A Response to the Kensington Selectboard and Casalla Trash Contracts

FROM: Michael L. Johnson. SUBJECT: Review of Two Documents Relative to 35-Gallon Recycle Carts Provided to the Author by the Town of Kensington.

Executive Summary:

There is no contractual impediment to the Town making 35-gallon recycle carts available to those of us who need them. The Amendment to Agreement dated 5 April 2021 clearly shows that 35-gallon carts are applicable to recycle and strongly implies that 35-gallon recycle carts are available from Casella.

The Grant Agreement dated 12 July 2021 does not prohibit the use of 35-gallon recycle carts but does preclude 35-gallon carts from coverage by the grant (at $15 per cart).

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Discussion:

Kathleen Felch, Director of Administration for the Town of Kensington, provided me with two documents on 8 September 2021. They are the Amendment to Agreement, reviewed herein (see First Document), and the Recycling Partnership Grant Agreement reviewed under herein (see Second Document). [at the end of this post  -Skip]

I conducted the review. I am not a lawyer. I have an advanced degree in electronics and 50 odd years’ experience in government contracting.

Related: Trashing the Elderly

First Document: Review of Amendment to Agreement Between the Town of Kensington and Casella Waste Management of Massachusetts, Inc. re Residential Solid Waste and Recycling Collection Agreement for the Town of Kensington, NH dated 5 April 2021

Figure 1 is a screengrab of the first substantive paragraph of the document. Note that it defines three sizes of carts, 95, 65, and 35-gallon. Note also that these three sizes of carts are applicable to both the Acceptable Waste collection and Recycle collection.

Figure 1. Screen Grab of Part I from Amendment to Agreement

Figure 2 is a screengrab of the second paragraph under Part II, Section 6 of the document. Section 6 is titled Acceptable Waste Collection. Note that it includes three sizes of carts, 95, 65, and 35 gallons for Acceptable Waste collection.

Figure 2. Screen Grab of Second Paragraph under Part II, Section 6 from Amendment to Agreement

Figure 3 is a screengrab of the second paragraph under Part II, Section 7 of the document. Section 7 is titled Recyclable Materials Collection. The document entry (shown in Figure 3) is in error in that it talks to Acceptable Waste whereas Section 7 addresses Recyclable Materials. I suspect it to be a cut and paste error.

If the entry should read Recyclable Materials rather than Acceptable Waste, then the paragraph clearly shows 35-gallon carts being accepted for recycling.
If the entry is correct as shown or if the entry is deemed ambiguous, then the entire paragraph should be removed. In this case, the size carts allowed for recycling would revert back to the discussion for Figure 1 and would include the 35-gallon cart as being acceptable for recycling.

Figure 3. Screen Grab of Second Paragraph under Part II, Section 7 from Amendment to Agreement

Conclusion:

The Amendment to Agreement dated 5 April 2021 between Casella and the Town of Kensington is based on carts of 95-gallon capacity, 65-gallon capacity, and 35-gallon capacity. While not explicitly stated, the Amendment to Agreement implies that Casella can supply carts of each capacity for both Acceptable Waste and Recyclable Materials. Nothing in the Amendment to Agreement prohibits the use of 35-gallon capacity carts for Recyclable Materials.

Second Document: Review of Recycling Partnership Grant Agreement [between the Town of Kensington and The Recycling Partnership, Falls Church, VA] dated 12 July 2021.

The Grant Agreement is 15 pages of unexciting reading. It contains some interesting factoids such as the Town generates an estimated 264 tons of recyclables a year (11 pounds per week per household by my arithmetic). The only direct reference to recycle cart sizes is Attachment A: Terms and Conditions, section j. Collection Frequency. A screengrab of this is shown in Figure 4.

Figure 4. Screen Grab of Grant Agreement, Attachment A: Terms and Conditions, section j. Collection Frequency

I had been under the impression that the Grant Agreement document prohibited the use of 35-gallon recycle carts. It does not. See the wording “The Grantee [the Town], at its discretion, may distribute carts that are smaller than required above but such carts will not be eligible for grant funding.” The grant funding is $15 per cart. I’ll give a grant to the Town for $15 if they get me a 35-gallon recycle cart. If necessary, I’ll also pay a reasonable retail price for the cart.

There are two other paragraphs of the Grant Agreement of interest to a discussion of allowable cart sizes.

The first is Attachment B: Grantee’s Workplan, section b. Project Description. This section mentions “96 +/- gallon recycling carts” and I do not understand the significance of this. The paragraph also contains the sentence “The goal is to broadly adopt a uniformly sized recycling cart while still accommodating those households and citizens with special needs.” I believe that I qualify as a citizen with special needs relative to the size of the recycle cart.

The second such paragraph is Attachment B: Grantee’s Workplan, section f. Project Budget and Grant Funding. This section defines qualifying recycling carts by reference to sections j, k, l, and m of Attachment A. Section j, Collection Frequency, has been discussed above. Section k covers Cart Distribution, section l covers RFID (Radio Frequency Identification ) Tags, and section m covers Recycled Content Requirement. These three sections are not germane to the discussion on the size of the recycle cart.

Conclusion:

The use of 35-gallon recycle carts is not prohibited by the Grant Agreement.

The Grant Agreement states that The Recycling Partnership, Inc. will make cash grants to the Town on a per cart basis for each 95-gallon cart and each 65-gallon cart distributed to the households of the Town. The Partnership will not provide a cash grant for any 35-gallon cart distributed. The grant for a given cart would be $15. This can be considered as incidental costs and handled out-of-pocket.