10-060 Agency Agreement for Countywide AB939 Implementation Fee AGENCY AGREEMENT FOR COUNTYWIDE
AB939 IMPLEMENTATION FEE
This Agreement is made by and among the Cities and Towns of Campbell, Cupertino, Gilroy,
Los Altos, Los Altos Hills, Los Gatos, Milpitas, Morgan Hill, Monte Sereno, Mountain View,
Palo Alto, San Jose, Santa Clara, Saratoga, and Sunnyvale (CITIES) and the County of Santa
Clara (COUNTY) on the I day of 2010. The term CITIES may refer to
CITIES collectively or individually.
RECITALS
WHEREAS, pursuant to Public Resources Code Section 41901, a city, county, or city and
county may impose fees in amounts sufficient to pay the costs of preparing, adopting, and
implementing an integrated waste management plan; and
WHEREAS, the Board of Supervisors established the Countywide AB939
Implementation Fee effective July 1, 1992 to fund local costs of preparing, adopting, and
implementing integrated waste management plans and programs; and
WHEREAS, the Recycling and Waste Reduction Commission of Santa Clara County has
determined that a Countywide AB939 Implementation Fee (Fee) is necessary, pursuant to Public
Resource Code 41901, to assist in funding the costs of preparing, adopting and implementing
integrated waste management plans and programs in the fifteen cities and the unincorporated area
of the county; and
WHEREAS, the Fee shall be imposed on each ton of waste landfilled or incinerated
within the County; received at any non - disposal or collection facility located within the County
and subsequently transported for disposal or incineration outside of the County; collected from
any location within the County by a solid waste hauler operating pursuant to a franchise, contract,
license, or permit issued by any local jurisdiction and subsequently transported for disposal or
incineration outside of the County; or removed from any location in the County by any person or
business for disposal or incineration outside the County; and
WHEREAS, state law requires jurisdictions to plan and implement household hazardous
waste (HHW) services; and
WHEREAS, HHW programs provide household hazardous waste management services
to residents of Santa Clara County and are necessary services to enable jurisdictions to meet the
requirements of state law; and
WHEREAS, jurisdictions in Santa Clara County desire to provide safe, convenient, and
economical means for residents to properly dispose of household hazardous wastes in an
environmentally safe manner in order to avoid unauthorized or improper disposal in the garbage,
sanitary sewer, storm drain system, or on the ground, in a manner which creates a health or
environmental hazard. These wastes include, but axe not limited to, common household products
such as household cleaning products, spot remover, furniture polish, solvents, oven cleaner,
pesticides, oil based paints, motor oil, antifreeze, fluorescent lamps, and car batteries; and
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AGENCY AGREEMENT FOR COUNTYWIDE AB IMPLEMENTATION FEE FY 2011
WHEREAS, the County will collect the Fee on behalf of the fifteen cities and the
unincorporated area and will apportion the Fee according to the terms of this Agreement.
NOW, THEREFORE, CITIES and COUNTY AGREE AS FOLLOWS:
1. PURPOSE
The purpose of this Agreement is to state the terms and conditions under which the COUNTY
will collect and distribute the Fee of $4.10 per ton in FY 2011 of waste to be disposed. The Fee
is divided into two parts: 1) a Program Fee of $1.50 per ton to assist in funding the costs of
preparing, adopting, and implementing the integrated waste management plan in the fifteen cities
and the unincorporated area of the County; and 2) a HHW Fee of $2.60 per ton to provide
funding to implement the Countywide HHW Program. The Program Fee will be allocated
among jurisdictions as described in Exhibit B. attached hereto and incorporated herein. The
HHW Fee will be allocated to the COUNTY, CITIES, and Countywide HHW Program and
participating jurisdictions as described in Exhibit C, attached hereto and incorporated herein.
The Fee shall be imposed on each ton of waste landfilled or incinerated within the County;
received at any non - disposal or collection facility located within the County and subsequently
transported for disposal or incineration outside of the County; collected from any location within
the County by a solid waste hauler operating pursuant to a franchise, contract, license, or permit
issued by any local jurisdiction and subsequently transported for disposal or incineration outside
of the County; or removed from any location in the County by any person or business for
disposal or incineration outside the County. Non - Disposal Facilities are defined as those facilities
included in the County of Santa Clara Non - Disposal Facility Element (and subsequent
amendments to that Element) and are listed in Exhibit A, attached hereto and incorporated
herein.
2. SERVICES PROVIDED BY COUNTY
COUNTY will collect and distribute the Fee. COUNTY will collect the Fee from landfills and
non - disposal facilities listed in Exhibit A, and any landfill or non - disposal facility subsequently
permitted, on a quarterly basis using data from tonnage reports filed by landfill and non - disposal
facility operators with the County Integrated Waste Management Division. The COUNTY shall
require each landfill and non - disposal facility to submit required payment, documentation of
tonnages disposed, and state - mandated Disposal Reporting System Reports on a quarterly basis,
within 45 days of the end of each calendar quarter. Late submissions and/or payments shall be
subject to a late filing penalty and delinquent penalties. COUNTY will research Santa Clara
- County tonnage reported to COUNTY by landfills outside the COUNTY in significant amounts
to determine the identity of the hauler. That hauler will subsequently be billed in the same
fashion subject to the same penalties as mentioned above. Collected funds and any late filing
payments and delinquency penalties shall be distributed to CITIES and Countywide HHW
Program based on the formula set forth in Exhibits B and C. COUNTY shall not be obligated to
distribute funds that COUNTY has been unable to collect from landfill or non - disposal facility
operators.
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 WLEMENTATION FEE FY 2011
3. ROLE OF CITIES
CITIES shall review the Disposal Reporting System Reports as prepared and submitted by the
COUNTY and within 30 days of receipt shall report to COUNTY, with appropriate
documentation, errors in waste allocations among jurisdictions.
4. COLLECTION AND USE OF FEE
Each ton of waste will be subject to the Fee. Best efforts will be made to prevent tonnage
from being assessed a double fee (once at a non - disposal facility and again at a landfill
within Santa Clara County). The Program Fee fondling share paid to CITIES shall be used
to assist in funding the costs of preparing, adopting, and implementing the integrated waste
management plan of each of the CITIES and the unincorporated area of the COUNTY. The
HHW Fee portion shall assist in funding the costs of each city's share of HHW operations.
5. INSURANCE
Each party shall maintain its own insurance coverage, through third party insurance, self -
insurance or a combination thereof, against any claim, expense, cost, damage or liability
arising out of the performance of its responsibilities pursuant to this Agreement. CITIES
agree to provide evidence of such insurance to COUNTY via Certificate of Insurance or
other documentation acceptable to the COUNTY upon request.
6. INDEMNIFICATION
In lieu of and not withstanding the pro rata risk allocation which might otherwise be
imposed between CITIES and COUNTY pursuant to Government Code Section 895.6, the
parties agree that all losses or liabilities incurred by a party shall not be shared pro rata but
instead the parties agree that each of the parties hereto shall fully indemnify and hold each
of the other parties harmless from any claim, expense or cost, damage or liability arising
out of, or in connection with, performance of its responsibilities pursuant to this
Agreement.
Additionally, CITY shall indemnify, hold harmless, and defend COUNTY, its officers,
agents, and employees with respect to any loss, damage, liability, cost or expenses,
including attorney fees and court costs, arising from any misuse of the Fee distributed to
CITIES. COUNTY shall indemnify, hold harmless, and defend CITIES, its officers,
agents, and employees with respect to any loss, damage, liability, cost or expenses,
including attorney fees and court costs, brought by third parties based on COUNTY's sole
negligence in the collection or distribution of said Fees.
7. DISTRIBUTION OF FEE
COUNTY shall distribute the Fee to CITIES and the Countywide HHW Program pursuant
to the formulas described in Exhibits B and C within 45 days of receipt of landfill and non-
disposal facility payments and disposal documentation required for calculation of Fee
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
distribution amounts. Distributions shall begin December 15, 2010, and continue quarterly
through October 15, 2011.
8. PARTICIPATION IN THE COUNTYWIDE HHW PROGRAM
CITIES, at their option, may individually participate in the Countywide HHW Program by
entering into the AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD
HAZARDOUS WASTE COLLECTION PROGRAM. Regardless of whether CITIES enter
into the Agreement, CITIES's share of funds collected for Abandoned Waste Disposal
Costs will be paid directly to the Countywide HHW Program as described in Exhibit C,
Section 3.
9. LATE PAYMENTS
If Fee payments and disposal documentation are not received from landfill or non - disposal
facility operators prior to scheduled distribution of payments to CITIES and the
Countywide HHW Program, payment distribution shall be calculated on a pro rata share of
moneys received. ' Upon collection, late payments and accrued delinquent penalties, if any,
shall be distributed among CITIES and the Countywide HHW Program according to the
formula in Exhibits B and C.
10. ACCOUNTING
COUNTY shall maintain records of all transactions related to collection, use and
distribution of the Fee for at least five (5) years after the termination date of this
Agreement, unless otherwise required by law to retain such records for a longer period.
Such records will be available for inspection upon written request by CITIES, and will
include but not be limited to tonnage reports submitted by landfills and non - disposal
facilities, waste stream documentation provided by cities, payments made by the landfills
and non - disposal facilities to the COUNTY and by the COUNTY to CITIES, and
expenditures for programmatic and overhead costs.
11. REQUEST FOR REVIEW
In the event CITIES have a dispute regarding the calculation of its share of the Fee or the
distribution or use of the Fee, CITIES may request in writing a review by COUNTY within
10 days of receipt of their Fee allocation. The review shall be performed within 30 days of
request and results shall be reported to CITIES in writing.
12. EFFECTIVE DATE OF AGREEMENT
This agreement is effective upon approval by all fifteen CITIES and the COUNTY.
13. AMENDMENT
This Agreement may be amended only by an instrument signed by all fifteen CITIES and
the COUNTY.
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
14. INDEPENDENT CONTRACTOR
Each party shall perform responsibilities and activities described herein as an independent
contractor and not as an officer, agent, servant or employee of any of the parties hereto.
Each party shall be solely responsible for the acts and omissions of its officers, agents,
employee, contractors and subcontractors, if any. ]nothing herein shall be considered as
creating a partnership or joint venture between the parties.
15. TERM OF AGREEMENT
The term of this Agreement shall be from July 1, 2D10 to June 30, 2011, or until all funds
from the last quarter's Fee payments have been distributed, whichever is later. COUNTY
shall bill the operators of the landfills and non - disposal facilities listed in Exhibit A for the
Fee commencing with the Quarter ending September 30, 2010. Said landfills and non -
disposal facilities will be billed for the Fee through June 30, 2011.
16. NOTICES
All notices required by this Agreement will be deemed given when in writing and delivered
personally or deposited in the United States mail, postage prepaid, return receipt requested,
addressed to the other party at the address set forth below or at such address as the party
may designate in writing in accordance with this section.
City of 0- �X b C'r on
Contact: i YIC'1't
Title: N wa £' (
Address: l CI0 Tucce U C H , l U0 � � 1 CC �
County of Santa Clara
Contact: Program Manager
Program: Integrated Waste Management Division
Address: 1553 Berger Drive Building 1
City: San Jose, CA 95112
17. CONTROLLING LAW
This Agreement shall be governed and construed in accordance with the laws of the State
of California.
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
18. ENTIRE AGREEMENT
This document embodies the entire Agreement between the parties with respect to the
subject matter hereof. No modification of this Agreement shall be effective unless and until
modification is evidenced by writing signed by all parties or their assigned designees.
19. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this AGENCY AGREEMENT
FOR COUNTYWIDE AB939 IMPLEMENTATION FEE on the dates as stated
below:
"COUNTY" "CITY"
Sign at CITY OF e ,
c' A municipal core tion
Kevin O'Day By:
Acting Director of Department of Agriculture and Title: o l�
Environmental Management /
Date: , X /- LD Date:
APPROVED AS TO FORM AND LEGALITY: APPROVED BY THE OFFICE OF THE
CPUNT XECUTIVE
Elizabeth G. Pianca Sy a legos
Deputy County Counsel oun utive
Date: b-1. /A G. 4�v Date-
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
EXHIBIT A
LANDFILLS LOCATED IN SANTA CLARA COUNTY
Guadalupe Rubbish Disposal Site
Kirby Canyon Sanitary Landfill
Newby Island Sanitary Landfill
Pacheco Pass Sanitary Landfill
Palo Alto Refuse Disposal Area
Zanker Materials Processing Facility
Zanker Road Landfill
NON - DISPOSAL FACILTIES AND TRANSFER STATIONS LOCATED IN SANTA
CLARA COUNTY
Butterick Enterprises Recyclery
California Waste Solutions Recycling & Transfer Station
City of Palo Alto Green Composting Facility
ComCare Farms Composting Facility
Environmental Management Systems Facility
Green Waste Recovery Facility
Mission Trail Waste Systems, Inc.
Newby Island Compost Facility
Pacheco Pass Landfill Composting Facility
Pacific Coast Recycling, Inc.
Premier Recycling Facility
The Recyclery at Newby Island
San Martin Transfer Station
Sunnyvale Materials Recovery and Transfer Station (SMaRT Station)
Z -Best Composting Facility
Zanker Materials Processing Facility
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
EXHIBIT B
FORMULA FOR DISTRIBUTION OF AB939 PROGRAM FEE
Each jurisdiction located in Santa Clara County will receive $1.50 per ton of solid waste
disposed of in landfills or taken to non - disposal facilities located in Santa Clara County that
originates from that jurisdiction, as documented in quarterly reports submitted by the
County to the State Disposal Reporting System.
Fees collected from undocumented disposed tonnage, or tonnage originating outside of Santa
Clara County, will be distributed according to each jurisdiction's percent of countywide
population, according to the latest available population report issued by the California
Department of Finance.
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
EXHIBIT C
COUNTYWIDE HOUSEHOLD HAZARDOUS
WASTE PROGRAM[ FEE (HHW Fee)
1. PROGRAM FUNDING SOURCE
HHW Program services are directly mandated under A13939, which establishes statutory
authority to provide for funding to support planning and implementation of integrated waste
management programs. The HHW Fee, $2.60 per ton in FY 2011, collected as part of the AB939
Implementation Fee, will be the primary source of funding for Countywide Household Hazardous
Waste Collection Program (CoHHW Program) services.
Funds derived from the HHW Fee will be allocated among five types of CoHHW Program
service costs as follows:
A. Fixed Program Costs will be apportioned based on the number of households in each
participating jurisdiction. The number of households will be determined at the beginning of
each Fiscal Year by statistics compiled by the California Department of Finance,
Demographic Research Unit from their most recent Report, "Population Estimates for
California Cities and Counties."
B. Abandoned Waste Disposal Costs will fund disposal of HHW illegally abandoned at
nonprofit charitable reuse organizations. The existing fund balance from previous years will
fund the Abandoned Wastes Disposal Costs for FY 2011.
C. Variable Cost Per Car to provide a base level service to 4% of households in all participating
jurisdictions. The number of households is determined by the most recent "Population
Estimates for California Cities and Counties" Report as published by the California
Department of Finance, Demographic Research. Unit.
D. Available Discretionary Funding funded on tonnage generated per participating jurisdiction.
2. FIXED PROGRAM COST
Funds shall be distributed on a per household basis for Fixed Program Costs. This portion of the
funds shall be distributed directly to the Countywide HHW Program. Fixed Program Costs
funding shall be calculated at $1.85 per household in FY 2011. Fixed Program Costs may
include, but are not limited to eight (8) CoHHW Program staff members, facility leasing costs,
vehicle lease costs, office rent, office supplies, county administrative overhead, county legal
counsel, training costs, equipment and facility maintenance, and union negotiated salary and
benefit increases.
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
3. ABANDONED WASTE DISPOSAL COST
The existing unexpended abandoned waste fund balance of $112,000 will fund disposal of HHW
illegally abandoned at nonprofit charitable reuse organizations for FY 2011. Therefore it is not
necessary to apportion any of the Fee for FY 2011 for abandoned waste disposal costs. All
jurisdictions throughout the COUNTY contribute to this cost including jurisdictions not
participating in the AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD
HAZARDOUS WASTE COLLECTION PROGRAM.
For the purposes of this agreement, PUBLIC RESOURCES CODE SECTION 41904 defines a
nonprofit charitable reuse organization as follows: "Nonprofit charitable reuser" means a
charitable organization, as defined in Section 501(c)(3) of the federal Internal Revenue Code, or
a distinct operating unit or division of the charitable organization, that reuses and recycles
donated goods or materials and receives more than 50 percent of its revenues from the handling
and sale of those donated goods or materials.
4. VARIABLE COST PER CAR
The Variable Cost Per Car is the cost associated with actual labor, waste disposal, transportation
and other services provided to the residents at the County HHW Collection Facilities and
Temporary Events. This portion of the funds shall be distributed directly to the Countywide
HHW Program. The Variable Cost Per Car is estimated to be $67 per car for Fiscal Year 2011.
The estimated cost per car will be adjusted annually to reflect actual service costs. After fixed
costs are allocated on a per household basis, the variable cost per car will be used to calculate the
costs to service 4% of households across all participating jurisdictions. If the level of 4% of
households is not reached, the Countywide HHW Program will use the remaining balance of
funds, in cooperation with the CITIES, to increase public outreach and/or provide additional
services in that jurisdiction where the level of 4% is not reached the following year.
6. AVAILABLE DISCRETIONARY FUNDING
The Available Discretionary Funding portion will be allocated based on the tons of waste
generated within each jurisdiction and after allocation of fixed program cost and variable per car
cost. Available Discretionary Funds will be paid as directed by each jurisdiction. Available
Discretionary Funds must be used for HHW purposes. Options for how to spend these funds
include, but are not limited to, increasing the number of residents served in the jurisdiction by the
Countywide HHW Program, subsidizing curbside used motor oil collection, universal waste
collection, emergency HHW services, funding HHW public education, or providing special
programs such as door -to -door collection of HHW for the elderly and/or persons with disabilities
and neighborhood clean-up events.
7. PROGRAM FUNDING PASS - THROUGH
Annual funding calculations include HHW Fees collected on behalf of all County jurisdictions.
CITIES, at their option, may participate in the Countywide HHW Program by entering into the
AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD HAZARDOUS WASTE
COLLECTION PROGRAM. CITIES not participating in the Agency Agreement will receive
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
their pro -rata share of funding received by the COUNTY from the HHW Fee, with the exception
of funds for the abandoned waste cost, described above.
If CITIES not participating in the AGENCY AGREEMENT FOR COUNTYWIDE
HOUSEHOLD HAZARDOUS WASTE COLLECTION PROGRAM desire to permit residents
to participate in HHW Program services on an emergency basis, then services to these residents
will be provided on a cost recovery basis. A charge equal to the established rates charged by the
Countywide HHW Program to Conditionally Exempt Small Quantity Generators will be billed to
the CITIES. A CITIES' representative must call the Countywide HHW Program appointment
line to schedule an appointment for the resident. The pro -rata share of liability will be shared as
defined in Section 28 of AGENCY AGREEMENT FOR COUNTYWIDE HOUSEHOLD
HAZARDOUS WASTE COLLECTION PROGRAM and as described in Exhibit D.
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
EXHIBIT D
SECTION 28 OF AGENCY AGREEMENT
FOR COUNTYWIDE HOUSEHOLD HAZARDOUS
WASTE COLLECTION PROGRAM
HOLD HARMLESS AND INDEMNIFICATION
In lieu of and not withstanding the pro rata risk allocation which might otherwise be imposed
between CITY and COUNTY pursuant to Government Code Section 895.6, the parties agree that
all losses or liabilities incurred by a party shall not be shared pro rata but instead COUNTY and
CITY agree that pursuant to Government Code Section 895.4, each of the parties hereto shall
fully indemnify and hold each of the other parties, their officers, board members, employees and
agents, harmless from any claim, expense or cost, damage or liability imposed for injury (as
defined by Government Code Section 810.8) occurring by reason of the negligent acts or
omissions or willful misconduct of the indemnifying party, its officers, employees or agents,
under or in connection with or arising out of any work, authority or jurisdiction delegated to such
party under this Agreement. No party, nor any officer, board member, employee or agent thereof
shall be responsible for any damage or liability occurring by reason of the negligent acts or
omissions or willful misconduct of the other parties hereto, their officers, board members,
employees or agents, under or in connection with or arising out of any work authority or
jurisdiction delegated to such other parties under this Agreement.
Additionally, CITY shall indemnify COUNTY for CITY's apportioned share of any liability
incurred and attributed to the Countywide HHW Program for the transportation, treatment, or
disposal of the household hazardous waste, once the waste has been accepted by a licensed
hazardous waste hauler. Apportionment for disposal liability shall be determined by each
participating jurisdiction's pro rata proportion of household participation in the Program.
Apportionment for transportation and treatment liability shall be determined by each
participating jurisdiction's pro rata household participation at the event where the waste was
generated. COUNTY will use reasonable efforts to obtain recovery from all available resources,
including insurance, of any liable hauler or liable disposal facility operator. No liability shall be
apportioned to CITY for transportation, treatment or disposal in any case where COUNTY has
contracted for such services and has failed to require the contractor to maintain the insurance
requirements set forth in Section 25 above.
CITY shall further indemnify COUNTY for CITY's apportioned share of liability incurred and
attributed to the Countywide HHW Program for the transportation, treatment or disposal of
household hazardous waste at corporate sponsored events where non - county resident employees
of the corporate sponsor are authorized to participate in the event. Liability for the nonresident
portion of the disposal of waste shall be shared by the cities and the county as described above.
The nonresident portion shall be determined by calculating the percentage of nonresidents
participating in the event. This percentage will then be subtracted from the total liability for the
household hazardous waste prior to assessing CITY's apportioned share of any liability for the
household hazardous waste.
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011
COUNTY shall require CESQGs and Nonprofit Charitable Reusers to indemnify COUNTY for
their apportioned share of any liability incurred and attributed to the Countywide HHW Program
for the transportation, treatment, or disposal of their hazardous waste, once the waste has been
accepted by a licensed hazardous waste hauler. The CESQG and Nonprofit Charitable Reuser
portion of the waste shall be determined by calculating the percentage, by weight, of the total
household hazardous waste accepted by the CoHHW Program. This percentage will be used to
calculate the portion of liability attributed to CESQGs and Nonprofit Charitable Reusers and will
be subtracted from the total liability prior to assessing CITY'S apportioned share of any liability
for household hazardous waste.
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AGENCY AGREEMENT FOR COUNTYWIDE AB 939 IMPLEMENTATION FEE FY 2011