BILL NUMBER: SB 841	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 2, 2011
	AMENDED IN SENATE  MARCH 24, 2011

INTRODUCED BY   Senator Wolk

                        FEBRUARY 18, 2011

   An act to add Section 40059.2 to the Public Resources Code,
relating to solid waste.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 841, as amended, Wolk. Solid waste: enterprises: contracts.
   The existing California Integrated Waste Management Act of 1989
allows each county, city, or district to determine aspects of solid
waste handling that are of local concern and the means by which the
services are to be provided. Existing law imposes specified
restrictions on the enforceability of certain indemnity obligations
related to source reduction and diversion contained in a provision,
term, condition, or requirement in an ordinance, contract, franchise,
license, permit, or other entitlement or right adopted, entered
into, issued, or granted by a local agency. Existing law prohibits a
solid waste enterprise, as defined, from being liable for the
indemnity obligation under certain circumstances.
   This bill would additionally prohibit the enforcement of an
indemnity obligation that requires a solid waste enterprise to defend
and hold harmless the local agency in connection with the local
agency's imposition of fees, charges, levies, exactions, or
assessments that are found by final judgment of a court to have been
imposed in violation of Article XIII C or XIII D of the California
Constitution or that require a solid waste enterprise to refund
certain fees. 
   The bill would only apply to a provision, term, condition, or
requirement contained in an ordinance, contract, franchise, license,
permit, or other entitlement or right adopted, entered into, issued,
or granted on or after January 1, 2012. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 40059.2 is added to the Public Resources Code,
to read:
   40059.2.  (a) The Legislature hereby finds and declares 
both   all  of the following:
   (1) In 1996, the voters of California adopted Proposition 218,
which among other things, limits the ability of local agencies to
impose certain property-related fees and assessments without prior
property owner consent. In 2010, California voters passed Proposition
26, a further initiative that limits the ability of local agencies
to impose fees, levies, charges,  assessments, or other
exactions without prior voter approval. These initiatives, among
other things, amended Article XIII C and Article XIII D of the
California Constitution.
   (2) The public policy objective of the Legislature in enacting
this section is to ensure that those local agencies that require an
indemnity obligation from solid waste enterprises, as a condition of
providing solid waste handling services within the local agency's
jurisdiction, retain their responsibility for complying with Article
XIII C and Article XIII D of the California Constitution , by
obtaining any necessary voter or property owner approval before
adopting any fees, levies, charges, assessments, or other exactions
that are collected for the local agency by the solid waste
enterprise.  .  
   (3) This section is not intended to address or to determine
whether fees for solid waste handling services are fees imposed as an
incident of property ownership or fees imposed for a
property-related service, within the meaning of Section 2 of Article
XIII D of the California Constitution. 
   (b) For the purposes of this section, the following terms have the
following meanings:
   (1) "Indemnity obligation" means an indemnity obligation directly
or indirectly related to the failure of a local agency to obtain
voter or property owner approval of a fee, levy, charge, assessment,
or other exaction,  as   that may be 
required by Article XIII C  ,  or Article XIII D of
the California Constitution, if that indemnity obligation is
expressly assumed by, or imposed upon, the solid waste enterprise,
including pursuant to ordinance, contract, franchise, license,
permit, or other entitlement or right, for the benefit of the local
agency.
   (2) "Local agency" means a county, city, city and county,
district, regional agency as defined in Section 40181, or other local
government agency.
   (c) An indemnity obligation that meets either of the following
conditions is subject to subdivision (d):
   (1) The indemnity obligation is authorized or required by a
provision, term, condition, or requirement contained in an ordinance,
contract, franchise, license, permit, or other entitlement or right
adopted, entered into, issued, or granted, as the case may be, by a
local agency for solid waste handling services, including the
recycling, processing, or composting of solid waste.
   (2) The indemnity obligation is authorized or required in a
request for bids or proposals in connection with a contract or
franchise specified in paragraph (1).
   (d) Notwithstanding any provision, term, condition, or 
requirement, the indemnity obligation is null and void as against
public policy   requirement, an indemnity obligation is
null and void  and is not enforceable if it does either of the
following:
   (1) Requires a solid waste enterprise to defend and hold harmless
the local agency in connection with the local agency's imposition of
fees, charges, levies, exactions, or assessments that are found by
final judgment of a court to have been imposed in violation of
Article XIII C  ,  or Article XIII D of the
California Constitution.
   (2)  (A)    Requires a solid
waste enterprise to refund fees to its customers, if the fees are
collected on behalf of the local agency by the solid waste enterprise
and have been remitted by the solid waste enterprise to the local
agency. 
   (B) The obligation to refund the fees subject to this paragraph
that are remitted to the local agency shall remain with the local
agency, which shall be responsible for refunding the fees. 
   (e) The provisions of this section are not subject to waiver, and
any attempted waiver shall be null and void as against public policy.

   (f) This section is not intended to do any of the following:
   (1) Add to or expand the authority of local agencies to determine
aspects of solid waste collection and handling specified in Section
40059.
   (2) Alter the authority of business entities to collect or process
materials that are not solid waste. 
   (3) Affect any contract right existing on the effective date of
this section.  
   (3) Determine whether or not a fee, levy, assessment, or exaction
requires voter or property owner approval by Article XIII C or
Article XIII D of the California Constitution.  
   (g) This section shall only apply to a provision, term, condition,
or requirement contained in an ordinance, contract, franchise,
license, permit, or other entitlement or right adopted, entered into,
issued, or granted on or after January 1, 2012.