BILL NUMBER: SB 841	CHAPTERED
	BILL TEXT

	CHAPTER  713
	FILED WITH SECRETARY OF STATE  OCTOBER 9, 2011
	APPROVED BY GOVERNOR  OCTOBER 9, 2011
	PASSED THE SENATE  AUGUST 30, 2011
	PASSED THE ASSEMBLY  AUGUST 25, 2011
	AMENDED IN ASSEMBLY  JUNE 22, 2011
	AMENDED IN SENATE  MAY 12, 2011
	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, 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 impose certain restrictions on an indemnity
obligation related to the failure of a local agency to obtain voter
or property owner approval of a fee, levy, charge, assessment, or
other exaction, if that indemnity obligation is assumed by, or
imposed upon, a solid waste enterprise. The bill would prohibit an
indemnity obligation from being enforced, to the extent of certain
claims related to the liability of the local agency, or if it
requires a solid waste enterprise to refund certain fees that are
found by a final judgment of a court to have been imposed in
violation of Article XIII C or Article XIII D of the California
Constitution.
   The bill would become operative on July 1, 2012, and 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 July 1, 2012.


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 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.
   (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 related
to the failure of a local agency to obtain voter or property owner
approval of a fee, levy, charge, assessment, or other exaction, 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 imposed 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, an indemnity obligation, including the duty and the cost
of defense, shall be subject to the following restrictions:
   (1) An indemnity obligation or other provision, clause, covenant,
or agreement that purports to obligate a solid waste enterprise to
indemnify a local agency against liability for claims by a third
party for failure to obtain voter or property owner approval of a
fee, levy, charge, assessment, or other exaction in violation of
Article XIII C or Article XIII D of the California Constitution is
not enforceable to the extent the claims arise out of, pertain to, or
relate to the liability of the local agency.
   (2) An indemnity obligation is not enforceable if it requires a
solid waste enterprise to refund fees to its customers, if the fees
are collected and retained by the local agency, or 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, and
in either case have been found by a final judgment of a court to have
been imposed in violation of Article XIII C or Article XIII D of the
California Constitution.
   (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) 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 July 1, 2012.
   (h) This section shall become operative on July 1, 2012.