HomeMy WebLinkAboutStaff Report 4.A 1/27/2014 Age/y .d a/Itevw#4.A
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DATE: January 27, 2014
TO: Honorable Mayor and Members of the y Council
FROM: John C. Brown, City Manag:>•
Eric Danly, City Attorney
SUBJECT: Resolution Approving the Second Amendment to the Agreement between the
Cities of Sonoma County and Sonoma County for aJoint Powers Agency to Deal
with Waste.Management Issues, and an Indemnity Agreement with the Sonoma
County Waste Management Agency, and Declaring City Council Policy and
Delegating to the Sonoma County Waste Management:Agency Regulatory and
Enforcement Authority for Implementation of City Council Policy on Regulating
Single-use Carryout Plastic Bags.in the City of Petaluma.
RECOMMENDATION
It is recommended that the City Council adopt the attached resolution.approving the Second
Amendment10 the Agreement between the cities of Sonoma County and Sonoma County for a
Joint Powers Agency to deal with waste management issues, and an Indemnity Agreement, with
the Sonoma County Waste Management.Agency, and declaring City Council policy and
delegating to the Sonoma County Waste Management Agency regulatory and enforcement
authority for implementation of City Council policy on regulating single-use carryout bags in the
City of Petaluma(Attachment 1).
BACKGROUND
At the City Council's December 2, 2013 meeting, the Council_indicated its support (6-0, with
Councilmember Healy absent)for a proposed second amendment to the joint powers agreement
for;theSonoma,CountyWaste,Management Agency (SCWMA) (Attachment 2). The
amendment Would enable SCWMA to carry out new"non-core'programs.inwhich member
jurisdictions could elect to participate, including a carryout bag ordinance. The proposed
amendment is.intended to resolve issues related to SCWMA's administration and enforcement,
on behalf of its member jurisdictions, of a single-use carryout bag ordinance (Carryout Bag
Ordinance). The Carryout Bag Ordinance would prohibit most uses of single-use carryout
plastic bags by retailers, and,establish a charge for recycled paper bags. Several of SCWMA's
. member jurisdicttons:have`already,approved the Joint Powers.Agreeinent ("JPA") Amendment;
unanimous"approval is required before the JPA can be amended.
Agenda Revii(esv) ._
City Attorney�/' Finance Director City Managerc ej
At the December 2,.2013 meeting, the Council also confirmed its previous policy choices to
participate in the proposed countywide bag ban, and to delegate the administration and
enforcement of the ban for Petaluma to SCWMA. Staff indicated that, based on the Council's
policy direction, a resolution approving the JPA Amendment`wouldbe prepared and brought
back to Council for consideration at its January 6,:2014 meeting. One Councilmember requested
additional comparative cost information when the matter returned to Council. The item for
approval.of the proposed JPA amendment and related actions was.not returned to the City
Council for action on January&because SCWMA had not yet certified the EIR for the Carryout
Bag Ordinance, SCWMA certified the EIR at its January 15, 2014 meeting.
DISCUSSION
Attached for the Council's consideration and approval is a resolution approving the Second
Amendment to the JPA and authorizing SCWMA to implement the City Council's policy
direction regarding regulation of single use carryout plastic bags in the City.
As noted in the staff report for;the,December 2, 2013 agenda, SCWMA has offered
indemnification to,its member agencies that opt to delegate regulatory and enforcement authority
to SCWMA related to the Carryout Bag Ordinance. Your Council indicated an interest in
obtaining that indemnification as-a condition of participating.in a countywide program. Attached
for your consideration-is an]--indemnity"agreement proposed by the SCWMA (Attachment 3).
The agreement provides that SCWMA will defend, indemnify, and hold harmless the City and its
officers and employees from any challenge to the Carryout Bag:Ordinance or enforcement of the
ordinance or any approval or:related action, including certification of a CEQA document related
to the ordinance. The agreement is in,substantially the same form in which it is expected to be
executed, subject to the advice of the City Attorney.
The proposed Carryout Bag Ordinance does not include penalty provisions. SCWMA has
developed a draft ordinance, which,compliments the CarryoutBag Ordinance (Attachment 4),
and provides SCWMA a means for imposing administrative'penalties:associated with violations
of the The draft Administrative Penalties Ordinance (Attachment 5) provides a
framework and procedure for issuing administrative citations, waivers, associated fines, and
appeals.
At your December 2, 2013 meeting, the City Attorney'advisedthat`the power to enact ordinances
and other municipal legislation in Petaluma is vested exclusively in the City Council and
'generally, cannot be delegated to another body. The law permits, however, limited legislative
body delegation related to exercise of legislative authority, provided adequate safeguards
regarding such delegation exist: After declaring a policy and establishing a standard governing
achievement of the policy,the City Council may confer to executive or administrative officers
the power to prescribe.rules,and regulations to promote the purposes of the legislation and carry
it into effect. The purpose of the general prohibition against delegation of legislative authority is
to ensure that fundamental policy questions are resolved by legislative bodies, and that delegated
authority for implementation of legislative policies is accompanied by adequate safeguards to
prevent abuse of the delegated authority. (See Kugler v. Yocum (1968) 69 C2d 371, 375.)
For the City Council to delegate to SCWMAauthority tb irrtpletnentand enforce regulation of
single use carryout plastic bags in,the:CityofP.etaltima, the City Council must,first declare its
policy regarding regulation of such plastic bags in.the City. The City Council must also include
with its delegation of regulatory and.enforcement authority to the SCWMA sufficient standards
governing exercise of delegated authority'and adequate safeguards to prevent abuse.
The attached resolution includes a declaration of City Council policy regarding regulation of
single use carryout plastic bags in Petaluma, and expresses the City Council's intent to delegate
regulatory and enforcement authority to the SCWMA to implement the City Council policy. The
attached resolution makes the delegated authority subject to standards governing its exercise and
safeguards to prevent abuse. Attached to and incorporated in the resolution are the proposed
Second Amendment to the JPA,proposed Sonoma County Waste Management Agency
regulations implementing the-Council policy on regulation of single use carryout plastic bags,
and providing for enforcement of violations, an indemnity agreement protecting the City
regarding SCWMA regulatory and enforcement activity , and the proposed single use bag
ordinance.
The proposed amendment to Section 14 of the JPA is drafted broadly, and could be read to
suggest that in the future, the SCWMA Board may approve new programs and take legislative
action effective in the member:;agency jurisdictions without express member agency action and
approval. However, notwithstanding the proposed amendment to Section 14 of the JPA, any
future proposed activity of the SCWMA is subject to the legal limits on delegation of local
legislative authority. For future SCWMA.regulatory or enforcement activity to be effective in a
member agency jurisdiction, such activity must be subject;toideclared policy of the member
agency,:and standards governing its exercise and safeguards to prevent abuse. The attached
resolution reserves the City Council's:authority to ensure that future programs and activities of
the SCWMA in Petaluma are subject to appropriate City Council authorization and direction.
There has been opposition to regulation of single-use carryout plastid bags from the plastic bag
industry, which brought litigation against some local plastic bag regulations, including those
adopted in Manhattan Beach, Marin County, and the City and County of San Francisco. Concern
about the potential cost of defending legal challenges to local plastic bag regulations has been an
impetus for a coordinated regulatory program carried out by SCWMA, and for protection from
liability sought by SCWMA member agencies. The legal challenges to local plastic bag
regulations have primarily focused on compliance with the California Environmental Quality Act
(CEQA)'. The California Supreme Court ultimately upheld the challenged Manhattan Beach
regulations. The court,ruled that the-city properly concluded that a ban on plastic bags in
Manhattan Beach would have only a miniscule contributive effect on the broader environmental
impacts detailed in the paper bag 'life cycle' studies relied on by the challengers, and that the
increase in paper bag production following the local change from plastic to paper bags could
only be described as insubstantial. The Supreme Court.concluded there was no substantial
evidence to support a fain argument the plastic bag:ordinance might significantly affect the
environment, and that the city wasnot required to prepare an EIR. (Save the Plastic Bag
Coalition v. City of Manhattan Beach (2011) 52 C4th.155.) Since the Manhattan Beach case
was decided, in 2013 appellate court decisions from the First District Court of Appeals have
upheld local plastic bag regulations of Marin County and San Francisco against CEQA
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challenges. In each case the challenged regulations had been found by the local body to
categorically exempt from CEQA under the class 7 and$ categorical exemptions. The class 7
categorical exemption applies to "action taken by a regulatory agency as authorized by state law
or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource
where the regulatory process involves procedures for protection of the environment." The class
8 categorical exemption applies to "actions taken by a regulatory agency, as authorized by state
or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the
environment, where the regulatory process involves procedures for protection of the
environment."
The attached resolution treats the Council action declaring City Council policy and delegating
regulatory and enforcement authority for implementation of the Carryout Bag Ordinance as
categorically exempt from CEQA under the class 7 and 8 categorical exemptions, as did the
Marin and San Francisco plastic bag regulations. Factual information regarding the objectives
and environmental effects of the proposed Carryout Bag Ordinance, including that only
beneficial and less than significant environmental impacts will result from the ordinance, is
contained in the Carryout Bag Ordinance EIR. The EIR is incorporated by reference in the
resolution.
FINANCIAL IMPACTS
Additional information regarding the potential costs of administration and enforcement of a
carryout bag ordinance was requested of staff at the December 2, 2013 meeting. If the City joins
a regional effort administeredbySCWMA, the Agency would administer the program. Based
on the City of San Jose's experience; SCWMA does not expect is annual enforcement costs to
exceed $1,000. SCWMA has. however, expended in excess of$100,000 developing a draft
ordinance, conducting public outreach, completing an environmental impact report, and
interacting with member agencies in this matter. A portion of those costs were paid by the City
of Petaluma, through its annual payment to SCWMA. If the City Council wished to develop,
administer and enforce its own ordinance, much of the work SCWMA has already done could be
adapted at additional cost to the City. So long as the Carryout Bag Ordinance EIR is properly
certified, the City can incorporate and utilize the environmental work already done by SCWMA,
and avoid duplicative environmental review. In an effort to assign-a cost to the environmental
review the City might need to undertake if it was to develop its own ordinance, Planning staff
hasiprovided a range of costs, from$20,000 to $40,000. Assuming the City would use the
SCWMA Carryout Ordinance as a model, and that no significant changes were;needed,
administration costs would mainly be associated with Attorney and administrative staff time,
estimated at a combined total.of 60 hours, at a projected cost of between $6,000 and$7,500.
Further costs would be incuiTed if the City were required to defend its ordinance or associated
enforcement, although the need to actively defend or enforce such an ordinance is considered
unlikely. Estimates of defense"and enforcement costs are difficult to predict but would be in the
range of typical enforcement and litigation costs incurred by the City. Most of these costs can
be avoided by participating in a countywide program administered by SCWMA subject to
protection from liability provided by SCWA, which is the recommended course of action.
It
ATTACHMENTS
I. Resolution Approving the Second Amendment to the Agreement between the Cities of
Sonoma County and Sonoma County for a Joint Powers Agency to Deal with Waste
Management Issues, and an Indemnification Agreement with the Sonoma County Waste
Management Agency, Declaring City Council Policy and Delegating to the Sonoma
County Waste Management Agency Regulatory and.Enforcement Authority for
Implementation of City Council Policy on Regulating Singe-Use Carryout Plastic Bags in
the City of Petaluma
2. Proposed Second Amendment to the Agreement between the Cities of Sonoma County
and Sonoma County for a Joint Powers Agency to Deal with Waste Management Issues
3. Indemnity Agreement(Exhibit B to the Resolution)
4. Proposed Single Use Plastic Bag Ban Ordinance (Exhibit A to the Resolution)
5. Draft Administrative Penalties Ordinance (Exhibit C to the Resolution)
ATTACHMENT 1
RESOLUTION APPROVING THE SECOND AMENDMENT TO THE AGREEMENT
BETWEEN THE CITIES OF SONOMA COUNTY AND SONOMA COUNTY FOR A
JOINT POWERS AGENCY TO DEAL WITH WASTE MANAGEMENT ISSUES,
AND AN INDEMNITY AGREEMENT, WITH THE SONOMA COUNTY WASTE
MANAGEMENT AENCY, DECLARING CITY COUNCIL POLICY AND
DELEGATING TO THE SONOMA COUNTY WASTE MANAGEMENT AGENCY
REGULATORY AND ENFORCEMENT AUTHORITY FOR IMPLEMENTATION OF
CITY COUNCIL POLICY ON REGULATION OF SINGLE USE CARRYOUT BAGS
IN THE CITY OF PETALUMA
WHEREAS,the Sonoma County Waste Management Agency ("SCWMA") was created
in 1992 pursuant to the Joint Exercise of Powers Act (California Government Code section 6500
et seq.), which authorizes the joint exercise of powers common to public agencies by execution
of an agreement between the cities of Sonoma County and Sonoma County for a Joint Powers
Agency to Deal with Waste Management Issues ("Original JPA Agreement"); and
WHEREAS, the purpose of the Original JPA Agreement was to create the SCWMA and
describe the terms and conditions by which the SCWMA would deal with four programs: (1)
household hazardous waste, (2) wood waste, (3) yard waste that would otherwise go to the
Central Landfill, and (4) public education ("Four Original Programs"); and
WHEREAS,the Agency is composed of all Sonoma County cities and the County of
Sonoma ("JPA Members"); and
WHEREAS, the JPA Members entered into a First Amendment to the Original JPA
Agreement in 1996, which among other things defined the term "Regional Agency" and declared
the JPA Members' desire to use the SCWMA for purposes of maintaining compliance with the
requirements ofthe Integrated Waste Management Act (First JPA Amendment); and
WHEREAS, the Original JPA.Agreement as amended by the First JPA Amendment
provides;that the JPA Members may elect to participate in any or all SCWMA programs (i.e,,
that the JPA Members may elect to not participate in any or all SCWMA programs);and
WHEREAS, the SCWMA prepared a draft Second JPA Amendment ("Second JPA
Amendment") to the Original JPA Agreement, the purpose of which is to prevent JPA Members
in the future from electing to not participate in any of the Four Original Programs of the
SCWMA; to allow members to elect to not participate in any non-core programs of the
SCWMA, (meaning any programs other than the Four Original Programs), and to adopt such
non-core programs in the.future,_including a single use carryout bag ordinance,and to regulate
by order, resolution and ordinance to carry out the SCWMA's purposes; and
WHEREAS, existing law provides that local legislative bodies such as the City Council
generally may not delegate their legislative authority to another body, but may delegate authority
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to implement policies of the City`Council, providedahat.the'exercise of such delegated authority
is governed by a sufficient standard previously established by the City Council and accompanied
by adequate safeguards to ensure that the exercise of delegated,authority promotes the purposes
of the City Council policy (see, Kugler v. Yokum (1968) 69rC2d 371, 375); and
WHEREAS,the SCWMA Board directed staff to prepare an ordinance that would
uniformly regulate and generally prohibit the use of single use carryout plastic bags throughout
Sonoma County, subject to certain exceptions specified in the ordinance; and
WHEREAS, SCWMA staff prepared an ordinance ("Carryout Bag Ordinance") for
implementing single use carryout plastic bag regulations uniformly throughout Sonoma County
based on legislation adopted by the City of San Jose, which Carryout Bag Ordinance is attached
to and made a part of this Resolution as Exhibit A; and
WHEREAS, in January, 2013, the Agency completed a draft environmental impact
report ("EIR") and appendices,in accordance with the California Environmental Quality Act
("CEQA") to consider potential environmental impacts associated with the Carryout Bag
Ordinance and the various project.altematives considered in the EIR; and
WHEREAS, following the public review period the SCWMA prepared responses to
comments on the EIR and a Final EIR(FEIR) which was made available to the public; and
WHEREAS,the SCWMA held a duly noticed public hearing to consider the FEIR on
January 15, 2014, and by Resolution no. 2014-03 certified the FEIR, which Resolution and FEIR
and all attachments, exhibits, and appendices thereto and documents incorporated therein are
hereby incorporated by reference and made a part of this resolution; and
WHEREAS, according to the.Project Objectives listed in the FEIR, the Carryout Bag
Ordinance is intended to provide benefits to the public and the environment throughout Sonoma
County by reducing the amount of single use paper and plastic bags in trash loads to reduce
landfill volumes; reducing the environmental impacts related to single use paper and plastic
carryout bags,.such as impacts to biological resources (including marine environments), water
quality and utilities (solid waste equipment and facilities); promoting a shift toward the use of
reusable carryout bags by retail customers; and by reducing litter and associated adverse impacts
to storm water systems, aesthetics and marine and terrestrial environments; and
WHEREAS, according to the Summary of Impacts contained in the FEIR, and as
supported by the environmental impact analysis contained in the FEIR, all of the environmental
impacts identified in relation to the Carryout Bag Ordinanceproject are either beneficial or less
than significant without mitigation, thus supporting the SCWMA's finding in certifying the FEIR
that the Carryout Bag Ordinance project will not cause any significant environmental impacts;
and
WHEREAS;-3o facilitate adoption and implementation of the Carryout Bag Ordinance,
the SCWMA has, in addition to preparation and certification of the FEIR in accordance with the
requirements of CEQA, prepared the Second JPA Amendment, the Carryout Bag.Ordinance, a
1.
draft ordinance ("Administrative:Penalty Ordinan'ce");establishing.penalties for enforcing
violations of the Carryout Bag Ordinance, and an indemnity agreement ("Indemnity
Agreement") for use with JPAMembers!to protect:,the JPA Members from liability related to any
challenge to the Carryout Bag Ordinance, oranyrelated approval or action, including
certification of a related CEQA document; and
WHEREAS, in declaring City-Council.policy and delegating to the SCWMA regulatory
and enforcement authority for,implementation of City Council policy on regulating single use
carryout plastic bags in the City of Petaluma, the City Councilis relying on the City's regulatory
and police power in accordance with Article XI, sections 5.and 7'of the California Constitution,
and other applicable law,and such power is the basis for the regulatory and enforcement
authority delegated to the SCWIvIA pursuant to this resolution, including the basis for adoption
and enforcement of the Carryout Bag Ordinance by the SCWMA; and
WHEREAS, section 1=5307 of the CEQA Guidelines provides that action taken by a
regulatory agency as authorized by state law or local ordinance to assure the maintenance,
restoration, or enhancement of a natural resource where the regulatory process involves
procedures for protection of the environment is categorically exempt from the requirements of
CEQA; and
WHEREAS,-section'15308 of the CEQA Guidelines provides that actions taken by a
regulatory agency, as authorized by state or local ordinance, to assure the maintenance,
restoration, enhancement,or protection of the environment, where the regulatory process
involves procedures for protection of the environment are categorically exempt from the
requirements of CEQA; and
WHEREAS, it can be seen from the Project Objectives contained in the FEIR for the
Carryout Bag Ordinance that such regulation will assure the maintenance, restoration,
enhancement and protection of natural resources and the environment, and it can be seen from
the text of the Carryout Bag Ordinance that such regulation,constitutes procedures for protection
of the environment;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma
as follows:
1. The recitals above in this resolution are declared to be true and correct and are
incorporated into this resolution as findings of the City Council.
2. The City Council shares and,supports,the public policy objectives as described in the
FEIR of the,Carryout,Bag Ordinance,and finds such objectives to be consistent with and
in furtherance of the public policies of the City Council, and the goals,policies and
programs contained in the City's General Plan 2025;=including; but not limited to, Policy
4-P-21, "Reduce solid waste and increase reduction, reuse and/or recycling, in
compliance with the Countywide Integrated Waste management Plan."
3.. The City Council approves'ihe;Second.JPA Amendment and authorizes the Mayor to
sign the Second JPA Amendment;;on behalf of the City.
4. The City'Council delegates to the'SCWMA regulatory and enforcement authority to
implement City.Council policyon single use carryout plastic bags in the City of
Petaluma, by authorizing SCWMA adoption of the Carryout Bag Ordinance, and the
related Administrative Penalty Ordinance, subject to and conditioned on the following
standards and safeguards,regarding the SCWMA's exercise of such delegated authority:
a. The.SCWMA agreeing to protect the City against liability related to the Carryout Bag
Ordinance and related`,actions by approval of.the Indemnity Agreement, Exhibit B,
prior to adoption of thelCarryout Bag Ordinance. The City Manager is hereby
authorized to sign the Indemnity Agreement on behalf of the City.
b. TheSCWMA's adoption of the Carryout Bag Ordinance, Exhibit A, and adoption of
the Administrative Penalty Ordinance, Exhibit C, and approval of the Indemnity
Agreement, Exhibit a, following approval by all,of the JPA Member Agencies,
including.the City, off the Second JPA Amendment
5. Notwithstanding any provision in the Original Agreement or any amendment, and except
for the regulatory and enforcement authority delegated to the SCWMA regarding the
Carryout Bag Ordinance pursuant to this resolution, the City Council fully reserves its
exclusive power to legislate on municipal affairs within the City. The City Council
intends to recognize and permitregulatory and enforcement activities within the City by
other bodies such as the SC WMA.regarding municipal affairs of the City only to the
extent such activities.havesbeen expressly authorized by City Council in furtherance
of City Council policy subjectto adequate standards and safeguards governing such
activity as are imposed by the City Council.
6. The City Council's action pursuant to this resolution to declare City Council policy and
delegate regulatory and enforcement authority to the.SCWMA-for implementation of
City Council policy on regulating single-use carryout bags.in the City of Petaluma is
exempt from the requirements of CEQA.pursuantto section 15307 of the CEQA
Guidelines, which applies to action taken by a regulatory agency as authorized by state
law or local ordinance,to assure the maintenance, restoration, or enhancement of a natural
resource wheretheregulatory process involves procedures for protectiomof the
environment, and;'pursuant to section 15308 of the CEQA Guidelines, Which applies to
actions taken by a regulatory agency, as authorized by state or local ordinance, to assure
the maintenance; restoration, enhancement,or protection of the environment, where the
regulatory process involves procedures for protection of the environmenuare
categorically exempt from the requirements of CEQA.
7. The City Clerk is hereby authorized and directed to file a Notice of Exemption in
accordance with all applicable CEQA requirements.
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Exhibits:
Exhibit A—Carryout Bag Ordinance
Exhibit B—Indemnity Agreement
Exhibit C—Administrative Penalties Ordinance
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ATTACHMENT 2
SECOND AMENDMENT TO
AGREEMENT BETWEEN THE CITIES;OF SONOMA COUNTY AND SONOMA
COUNTY FOR A JOINT POWERS AGENCY TO DEAL WITH WASTE
MANAGEMENT ISSUES
THIS SECOND AMENDMENT ("AMENDMENT")to the Agreement Between
the Cities of Sonoma County and Sonoma County for a Joint Powers Agency to Deal with Waste
Management Issues, dated as of , 201_, is by and between the Cities and Town of
Sonoma County and the Countyof Sonoma.
RECITALS
WHEREAS, the Cities and Town of Sonoma County and the County of Sonoma entered into that
certain Agreement Between the Cities of Sonoma County and,Sonoma County for a Joint Powers
Agency to Deal with Waste Management Issues (Agreement");and
WHEREAS, it has become necessary to clarify certain provisions of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties do agree as follows:
AGREEMENT
I. Section 2 of the Agreement (Purpose of Agreement) is hereby amended to read as
follows:
"Section2. Purpose of Agreement
The purpose of this Agreement is to create the Sonoma County Waste Management
Agency and to describe the terms and provisions by which the Agency will handle the
four (4) initial programs: (1) household hazardous waste; (2) wood waste; (3) yard
waste that otherwise would go to a landfill; and (4) education about the Agency's
programs. Pursuant to the terms of this Agreement, the Participants may agree, in
writing, to additional duties, responsibilities, and programs, including any program
enacted by ordinance. Each Participant executing this Agreement may elect to
participate in any or all of the Agency's non-core programs, including:any single use
carryout bag ordinance. Core programs are defined to be household hazardous waste,
wood waste, yard waste, education and required reporting. Should any Participant
elect to not participate in a non-core program, including any single use carryout bag
ordinance, there will be no reduction in the Participant's fiscal participation."
2. Section 14 of the Agreement(Joint Powers Agency Authority to Adopt Regulations)
is hereby amended to read as follows:
"Section 14. Joint Powers Agency Authority to Adopt Regulations
ki,
Participants agree that the primary purpose of this Agreement is to.create an Agency
to treat wood waste and yard waste, to collect,store, and dispose of household
hazardous waste, to educate the public regarding waste issues, and, pursuant to the
terms of this Agreement, including any Amendments, to adopt any future programs
the Board determines are needed or desirable. The,Joint,Powers Agency may, from
time to time, adopt uniform rules and regulations, in any form, including orders,
resolutions and ordinances, to carry out these purposes."
3. Except to the extent the Agreement is specifically amended hereby, the Agreement,
together with exhibits and the First Amendment is,and shall continue to be, in full
force and effect as originally executed, and nothing contained herein shall be
construed to modify, invalidate or otherwise affect any provision of the Agreement or
any right of the Agency arising thereunder.
4. This Amendment shall be governed by and construed under the laws of the State of
California and any action to enforce the terms of this Amendment or for the breach
thereof shall be brought and tried in the County of Sonoma.
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IN WITNESS WHEREOF,the Participants have caused this Amendment to be•executed by their
respective governing officials duly authorizedbyresolution of their'respective legislative bodies.
CITY OF CLOVERDALE ATTESTED:
By:
Its: City Clerk
CITY OF COTATI ATTESTED:
By:
Its: City Clerk
CITY OF HEALDSBURG ATTESTED:
By:
Its: City Clerk
CITY OF PETALUMA ATTESTED:
By:
Its: City Clerk
CITY OF ROHNERT PARK ATTESTED:.
By:
Its: City Clerk
CITY OF SANTA ROSA ATTESTED:
By:
Its: City Clerk
CITY OF SEBASTOPOL ATTESTED: •
By:
Its: .City Clerk
CITY OF SONOMA ATTESTED:.
By:
Its: City Clerk
COUNTY OF SONOMA ATTESTED:
By:
Its: City Clerk
TOWN OF WINDSOR ATTESTED:.
By:
Its: City Clerk
1 ATTACHMENT 3
(Exhibit B to resolution)
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is entered into as of 20_, by
and between:the SONOMA COUNTY WASTE MANAGEMENT AGENCY (hereinafter
"Agency"), a California joint:powers agency, and the city/town/county of
(a "Member" of the Agency).
RECITALS
A. The Agency was formed by the Members.through their execution of that
certain Joint Powers Agreement dated February 11, 1992.(the'"JPA Agreement").
B. The.Agency is currently considering adopting an ordinance to ban the
use of plastic, single use bags in retail establishments. ,Because such ordinances have
been the subject of litigation in other jurisdictions, the Members have requested that the
Agency agree to indemnify and hold each Member harmless from any litigation over
such an ordinance, and'the Agency has agreed to do so.
NOW, THEREFORE, in consideration of the foregoing Recitals, and'for other
good and valuable consideration, the receipt and sufficiency of which are hereby
mutually acknowledged,.Agency.and Member agree as follows:
AGREEMENT
1.. Recitals. The above Recitals to this Agreement are declared by the
parties to be true and correct in all material aspects and are hereby incorporated into
this Agreement as if fully set forth below.
2. Indemnification'. ,Agency shall defend, indemnify and hold harmless the
Member, as well as their officers and employees (collectively, the "Indemnitee") from
any claim, action or proceeding against the Indemnitee to attack, set aside, void or
annul any ordinance thaf.bans the use of plastic, single use bags,or any approval or
otheraction that may be related to•such an ordinance;, including but notlinnited to the
City's certification of'an environmental impact report or any other CEQA document
related to the.ordinance.
3. Indemnitee's Covenants. The Indemnitee°shall promptly notify the
Agency'of ens/such claim, action,orproceeding. In addition, the Indemnitee shall
cooperate reasonably with Agency in any discovery or trial preparation efforts related to
litigation covered by this Indemnity Agreement.
4. Severability. Wherever possible, each provision of this Agreement,shall
be interpreted in such a manner as to be valid and enforceable:to the fullest extent
permitted by law: If any provision of this Agreement, or the application of any such
provision to.any person orcircumstance, shall, to any extent,_be held'to be invalid,
illegal or unenforceable under applicable law, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to which
it is invalid, illegal or unenforceable, shall not be affected thereby.
5. Notice;to Parties. All notices and.derriands or other communications
hereunder shall be in"writing, and shall be deemed to have been sufficiently given or
served for all'purposes when presented personally or sent by generally recognized
overnight delivery service, with postage prepaid, addressed to Agency or the Member,
as applicable, at the addresses stated below, or at such other address of which either
Agency or the Member may hereafter notify the other in writing:
Agency:
Attn:
Member: Atthe address Agency retains on.file,for the distribution of
agendas and other materials, assuch addresses may be
changed from time to time by the Member in writing.
Each notice or demand so given or served shall be deemed given and effective, (a) if
personally delivered, on the day of actual delivery or refusal and (b) if sent by generally
recognized overnight delivery service, on the next business day. Notwithstanding the
foregoing, service of any notice;of default provided or required by law shall, if mailed as
required by law, be deemed given and effective on the date of mailing.
6. Governing Law. This Agreement shall be governed`by, and construed
and enforced in accordance with the law of the State of"California, without regard to
principles of conflicts of law.
7. Changes and'Modifications. This Agreement-cannot be changed or
modified, except by a writtenlinst'rument signed by Agency and the Member.
8. Legal Construction. This Agreement shall begiven a fair and reasonable
construction in accordance with.the intentions of the parties and without regard for or
aid from any canons requiring construction against the party drawing this Agreement.
As,used in this Agreement, (a) the terms "herein", 'hereto," "hereof or "hereunder" or
similar terms used in this Agreement refer to this Agreement as a whole and not to any
particular provision:and (b)the word Including" shall mean "including, without
limitation7. Unless,otherwise stated, all references herein to Sections are references to
Sections of this Agreement.
9. Successors and Assigns. The covenants, agreements and obligations of
Agency hereunder shall be binding upon Agency and Agency's respective heirs,
executors, administrators, legal representatives, successors and assigns; and the
rights, remedies and benefits of the Indemnified Party'hereunder:shall inure to the
benefit of the Indemnified Party and its respective successors and assigns.
[Signatures appear on next page.]
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IN WITNESS WHEREOF, the parties hereto have executed this instrument as
of the date first written above.
AGENCY: SONOMA COUNTY WASTE MANAGEMENT
AGENCY, a California joint powers agency
By:
Name:
Chair
ATTEST:
Agency Clerk
APPROVED AS TO FORM:
Agency Counsel
MEMBER:
By:
Name:
ATTEST:
Clerk
ATTACHMENT 4 '
(Exhibit A to resolution)
SONOMA COUNTY WASTE MANAGEMENT AGENCY
ORDINANCE NO. 2014,01
AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE SONOMA COUNTY
WASTE MANAGEMENT AGENCY ESTABLISHING A WASTE REDUCTION
PROGRAM'FOR CARRYOUT BAGS
THE BOARD OF DIRECTORS OF THE SONOMA COUNTY WASTE MANAGEMENT
AGENCY DOES ORDAIN AS FOLLOWS:
SECTION 1.
"GENERAL PROVISIONS °
Title. _
This Ordinance is known and may bei,cited as the Waste Reduction Program for
Carryout Bags. 1411/4 °
Purpose and Intent.
It is the intent of the Sonoma CountyW„aste Management Agency ("Agency"), a ten
member joint powers agency establishedpaursuant fo3%California Government Code
Section'6500, in adopting4his Ordin n e•to exercise the members'common powers and
pursuant to Section l%t`oftthe Joint.Powers Agreement;�to adoaregulations promoting a
uniform prograri r reducing waste by decreasing the use of.single use carryout bags.
Defined Terms.andPhrases.
" te i
For4fhepurposes of this grdinance the Ovoids),termsand phrases as defined herein
shallsb construed as hereinafter-set forth; unless it is apparent from the context that a
different meaning is intended
N
A. "Customer" means any,PersonOtaining goods from a'Retail Establishment.
B. "Nonprofit Charitable „Reuser" means a charitable organization, as defined in
Section 501(0(3) of e Internal Revenue Code, or a distinct operating unit or
division of thecharitable organization, that reuses and recycles donated goods or
materials and, reecei es more than fifty percent (50%) of its revenues from the
handling,and sale o those donated goods or materials:
C. ".Person" means any natural person, firm, corporation, partnership, or other
organization or group however organized.
D. "Prepared Food" means foods or beverages which are prepared on the premises
by cooking, chopping, slicing, mixing, freezing, or squeezing, and'which require no
further preparation to be consumed. Prepared Food does not include any raw or
uncooked meat product.
E. "Recycled Paper Bag" means a paper bag provided at the check stand, cash
register, point of sale, or other point of departure for the purpose of transporting
t1
food or merchandise out of the establishment that'contains no old,growth fiber and
a minimum of forty percent (40%) ,Post-consumer Recycled Material; is one
hundred percent (100%) recyclable; and has printed in a highly visible manner on
the outside of the bag the words "Reusable" and 'Recyclable," the name and
location of the manufacturer, and the percentage of Post-consumer Recycled
content.
F. "Post-consumer Recycled Material" means a -material that would otherwise be
destined for solid waste disposal, having completed its intended end use and
product life cycle. Post-consumer Recycled Material does not include materials
and byproducts generated from, and commonly reused within, an original
manufacturing'and fabrication process.
G. "Public Eating Establishment" means a restaurant, take-out food establishment, or
any other business that receives ninety percent (90%) or more of its revenue from
the sale of Prepared Food to be eaten on or off its premises.
H. `Retail Establishment" means any commercial.establishment thatsells perishable
or nonperishable goods including, but not limited to, clothing, food, and personal
items directly to the Customer; and is located within or doing business within the
geographical limits of the County of Sonoma, including the.nine incorporated cities
and town. Retail Establishment does not include Public Eating Establishments or
Nonprofit Charitable Reusers.
I. "Reusable Bag" .means'either 'a bag made of cloth or other machine washable
fabric that has handles, or.a durable plastic-bag with handles that is at least 2.25
mil thick and is specifically designed and manufactured for multiple reuse. A
Reusable Bag provided by a Retail Establishment shall be designed and
manufactured to withstand 'repeated uses over a period of time; made from a
material that can be cleaned:and disinfected; and shall not contain lead, cadmium,
or any other heavy metal in toxic amounts.
J. "Single-Use Carryout Bag" means a bag, other than a Reusable Bag, provided at
the check stand, cash register, point of sale or other point of departure for the
purpose;of transporting food or merchandise out of the establishment. Single-Use
Carryout'Bags,do not include bags without handles provided to.the Customer (1)
to transport produce,, bulk food or meat from a produce, bulk food or meat
departmentwithin a store-to the point of sale; (2) to hold prescription medication
dispensed from a. pharmacy; or (3) to segregate food or merchandise that could
damage, or contaminate other food or merchandise when placed together in a
ReusableBag.or Recycled Paper Bag.
Single-Use Carryout Bags.
A. On and after September 1, 2014, no Retail Establishment shall provide a Single-
Use Carryout' Bag to a Customer for the purpose of transporting food or
merchandise out of the establishment except as provided in.this Ordinance.
B. On and after-September 1, 2014, aRetail Establishmentmaymake available for
sale to a Customer a Recycled Paper Bag for a minimum charge of ten cents
($0.10).
C. Notwithstanding this Section, no Retail Establishment may make available for
sale a Recycled Paper Bag unless thelamount of the sale of the Recycled Paper
Bag is separately itemized on the sales receipt.
Recordkeeping and Inspection.
Every Retail Establishment shall keep a monthly report of the total number of Recycled
Paper Bags purchased and the,total number sold, for a minimum period of three (3)
years from the date of purchase and sale, which record shall be available for inspection
at no cost to the Agency during regular business hours by any Agency employee or
contractor authorized to enforce this Ordinance. Unless an alternative location or
method of review is mutually agreed upon, the records or documents shall be available
at the Retail Establishment address. The provision of false information including
incomplete records or documents to the Agency shall be'a violation of this Ordinance.
Enforcement.
The Executive Director of the Agency, or his or her designee, shall have primary
responsibility for enforcement of this Ordinance. The Executive Director is authorized to
make all necessary and reasonable rules and regulations with respect to the
enforcement of this Ordinance. All such rules and regulations shall be consistent with
the provisions of this Ordinance.
Anyone violating or failing to comply with any provision of this Ordinance shall be.guilty
of an infraction. The Agency may seek legal, injunctive, administrative or other equitable
relief to enforce this Ordinance. The remedies and penalties;provided in this Section are
cumulative and not exclusive and nothing in this Section shall preclude the Agency from
pursing any other remedies provided by law. In addition to any relief. available to the
Agency, the Agency shall be entitled to recover reasonable attorneys' fees and costs
incurred in the enforcement of this Ordinance.
The authorized representative of any Retail Establishment may appeal a citation as
provided in the Agency's Administrative Penalties Ordinance.
Violations of this Ordinance shall be punishable as. provided in the Agency's
Administrative Penalties Ordinance.
Each violation of this Ordinance or each day a violation exists shall be considered a
separate offense.
Severance.
If any section, subsection, sentence, clause or phrase of this Ordinance is for any
reason held to be unconstitutional or in any manner in conflict with the laws of the United
States or the State of California, such decision shall not affect the validity of the
remaining portions of this Ordinance. The Board of Directors of the Sonoma County
Waste Management Agency hereby declares that it would have passed this Ordinance
and each section, subsection, sentence,. clause and phrase thereof, irrespective of the
fact that any one or more sections, subsections, sentences, clauses or phrases be
declared unconstitutional or in any manner in conflict with the laws of the United States
or the State of California.
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SECTION 2. A summary of this Ordinance shall be printed and published twice in
the Santa Rosa Press Democrat, a hewspaper of general circulation, printed and
published in the City of Santa Rosa,.County of Sonoma.
SECTION 3. This Ordinance shall be effective on September 1, 2014. A summary of
this Ordinance shall, within`1fifteen (15) days after passage, be published with the names
of the Directors voting for and against it.
INTRODUCED at a regular meeting of the Board of Directors of the Sonoma County
Waste Management Agency on the_day of , 2014, and
PASSED AND ADOPTED this _ day of , 2014, by the following
vote:
AYES: Directors:
NOES: Directors:
ABSENT: Directors:
ABSTAIN: Directors:
CHAIR
ATTEST:
AGENCY CLERK
' ATTACHMENT`5
(Exhibit C to resolution)
SONOMA COUNTY WASTE MANAGEMENT AGENCY
ORDINANCE NO. 2014-02
AN ORDINANCE OF THE SONOMA COUNTY WASTE MANAGEMENT AGENCY
RELATING TO ADMINISTRATIVE PENALTIES
THE SONOMA COUNTY WASTE MANAGEMENT AGENCY DOES ORDAIN AS
FOLLOWS:
SECTION 1. Article I of Chapter I is hereby adopted to read follows-r:
„
Article I
Administrative Citations
•
Sec. 1.10 Purpose and Intent.
This Article establishes an enforcement mechanismafor alll;violations of Agency ordinances.
The procedures established in this Article areiit additiot'oany other procedures or legal
remedies used to address violations of Agency ordinances a
Sec. 1.11 Definitions
(a) Administrative Citation AnjAdministratirCitatio`ntis an official notification, on an
appropriate form as established by Js.Article, of v iolato n of any provision of an Agency
ordinance. Said Citations require Carrection of the violation and impose fines upon the
responsible partyCC.
(b) Agency. The Agenc is the Sonoma County Waste Management Agency.
(c) Enforcement Officer AA Enforcement Officer is any person designated by
ordinance or.appointed by the Executive Director or his or her designee to implement the
provisions ofithis Article.
jA
Sec. 1.12 � Administrative Citation; Fines.
(a) A fine forviolation of an Agency ordinance may be assessed through an
Administrative Citationissued by the Enforcement Officer and payable directly to the
Agency.
(b) Each day of violation of the Agencyordinance constitutes a separate, additional
violation.
(c) Said fine shall be collected in accordance with the procedures specified in this
Article.
(d) The Agency Board shall establish by resolution the amount of the fine to be
assessed for Administrative Citations.
(e) Payment of the.fine-shall not excuse the failure to correct the violations nor shall
it bar further enforcement action by the Agency:
(f) All fines shall be payable to the Agency at the address provided on the
Administrative Citation.
(g) Any fine paid pursuant to subsection a) above shall be refunded if it is
determined, after an appeal hearing, that there was no violation as charged in the
Administrative Citation.
(h) If payment of a fine is not received by the Agency witty g irty4(30) days of
service of the Administrative Citation, then a late fee shall b&assessed The amount of the
late penalty shall be fifty percent (50%) of the.total amount of the fineowed.
(i) The,Agency may collect any past due Administratwe Citation fines,and/or late
payment charges by the use of the small claims court or _ylother legal remedy,
. i ."
Sec. 1.13 Procedures for Administrative Citations. N.Nts,
(a) The Executive Director may establish,,appropriate administrative regulations for
implementing this Article.
(b) Unless appointed by ordinance, t e:1Executive D ectokor his or her designee
shall appoint an Enforcement Officer(s)fto implement eh provisions of this Article.
(c) When the Enforcement Officer observes#a�viola idn ofan Agency ordinance, the
Enforcement Officer may issue n Administrative Cittationsto any responsible person.
(d) Each Administrative Citation shall contain the following information:
t) Theadatahe violation;,
rr
(2) The addressor a definite description of the location where the violation
occu feel
'(3) The name ,address, and other identifying information for the person
being cited:'
(4) it,The ae,ction of the Agency ordinance violated and a description of the
violation;
(5) The fine schedule for the violation;
(6) A description of how, when and where the fine must be paid;
(7) An order prohibiting the continuation or repeated occurrence of the
violation;
(8) A brief description of the appeal process;
(9) The name and signatureyof'the;citing Enforcement Officer.
(e) The person cited shall be requested to,sign the citation to acknowledge receipt of
the citation.
Sec. 1.14 Notices.
All notices required under this Article shall be served on the responsible party in accordance
with the following provisions:
(a) If the person cited is not the owner ofthe business where the alleged violation
aI
occurred, written notice shall be personally delivered or sentby certittedmail to the owner of
the business at the address'ofthe property where the alleged violation occurred.
4s
(b) It the cited is not the owner of.the propeetywhere'the alleged violation
occurred; written notice shall be:personally delivered or sent'by certified mail tocthe:property
owner at the address shown on'the last equalized County asses pent role B mu .
(c) When personal service by certified mail uponthe person cited is unsuccessful, a
copy of the notice shall be posted in a conspicuous place„on the property where the alleged
violation occurred.
q i
Sec. 1.15 Appeal of AdministrativeLitation,
(a) Any recipient of an Administrative CitatiogYmay contest the citation by requesting
an:appeal hearing within ten (:10) Calendar days frank-the date ofth citation. The-Appeal
must be in writing on a form furnished by the Agency specifying the basis for the appeal in
detail. The person:requesting the`dappeal hearing shaNfd posit with the Agency either the
amount of the fine°or a hardship waivempursuantto Section 1,1b, If the deadline to request
an appeal hearing falls oh,a„.weekend:or Holday,then the deadline shall be•extended until
5:00 p.m. on`the next regular,business dayX.t ,
(b) • The Agency shall„holdr"a?heanng within thirty days of receipt of an appeal. The
person.requesting the appeal beau:9g shall be notified of the time and place of the hearing
at least tens(110 ays prior to the to of the hearing.
(c) Inorderbto hear appeals of Administrative Citations, the.Executive Director shall
._. ,.f
appoint one or more'Heanng Officers who shall serve at his or her pleasure. A hearing
officer,may be an Agency employee.
(d) Thejailure of any person with an interest in the propertyld receive properly
addressed notice of the hearing shall not affect the validity of any proceedings underthis
chapter.
(e) Failureto.file an appeal in accordance with the provisions of this chapter shall
constitute;a waiver of:rightsto contest the accompanying Administrative Citation and the
imposition ofthe'fine.
•
Sec. 1.16 Hearing Procedure.
1,5
(a) The;Hearing Officer shall conductarvorderly hearing;and accept evidence on,
which persons commonly would rely'in the conduct of their business affairs.
(b) At the appeal hearing, the party contesting the citation shall be given the
opportunity to testify and to present evidence, including witnesses, concerning the alleged
violation. Any other interested party, including buhriot limited to the property or business
owner,employees, or neighbors, may also present testimony.
(c) The Administrative Citation and any additional reports:'submitted by the
Enforcement Officer shall constitute prima facie evidence of the facts contained in those
documents.
(d) The Hearing^Officer may.takeThe matter underjconsiderat On r may continue the
hearing and/or request additional information from the EnforcementiOfficer and/or the
person cited.
fix ''
(e) The!Hearing Officershall determine whether totaffirrm or dismiss dies ,
Administrative Citation. The hearing officer may not reduce waiveorconditionally reduce
the fines established by the Agency. dr
(f) The Hearing Officer shall make,findings based;on the recordkof the hearing and
shall issue a'written decision,based on the findings The1Agency shall preserve all exhibits
submitted by the parties fora 30-day periodiand shall serve:tthe decision by certified mail,
postage'prepaid, return receipt requested wrt�hin.te 410) workingadays.after the hearing.
The decision of the Hearing Officer affirming or dismissing the citation is final and
conclusive, without right of ad
further administrative appeal ;- x
Sec. 1.17 Hardship Waiverr.
(a) Anytrecipient of/arirAdmmist ative Citation who requests an appeal hearing and is
financially unable'to deposit'e�required fine may file a request with°the Agency for a
hardship waiivverof the advance deposit requirement.
(b) quests for hardshipmwaivers shall be filed with the request for an appeal
hearing.cu'he request shall be-;ac mpanied with a sworn affidavit, together with any
supporting documents or materials dernonstrating to the satisfaction of the Executive
Director the persons actual"financial inability to deposit the fine in advance of the appeal
hearinng J.
4 .
(c) The Executive'Director shall either grantor deny the request for a waiver within
ten days of receipt,oi uch'request. lithe Executive Director denies the request fora waiver,
he/she shall issue a written determination on the person requesting the hardship waiver.
The decision of the'Executive Director shall be final.
(d) If the request fora hardship waiver is denied, the fine shall be deposited with the
Agency within ten days of the denial or thirty days from the date of the.Administrative
Citation, whicheveris later.
(e) If the request for a hardship waiver is granted, but the Administrative Citation is
upheld by the:Hearing Officer, the fine must be paid within ten (10) working days.
5-LA
Sec. 1.18 Right to judicial review.
Any person aggrieved by an administrative decision of Hearing.Officer may obtain review
of the administrative decision by filing a petition for review with the Superior Court in
Sonoma County in accordance with the timeliness;and other provisions set forth in
California Government Code Section.53069.4.
SECTION 2. A summary of this ordinance shall be printed and published twice in the
Santa Rosa Press Democrat: a newspaper of general circulation, printed and published in
the County of Sonoma.
SECTION 3. This Ordinance shall be effective 30 days followngits adoption by the
Agency. A summary' of this Ordinance shall, within fifteen (15} days,�after passage, be
published in accordance with Section 36933 of the:.Government to{e of the State of
�x
California with the names of the Agency Board Members'votingifor and against it
•
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41: Ir 411s.
aaa
7
ltsic:-4411.
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8
INTRODUCED at a regular meeting;of•Hie Sonoma County Waste Management Agency on
the_day of , 2014, and
PASSED AND ADOPTED this _ day of , 2014, by the following
vote:
AYES: Board Members:
NOES: Board Members:
ABSENT: Board Members:
Board Members:
-
CHAIR
ATTEST:
AGENCY CLERK
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