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(b) Boron.
(c) Chlorates, except:
(i) In colored smoke mixture in which an equal or greater amount of sodium bicarbonate is included.
(ii) In caps and party poppers.
(iii) In those small items (such as ground spinners) wherein the total powder content does not exceed 4 grams of which not greater than 15 percent (or 600 milligrams) is potassium, sodium, or barium chlorate. (d) Gallates or Gallic acid.
(e) Magnesium (magnesium-aluminum alloys, called magnalium, are permitted).
(f) Mercury salts.
(g) Phosphorous (red or white except that red phosphorus is permissible in caps and party poppers).
(h) Picrates or picric acid.
(i) Thiocyanates.
(j) Titanium, except in particle size greater than 100-mesh. (11) Zirconium.
(2) Firecrackers.
(3) Skyrockets and rockets, including all devices which employ any combustible or explosive material and which rise in the air during discharge. (4) Roman candles, including all devices which discharge balls of fire into the air.
(5) Chasers, including all devices which dart or travel about the surface of the ground during discharge.
(6) Sparklers more than 10 inches in length or one-fourth of one inch in diameter.
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(7) All fireworks designed and intended by the manufacturer to create the element of surprise upon the user. These items include, but are not limited to, auto-foolers, cigarette loads, exploding golf balls, and trick matches. (8) Fireworks known as devil-on-the-walk, or any other firework which explodes through means of friction, unless otherwise classified by the State Fire Marshal pursuant to this part.
(9) Torpedoes of all kinds which explode on impact.
(10) Fireworks kits.
(11) Such other fireworks examined and tested by the State Fire Marshal and determined by him, with the advice of the State Board of Fire Services, to possess characteristics of design or construction which make such fireworks unsafe for use by any person not specially qualified or trained in the use of fireworks.
DISCHARGE. Means and includes, but is not limited to, shoot, set off, ignite, explode, project, fire or otherwise discharge FIREWORKS of any classification or kind.
EXEMPT FIREWORKS. Has the same meaning ascribed to it under § 12508 of the Cal. Health and Safety Code, as presently adopted or further amended from time to time, and includes any special item containing pyrotechnic compositions which the State Fire Marshal, with the advice of the State Fire Advisory Board, has investigated and determined to be limited to industrial, commercial, agricultural use, or religious ceremonies when authorized by a permit granted by the authority having jurisdiction and the Fire Chief.
FIRE CHIEF. Means the person designated as the Fire Chief of the County of Riverside or his or her authorized designee.
FIREWORKS. Regulated pursuant to the permitting process herein established are those classified by the State Fire Marshal as "safe and sane fireworks," and includes any FIREWORKS which do not come within the definition of "dangerous fireworks" or "exempt fireworks," under Cal. Health and Safety Code §§ 12505 and 12508. Has the same meaning ascribed to it under § 12511 of the Cal. Health and Safety Code as presently adopted or further amended from time to time. The term FIREWORKS includes DANGEROUS FIREWORKS, EXEMPT FIREWORKS, and SAFE AND SANE FIREWORKS, and further includes but is not limited to any device containing chemical elements and chemical compounds capable of burning independently of the oxygen of the atmosphere and producing audible, visual, mechanical, or thermal effects which are useful as pyrotechnic devices or for entertainment, including not limited to, devices designated by the manufacturer as fireworks, torpedoes, skyrockets, roman candles, rockets, Daygo bombs, sparklers, party
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poppers, paper caps, chasers, fountains, smoke sparks, aerial bombs, and fireworks kits.
FIREWORKS KIT. Has the same meaning ascribed to it under § 12512 of the Cal. Health and Safety Code, as presently adopted or further amended from time to time, and means any assembly of materials or explosive substances, which is designed and intended by the seller to be assembled by the person receiving such material or explosive substance and when so assembled would come within the definition of FIREWORKS.
PERSON. Any natural person, business, organization, corporation or other entity.
POLICE CHIEF. Means the person designated as the police chief of the city of Indio or his or her authorized designee.
PROPERTY. Any private property, including but not limited to a home, yard or field, whether or not occupied as a dwelling and whether owned, leased, rented or used with or without compensation.
PUBLIC DISPLAY OF FIREWORKS. Has the same meaning ascribed to it under § 12524 of the Cal. Health and Safety Code, as presently adopted or further amended from time to time, and means an entertainment feature where the public or a private group is admitted or permitted to view the display or discharge of DANGEROUS FIREWORKS.
PYROTECHNIC COMPOSITIONS. Has the same meaning ascribed to it under § 12525 of the Cal. Health and Safety Code, as presently adopted or further amended from time to time, and means any combination of chemical elements or chemical compounds capable of burning independently of the oxygen of the atmosphere.
PYROTECHNIC OPERATOR. Has the same meaning ascribed to it under § 12527 of the Cal. Health and Safety Code, as presently adopted or further amended from time to time, and means any licensed pyrotechnic operator, who by examination, experience, and training, has demonstrated the required skill and ability in the use and discharge of fireworks as authorized by the license granted.
PYROTECHNIC SPECIAL EFFECTS MATERIAL. Means a low explosive material, other than detonating cord, commonly used in motion picture, television, theatrical, or group entertainment production for which a permit from the Fire Chief is required for use, storage or disposal.
RESPONSIBLE PERSON. Means a person or persons with a right of possession of the residence or other private property at which fireworks, dangerous fireworks, exempt fireworks, or safe and sane fireworks are sold,
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offered for sale, used or possessed. A RESPONSIBLE PERSON includes but is not limited to:
(1) Owner(s) and/or lessee(s) of the residence or other private property where fireworks, dangerous fireworks, exempt fireworks, or safe and sane fireworks are kept, stored, possessed, used, shot, discharged, set off, ignited, exploded, manufactured, sold, offer for sale, given, or transported. (2) Tenant in possession of the residence or other private property where fireworks, dangerous fireworks, exempt fireworks, or safe and sane fireworks are kept, stored, possessed, used, shot, discharged, set off, ignited, exploded, manufactured, sold, offer for sale, given, or transported. (3) Person or persons in immediate control of the residence or other private property where fireworks, dangerous fireworks, exempt fireworks, or safe and sane fireworks are kept, stored, possessed, used, shot, discharged, set off, ignited, exploded, manufactured, sold, offer for sale, given, or transported (4) Person or persons who organize, supervise, sponsor, conduct, allow, control or controls access to the residence or other private property where fireworks, dangerous fireworks, exempt fireworks, or safe and sane fireworks are kept, stored, possessed, used, shot, discharged, set off, ignited, exploded, manufactured, sold, offer for sale, given, or transported. (5) Any “responsible party” as defined in § 11.02 of this code.
SAFE AND SANE FIREWORKS. Has the same meaning ascribed to it in Cal.
Health and Safety Code § 12529, as presently adopted or further amended from time to time, and includes any fireworks which do not come within the definitions of DANGEROUS FIREWORKS or EXEMPT FIREWORKS, as defined in Cal. Health and Safety Code §§ 12505 or 12508, as presently adopted or further amended from time to time.
SPECIAL EFFECTS. Has the same meaning ascribed to it in Cal. Health and Safety Code § 12532, as presently adopted or further amended from time to time, and means articles containing any pyrotechnic composition manufactured and assembled, designed, or discharged in connection with television, theater, or motion picture productions, which may or may not be presented before live audiences and any other articles containing any pyrotechnic composition used for commercial, industrial, education, recreation, or entertainment purposes when authorized by the authority having jurisdiction.
(B) Other General Terms Defined. In addition to the terms set forth above, the terms defined in Cal. Health & Safety Code Division 11, Part 1 (Health and Safety Code § 12500 et seq.) are hereby incorporated into this chapter. § 101.04 PERMIT - GENERAL REQUIREMENT.
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Except as otherwise provided in this chapter, no person, without having a valid permit issued pursuant to this chapter, shall do any of the following:
(A) Keep, store, possess, use, shoot, discharge, set off, ignite, explode, manufacture, sell, offer to sell, give away, offer to give away distribute, offer to distribute, discharge, or use fireworks, including dangerous fireworks, exempt fireworks, or safe and sane fireworks, or fireworks kits, within the city, (B) Make or carry out any public display of fireworks in any place or location.
(C) Transport fireworks, except as provided in the State Fireworks Law. § 101.05 USE OF SAFE AND SANE FIREWORKS RESTRICTED.
(A) It is unlawful for any person to sell, offer to sell or possess for the purpose of sale, any safe and sane fireworks or fireworks kit without a valid retail sales permit issued by the city in accordance with § 101.06 of this chapter. (B) It is unlawful for any person to discharge or otherwise use any safe and sane fireworks or fireworks kit within the city except during the hours of 9:00 a.m. to 10:00 p.m.
(C) It is unlawful for any person to sell, offer for sale, or possess for the purpose of sale to any person, any safe and sane fireworks or fireworks kit at any time prior to noon on June 28 or after midnight on July 6 of the same calendar year. (D) It is unlawful for any person to sell, offer for sale or possess for the purpose of sale to any person, any safe and sane fireworks or fireworks kit within the city except at a temporary fireworks stand approved as part of a city-permit issued in accordance with § 101.06 of this chapter.
(E) Except as otherwise provided in this subsection, it is unlawful for any person to discharge or otherwise use at any time safe and sane fireworks or fireworks kit in or upon any city-owned or leased property, or any city redevelopment agency-owned or leased property, including but not limited to sidewalks, streets, parking facilities, parks, or in any upon any property not zoned for residential uses.
This prohibition shall not apply to any city-permitted, city-sponsored or city- conducted fireworks show that is reviewed and approved by the fire chief. § 101.0306APPLICATION FOR PERMIT.SAFE AND SANE FIREWORKS -- PERMIT REQUIREMENTS.
(A) General. This section establishes the requirements and procedures to obtain a permit for the retail sale of safe and sane fireworks or fireworks kits
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within the city.
(B) Application.
(A)(1)Timing. In addition to the requisite license from the State Fire Marshal pursuant to Cal. Health and Safety Code §§ 12500 et seq., application must be made to the City Clerk for a retail sales permit on or before the last Friday in March of the calendar year for which the permit is sought. Permit applications may be obtained from the Office of the City Clerk.
(B)(2)Eligibility and granting of permits. Eligibility shall only be open to those tax-exempt organizations as defined under Code Section 501(c)(3) of the Internal Revenue Code, one permit per each tax-exempt identification number. Every year, the City Clerk shall review all applications for timeliness and proper qualifications and shall issue a maximum of nine permits in any given year to qualified, timely applicants, one of which shall go to the Indio Youth Task Force. If the City Clerk shall have in excess of nine timely applications, the City Clerk shall select a total of eight permitees from the pool of qualified, timely applicants based on a lottery.
(C)(3)Notice. Applicants shall be notified of the granting or denial of the permit on or before the first Monday in May of each calendar year. (4) Limitations.
(a)Retail sales of safe and sane fireworks shall be authorized only during the period of 12 noon and 10:00 p.m. on June 28 of each year and 9:00 a.m. through 10:00 p.m. each day from June 29 through July 6 of the same calendar year and such license shall expire at the end of such period. Retail sales of safe and sane fireworks shall be prohibited on any other date or time during any calendar year. (b)No temporary safe and sane fireworks stand may be erected prior to June 18 or remain in place after July 6 of the same calendar year. § 101.04 PERMIT AUTHORITY.
(C) Permit Authority.
The City Clerk may grant or deny the issuance of a permit for erection of a temporary safe and sane fireworks stand and the retail sales of safe and sane fireworks pursuant to the delegation of such authority by the city. If an applicant believes its application was improperly excluded from the pool of qualified and timely applications, the applicant may receive a hearing by the City Manager to appeal the denial of a permit, at which time the City Manager may reverse, modify, or sustain the denial. § 101.05 PERMIT REQUIREMENTS.
(D) Permit Requirements.
The following provisions apply to each of the nine permittees for the retail sale of safe and sane fireworks:
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(A)(1)Each application shall be accompanied by a filing fee of $250 to defray the city's cost of providing public safety services; (B)(2)Once issued, permits shall not be transferable, assignable or renewable. Any permit issued shall be valid only for the dates and location specified in the permit. Only one temporary safe and sane fireworks stand may be operated by each permittee;
(C)(3)The applicant must be insured for the minimum coverage amounts of $1,000,000/$1,000,000 for potential public liability and property damage in connection with the operation of the temporary safe and sane fireworks stand. The city must be named as an additional insured under the insurance policy; (D)(4)Each permittee is required to obtain a City of Indio Special Events Business License;
(E)(5)Each permittee is required to obtain a State Board of Equalization Permit;
(F)(6)All permit requirements must be completed and returned to the City Clerk by 5:00 p.m. on June 1 of the calendar year for which the permit is sought; (G)(7)Each organization must be issued a license from the State Fire Marshal pursuant to Cal. Health and Safety Code §§ 12500, et seq.; (H)(8)Each organization must be a nonprofit association or corporation organized primarily for veteran, youth, patriotic, welfare, civic betterment, or charitable purposes;
(I)(9)Each organization must have its principal and permanent meeting place within the territorial limits of the city, must have been organized and established for a minimum of one year continuously preceding the filing of the application for the retail sales permit, and must have a bona fide membership of at least 20 members, the majority of whom reside in the city; and
(J)(10)No permit issued or authorized to be issued by the provisions of this section shall be transferable.
(11)Failure to meet any of the requirements will result in revocation of the application permit.
§ 101.06 TEMPORARY FIREWORKS STAND REQUIREMENTS.
(D) Temporary Safe and Sane Fireworks Stand Requirements.
Each of the nine selected permittees must submit to the Fire Chief a plot plan
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approved by the owner of the property upon which the applicant will construct a temporary fireworks stand for the sale of safe and sane fireworks. The Fire Chief shall make an investigation of the proposed site to ensure compliance with the following:
(A)(1)The temporary fireworks stand erected for the retail sale of safe and sane fireworks must be constructed under the supervision of the City Building Department Inspector in such a manner as will reasonably ensure the safety of salespersons and patrons. An electrical permit must be obtained if a temporary power pole is required; (B)(2)The temporary fireworks stand shall have at least two exits, each at least 30 inches in width, in locations to be approved by the Fire Chief. The stand shall be located at least 25 feet from any other structure or property line of adjoining land.
Minimum setback from the public sidewalk shall be 10 feet. No stand shall have a floor area in excess of 260 square feet;
(C)(3)At least two water base fire extinguishers shall be present in each temporary fireworks stand. The extinguishers shall be subject to inspection by the Fire Chief;
(D)(4)There shall be at least one adult present in the temporary fireworks stand who is 21 years of age or over during all hours of retail sales. No person under 18 years of age shall sell fireworks at such stand;
(E)(5)No smoking shall be allowed in the temporary fireworks stand nor within ten feet thereof. No alcoholic beverages shall be allowed on the premises; (F)(6)All weeds and combustible material shall be cleared from the location of the temporary fireworks stand including a distance of at least 25 feet surrounding the stand;
(G)(7)Signs stating "NO SMOKING" and "NO SALES TO ANYONE UNDER SIXTEEN (16) YEARS OF AGE," and all permits must be posted in a conspicuous place; and
(H)(8)An alert night watchman, at least 21 years of age, must be provided by the permittee to guard the temporary fireworks stand during the hours of storage. (9) If a portable power generator is utilized, it shall be screened or otherwise isolated to prevent public access and shall be located a minimum of 25 feet from the temporary fireworks stand. No combustible material shall be stored/placed within 25 feet of the portable generator. A minimum 2A10BC extinguisher shall be on site.
(10) Motor vehicles shall be parked or otherwise located a minimum of 25 feet from the temporary fireworks stand.
(11) A safety handout in English and Spanish shall be provided with each purchase, and the handout shall also be posted on the temporary fireworks
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stand in a location visible to the public.
(12) No dangerous fireworks or exempt fireworks shall be sold, offered for sale, distributed from, offered for distribution, given away, offered to be given away, displayed, or stored on any temporary fireworks stand. (13) No other merchandise, goods, or items of any kind shall be sold, offered for sale, distributed from, offered for distribution, given away, offered to be given away, displayed, or stored on any temporary fireworks stand. § 101.07 PUBLIC DISPLAY.
Notwithstanding any other provision of this chapter, fireworks may be lawfully possessed and used for public display within the city, as defined in Cal. Health and Safety Code §§ 12575 through 12577 and the Uniform Fire Code Article 78, upon written authorization by the Fire Chief .
§ 101.08 VIOLATION.(E) Revocation; Remedies.
In addition to all other remedies set forth in this chapter, failure Failure to remove the temporary fireworks stand in accordance with this chapter will result in the assessment of a penalty of $50 per day that the stand remains in place, or portion thereof. The Fire Chief may revoke the permit granted to any permittee that is operating a temporary fireworks stand in violation of the provisions of the permit, or of this chapter.
Such permittee shall not be eligible for a new permit for a period of one year thereafter.
The remedies and penalties prescribed by this section or which are available under any other provision of this code are cumulative and non-exclusive. § 101.07 DANGEROUS FIREWORKS PROHIBITED -- EXCEPTIONS.
(A) Except as otherwise provided by law, this chapter, or as part of a public display of fireworks permitted by the city under § 101.08 of this chapter, it is unlawful for any person to sell, offer to sell, give away, offer to give away, distribute, offer to distribute, possess, keep, store, discharge or use dangerous fireworks within the city, or to permit another person offer to sell, give away, offer to give away, distribute. offer to distribute, possess, keep, store, discharge or use dangerous fireworks within the city.
(B) It is unlawful for any person to implicitly or expressly, directly or indirectly, permit, allow, or consent to the discharge or use of dangerous fireworks on property within the city that is owned, leased, rented, or otherwise lawfully possessed by such person.
§ 101.0708 DANGEROUS FIREWORKS EXEMPTION -- CERTAIN PUBLIC DISPLAYS OF FIREWORKS.
Notwithstanding any other provision of this chapter, dangerous fireworks may be
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lawfully possessed and used for public display within the city, as defined in only in accordance with Cal. Health and Safety Code §§ 12575 through 12577 and the Uniform Fire Code Article 78Chapter 56 (as presently adopted or further amended from time to time), and upon compliance with all applicable requirements of the State Fire Marshal and state statutes and regulations, upon a permit issued written authorization by the Fire Chief.
§ 101.08 PYROTECHNIC SPECIAL EFFECTS MATERIAL --
RESTRICTIONS.
(A) A permit is required to manufacture, compound, store, discharge or use pyrotechnic special effects material. Permit application shall be made to the fire chief pursuant to rules and regulations adopted by the fire chief. A permit shall be granted only to a State Fire Marshal licensed pyrotechnic operator. (B) It is unlawful for any person to manufacture, compound, store, discharge or use pyrotechnic special effects material, a pyrotechnic device or pyrotechnic production effect unless such person is in possession of a valid pyrotechnic operator’s license issued by the office of the State Fire Marshal, a valid permit issued by the fire chief, and has paid the fees established by the city council. § 101.09 MANUFACTURE OF FIREWORKS -- PERMIT REQUIRED.
It is unlawful for any person to manufacture any fireworks, including any dangerous fireworks, exempt fireworks, or safe and sane fireworks, within the city, except pursuant to a permit obtained under the provisions of §§ 12640 to 12654 of the California Health and Safety Code, as presently adopted or further amended from time to time, the Fire Code adopted by the city, and this chapter, and any other state or local regulations issued by the fire chief.
§ 101.09 SALE TO MINORS PROHIBITED.
It is unlawful for any person to sell, offer to sell, expose for sale, display, distribute, offer to distribute, give away, or offer to give away, any fireworks, including any dangerous fireworks, exempt fireworks, safe and sane fireworks, or any fireworks kit of any classification or type, within the city to any person under the age of 18 years.
§ 101.10 RESPONSIBLE PERSON -- LIABILITY.
No property owner or person in control of property shall allow, cause, create, maintain, suffer, or permit a person to possess, keep, store, use, shoot, discharge, set off, ignite, explode, manufacture, sell, offer to sell, give, or transport any fireworks, dangerous fireworks, or safe and sane fireworks on the property owned by such a person or under such person's control except for use as agricultural and wildlife fireworks, or for use in a public display of fireworks
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pursuant to a permit obtained under the provisions of Health and Safety Code §§ 12640—12654 and this article. Any such person shall be in violation of this article, regardless of such person's intent, knowledge or negligence, such violation being hereby expressly declared a strict liability offense.
§ 101.11 EXCEPTIONS.
(A) Nothing in this chapter shall be construed to prohibit the use of fireworks by railroads or other transportation agencies for signal purposes of illumination, or the sale or use of blank cartridges for a show or theater, or for signal or ceremonial purposes in athletics or sports or for use by military organizations.
(B) This chapter does not forbid or control acts or matters expressly allowed, permitted, or licensed under State law; nor does it allow acts or matters more strictly forbidden or controlled by State law or by local fire regulations. § 101.12 REVOCATION.
The fire chief may suspend or revoke any permit upon proof that the permittee, or any of its officers, officials, employees, agents or members, has violated any of the provisions of this chapter relating to fireworks. The revocation of a permit may be appealed to the hearing officer in writing within 15 days of the date the notice was issued Upon failure to file such notice within the 15-day period, the action of the fire chief shall be final and conclusive. § 101.13 RULES AND REGULATIONS.
The fire chief and his or her authorized representatives are authorized to establish reasonable rules, regulations and procedures to implement this chapter, including but not limited to the issuance of the permits authorized pursuant to this chapter.
§ 101.14 ENFORCEMENT.
(A) It shall be the duty of the fire chief and his or her authorized representatives and the police chief and his or her authorized representatives to enforce the provisions of this chapter.
(B) The fire chief and his or her authorized representatives and the police chief and his or her authorized representatives shall have the authority to seize, take, and remove any fireworks, dangerous fireworks, exempt fireworks, safe and sane fireworks, and fireworks kits of any classification or type. The fire chief and his or her authorized representatives and the police chief and his or her authorized
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representatives may charge any person whose fireworks or fireworks kits are seized pursuant to this section, a reasonable amount which is sufficient to cover the cost of transporting, storing, handling, and disposing of the seized fireworks or fireworks kits.
(C) The additional remedies and procedures for violations of this chapter and for recovery of costs related to enforcement are provided for in §§ 10.23 through 10.25 of this code.
§ 101.15 - PENALTIES.
(A) Criminal misdemeanor penalty. Any person who causes, permits, aids, abets, suffers or conceals a violation any provision of this chapter is guilty of a misdemeanor in accordance with §§ 10.98 and 10.99 of this code, except that upon conviction shall be punished by a fine of not more than one thousand dollars ($1,000) or by imprisonment in the city or county jail not exceeding six (6) months, or by both such fine and imprisonment.
(B) Nuisance; civil remedies available. In addition to other penalties provided by law, any violation of any provision of this chapter or any state law enforceable by the city shall constitute a public nuisance and may be abated by the city through civil process by means of a restraining order, preliminary injunction, or any other manner provided by this code or state law for abatement of nuisances. Each day such condition continues shall constitute a new and separate offense in accordance with § 10.11 of this code. (C) Administrative citation.
(1) General. In addition to any other penalties provided by law, whenever the enforcement official, as that term is defined in § 11.02, determines that a violation of this chapter has occurred, the enforcement official shall have the authority to issue an administrative citation with administrative civil penalties to any responsible person, as that term is defined in § 101.02, pursuant to the procedures set forth in Chapter 11 (Administrative Citations) of Title 1 (General Provisions). Use of the administrative citation procedure in Chapter 11 with respect to violations of this chapter shall be at the sole discretion of the city. (2) Dangerous fireworks. Administrative fines and penalties collected pursuant this section related to dangerous fireworks shall not be subject to Cal. Health and Safety Code § 12706, and shall be allocated in compliance with Cal. Health and Safety Code § 12557, which requires the City to reimburse the State Fire Marshal for the costs associated with the disposal of seized dangerous fireworks.
(3) Civil penalty amounts. The amount of the administrative civil penalties imposed for administrative citations issued for violations of this chapter
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shall be established by resolution of the City Council. Different administrative civil penalties may be established for violations of this chapter involving safe and sane fireworks, exempt fireworks or dangerous fireworks.
(C) Separate offenses. A person is guilty of a separate offense for each and every day or portion thereof during which he or she commits, continues, or permits a violation of this chapter.
(D) No limitation under State Law. Nothing in this chapter limits any of the penalties provided in the Cal. Health and Safety Code or Cal. Penal Code with regard to the unlawful transportation, use, discharge, possession, storage or sale of fireworks.
(E) Remedies cumulative. The remedies and penalties prescribed by this section or which are available under any other provision of this chapter are cumulative and non-exclusive. The use of one or more remedies by the city shall not bar the use of any other remedy set forth in this chapter or code for the purpose of enforcing the provisions of this chapter.
§ 101.16 - DISPOSAL FEES.
(A) All companies licensed with the CAL FIRE-Office of the State Fire Marshal as a importers, exporters and wholesale are required to pay in addition to the annual license fee an annual Dangerous Fireworks Disposal Fee as prescribed section 981.3 of Article 3, Chapter 6, Division 1 of Title 19 of the Cal. Code of Regulations.
(B) All temporary safe and sane fireworks stands are required to pay at the time application a Dangerous Fireworks Disposal Fee in addition to the application fee as prescribed Section 981.3.
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City Council
October 19, 2022
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Kevin H. Snyder, Dir. Of Community Development Subject: Ordinance No. 1786 - Adoption of amendments to Chapter 33 of the Indio Municipal Code pertaining to the Transportation Uniform Mitigation Fees and adoption Uniform Transportation the for Schedule Fee Revised the of Mitigation Fees effective January 1, 2023
RECOMMENDATION:
Waive full reading of the ordinance amend ing Chapter 33 of the Indio Municipal Code and adopting the revised Transportation Uniform Mitigation Fee schedule, introduce the ordinance by title only and request the City Clerk to read the title
SUMMARY:
Chapter 33 TUMF Amendment and Adoption of Revised TUMF Fee Schedule
FINANCIAL SUMMARY:
Current FY Financial
Impact:
In current year budget:
Current FY General
Fund Impact:
Budget adjustment:
Next FY Financial
Impact:
Strategic Objective:
Source of funds: Fund-Org-Object
Reference:
Additional Financial Details:
Transportation Uniform Mitigation Fee (TUMF) fees are paid to the City as part of the building permit process and passed through to the Coachella Valley Association of Governments (CVAG). There is no direct or direct financial impact to the City resulting from this action.
ALTERNATIVES:
The Transportation Uniform Mitigation Fee ( TUMF) was established in 1989 as a one - time impact fee charged Association Valley Coachella the within of development new all on occurring Monies region. (CVAG) Governments co are program TUMF the through applied llected to transportation-related capital facilities and infrastructure required to address new growth within the AGENDA ITEM #10.1
Ordinance No. 1786 , adopting amendments to Chapter 33 of the Indio Muni... Page 290 of 304 Coachella Valley and are intended to compliment revenue generated through Riverside County' s Measure A sales tax.
The CVAG Executive Committee adopted a nexus study increasing fees and remove specific land - use exemptions. The Committee's 2018 action also allowed for the consideration of an annual inflation adjustment to the TUMF. The 2018 TUMF Handbook allows for the consideration of an annual inflation adjustment specifies that the inflation factor shall be the same one utilized by the Coachella Valley Local Development Mitigation Fee, based on the Riverside -San Bernardino -Ontario Consumer Price Index ( CPI). The CVAG Executive Committee annually reviews the CPI to determine whether or not to apply the inflation factor. The annual adjustment process was implemented in order to avoid steep, though less frequent, adjustments covering multiple years' worth of rising construction costs.
According to the April 25, 2022 staff report from Peter Satin, Regional Planner, to the CVAG Executive Committee, the CPI-U, All items, for the Riverside-San Bernardino-Ontario metropolitan area rose by
8.24-percent in 2021, largely due to steep increases in the cost of motor fuel, and, to a lesser extent, household energy. Motor fuel prices increased by almost 50 -percent over the course of 2021, rebounding from a marked low point during the initial wave of the coronavirus pand emic. The staff report notes that some entities choose to calculate “core” inflation on the CPI-U, less food and energy (which includes motor fuel), as these items tend to be more volatile in their pricing. Removing these volatile items from the regional C PI results in an inflation factor of 5.83 -percent. However, because motor fuel constitutes a significant cost component for the construction of TUMF -supported projects, CVAG staff recommended applying the full inflation factor to the current fee assessments, which was accepted by the CVAG Executive Committee and has been transmitted to the City of Indio for consideration. The following table is excerpted from the April 25, 2022 staff report and addresses current rates, proposed rates and value differences for specified land uses:
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CVAG staff have created a model ordinance for utilization by member organizations. The Coachella Valley cities that have adopted the model ordinance to date are - Cathedral City
- La Quinta
- Palm Desert
- Palm Springs
- Rancho Mirage
CVAG staff are currently coordinating with the remaining Coachella Valley cities and Riverside County on their potential adoption of the model ordinance. The model ordinance comprises the most up -to- date regulatory structure for the continued implementation of the regional TUMF program. Ordinance No. 1786 proposes to adopt this model ordinance. Currently, the City Council must take action to approve any changes in the TUMF fees established by CVAG. The model ordinance provides the option to allow for the automatic adjustment of fees as approved by the CVAG Executive Committee.
This eliminates the need for the City Council to consider and possibly amend the fee every few years.
If adopted, future TUMF adjustments approv ed by the CVAG Executive Committee would be implemented by the City Manager or designee. To date, the Cities of Indian Wells and Palm Desert have approved automatic adjustments implemented at the staff level and according to CVAG staff, other cities are considering this action.
Government Code Sections 66017 ( a) and 66019 ( b) specify that any action adopting a fee or charge, or increasing a fee or charge adopted, upon a development project, as defined in Section 66000 of the Government Code Section, which applies to the filing, accepting, reviewing, approving, or issuing
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A legal public hearing notice for the Council's October 19, 2022 regular meeting pertaining to this item was published in the October 7, 2022 edition of the Desert Sun, the newspaper of record.
ATTACHMENTS:
Attachment1_OrdinanceNo1786Exhibit
APPROVAL(S):
Kevin H. Snyder, Dir. Of Community Development Approved - 12 Oct 2022 Steven Graham, City Attorney Approved - 14 Oct 2022
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 14 Oct 2022 Bryan H. Montgomery, City Manager Approved - 14 Oct 2022
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1 ORDINANCE NO. 1786
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF INDIO , CALIFORNIA, AMENDING CHAPTER 33 OF THE INDIO MUNICIPAL
CODE PERTAINING TO THE COLLECTION OF TRANSPORTATION
UNIFORM MITIGATION FEES AND ADOPTING THE REVISED FEE
SCHEDULE FOR THE TRA NSPORTATION UNIFORM MITIGATION FEES EFFECTIVE JANUARY 1, 2023
WHEREAS, the City of Indio , California, ("City") is a member agency of the Coachella Valley Association of Governments (“CVAG”), a joint powers agency consisting of the County of Riverside ("County"), the Agua Caliente Band of Cahuilla Indians, the Cabazon Band of Mission Indians, the Torres Martinez Desert Cahuilla Indians, the City of Blythe, and the nine cities (Desert Hot Springs, Palm Springs Cathedral City, Rancho Mirage, Palm Desert, Indian Wells, La Quinta, Indio and Coachella) situated in the Coachella Valley (collectively, "Member Agencies"); and
WHEREAS, acting in concert, the Member Agencies developed a plan whereby the shortfall in funds needed to enlarge the capacity of the Regional System of Highways and Arterials within CVAG's jurisdiction (the “Regional System”) could be made up in part by a Transportation Uniform Mitigation Fee ("TUMF") imposed on future residential, commercial and industrial development within the jurisdiction; and
WHEREAS, as a CVAG Member Agency, the City participated in the preparation of the 1987 Coachella Valley Area Transportation Study ("1987 Transportation Study") prepared pursuant to the Mitigation Fee Act (Government Code section 66000 et seq.) and based on the 1987 Transportation Study, the City adopted and implemented CVAG's model TUMF Ordinance as Palm Desert Municipal Code (PDMC) Chapter 3.44; and
WHEREAS, CVAG commissioned Michael Baker International, Inc. to prepare an updated TUMF study entitled "Transportation Uniform Mitigation Fee (TUMF) 2018 Fee Schedule Update, Nexus Study Report, " and dated March 2018 (“2018 Nexus Study") to establish updated TUMF levels and program revenue collection targets, which was approved by the CVAG Executive Committee on April 30, 2018; and
WHEREAS, the 2018 Nexus Study revealed the need to revise certain provisions of the model TUMF Ordinance to reflect changes in the Mitigation Fee Act which governs the adoption and implementation of development impact fees and to reflect the findings of the 2018 Nexus Study; and
WHEREAS, Chapter 2.6. General (21080 – 21098) of the California Public Resources Code and more specifically, Subsection 21080.b.8 reads:
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2 The establishment, modification, structuring, restructuring, or approval of rates, tolls, fares, or other charges by public age ncies which the public agency finds are for the purpose of (A) meeting operating expenses, including employee wage rates and fringe benefits, (B) purchasing or leasing supplies, equipment, or materials, (C) meeting financial reserve needs and requirements, (D) obtaining funds for capital projects necessary to maintain service within existing service areas, or (E) obtaining funds necessary to maintain those intracity transfers as are authorized by city charter. The public agency shall incorporate written findings in the record of any proceeding in which an exemption under this paragraph is claimed setting forth with specificity the basis for the claim of exemption.
WHEREAS, the approval of this ordinance is consistent with the provisions of Subsection 21080. b.8 (D) in that the Traffic Uniform Mitigation Fees collected by the City through the imposition of said fee on future residential, commercial and industrial development within the City of Indio are remitted to CVAG for the purpose of enlarging the capacit y of the Regional System of Highways and Arterials within CVAG's jurisdiction (the “Regional System”); and,
WHEREAS, pursuant to California Government Code Section 66016.a, prior to levying a new fee or service charge, or prior to approving an increase i n an existing fee or service charge, a local agency shall hold at least one open and public meeting, at which oral or written presentations can be made, as part of a regularly scheduled meeting and further that notice of the time and place of the meeting, including a general explanation of the matter to be considered, and a statement that the data required by this section is available; and,
WHEREAS, California Government Code Section 66016.a further specifies that at least 10 days prior to the meeting, the local agency shall make available to the public data indicating the amount of cost, or estimated cost, required to provide the service for which the fee or service charge is levied and the revenue sources anticipated to provide the service, including General Fund revenues. Unless there has been voter approval, as prescribed by Section 66013 or 66014, no local agency shall levy a new fee or service charge or increase an existing fee or service charge to an amount which exceeds the estimated amount requir ed to provide the service for which the fee or service charge is levied; and,
WHEREAS, pursuant to California Government Code Section 66017.a, any action adopting a fee or charge, or increasing a fee or charge adopted, upon a development project, as defi ned in Section 66000, which applies to the filing, accepting, reviewing, approving, or issuing of an application, permit, or entitlement to use shall be enacted in accordance with the notice and public hearing procedures specified in Section 54986 or 66016 and shall be effective no sooner than 60 days following the final action
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3 on the adoption of the fee or charge or increase in the fee or charge; and,
WHEREAS, by notice duly given and posted, on October 19 , 202 2, the City Council conducted a public hearing to consider adoption of this ordinance; and
WHEREAS, at the time and place set for the hearing, the City Council duly considered the data and information provided by CVAG, City staff and the public relative to the TUMF and all other comments, whet her written or oral, submitted prior to the conclusion of the hearing; and
WHEREAS, the City Council wishes to accurately collect TUMF fees along with the other participating jurisdictions within the Coachella Valley, as requested by the CVAG General Assembly.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Indio, California, as follows:
Section 1. Revised Chapter 33, Transportation Uniform Mitigation Fee.
Indio Municipal Code Chapter 33, Subsections 33.080 to 33.085 is hereby repealed and replaced in its entirety to read as follows:
TRANSPORTATION UNIFORM MITIGATION FEE
33.080 Purpose, Use and Findings.
The City Council finds and determines as follows:
A. The City is a Member Agency of the Coachella Valley
Association of Governments (“CVAG”), a joint powers agency consisting of public agencies situated in the Coachella Valley (collectively, "Member Agencies").
B. Acting in concert, the Member Agencies developed a plan whereby the shortfall in funds needed to enlarge the capacity of the Regional System of Highways and Arterials within CVAG's jurisdiction (the “Regional System”) could be made up in part by a Transportation Uniform Mitigation Fee ("TUMF") imposed on future residential, commercial and industrial development w ithin the jurisdiction.
C. That CVAG commissioned the preparation of various studies ("Fee Studies") which evaluate population and employment growth, future transportation needs and the availability of traditional transportation funding sources to establish updated TUMF levels and program revenue collection targets.
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4 D. That the Fee Studies, as periodically updated, make it possible to determine a reasonable relationship between the cumulative regional impacts of new land development projects in the Coachella Valley on the Regional System and the need to mitigate these transportation impacts using funds levied through the TUMF program.
E. That the Fee Studies, as periodically updated, establish the purposes of the TUMF, which may be summarized as a uniform development impact fee to help fund construction of the Regional System needed to accommodate growth in the Coachella Valley to the year 2030.
F. That the Fee Studies, as periodically updated, establish that the TUMF proceeds will be used to help pay for the engineering, construction and acquisition of the Regional System improvements identified therein. Such improvements are necessary for the safety, health and welfare of the residential and non -residential users of the development projects on which the TUMF will be levied.
G. That the Fee Studies, as periodically updated, establish a reasonable and rational relationship between the use of the TUMF proceeds and the type of development projects on which the TUMF is imposed.
H. That the Fee Studies, as periodically updated, establish the reasonable relationship between the impact of new development and the need for the TUMF.
I. That the TUMF program revenues to be generated by new development will not exceed the total fair share of these costs.
J. That the projects and methodology identified in the Fee Studies, as periodically updated, for the collection of fees is consistent with the goals, policies, objectives and implementation measures of the City’s General Plan.
K. That the TUMF program complies with the provisions of the Mitigation Fee Act.
33.081 Definitions
For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them as follows:
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5 “Change of use” means any change in the use of an existing building that results in the increase of vehicular trips.
“Development” means any activity which requires discretionary or ministerial action by the City resulting in the issuance of grading, building, plumbing, mechanical or electrical permits, or certificates of occupancy issued by the City to construct, or change the use of, a building or property. Where “development” applies to an enlargement of an existing building, or a change of use of an existing building that results in increased vehicle trips, the average weekday trips shall be only the additional trips in excess of those associated with the existing use.
"Fee Study" means the studies prepared by CVAG and adopted by the City Council, which supports the fee established by this chapter, and includes all the underlying reports and documents referenced therein.
"Impact Fee Schedule" means the schedule of development impact fees approved by resolution of the City Council.
"Mitigation Fee Act" means the law set forth in the California Government Code (Government Code Section 66000 et seq.) that establishes the criteria for establishing a fee as a condition of approval of a development project.
"Regional System" means the regional system of roads, streets and highways identified by CVAG in its 2016 Transportation Project Prioritization Study (TPPS) to accommodate growth in the Coachella Valley to the year 2040. Only those projects scoring above 7.5 points in the TPPS are included for TUMF consideration.
"Transportation Mitigation Trust Fund" means the fund established pursuant to this chapter.
“TUMF" means the Transportation Uniform Mitigation Fee established by this chapter.
33.082 Transportation Uniform Mitigation Fee Established
A. There is established a Transportation Uniform Mitigation Fee ("TUMF"), which shall apply to new development yet to receive final discretionary approval and/or issuance of a building permit or other development right and to any reconstruction or new use of existing buildings that results in change of use and generates additional vehicular trips.
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6 B. The facilities to be funded by the TUMF are detailed in the Fee Study, which is on file with the City's Public Works Department.
C. The TUMF is in addition to the requirements imposed by other City laws, policies or regulations relating to the construction or the financing of the construction of public improvements within subdivisions or developments.
D. If the amount of the recommended mitigation fee is amended by CVAG pursuant to CVAG's annual review, the TUMF applied within the city limits shall be automatically adjusted and said adjustment (s) shall be administered by the City Manager or designee.
33.083 Fund Established
A. There is established a Transportation Mitigation Trust Fund ("Trust Fund") into which TUMF proceeds shall be deposited.
B. TUMF proceeds shall be imposed and collected by the City and shall be transmitted to CVAG to be placed in the Trust Fund. All interest or other earnings of the Trust Fund shall be credited to the Trust Fund.
C. CVAG shall administer the Trust Fund in accordance with the Mitigation Fee Act.
33.084 Calculation and Collection of the TUMF
A. The method of calculating the TUMF shall be described in CVAG's Transportation Uniform Mitigation Fee Handbook, a copy of which is on file with the City's Community Development Department.
B. The amount of the fees due shall be the amount set forth in the applicable Impact Fee Schedule in effect at the time each fee is due.
The TUMF shall be collected pursuant to the City's established procedures for the collection of development impact fees.
33.085 Use Restrictions
TUMF proceeds shall be solely used for the engineering, construction and acquisition of the Regional System improvements identified in the Fee Study and any other purpose consistent with this chapter. TUMF proceeds shall not be used for Regional System maintenance.
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7 33.086 Exemptions and Credits
A. The following developments are exempted from payment of the fee required by this chapter:
1. Low and lower-income residential housing, including
single-family homes, apartments and mobile homes built for those whose income is no more than eighty percent of the median income in the San Bernardino- Riverside Standard Metropolitan Statistical Area and as determined and approved by the City Council or its designee.
The sales or rental price shall not exceed the affordability criteria as established under HUD Section 8 guidelines.
B. Credit against the TUMF shall be given where a developer improves streets included within the Regional System beyond the City's requirements established for on-site and off -site improvements imposed upon projects. To receive a credit, the developer shall obtain in advance an agreement with CVAG pursuant to CVAG's rules and regulations. That credit shall be an amount equal to the actual engineering and construction costs incurred at the time of the development to the extent that CVAG has included those costs in its estimated cost of constructing the Regional System.
33.087 Appeal Process
A. Any developer, who, because of the nature or type of uses proposed for a development project, contends that application of the TUMF is unconstitutional or unrelated to mitigation of the burdens of the development, may file a written appeal with the City within ninety days af ter imposition of the TUMF as a condition of approval or as otherwise provided by the Mitigation Fee Act.
B. The appeal shall be heard by the CVAG Executive Committee in accordance with CVAG's established policies and procedures for conducting such matters. The decision of the Executive Committee shall be final.
33.088 Administrative Fee
A. The City may impose an administrative fee in amount
computed to cover the average cost to the City of processing the TUMF. The City shall establish such fee in accordance with the City's procedures for establishing service-related fees.
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8 B. The administrative fee authorized by this section shall be in addition to the fee imposed under Section 3.44.030. The administrative fee, when collected, shall be retained by the City to recover its costs.
SECTION 2. California Environmental Quality (CEQA) Exemption. The City Council finds the project is exempt from the CEQA guidelines 14 Cal . Code.
Regs Section 15061(b)( 3) because it can be seen with certainty that there is no possibility that the adoption of this Ordinance in question may have a significant effect on the environment as set forth in Section 21080. 17 of the Public Resources Code. The project involves an adjustment in TUMF fees promulgated by the Coachella Valley Association of Governments only and associated City administrative procedures for future adjustments to these fees.
SECTION 3. City Council Approval. The City Council adopts the findings stated herein and approves the repeal and replacement of Indio Municipal Code Chapter 33, Subsections 33.080 to 33.085 with Indio Municipal Code Chapter 33, Subsections 33.080 to 33.088 and finds that said approval is statutorily exempt from further CEQA environmental review pursuant to the provisions of Chapter 2.6. General (21080 – 21098) of the California Public Resources Code and more specifically, Subsection 21080.b.8 that reads: “The establishment, modification, structuring, restructuring, or approval of rates, tolls, fares, or other charges by public agencies which the public agency finds are for the purpose of (A) meeting operating expenses, includi ng employee wage rates and fringe benefits, (B) purchasing or leasing supplies, equipment, or materials, (C) meeting financial reserve needs and requirements, (D) obtaining funds for capital projects necessary to maintain service within existing service ar eas, or (E) obtaining funds necessary to maintain those intracity transfers as are authorized by city charter. The public agency shall incorporate written findings in the record of any proceeding in which an exemption under this paragraph is claimed setting forth with specificity the basis for the claim of exemption.”
SECTION 4. Adoption of Revised Fee Schedule. The City Council hereby adopts the Revised Fee Schedule for the Transportation Uniform Mitigation Fee (TUMF) effective January 1, 2023 attached hereto as Exhibit “A”.
SECTION 5. Severability. The City Council declares that, should any provision, section, paragraph, sentence or word of this ordinance be rendered or declared invalid by any final court action in a court of competent jurisdiction or by reason of any preemptive legislation, the remaining provisions, sections, paragraphs, sentences or words of this ordinance as hereby adopted shall remain in full force and effect. If any section, subsection, subdivision, paragraph, sentence, clause, or phr ase in this ordinance or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this ordinance or any part thereof. The City Council hereby declares that it would
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9 have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, invalid, or ineffective.
SECTION 6. Publication. The City Clerk shall certify to the passage, approval, and adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law.
SECTION 7. Effectiveness. This Ordinance shall be in full force and in effect sixty (60) days after its adoption pursuant to California Government Code Section 66017.a.
PASSED, APPROVED AND ADOPTED this 2nd day of November,
2022.
____________________________________
WAYMOND FERMON, MAYOR
ATTEST:
__________________________
CYNTHIA HERNANDEZ,
CMC CITY CLERK
APPROVED AS TO FORM:
__________________________
STEVEN P. GRAHAM
CITY ATTORNEY
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EXHIBIT “A”
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April 28, 2022
REVISED FEE SCHEDULE FOR THE TRANSPORTATION UNIFORM MITIGATION FEE EFFECTIVE JAUARY 1, 2023
The Transportation Uniform Mitigation Fee (TUMF) is a development impact fee designed to offset the effects of population growth on transportation infrastructure within the Coachella Valley. It is charged on any construction that will result in an increase in vehicular trips.
The TUMF is collected by the permitting jurisdiction in accordance with an adopted local ordinance, which further allows for an annual adjustment for inflation based on the Consumer Price Index for the Riverside-San Bernardino-Ontario metropolitan area. This inflation factor has been applied to the current fee schedule and results in the revised rates that will be assessed on new development starting January 1, 2023.
TUMF Category
Assessment
Unit
Rate as of
January 1, 2023
Single family detached Dwelling unit $2,550
Multi-family attached Dwelling unit $1,470
Nursing/congregate care Dwelling unit $545
Retail 1,000 sq. ft. $6,640
Office 1,000 sq. ft. $2,640
Industrial 1,000 sq. ft. $1,340
Fuel-gas Dispensing unit $9,515
Fuel-electric Dispensing unit $100
Hotel Room $3,880
Golf course Acre $1,015
For any question regarding the application of TUMF, please contact the Coachella Valley Association of Governments at (760) 346-1127 or by emailing [email protected].
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