven years the annual incremental damage by the sanitation trucks had only increased by $1,000. He said that
because he thinks that (and this is no reflection on anyone) the statistics were dubious and he believes that there was
always a way to look at the facts a little bit differently. Back then it was commented that a trash truck exerts 21,000
pounds of pressure versus a passenger car that was 1,000 pounds and now the way it was being presented he believed that
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one trash truck was the equivalent of 2,100 vehicles on the roadway and so that is a little bit different. He said that in any
event the only request he has for information was from Legal Counsel at this point.
Mr. McGuire responded to Councilmember Elkie's question at the beginning of his comments and advised that he would
give the same answer he gave when asked this question previously and that was he had no concerns over the bidding that
took place and he did not believe that the concerns raised by the individual who spoke on this are sufficient to invalidate
the process.
Councilmember Elkie asked if that also included recent correspondence and information that had been presented and Mr.
McGuire stated that without going into the confidential memo that he circulated to the Council regarding this issue
yesterday, he did not believe that that additional information changed any of his previous analyses.
Councilmember Dickey advised that there was never any intention to have the Town take over the business and just
because it was discussed as a possibility several years ago, to say that it was discussed in these Chambers implies that that
was something that they were looking at and that they had an ulterior motive. She added that she was getting a little
frustrated by the ulterior motive aspect of this and emphasized that she has no desire to take over peoples’ garbage. The
Town did not want the calls and they are not trying to get money out of it. Someone who spoke earlier implied that the
Town would get some kind of benefit out of this and it was not the case. She added that it was not farfetched to think that
municipalities would collect trash because indeed one of the really good reports that Mr. Rees provided to the Council
was about the other communities in their area. There were three pages of them and many of those communities do just
that. As far as cost they were all more than what was being proposed and many of them, including Mesa, does not even
have the additional trash. She said that to pose this as something other than what it really was, hopefully a great deal for
the community, was wrong. This had been very carefully looked at by many people with good ideas so she really did not
like the idea that this was just a step towards trying to take things over. She added that any Council at any time could
change the Code the way they did today so had it given a future Council a better chance of taking over the garbage? Any
Council could do that anytime they want so she was looking at this as a decision that they were trying to make based on
the facts that they have had all along and they have absolutely no other agenda except for what was out there.
Councilmember Elkie stated that he believed he had prefaced everything that he said with the fact that this Council was
not getting its tax and there had not been any discussion about the Council having a tax. He did not state that the Town
was going to go into the trash business -- that was a previous discussion and it was something that was talked about in the
past. The point he was trying to make, and perhaps he did not make it clearly, was consolidating this with one trash
hauler moves in that direction. It may not be this Council but he believed that validation of this moves in that direction,
not to mention taking away the choice, the direction of potentially being able to tax it. He stressed that he was not trying
to infer or insinuate that anything else is going on; in fact it was the opposite.
Mayor Schlum commented that he has been comfortable moving staff forward through the RFP process and
understanding what they might end up with and added that he had been impressed because the Council has been
adamantly in support of not making any money and being as uninvolved in the entire collection process as possible. He
added that that had been reflected in what they have done here; they have tried to leave everything as much alone as it has
been and make one change to allow a single hauler. He stated that he would not have been comfortable moving forward if
he had any idea that the Council was going to look at this as a revenue source. He had been impressed with the six other
Councilmembers who felt the same way.
Councilmember Leger thanked the Mayor for going through the extensive list of concerns and questions that were raised
and said that he just has a couple more to present. He said that he heard a pretty strong statement that the Recycle Bank
was mandatory and his understanding was that it was a voluntary program. He requested clarification on this.
Mr. Rees confirmed that people did not have to use the Recycle Bank, it was not mandatory.
Councilmember Leger commented that throughout this whole process they had taken input not only at the last Council
meeting, this evening, and that this was a work in progress. He said that they were changing things on the fly to create a
process, an initiative that was responsive to citizen input and whether it passed or not was yet to be determined. Input had
been received about people being concerned about yard waste having to be bagged and it was his understanding that that
had been changed and it no longer had to be bagged.
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Mr. McGuire concurred and said that it had already been amended and yard waste did not have to be bagged.
Councilmember Leger stated that there was also a concern about the suspension fee and noted that that was also clarified
this evening and there would not be a fee for suspending service.
Councilmember Leger added that they had received a lot of feedback from residents who have concerns about the size of
trash cans and said that this contract allowed for two differently sized cans; Mr. Rees agreed.
Councilmember Leger said that it was his understanding that "back door service" was in the contract and available and
once again Mr. Rees concurred. Councilmember Leger commented that this was very important for a lot of the Town's
senior citizens.
Councilmember Hansen advised that she wished there would be one more meeting on this to allow them not to mumble
motions at midnight and to give the public a chance to see the document in its totally revised format. This might have
provided the citizens a better comfort level regarding some of the changes that had been made. She said that passing
things in the middle of the night concerns her and this issue was going to continue to divide the community for a while
and that was unfortunate.
Mayor Schlum asked if there was anything else on Item #8 and there being none he called for the vote.
A roll call vote was taken with the following results:
Councilmember Hansen Nay
Councilmember Leger Aye
Councilmember Dickey Aye
Councilmember Contino Nay
Councilmember Elkie Nay
Mayor Schlum Aye
Vice Mayor Brown Aye
The motion CARRIED by majority vote (4-3) with Councilmembers Hansen, Contino and Elkie voting Nay.
AGENDA ITEM #9 – CONSIDERATION OF THE CONTRACT WITH ALLIED WASTE TRANSPORTATION,
INC., D/B/A/ ALLIED WASTE SERVICES OF PHOENIX RELATING TO SOLID WASTE, DISPOSAL AND
RECYCLING.
Councilmember Dickey left the dais at 12:21 a.m. and returned at 12:21 a.m.
Mayor Schlum stated that they have had presentations on this item and called for a motion on this item.
Vice Mayor Brown MOVED to approve the contract with Allied Waste Transportation Inc., d/b/a/ Allied Waste Services
of Phoenix, relating to solid waste, disposal and recycling services and Councilmember Leger SECONDED the motion.
There were no citizens wishing to speak on this agenda item.
Mr. McGuire advised the version the Council had before them, if they took a total percentage of the contract, had about a
1% of a change from the contract that was submitted with the RFP when it was initially sent out back in the summer.
Mayor Schlum noted that the second trash pickup section was what had changed there and Mr. McGuire advised that the
only significant changes were the second trash pickup and, more importantly, the hazardous waste protocol, which
changed to a process that the Town is much more comfortable with.
Councilmember Elkie asked if one of the representatives from Allied Waste would come forward and posed a question
with respect to the contract as it dealt with the recycling facility being open seven days a week from 7:00 a.m. until 6:00
p.m. and asked if that was something that the company would be able to comply with.
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Mr. Perkins addressed the Council and confirmed that their facility was open seven days a week and they operate out of it
seven days a week (the recycling and transfer facility).
In response to a question from Mayor Schlum, Mr. McGuire confirmed that the term of the contract was for five years
with three additional one year renewal options. Mr. McGuire advised that the contract sets forth the charges that the
Town would be charged for Allied providing commercial hauling servings that they were currently under contract with.
(The Town was not obligated to use Allied but if they did the charges had been listed.)
Councilmember Elkie said that if the Town decides to go with its own facility, its own collection services, then they are
going to be paying for that which is similar to what they got into with Waste Management (14.3(B)).
Mr. Rees confirmed that the cost was about $16,000 annually (the amount the Town paid for the trial period).
Councilmember Elkie stated that if the Town decided to do recycling they would be paying for that service through Allied
Waste. He added that if the Town down the road did get into recycling, it could potentially be a revenue stream for the
Town if they provided all the bins or do something along those lines. He said that that was something that should be
looked at.
Mayor Schlum noted that it would constrain the Town more if they were to utilize Allied for those services but the Town
could potentially consider what Councilmember Elkie was talking about and work with somebody else.
In response to a question from the Mayor relative to the start date, Mr. McGuire advised that he would like to have some
time after they get done here to talk with the contractor about that because what he would like to have them do was to go
back and look at their process and figure out how they would deal with people who would be gone during the summer
season (was there a plan already in place or did they want to give it some thought and get back to them). He added that if
they tell the Town that it really did not make sense to go to a later date, then staff would talk to the Council about that.
Councilmember Leger commented that one of the things that he had on his list was the fact that citizens made comments
about putting this issue on a ballot. He stated that he had received a lot of e-mails on this issue as well. He said that from
his perspective it was true in that they did not go to the ballot box every time there is a controversial item brought before
the Council. He noted that elected officials were faced with challenging responsibilities and decisions that reflect the best
interests of the community and the will of the people. He added that that was what he believed they had been focusing on
for some time, including this evening. He stated that determining the will of the people was always extremely difficult
and this was a tough challenge for him and all elected officials short of going to a ballot box. He had given this a lot of
thought because he has had a lot of people ask him about going to a ballot box and as he said before, they did not go to the
ballot box every time there was a controversial issue. He asked what represents the will of the people -- the people who
speak the loudest, the silent minority, the vocal minority, the people "on the fence" that they did not hear a lot about but
that ask a lot of questions and often reflect the critical mass or was it the special interest groups? This was a touchy
decision and from his perspective it was kind of a mixture of all of that but one thing that he knows it was not was
bending to the will of outside special interest groups (outside of Fountain Hills) or political action committees that lobby
in the Town about their own business and he had seen shades of that throughout this whole argument. In determining his
decision this evening, and he thinks he can say this respectfully that regardless of what the final vote is, he believes the
Council listened respectfully, processed input, weighed the pros and the cons, researched the issues and, from his
perspective, to the best of his ability he has considered obviously the will of the people and the collective interests for
their community.
Mr. McGuire clarified a comment that was made earlier by a citizen and noted that Fountain Hills, was a General Law
Town in Arizona, and did not have the ability to put an item on a Town ballot for an advisory election. The only issues
they could put on a ballot for an advisory election were transportation issues so even if the Council desired to place the
item on a ballot to be voted on, they could not.
Councilmember Elkie stated that Councilmember Leger's comments were very well stated and he agreed with his points
about the process. He said that his experience with the other members of the Council has been that although they might
disagree philosophically, their votes have reflected the desires of the residents of the Town as evidenced by the number of
people who were present this evening and the number of people who indicated support for this or opposition to it. He saw
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a large range of people this evening from all walks of life so he did not think that it was unduly weighted one way or
another by one particular group. He commented on the enormous amount of e-mails that the entire Council has received
regarding this issue both in favor of and opposition to the issue. He did not get a sense that there was one single group
that was sending out "blasts" -- it was truly people from the Town that really and passionately felt that their positions were
the correct ones. He believed it was very important that the Town, the residents, know that although the Council may
have been divided on this vote, they continue to work together for the betterment of the Town. Everyone might not agree,
as evidenced by the vote, but they all work together for the betterment of the Town and have the best interests of the
Town at heart. He believes it is very important that the residents understand that this was not a Council that "back bites"
and he has not had a cross word with any member since winning a seat on the dais from the residents. He added that he
appreciates the way that the process has been handled.
Mayor Schlum said that apart from perhaps having one more meeting on this he was generally in agreement with a lot of
what they have put together tonight. He agreed with the comments made by Councilmembers Leger and Elkie and stated
that the Council did good work and works together. There were not too many issues that they face that were extremely
significant such as this one and there was rarely even an opportunity to disagree because they all know Fountain Hills
pretty well and for most of the items that come before them they know where the values and desires of the residents are
and they often agree. There were not many times when there was a division of agreement and there certainly was a lot of
heated discussion on this over the last couple of months and it had peaked over the last week in light of the election on
Tuesday and the build up with all the millions and perhaps billions of dollars that were spent to get people even more
excited. He believes that certainly had an influence on what the residents brought to this issue. He noted that people had
shared some things in their e-mails that were rude, some people were threatening and he thinks they can look past that
largely and when they are around Town, at Basha's or Safeway; hopefully they can get past that angst.
Mayor Schlum commented that they had a lot more good things to do here and that this was a topic that had demanded a
lot of discussion and they have had that discussion over a long period of time. The Town put themselves into a role where
they are minimally involved in the trash issue; they are not a municipal hauler that moves trash trucks like most places.
They have tried to have a minimal an impact on the community but still have the benefits of what a large part of the
community already has. He added that the Code may need to be tweaked a little further and they can address that and the
contract as well. Hopefully they have a good partner who will work with them. He stated he was sure that the proposal
and process they had gone through was not perfect and there was always room for improvements and the contract and the
Code are not perfect; however, the Council will be addressing both as they go forward to make sure things work as best as
they can.
Mayor Schlum thanked staff, the Committee and the public for being engaged but really the staff and Committee for
trudging along. He also expressed appreciation to the Council for following through and said that the Strategic Plan was
an important priority. He stated that he was proud of how this has been done and although the edges got a little bit sharp
at times, he believes that was to be expected. He added that hopefully they have all learned a little bit more about how to
best work with one another.
Councilmember Dickey thanked Mayor Schlum for Chairing this and doing such a great job. She said that she really
appreciated the Mayor's calm and said his few jokes along the way had helped keep everything in perspective and the
Council appreciated it.
Mayor Schlum stated that he knows who he is so people can get angry with him and share words but he frankly enjoys
everyone who comes forward even if they have an opinion that is totally out of alignment with where he is at. He added
that he believed they were all fortunate to be in Fountain Hills and the engagement was terrific. The Mayor said “let's just
make it as effective as we can as well.”
There being no further discussion on this item, the Mayor called for a vote.
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A roll call vote was taken with the following results:
Councilmember Hansen Nay
Councilmember Leger Aye
Councilmember Dickey Aye
Councilmember Contino Nay
Councilmember Elkie Nay
Mayor Schlum Aye
Vice Mayor Brown Aye
The motion CARRIED by majority vote (4-3) with Councilmembers Hansen, Contino and Elkie voting Nay.
Mayor Schlum thanked the representatives from Allied and said he looked forward to working together with them.
AGENDA ITEM #10 – COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER
Items listed below are related only to the propriety of (i) placing such items on a future agenda for action or (ii) directing
staff to conduct further research and report back to the Council.
A. NONE
AGENDA ITEM #11 – SUMMARY OF COUNCIL REQUESTS AND REPORT ON RECENT ACTIVITIES BY
THE TOWN MANAGER.
None.
AGENDA ITEM #12 - ADJOURNMENT
Councilmember Elkie MOVED to adjourn the meeting and Councilmember Dickey SECONDED the motion, which
CARRIED UNANIMOUSLY (7-0). The meeting adjourned at 12:40 a.m.
TOWN OF FOUNTAIN HILLS
By __________________________
Jay T. Schlum, Mayor
ATTEST AND
PREPARED BY:
_________________________
Bevelyn J. Bender, Town Clerk
CERTIFICATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Session held by the
Town Council of Fountain Hills on the 4th day of November 2010, in the Fountain Hills Council Chambers. I further
certify that the meeting was duly called and that a quorum was present.
DATED this 2nd day of December 2010.
_____________________________
Bevelyn J. Bender, Town Clerk