Agenda packet, regular meeting — National City City Council, November 7, 2023 (part 3 of 4)

POSTED SPEED

LIMIT (MPH)
MEDIAN
SPEED
(MPH)
85TH

PERCENTILE

SPEED (MPH)

RECOMMENDED

ACTION JUSTIFICATIONS/ COMMENTSSTREET LOCATION
10 MPH
PACE
RANGE

PERCENT OF

VEHICLES IN
PACE

RECOMMENDED

SPEED LIMIT (MPH)
92 I-5 National City
Boulevard 35 37 32 28-37 78% 30 Reduce to 30 mph
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate). 93 National City
Boulevard D Avenue 35 39 35 31-40 78% 35 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
94 D Avenue Highland
Avenue 30 38 32 29-38 72% 30 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
95 Highland
Avenue L Avenue 30 34 29 25-34 75% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
96 Hoover Avenue National City
Boulevard 30 36 32 28-37 83% 30 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
97 National City
Boulevard
Highland
Avenue 30 37 32 28-37 74% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - high school (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B), Accident rate higher than statewide average (CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E). 98 Highland
Avenue L Avenue 35 37 33 30-39 83% 35 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
99 2nd Avenue I-805/Euclid
Avenue 35 41 37 34-43 88% 35 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate). 100 I-805/Euclid
Avenue Valley Road 45 46 42 37-46 82% 45 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
101 Valley Road Plaza Bonita
Road 45 46 41 37-46 69% 45 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
102 Plaza Bonita
Road
Plaza Bonita
Center Way 45 48 43 39-48 79% 45 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2).
103 Tidelands
Avenue Marina Way 25 33 26 23-32 64% 25 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
104 Sweetwater
Road Calle Abajo 45 46 41 37-46 82% 40 Reduce to 40 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th-percentile speed (CVC 22358.6(b); CA-MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate). 105 Plaza Bonita
Center Way
San Miguel
Court 40 45 39 34-43 61% 40 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA- MUTCD Section 2B.13, Standard 12ag).
106 Plaza
Boulevard Angelo Drive 25 26 22 18-27 85% 25 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
Sweetwater Road
32nd Street
Valley Road
Manchester Street
Mile of Cars Way
24th Street
30th Street

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ORDINANCE NO. 2023 -

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ,

CALIFORNIA, ESTABLISHING SPEED LIMITS ON VARIOUS STREETS BASED ON

ENGINERING AND TRAFFIC SURVEYS AND AUTHORIZING THE DIRECTOR OF

PUBLIC WORKS TO POST SPEED LIMIT SIGNS CONSISTENT WITH THE RECOMMENDATIONS OF THE ENGINEERING AND TRAFFIC SURVEYS.

WHEREAS, section 22357 of the State of California Vehicle Code (CVC) permits local authorities to establish speed limits greater than the prima facie speed limit of 25 miles per hour (mph) when, on the basis of an engineering and traffic survey (E&TS), the local authority determines that a speed greater than 25 mph would facilitate the orderly movement of vehicular traffic and would be reasonable and safe; and

WHEREAS, State Assembly Bills (AB) 43 and 1938, which went into effect on January 1, 2022 and January 1, 2023, re spectively, provide local agencies greater flexibility in setting and reducing speed limits; and

WHEREAS, section 627 of the CVC and Section 2B.13 of the California Department of Transportation Manual on Uniform Traffic Control Devices (CA -MUTCD) outline the criteria to be considered as part of conducting an E&TS , including that an E&TS be completed and certified by a registered professional Civil or Traffic Engineer at least once every 5, 7 or 14 years, in compliance with CVC Section 40802, to re-evaluate non-statuary speed limits on local roadways and allow for enforcement using radar, laser or other electronic devices; and
WHEREAS, an E&TS for 106 individual roadway segments was completed in accordance with the procedures established by Section 2B.13 of the CA -MUTCD and consistent with all applicable provisions of the CVC, and formal presentations were made to the Traffic Safety C ommittee on April 12, 2023 (preliminary findings) and August 16, 2023 (final recommendations) , where the Traffic Safety Committee ultimately voted unanimously in support of the recommendations of the E&TS at their meeting on August 16, 2023; and
WHEREAS, based on the findings and recommendations of the E&TS, 81 speed limits will remain the same, 25 will decrease, and zero of the existing speed limits will increase; and
WHEREAS, staff recommends the City Council authorize establishing speed limits on various streets based on the E&TS and authorize the Director of Public Works to post speed limit signs consistent with the recommendations of the E&TS.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, HEREBY ORDAINS AS FOLLOWS:

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Section 1: That, pursuant to authority under the California Vehicle Code including, but not limited to, sections 22357 and 40802, and on the basis of engineering and traffic surveys conducted and certified in accordance with applicable State law and regulations, the City Council hereby establishes the following recommended speed limits as reasonable and safe to facilitate the orderly movement of vehicular traffic on the portions of roadways within the City of National City , summarized in subsections “A” through “E” below, and authorizes the Director of Public Works to post speed limit signs consistent with the recommendations of the Engineering and Traffic Surveys:

A. Twenty-five miles per hour is declared and established as the prima facie speed limit on the following streets:

1. 8th Street from National City Boulevard to Highland Avenue

2. 16th Street from Wilson Avenue to National City Boulevard

3. 18th Street from Wilson Avenue to National City Boulevard

4. 18th Street from National City Boulevard to Highland Avenue

5. 18th Street from Euclid Avenue to Rachael Avenue

6. 22nd Street from Wilson Avenue to National City Boulevard

7. 32nd Street from Tidelands Avenue to Marina Way

8. “D” Avenue from Division Street to 8th Street

9. “D” Avenue from 8th Street to 12th Street

10. “D” Avenue from 12th Street to 18th Street

11. Division Street from “D” Avenue to Highland Avenue

12. Grove Street from Prospect Street to Sweetwater Road

13. Highland Avenue from 2nd Street to 8th Street

14. Hoover Avenue from 22nd Street to Mile of Cars Way

15. “L” Avenue from 8th Street to Plaza Boulevard

16. “L” Avenue from 24th Street to 30th Street

17. Manchester Street from Plaza Boulevard to Angelo Drive

18. Marina Way from Bay Marina Drive to 32nd Street

19. McKinley Avenue from 14th Street to 19th Street

20. Palm Avenue from 16th Street to 18th Street

21. Plaza Boulevard from Coolidge Avenue to National City Boulevard

22. Roosevelt Avenue from 8th Street to Civic Center Drive

23. Roosevelt Avenue from Civic Center Drive to 16th Street

24. West Avenue from 16th Street to 18th Street

25. Wilson Avenue from 18th Street to 24th Street

B. Thirty miles per hour is declared and established as the prima facie speed limit on the following streets:

1. 4th Street from National City Boulevard to “D” Avenue

2. 4th Street from “D” Avenue to Highland Avenue

3. 4th Street from Highland Avenue to Palm Avenue

4. 4th Street from Palm Avenue to Euclid Avenue

5. 4th Street from Euclid Avenue to Harbison Avenue

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6. 8th Street from Harbor Drive to National City Boulevard

7. 8th Street from Highland Avenue to Palm Avenue

8. 16th Street from National City Boulevard to Highland Avenue

9. 16th Street from Highland Avenue to Palm Avenue

10. 16th Street from Palm Avenue to Euclid Avenue

11. 16th Street from Euclid Avenue to Harbison Avenue

12. 18th Street from Highland Avenue to Palm Avenue

13. 18th Street from Palm Avenue to Euclid Avenue

14. 19th Street from Tidelands Avenue to Cleveland Avenue

15. 24th Street from “D” Avenue to Highland Avenue

16. 24th Street from Highland Avenue to “L” Avenue

17. 30th Street from Hoover Avenue to National City Boulevard

18. 30th Street from National City Boulevard to Highland Avenue

19. Bay Marina Drive from Tidelands Avenue to I-5

20. Civic Center Drive from Harbor Drive to National City Boulevard

21. “D” Avenue from 18th Street to 24th Street

22. “D” Avenue from 24th Street to 30th Street

23. Division Street from National City Boulevard to “D” Avenue

24. Euclid Avenue from North City Limit to 4th Street

25. Harbison Avenue from Division Street to 4th Street

26. Harbison Avenue from 4th Street to 8th Street

27. Harbison Avenue from 8th Street to Plaza Boulevard

28. Harbison Avenue from Plaza Boulevard to 16th Street

29. Highland Avenue from National City Limit to Division Street

30. Highland Avenue from 8th Street to 18th Street

31. Highland Avenue from 24th Street to 30th Street

32. Highland Avenue from 30th Street to South City Limit

33. Hoover Avenue from 30th Street to 33rd Street

34. “L” Avenue from 16th Street to 24th Street

35. Main Street from I-5 to National City Boulevard

36. McKinley Avenue from 19th Street to 23rd Street

37. Mile of Cars Way from I-5 to National City Boulevard

38. National City Boulevard from 8th Street to 18th Street

39. Newell Street from 18th Street to Prospect Street

40. Palm Avenue from Division Street to Plaza Boulevard

41. Palm Avenue from Plaza Boulevard to 16th Street

42. Plaza Boulevard from National City Boulevard to Highland Avenue

43. Plaza Boulevard from Highland Avenue to Palm Avenue

44. Roosevelt Avenue from Division Street to 8th Street

45. Wilson Avenue from Civic Center Drive to 18th Street

C. Thirty-five miles per hour is declared and established as the prima facie speed limit on the following streets:

1. 8th Street from Palm Avenue to Euclid Avenue

2. 8th Street from Euclid Avenue to Harbison Avenue

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3. 8th Street from Harbison Avenue to Paradise Valley Road/Plaza Boulevard

4. 24th Street from National City Boulevard to “D” Avenue

5. 30th Street from Highland Avenue to “L” Avenue

6. Cleveland Avenue from Civic Center Drive to 19th Street

7. Cleveland Avenue from 19th Street to Bay Marina Drive

8. Division Street from Highland Avenue to Palm Avenue

9. Division Street from Palm Avenue to Euclid Avenue

10. Division Street from Euclid Avenue to Harbison Avenue

11. Euclid Avenue from 4th Street to 8th Street

12. Euclid Avenue from 8th Street to 20th Street

13. Euclid Avenue from 20th Street to 24th Street

14. Highland Avenue from 18th Street to 24th Street

15. Hoover Avenue from Mile of Cars Way to 30th Street

16. National City Boulevard from Division Street to 8th Street

17. National City Boulevard from 18th Street to 30th Street

18. National City Boulevard from 30th Street to South City Limit

19. Palm Avenue from I-805 to Division Street

20. Plaza Bonita Road from Sweetwater Road to Bonita Mesa Road

21. Plaza Boulevard from Palm Avenue to Euclid Avenue

22. Plaza Boulevard from Euclid Avenue to Harbison Avenue

23. Sweetwater Road from 2nd Avenue to I-805/Euclid Avenue

24. Tidelands Avenue from Civic Center Drive to 19th Street

25. Tidelands Avenue from 19th Street to Bay Marina Drive

26. Tidelands Avenue from Bay Marina Drive to 32nd Street

D. Forty miles per hour is declared and established as the prima facie speed limit on the following streets:

1. Harbor Drive from 8th Street to Civic Center Drive

2. Paradise Valley Road from 8th Street to Plaza Entrada

3. Plaza Bonita Center Way from Valley Road to Sweetwater Road

4. Plaza Boulevard from Harbison Avenue to 8th Street

5. Valley Road from Sweetwater Road to Calle Abajo

6. Valley Road from Plaza Bonita Center Way to San Miguel Court

E. Forty-five miles per hour is declared and established as the prima facie speed limit on the following streets:

1. Harbor Drive from North City Limit to 8th Street

2. Sweetwater Road from I-805/Euclid Avenue to Valley Road

3. Sweetwater Road from Valley Road to Plaza Bonita Road

4. Sweetwater Road from Plaza Bonita Road to Plaza Bonita Center Way

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Section 2: This Ordinance shall take effect and be in force thirty (30) days from the date of its passage, and before the expiration of fifteen (15) days after its passage, it or a summary of it, shall be published once, with the names of the members of the City Council voting for and against the same in the Star News, a newspaper of general circulation published in the County of San Diego, California.

Section 3: The City Clerk shall certify to the adoption of this Ordinance and shall public in accordance with the law.

INTRODUCED at a regular meeting of the City Council of the City of National City, California, held on this 17th day of October, 2023.

PASSED and ADOPTED this _____ of ________________, 2023.

Ron Morrison, Mayor

ATTEST:

Shelley Chapel, MMC, City Clerk

APPROVED AS TO FORM:

Barry J. Schultz, City Attorney

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AGENDA REPORT

Department: Fire Department
Prepared by: Walter Amedee, Management Analyst III
Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager

SUBJECT:

Cost Recovery Fees for Fire Department Responses

RECOMMENDATION:

Adopt the Resolution Entitled “Resolution of the City Council of the City of National City, California, Amending Exhibit “A” of the National City Municipal Code Section 4.70.03 Relating to Recovering Costs for the Deployment of Emergency Services by the National City Fire Department.”

BOARD/COMMISSION/COMMITTEE PRIOR ACTION:

Not Applicable.

EXPLANATION:

The National City Fire Department’s emergency services responses to incidents increase each year due to additional requirements, such as those for environmental protection and hazard mitigation, which create additional demands on all operational aspects of the National Cit y Fire Department services. The City of National City has utilized di fferent methods to maintain a high level in the quality and capability of emergency services during times of increasing service demands. Maintaining an effective response by the National City Fire Department decreases the overall societal costs of incidents through timely and effective management of emergency situations, saving lives, and reducing property and environmental damage.

National City Fire Department Staff provided current personnel, vehicle, fuel, maintenance, equipment, and liability insurance costs to Fire Recovery USA to determine the ac tual cost rate per incident . A majority of motor vehicle incidents and other emergency and non -emergency services involve individuals not residing in the National City Fire Department’s service area . In most instances a cost recovery claim is filed with the responsible party(s) through their insurance carrier, and in a few circumstances, the responsible party(s) will be billed directly.

On June 1, 2010, the City of National City adopted Ordinance No. 2010-2341 which added Section

4.70, Emergency Response Cost Recovery Fee, to the National City Municipal Code to establish fees to help mitigate increased operational costs caused by responses to those incidents. The City of National City has collected $207,368.57 in cost recovery fees based on 399 claims since adopting the ordinance . The National City Fire Department's operational costs have increased over the years, but the Cost Recovery Fees authorized in Section 4.70.03 have not been updated since being adopted.

The City of National City desires to amend the cost recovery fee schedule as allowed by Section

4.70.03 Adoption of Fee Schedule for Recovery of Emergency Response Costs to reflect the current actual costs of the services , including personnel, supplies, support services, and equipment. Section 4.70.03 allows the City Council to amend, as needed, the schedule of fees

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by resolution. The revised fee schedule is attached as Exhibit “A.” A comparison between the original and proposed new fee schedule is attached as Exhibit “B.”

Staff also requests the authority to increase the Cost Recovery Fees listed in Exhibit A annually based on the annual percentage change in the Consumer Price Index (CPI), as developed by the Bureau of Labor Statistics of the U.S. Department of Labor . The Cost Recovery Fee s will be posted on the City’s website. Any needed fee adjustments that would exceed the CPI based change would be brought to the City Council for action.

FINANCIAL STATEMENT:

Cost recovery fees are posted to revenue account # 001-12125-3544.

RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:

Public Safety

ENVIRONMENTAL REVIEW:

This is not a project under CEQA and is therefore not subject to environmental review. CCR15378; PRC 21065.

PUBLIC NOTIFICATION:

Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.

Published in The Star News, on the City’s website, and posted on Public Notice boards at City Hall.

ORDINANCE:

Not Applicable

EXHIBITS:

Exhibit A – Cost Recovery Fees
Exhibit B – Fee Comparison
Exhibit C – Resolution

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Rev. 2023.01

EXHIBIT A

COST RECOVERY FEES

BASED ON PER HOUR
The mitigation rates below are average “billing levels”, and are typical for the incident responses listed, however, when a claim is submitted, it may be itemized and based on the actual services provided.

These rates are based on actual costs using amortized schedules for apparatus (including useful life, equipment, repairs, and maintenance). Labor rates include an average department’s actual burdened labor costs and not just a firefighter's wage.

These include wages, retirement, benefits, workers comp, etc.

MOTOR VEHICLE INCIDENTS
Level 1 - $584.00
Provide hazardous materials assessment and scene stabilization. This will be the most common “billing level”. This occurs almost every time the fire department responds to an accident/incident.

Level 2 - $667.00
Includes Level 1 services as well as clean up and material used (sorbents) for hazardous fluid clean up and disposal. We will bill at this level if the fire department has to clean up any gasoline or other automotive fluids that are spilled as a result of the accident/incident.

Level 3 – CAR FIRE - $813.00
Provide scene safety, fire suppression, breathing air, rescue tools, hand tools, hose, tip use, foam, structure protection, and clean up gasoline or other automotive fluids that are spilled as a result of the accident/incident.

ADD-ON SERVICES:

Extrication - $1,757.00
Includes heavy rescue tools, ropes, airbags, cribbing etc. This charge will be added if the fire department has to free/remove anyone from the vehicle(s) using any equipment.

We will not bill at this level if the patient is simply unconscious and fire department is able to open the door to access the patient. This level is to be billed only if equipment is deployed.

Creating a Landing Zone - $537.00
Includes Air Care (multi-engine company response, mutual aid, helicopter). We will bill at this level any time a helicopter landing zone is created and/or is utilized to transport the patient(s).

Itemized Response: You have the option to bill each incident as an independent event with custom mitigation rates, for each incident using, itemized rates deemed usual, customary and reasonable (UCR). These incidents will be billed, itemized per apparatus, per personnel, plus products and equipment used.

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Rev. 2023.01

HAZMAT

Level 1 - $943.00
Basic Response: Claim will include engine response, first responder assignment, perimeter establishment, evacuations, set-up and command.

Level 2 - $3,369.00
Intermediate Response: Claim will include engine response, first responder assignment, hazmat certified team and appropriate equipment, perimeter establishment, evacuations, set-up and command, Level A or B suit donning, breathing air and detection equipment. Set-up and removal of decon center.

Level 3 – $7,953.00
Advanced Response: Claim will include engine response, first responder assignment, hazmat certified team and appropriate equipment, perimeter establishment, evacuations, first responder set-up and command, Level A or B suit donning, breathing air and detection equipment and robot deployment. Set-up and removal of decon center, detection equipment, recovery and identification of material. Disposal and environment clean up. Includes above in addition to any disposal rates of material and contaminated equipment and material used at scene. Includes 3 hours of on scene time - each additional hour @ $381.00 per HAZMAT team.

FIRES
Assignment - $538.00 per hour, per engine / $673.00 per hour, per truck

Includes:

• Scene Safety
• Investigation
• Fire / Hazard Control

This will be the most common “billing level”. This occurs almost every time the fire department responds to an incident.

OPTIONAL: A fire department has the option to bill each fire as an independent event with custom mitigation rates.

Itemized, per person, at various pay levels and for itemized products use.

ILLEGAL FIRES
Assignment - $538.00 per hour, per engine / $673.00 per hour, per truck

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Rev. 2023.01
When a fire is started by any person or persons that requires a fire department response during a time or season when fires are regulated or controlled by local or state rules, provisions or ordinances because of pollution or fire danger concerns, such person or persons will be liable for the fire department response at a cost not to exceed the actual expenses incurred by the fire department to respond and contain the fire. Similarly, if a fire is started where permits are required for such a fire and the permit was not obtained and the fire department is required to respond to contain the fire the responsible party will be liable for the response at a cost not to exceed the actual expenses incurred by the fire department. The actual expenses will include direct labor, equipment costs and any other costs that can be reasonably allocated to the cost of the response.

WATER INCIDENTS
Level 1
Basic Response: Claim will include engine response, first responder assignment, perimeter establishment, evacuations, first responder set-up and command, scene safety and investigation (including possible patient contact, hazard control). This will be the most common “billing level”. This occurs almost every time the fire department responds to a water incident.

Billed at $538 plus $66 per hour, per rescue person.

Level 2
Intermediate Response: Includes Level 1 services as well as clean up and material used (sorbents), minor hazardous clean up and disposal. We will bill at this level if the fire department has to clean up small amounts of gasoline or other fluids that are spilled as a result of the incident.

Billed at $1,077 plus $66 per hour, per rescue person.

Level 3
Advanced Response: Includes Level 1 and Level 2 services as well as D.A.R.T. activation, donning breathing apparatus and detection equipment. Set up and removal of decon center, detection equipment, recovery and identification of material. Disposal and environment clean up. Includes above in addition to any disposal rates of material and contaminated equipment and material used at scene.

Billed at $2,665 plus $66 per hour per rescue person, plus $134 per hour per HAZMAT team member.

Level 4
Itemized Response: You have the option to bill each incident as an independent event with custom mitigation rates for each incident using itemized rates deemed usual, customary and reasonable (UCR). These incidents will be billed, itemized, per trained rescue person, plus rescue products used.

BACK COUNTRY OR SPECIAL RESCUE

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Rev. 2023.01
Itemized Response: Each incident will be billed with custom mitigation rates deemed usual, customary and reasonable (UCR). These incidents will be billed, itemized per apparatus per hour, per trained rescue person per hour, plus rescue products used.

Minimum billed $538 plus $66 per hour, per rescue person. Additional rates of $538 per hour per response vehicle and $66 per hour per rescue person.

CHIEF RESPONSE
This includes the set-up of Command, and providing direction of the incident. This could include operations, safety, and administration of the incident.

Billed at $337 per hour.

MISCELLANEOUS / ADDITIONAL TIME ON-SCENE

ADDITIONAL TIME ON-SCENE (for all levels of service)
Engine billed at $538 per hour.

Truck billed at $673 per hour.

Miscellaneous equipment billed at $404.

MITIGATION RATE NOTES
The mitigation rates above are average “billing levels” for one hour of service, and are typical for the incident responses listed, however, when a claim is submitted, it may be itemized and based on the actual services provided.

These average mitigation rates were determined by itemizing costs for a typical run (from the time a fire apparatus leaves the station until it returns to the station) and are based on the actual costs, using amortized schedules for apparatus (including useful life, equipment, repairs, and maintenance) and labor rates (an average department’s “actual personnel expense” and not just a firefighter's basic wage). The actual personnel expense includes costs such as wages, retirement, benefits, workers comp, insurance, etc.

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EXHIBIT B

COST RECOVERY FEES

COMPARISON

MOTOR VEHICLE INCIDENTS

Level 1 - OLD $435.00 NEW $584.00
Provide hazardous materials assessment and scene stabilization. This will be the most common “billing level”. This occurs almost every time the fire department responds to an accident/incident.

Level 2 - OLD $495.00 NEW $667.00
Includes Level 1 services as well as clean up and material used (sorbents) for hazardous fluid clean up and disposal. We will bill at this level if the fire department has to clean up any gasoline or other automotive fluids that are spilled as a result of the accident/incident.

Level 3 – CAR FIRE - OLD $605.00 NEW $813.00
Provide scene safety, fire suppression, breathing air, rescue tools, hand tools, hose, tip use, foam, structure protection, and clean up gasoline or other automotive fluids that are spilled as a result of the accident/incident.

ADD-ON SERVICES:

Extrication - NEW $1,757.00
Includes heavy rescue tools, ropes, airbags, cribbing etc. This charge will be added if the fire department has to free/remove anyone from the vehicle(s) using any equipment.

We will not bill at this level if the patient is simply unconscious and fire department is able to open the door to access the patient. This level is to be billed only if equipment is deployed.

Creating a Landing Zone - NEW $537.00
Includes Air Care (multi-engine company response, mutual aid, helicopter). We will bill at this level any time a helicopter landing zone is created and/or is utilized to transport the patient(s).

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HAZMAT

Level 1 - OLD $700.00 NEW $943.00
Basic Response: Claim will include engine response, first responder assignment, perimeter establishment, evacuations, set-up and command.

Level 2 - OLD $2,500.00 NEW $3,369.00
Intermediate Response: Claim will include engine response, first responder assignment, hazmat certified team and appropriate equipment, perimeter establishment, evacuations, set-up and command, Level A or B suit donning, breathing air and detection equipment. Set-up and removal of decon center.

Level 3 – OLD $5,900.00 NEW $7,953.00
Advanced Response: Claim will include engine response, first responder assignment, hazmat certified team and appropriate equipment, perimeter establishment, evacuations, first responder set-up and command, Level A or B suit donning, breathing air and detection equipment and robot deployment. Set-up and removal of decon center, detection equipment, recovery and identification of material. Disposal and environment clean up. Includes above in addition to any disposal rates of material and contaminated equipment and material used at scene. Includes 3 hours of on scene time - each additional hour @ OLD 300.00 NEW $381.00 per HAZMAT team.

FIRES
Assignment - OLD $400.00 NEW $538.00 per hour, per engine / NEW $673.00 per hour, per truck Includes:

• Scene Safety
• Investigation
• Fire / Hazard Control

This will be the most common “billing level”. This occurs almost every time the fire department responds to an incident.

OPTIONAL: A fire department has the option to bill each fire as an independent event with custom mitigation rates.

Itemized, per person, at various pay levels and for itemized products use.

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Rev. 2023.01

ILLEGAL FIRES
Assignment - NEW $538.00 per hour, per engine / NEW $673.00 per hour, per truck When a fire is started by any person or persons that requires a fire department response during a time or season when fires are regulated or controlled by local or state rules, provisions or ordinances because of pollution or fire danger concerns, such person or persons will be liable for the fire department response at a cost not to exceed the actual expenses incurred by the fire department to respond and contain the fire. Similarly, if a fire is started where permits are required for such a fire and the permit was not obtained and the fire department is required to respond to contain the fire the responsible party will be liable for the response at a cost not to exceed the actual expenses incurred by the fire department. The actual expenses will include direct labor, equipment costs and any other costs that can be reasonably allocated to the cost of the response.

Billed at OLD $400 NEW $538 plus OLD $50 NEW $66 per hour, per rescue person.

Billed at OLD $800 NEW $1,077 plus OLD $50 NEW $66 per hour, per rescue person.

Billed at OLD $2,000 NEW $2,665 plus OLD $50 NEW $66 per hour per rescue person, plus OLD $100 NEW $134 per hour per HAZMAT team member.

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Rev. 2023.01

BACK COUNTRY OR SPECIAL RESCUE
Itemized Response: Each incident will be billed with custom mitigation rates deemed usual, customary and reasonable (UCR). These incidents will be billed, itemized per apparatus per hour, per trained rescue person per hour, plus rescue products used.

Minimum billed OLD $400 NEW $538 plus OLD $50 NEW $66 per hour, per rescue person. Additional rates of OLD $400 NEW $538 per hour per response vehicle and OLD $50 NEW $66 per hour per rescue person.

CHIEF RESPONSE
This includes the set-up of Command, and providing direction of the incident. This could include operations, safety, and administration of the incident.

Billed at OLD $250 NEW $337 per hour.

MISCELLANEOUS / ADDITIONAL TIME ON-SCENE

ADDITIONAL TIME ON-SCENE (for all levels of service)
Engine billed at OLD $400 NEW $538 per hour.

Truck billed at OLD $500 NEW $673 per hour.

Miscellaneous equipment billed at OLD $300 NEW $404.

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RESOLUTION NO. 2023 –

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, AMENDING EXHIBIT “A” OF THE NATIONAL CITY MUNICIPAL CODE SECTION 4.70.03

RELATING TO RECOVERING COSTS FOR THE DEPLOYMENT OF EMERGENCY SERVICES BY THE NATIONAL CITY FIRE DEPARTMENT.

WHEREAS, the National City Fire Department’s emergency services response s to incidents increase each year due to additional requirements, such as those for environmental protection and hazard mitigation, which create additional demands on all operational aspects of the National City Fire Department services; and
WHEREAS, the City of National City has utilized different methods to maintain a high level of quality of emergency service capability during times of increasing service demands; and WHEREAS, maintaining an effective response by the National City Fire Department decreases the overall societal costs of incidents through timely and effective management of emergency situations, saving lives, and reducing property and environmental damage; and WHEREAS, National City Fire Department Staff provided current personnel, vehicle, fuel, maintenance, equipment, and liability insurance costs to Fire Recovery USA to determine the actual cost rate per incident; and
WHEREAS, a majority of motor vehicle incidents and other emergency and non - emergency services involve individuals not residing in the National City Fire Department’s service area; and
WHEREAS, in most instances a cost recovery claim is filed to the responsible party(s) through their insurance carrier, and in a few circumstances, the responsible party(s) will be billed directly; and
WHEREAS, the City of National City adopted Ordinance No. 2010 -2341 that added Section 4.70, Emergency Response Cost Recovery Fee, to the National City Municipal Code to establish fees to help mitigate increased operational costs caused by responses to thos e incidents; and
WHEREAS, the City of National City has collected $207,368.57 in cost recovery fees based on 399 claims since adopting the ordinance; and
WHEREAS, the National City Fire Department operational costs have increased over the years, but the Cost Recovery Fees authorized in Section 4.70.03 have not been amended since being adopted on June 1, 2010; and
WHEREAS, the City of National City desires to amend the cost recovery fee schedule as allowed by Section 4.70.03 Adoption of Fee Schedule for Recovery of Emergency Response Costs to reflect the current actual costs of the services, including personnel, supplies, support services, and equipment; and
WHEREAS, Section 4.70.03 allows the City Council to amend, as needed, the schedule of fees by resolution; and

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WHEREAS, the revised fee schedule is shown in Exhibit “A”, attached to the staff report, and a comparison between the original and proposed new fee schedule is provided in Exhibit B, attached to the staff report; and
WHEREAS, staff also requests the authority to increase the Cost Recovery Fees annually based on the annual percentage change in the Consumer Price Index (CPI), as developed by the Bureau of Labor Statistics of the U.S. Department of Labor; and WHEREAS, the Cost Recovery Fees will be posted on the City’s website; and WHEREAS, any needed fee adjustments that would exceed the CPI-based change would be brought to the City Council for action.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:

Section 1. The City Council hereby authorizes the amendment of the cost recovery fees identified in Exhibit A attached to the staff report.

Section 2. The City Council also hereby authorizes the amendment of the Cost Recovery Fees annually based on the annual percentage change in the Consumer Price Index (CPI), as developed by the Bureau of Labor Statistics of the U.S. Department of Labor.

Section 3. The City Clerk shall certify the passage and adoption of this R esolution and enter it into the book of original Resolutions.

PASSED and ADOPTED this 7th day of November, 2023.

Ron Morrison, Mayor
ATTEST:

Shelley Chapel, MMC, City Clerk

APPROVED AS TO FORM:

__
Barry J. Schultz, City Attorney

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AGENDA REPORT

Department: Police Department
Prepared by: Joseph Camacho, Police Sergeant
Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager

SUBJECT:

Introduction of an Ordinance Amending National City Municipal Code S ections 10.70 – Police Regulated Business Regulations and 10.79 – Massage Establishments.

RECOMMENDATION:

Introduction and First Reading of an Ordinance Entitled, “An Ordinance of the City Council of the City of National City, California, Amending Chapters 10.70 – Police Regulated Business Regulations and 10.79 – Massage Establishments of the National City Municipal Code.”

BOARD/COMMISSION/COMMITTEE PRIOR ACTION:

Not Applicable.

SUMMARY:

Below is a brief summary of the recommended changes to the National City Municipal Code:

 Section 10.70 – Police Regulated Businesses Regulations o Minor updates and cleanup for clarity.
o Inclusion of additional criteria for permit denial – the applicant for a massage establishment permit cannot have had a permit denied, suspended, or revoked for cause by any governmental agency or a massage practitioner certification denied, suspended, or revoked by the CAMTC.
o The appeal procedures have been updated to be consistent with the City’s administrative appeal section.

 Section 10.79 – Massage Establishments
o Updates to the definition section for additional clarity. o Updates to the massage establishment operating requirements:
 It is unlawful for massage establishments to operate under any name that is not specified in the massage establishment permit issued.  Inclusion of limitations on who can be present in massage therapy rooms and in the waiting area.
o Updates to massage establishment prohibited conduct:
 Employment of a person lacking state certification as a receptionist without prior notification and approval by the City.
 Operating after the sale or transfer of the massage establishment to a person not identified as the owner on the massage establishment permit application.

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EXPLANATION:

The National City Police Department (NCPD) submitted the National City Municipal Code Sections regarding Police Regulated Business Regulations (NCMC Section 10.70) and Massage Establishments (NCMC Section 10.79) to the California Massage Therapy Council (CAMTC) for review to assist with the enforcement, regulation and removal of illicit massage parlors in National City.

CAMTC completed the review of the National City Municipal Code sections and returned the ir review to the National City Police Department with several recommended corrections, additions and modifications to the National City Municipal Code to aid the police department, code enforcement and the city attorney’s off ice with the enforcement, regulation and removal of illicit massage parlors in National City.

NCPD forwarded the recommended corrections to the City Attorney’s Office for review. The City Attorney’s Office assisted by making the recommended corrections, additions and modifications to the National City Municipal Code to submit for approval to the City Council of the City of National City.

FINANCIAL STATEMENT:

Not Applicable.

RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:

Public Safety

ENVIRONMENTAL REVIEW:

This is not a project under CEQA and is therefore not subject to environmental review.CCR15378; PRC 21065.

PUBLIC NOTIFICATION:

Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.

ORDINANCE:

First Reading

EXHIBITS:

Exhibit A – Ordinance – Redline Section 10.70 Police Regulated Business Regulations Exhibit B – Ordinance – Redline Section 10.79 Massage
Exhibit C – Ordinance – Section 10.70 Police Regulated Business Regulations Exhibit D – Ordinance – Section 10.79 Massage

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Chapter 10.70 POLICE REGULATED BUSINESS REGULATIONS

National City, California, Code of Ordinances Created: 2023-03-17 09:29:45 [EST] (Supp. No. 60)

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Chapter 10.70 POLICE REGULATED BUSINESS REGULATIONS

10.70.010 Purpose and intent—Permit required.

A. It is the purpose and intent of the city council to establish procedures for permit issuance and regulation of certain businesses and activities as police regulated for the protection of the public health, safety, and welfare. Businesses identified in this Division X (Chapters 10.70 through 10.79) have a higher degree of potential for one or more types of illicit activity - prostitution, disorderly conduct, gambling, fraudulent practices, or the concealment or facilitation of transfers of stolen property. Therefore, regulation of the operations of these establishments is appropriate to protect legitimate business practice and the public health, safety and welfare.

B. A business, activity or a performer or technician which is identified in Chapters 10.71 through 10.79 is designated a "regulated business," "regulated activity," "regulated perfor mer" or "regulated technician," as the case may be, and the specific regulations applicable to their conduct are set out in Chapters 10.71 through 10.79. The procedures set out in this Chapter 10.70 shall uniformly govern the administration and appeals process regarding the issuance, denial, suspension, or revocation of any permit required to operate as a regulated business or activity or as a regulated performer or technician pursuant to Chapters 10.71 through 10.79.

C. The issuance of a permit pursuant to this chapter does not excuse a regulated business, activity, performer, or technician from complying with any other revenue or regulatory requirement of this code or state law. A separate permit shall be required for each type of activity regulated by Chapters 10.71 through 10.79, unless otherwise provided. The issuance of a certificate or permit under other provisions of this code does not excuse compliance with or create a defense to any violation of the requirements of this chapter or Chapters

10.71 through 10.79, as applicable, or any other provisions of law or ordinance, including conditional use permits required under Title 18.

D. It is unlawful for any person to operate a business or activity or perform or practice as a performer or technician regulated by this chapter and Chapters 10.71 through 10.79, as applicable, without a valid permit issued by the chief of police or designee, or to operate, perform or practice while the permit is suspended or revoked. Each day a violation of this section exists constitutes a separate misdemeanor. (Ord. 2220 § 1(part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.020 Definitions.

For purposes of Chapters 10.70 through 10.79, the following definitions shall apply:

A. "Person" means and includes a natural person, a partnership, joint venture or a corporation.

B. "Operator" means any person who supervises, manages, directs, organizes, controls, or in any other way is responsible for or in charge of the daily operation, conduct or activities of the regulated business or activity.

C. "Owner" means any person or entity having an ownership interest in the establis hment.

D. "Responsible person" means any person who is an owner, operator, or manager, and includes any employee or agent in apparent charge of the premises for which the application is made or required or a permit is issued.

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E. "Permit" means a permit issued by or under the authority of the chief of police or designee that authorizes activity regulated under Chapters 10.71 through 10.79.

F. "Permittee" means an owner to whom a permit issued by or under the authority of the chief of police or designee that authorizes activity regulated under Chapters 10.71 and 10.79.

G. "Applicant" means the natural person(s) who complete and sign an application pursuant to this chapter.
(Ord. 2220 § 1 (part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.030 Applications.

A. Any person required to obtain a permit pursuant to Chapters 10.71 through 10.79 shall file a written application with the chief of police or designee on a city-approved form, and pay the non-refundable fee set forth in the National City fee schedule, to recoup all investigative costs. The applicant shall provide proof of payment of any regulatory fees imposed by the state of California or county of San Diego contemporaneously with the filing. Written application forms prepared by the chief of police or desi gnee may require the applicant to be photographed, finger printed and to provide, in addition to the information listed below, such other information as is reasonably necessary to carry out the purposes of this chapter. The application form shall be approved as to form by the city attorney. For massage establishments, the application shall be completed and signed by the owner of the proposed massage establishment, if a sole proprietorship; one general partner, if the owner is a partnership; or two officers, if the owner is a corporation.

B. An applicant for a permit shall submit the following information:

1. The full name of the business, including the name under which the business will be conducted;

2. The address where the business is to be conducted;

3. The applicant's full, true name, and any other names used;

4. The applicant's date of birth;

5. The applicant's present residential address and telephone number;

6. The previous addresses of the applicant for the three years immediately prior to the date of the application and the dates of residence at each;

7. Applicant's height, weight, color of eyes and hair;

8. Three recent portrait photographs at least two inches by two inches taken within the preceding six months, which accurately depict the current appearance of the applicant;

9. The applicant's driver's license and/or identification card issued by a state or federal governmental agency, or other photographic identification bearing a bona-fide seal of a foreign government;

10. If the owner is a corporation, domestic stock, domestic non-profit, qualified foreign corporation, limited liability company, general partnership, or limited partnership, the application shall include the following:
a. A business entity status report issued by the California Secretary of State; b. Organizational documents for the business entity including but not limited to a copy of the fictitious name statement and/or articles of incorporation;

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c. Full name, date of birth, residential address, and business address f or each officer and director; d. The name, date of birth, and residence addresses of the responsible employee(s) to be principally in charge of the day-to-day operations of the establishment. e. The full name of the owner, including any DBAs.

11. The tax identification number for the business;

12. The name, address, email address, and telephone number of the real property owner where the business will be operated, and a copy of the lease or rental agreement, if applicable;

13. The business license and permit history of the applicant, including whether the applicant when previously operating in this or another city or state under a certificate, license or permit, has had that certificate, license or permit suspended or revoked, the reason therefore, and the business activity or occupation subsequent to the suspension or revocation;

14. For massage establishment businesses regulated under Chapter 10.79, a copy of the massage practitioner certificate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code for each owner who has been issued a certificate, or a statement that such a certificate has not been issued or has been previously denied or revoked by the California Massage Therapy Council or cancelled with information regarding the reason thereforesuch revocation or cancelation;

15. For massage establishment businesses regulated under Chapter 10.79, a list of all persons who will administer massage, including but not limited to employees and independent contractors. Such list shall include the full true name and any other names used, date of birth, residence address and copy of their driver's license or any other photo identification card issued by a state or federal agency, and a copy of the valid massage practitioner certificate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code;

16. For massage establishment businesses regulated under Chapter 10.79, all services mus t be described on the application for the permit;

17. Business, occupation, or employment history of the applicant for the three years immediately preceding the date of the application;

18. A list, broken down for each applicant, each responsible employe e(s) to be principally in charge of the day-to-day operations of the establishment, and all partners if a partnership, or all officers and directors if a corporation, of all criminal convictions, including pleas of nolo contender, within the preceding five years, including those dismissed or expunged pursuant to Penal Code section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction, as well as a full explanation of the circumstances;

19. A complete set of fingerprints taken for each owner if a sole proprietorship, or each natural person, including the owner and operator or person to be principally in charge of the day- to-day operations of the establishment; unless in the case of massage establishment businesses, they hold a valid massage practitioner certificate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code;

20. A signed statement authorizing the city, through its officers, agents, and empl oyees, to conduct a background check of the applicant, owners(s), and natural persons to be principally in charge of the day-to-day operations to seek information and conduct an investigation into the truthfulness of the statements set forth in the application and to ensure continual compliance with all applicable provisions of the law;

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21. A signed acknowledgment that the owner(s) shall be responsible for the conduct of all employees or independent contractors working on the premises of the business and a cknowledging that failure to comply with the provisions of this chapter or any local, state or federal law and, for massage establishment businesses regulated under Chapter 10.79, failure to comply with California Business and Professions Code section 4600 et seq., may result in the suspension, revocation, or denial of the permit;

22. An acknowledgement that the applicant consents to periodic inspection of the regulated premises or activity, and that revocation of the permit may occur for any unjustified r efusal to allow the same;

23. An acknowledgement that the applicant has received a copy of Chapter 10.70 and any applicable chapter from Chapters 10.71 through 10.79 which regulate the business or activity of the applicant; and

24. A signed statement by the applicant certifying under penalty of perjury that all information in the application is true and correct, and acknowledging that failure to be truthful may result in denial of the application.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.040 Investigation.

The chief of police or designee, upon receipt of a written application for a permit and payment of the necessary fees shall promptly conduct an appropriate investigation to determine whether a permit should be issued in accordance with the provisions of this chapter. The chief of police or designee shall consider any relevant factual material relating to such application.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.050 Permit issuance or denial.

A. Issuance. The chief of police or designee may deny a permit application, based upon investigation and substantial evidence, if he or she finds one or more of any of the following:

1. That the operation or the premises of the activity, as proposed by the applicant, would violate any applicable laws, including but not limited to the city's fire, building, zoning and health regulations; or

2. That the applicant, any other person who will be directly engaged in the management and operation of the regulated business or activity, or an applicant who is to participate or perform services as a regulated technician or performer:
a. Has been convicted in any court of competent jurisdiction by a final judgment of any misdemeanor or felony, within the five years preceding the date of application, which rationally and reasonably relates to the conduct of the regulated activity; or b. Has allowed acts to occur in any business operations for the preceding five years which would violate those sections of the Penal Code listed in Section 10.70.050A.2.d, or any provision of this chapter or Chapter 10.79, irrespective of a conviction or acquittal; or

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c. Has had a permit to operate a business that is or would be regulated pursuant to Chapters 10.70 through 10.79 suspended or revoked in any jurisdiction, within the preceding five years; or d. Within the five years immediately preceding the date of the filing of the application, has been convicted in a court of competent jurisdiction of any of the following offenses:
(1) An offense that requires registration under California Penal Code Section 290; or (2) An offense which is a violation of Sections 311 through 311.7, 313.1, 314, 315, 316, 318 or 647(a), 647(b), 647(d), 647(h), 653.22, 653.23 or 290 of the California Penal Code; or (3) An offense that is a reduction from any offense listed in Section 10.70.050A.2.d. (1) or (2) to some other offense under the Penal Code which would not require registration, pursuant to a plea of guilty negotiated prior to trial; or (4) Any misdemeanor or felony involving theft of property; or

3. That the applicant has made any false, misleading or fraudulent material statement of fact in the permit application, or any other related document required by the city in connection with the application; or

4. The applicant has not complied with the provisions of this chapter and Chapter 10.79; or

5. The applicant has had a massage establishment permit or other similar license or permit denied, suspended or revoked for cause by any governmental agency; or the applicant has any massage practitioner certification denied, suspended or revoked by the California Massage Therapy Council.

5. For establishments regulated by Chapter 10.79, the applicant proposes to locate the massage establishment in the same building as a massage establishment that has surrendered its permit or had its permit revoked within five years of the application date be cause a person engaged in any criminal conduct and/or violation of this chapter or Chapter 10.79 while on the premises of the former massage establishment; or

6. That the application is incomplete and the required information or documents were not submitted within twenty days of a request for the information or documents.

B. Timeliness and Conditional Issuance of Permit. Upon receipt of a properly completed application, the chief of police or designee shall either approve or deny the application within thirty days. Failure to take action on a permit application within thirty days shall not result in an automatic approval. If the chief of police or designee is awaiting investigation results from another governmental agency within those thirty days, the chief of police or designee shall issue a revocable conditional permit on the thirtieth day if a local records check fails to disclose any disqualifying information and the operation would otherwise be in compliance with all other applicable laws and regulations; except that a revocable conditional permit shall not be issued to an escort or massage technician or operator until it affirmatively appears that there is no disqualifying information, in order to avoid the potential for physical harm to a potential patron pending final action. Any revocable conditional permit shall be revoked if further investigation discloses the existence of a disqualifying factor under this Section 10.70.050.

C. An applicant whose application is denied based on subsection (A)(1) through (A)(5) of this section is not eligible to reapply for five years after notice of denial. An applicant whose application is denied for failure to comply with subsection (A)(6) is not eligible to reapply for one hundred eighty days after notice of deni al.

D. Permits must be exercised within one year of issuance or shall be deemed abandoned.

E. A permit is deemed abandoned if the establishment which has exercised its permit ceases operations covered by the permit for one hundred eighty days.

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F. A permit issued pursuant to this chapter shall not be operative until and unless all other required local, state, or federal licenses and permits have been obtained.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.060 Notice of decision.

Upon taking final action to issue or deny a permit application, or to suspend or revoke a permit under Section 10.70.080, the chief of police or designee shall give written notice of decision and the reasons to the applicant or permittee and to any other person requesting such notice. The notice of decision shall inform the applicant or permittee of the right to appeal under Section 10.70.070 and the time limits prescribed for such review. The chief of police or designee shall file a proof of service with the city clerk establishing the method and date of service. The issuance of the notice of decision shall begin the running of any period of limitation for city council or judicial review under Section 10.70.070 as follows:

A. Three calendar days after mailing a notice of decision to the address shown on the application by both first class mail, postage prepaid with return address clearly marked, and by certified mail, return receipt requested. Receipt of either by the addressee shall constitute service of notice. Actual receipt, however, shall not be a pre-requisite to the running of any period of limitation.

B. Immediately upon personal service or personal delivery of the notice of decision to the applicant or permittee.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.070 Appeal.

A. Any applicant or permittee aggrieved by the decision of the chief of police or designee regarding the issuance, conditional issuance, suspension, revocation or denial of a permit, shall have a right to request a hearing to appeal or contest the decisionto the city council pursuant to Section 1.42.020. .

B. An appeal to the city council must be perfected within fifteen calendar days after the service of a notice of decision by filing a letter of appeal with the city clerk stating the basis for the appeal. An applicant or permittee filing an appeal shall pay a nonrefundable fee to the finance department at the time the appeal is filed. The amount of such fee shall be as determined from time to time by resolution of the city council.

Upon receipt of the letter of appeal and proof of payment of the appeal fee, the city clerk shall set the matter for consideration by the city council at a regularly scheduled meeting as soon as reasonably practicable. The city clerk shall give the appealing party, and any other person requesting the same, at least five calendar days written notice of the time and place of such hearing.

C. At the time and place set for the hearing, the city council shall give the appealing party and any other interested party a reasonable opportunity to be heard and show cause why the determination of the chief of police or designee should not be upheld. After the chief of police or designee has presented the statement of facts upon which the determination was made, the burden to show that the action taken by the chief of police or designee was not based on substantial evidence, or was arbitrary, capricious, or unjustifi ed shall be upon the appealing party. The determination of the city council shall be final and conclusive and shall constitute the exhaustion of administrative remedy. The written determination of the city council shall be served upon the appealing party by the city clerk. Service shall conform to Section 10.70.060, and shall

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govern the commencement of any period of limitation for judicial review under Code of Civil Procedure Sections 1094.6 or 1094.8, whichever is applicable.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.080 Suspension and revocation.

A. The chief of police or designee may suspend or revoke any permit issued under the provisions of this chapter if he or she finds that:

1. The operation conducted by the permittee violates or has violated any applicable laws, including but not limited to the city's building, zoning and health regulations and Chapters 10.70 through 10.79, as applicable;

2. The applicant has failed to comply with a final court order or administrative action of an investigatory agency finding a violation of applicable federal, state, and local wage and hour laws, including, but no limited to, the Federal Fair Labor Standards Act, the California Labor Code, and any local minimum wage ordinance or prevailing wage requirements. For the purposes of this subsection, a final court order or administrative action is one as to which there is no pending appeal and the time for filing an appeal has passed.

32. The permittee, including a regulated performer or technician, or any other person who is directly engaged in the management and operation of the regulated business has, while the permit is in effect:
a. Allowed, committed or been convicted of an act that constitutes a violation of law which rationally and reasonably relates to the conduct of the regulated activity, b. Allowed or committed acts listed in Section 10.70.050(A)(2) to occur at a regulated business, irrespective of adjudication, conviction or acquittal, or c. Allowed a regulated performer or technician with a contagious or communicable disease to perform services under the auspices of the permittee; or

43. The applicant or permittee had knowingly made a false, misleading, or fraudulent material statement of fact in the permit application or any other document required in connection with the application.

B. The chief of police or designee shall serve the permittee with a written order stating the reasons for the suspension or revocation. The order may be for a limited period, not to exceed ninety days, or for permanent revocation. The order shall advise the permittee of appeal rights under Section 10.70.070. The chief of police or designee may issue the order without regard to the status of prosecution or finality of a conviction affecting a permittee, so long as the chief of police or designee has determined that suffici ent facts exist to justify the suspension. The order shall be effective immediately if personally served, or three calendar days after it has been deposited in the course of regular transmission in the United States Postal Service.

C. Except as provided under Section 10.70.080(D), immediately upon the order becoming effective, the permittee shall cease all operations under the permit and shall surrender the permit to the chief of police or designee.

D. In lieu of issuing an order of suspension or revocation, the chief of police or designee may impose conditions of probation for a specified duration not to exceed one year, during which period the permittee shall be subject to the order of suspension or revocation if the chief of police or designee determines those conditions have been violated. If the permittee accepts the order of probation, no appeal shall be allowed under Section 10.70.070. If, however, the permittee objects to the terms of probation, probation shall not be

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allowed, the order of suspension or revocation shall take effect, and appeal rights of the permittee under Section 10.70.070 shall then be applicable.

E. Only when an appeal is taken to the city council shall the order of suspension or revocation be stayed pending determination by the city council in the manner set forth in Section 10.70.070 of this chapter. The determination of the city council will be final and conclusive and constitute the exhaustion of administrative remedies. A written notice of decision of city council shall be served on the permittee in accordance with Section 10.70.060, and service shall begin the period of limitation for judicial review under Code of Civil Procedure Sections 1094.6 or 1094.8, whichever is applicable.

F. Police permits issued for an establishment to conduct business regulated under Chapters 10.71 through

10.79 are separate from and independent of any conditional use permit that is required or issued under the provisions of Title 18 of this code. Revocation or suspension of a police permit shall n ot operate to revoke or suspend a conditional use permit, notwithstanding that the same or similar terms and conditions may be applicable to both permits. Revocation or suspension of a police permit affects only the authority of the establishment to provide or allow a particular form of entertainment or activity at the premises for which the police permit is issued. The establishment may continue to conduct all other business for which it is licensed or allowed by law to conduct, unless separate action is taken to abate the establishment as a public nuisance or to revoke or suspend any other issued permit, including a conditional use permit. (Ord. 2220 § 1 (part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.090 Posting or exhibiting.

A. Permits issued to an operator shall be posted in plain view at the main entrance to the premises wher e the business or activity for which the permit is issued is conducted, and shall remain posted while the permit is in force.

B. The massage establishment shall comply with the requirements in California Civil Code Section 52.6 related to the posting of information for victims of human trafficking.

B. Permits Certificates issued to a regulated performer or technician shall be carried on their person, except that the permit of a regulated performer or technician may instead be posted on the regulated premi ses together with the permit issued for the regulated business or activity.

C. It is unlawful and a misdemeanor for any person subject to this chapter or Chapters 10.71 through 10.79 to fail to post or carry an issued permit or certificate as required by this section, or to fail to exhibit an issued permit or certificate upon demand of the chief of police or designee. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.100 Inspection of premises.

A. Issuance of a police permit is conditional upon the premises regulated under Chapters 10.71 through 10.79 being available for reasonable inspection by the police department, the fire department, the health officer, or city code compliance officials following approval of the application and during the operating hours of the regulated business or activity. Refusal to allow reasonable inspection during operating hours upon demand of an authorized official is grounds for the suspension or revocation of an issued permit, or the denial of an

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application for a permit. No application shall be granted if the premises do not meet applicable requirements of law or ordinance.

B. If necessary or appropriate, the official may obtain an inspection warrant after inspection has been denied.

Inspection pursuant to an issued inspection warrant does not mitigate or exonerate the suspension or revocation of the permit.

C. The county health officer is authorized to charge inspection fees established within the applicable fee schedule of the county of San Diego or the National City fee schedule. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.110 Duration.

Unless provided otherwise in Chapters 10.71 through 10.79, permits issued pursuant to this chapter remain valid until revoked, surrendered, or abandoned.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.120 Transfer of permit.

It is unlawful to transfer a permit from one person to another. It is unlawful to use a permit at another location except with the written approval of the chief of police or designee. An application for transfer of permit to another location shall be in writing and accompanied by a processing fee established in the National City fee schedule. The application for transfer shall contain the same information required for an initial application for a permit. Any transfer of a permit in violation of this Section 10.70.120 is void and shall confer no rights upon the transferee nor create any obligation upon the city to honor the transfer or to affo rd notification or appeal rights under Sections 10.70.060 or 10.70.070 to either the transferor or the transferee. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.130 Transition provisions.

A. A business lawfully conducting business in the city as of the effective date of this Chapter 10.70 that is to be regulated by Chapters 10.71 through 10.79 will be issued an appropriate police permit by the chief of police or designee without further payment of fees, provided the business or activity was otherwise in compliance with the regulatory and fiscal provisions of the municipal code in effect immediately prior to the enactment of this ordinance. Permits issued pursuant to this Section 10.70.130(A) shall thereafter be fully subject to the provisions of Chapter 10.70 and Chapters 10.71 through 10.79, as applicable, regarding administration, operation and licensing.

B. An existing business that does not meet the compliance standards for permit issuance under Section

10.70.130(A), and all new businesses commencing operations shall comply with Chapter 10.70 and Chapters

10.71 through 10.79, as applicable.
(Ord. 2204 § 5 (part), 2002)

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(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.140 Notice of changes.

A. Permittees of establishments governed by Chapter 10.79 shall only allow persons certified by the California Massage Therapy Council to provide massages at, or in association with the establishment, and shall immediately notify the chief of police or designee, in writing, of any change to the list provided pursuant to Section 10.70.030(B)(14).
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.150 Public nuisance.

Each regulated business or any business that is required to be regulated that operates in violation of Chapter

10.70 through 10.79, as may be applicable, is a public nuisance and may be enjoined civilly or administratively. In addition, and to the extent not expressly provided elsewhere in this code, it is unlawful and a misdemeanor to maintain a public nuisance.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.160 Violations and regulatory enforcement.

Violation of any of the mandatory requirements or prohibitions contained in Chapters 10.70 through 10.79 are misdemeanors and constitute grounds for suspension or revocation of an issued permit, except that any requirement or prohibition designated as "regulatory only" will be treated only as grounds for suspension or revocation of an issued permit, and criminal prosecution may not occur for that violation. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.170 Severability.

The city council declares that the invalidity of any section or portion of Chapters 10.70 through 10.79 shall not affect the validity of any other remaining section or portion; that the council would have adopted each of those remaining portions, notwithstanding any later declared invalidity. Any provision determined invalid under the preceding sentence may either be severed or, if it can be judicially interpreted in a way that could harmonize it with the remaining provisions, then it may be so judicially interpreted and, as interpreted, be applied so as to give full purpose, meaning, and effect to the remaining provisions. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)

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Chapter 10.79 MASSAGE ESTABLISHMENTS

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Chapter 10.79 MASSAGE ESTABLISHMENTS1

10.79.010 Title and administration.

This chapter may be referred to as the National City massage establishment ordinance. Issuance and administration of permits is governed by Chapter 10.70. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.020 Purpose and intent.

It is the purpose and intent of this chapter to provide for the orderly regulation of a massage establishment business in the city in order to protect the public health, safety, and welfare by promulgating minimum standards for the establishment and operation of those businesses and to prevent the facilitation of prostitution. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.030 Definitions.

Whenever in this chapter the following words or phrases are used, they shall mean as follows:

A. "California Massage Therapy Council (CAMTC)" means the state organized non -profit organization created to regulate the massage industry set forth in Chapter 10.5 of Division 2 of the California Business and Professions Code, commencing with section 4600.

B. "CAMTC certificate" means a current and valid certificate issued by the California Massage Therapy Council to a massage technician.

C. “Compensation” means the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value.

D. “Employee” means any person hired by a massage establishment who renders any service for the business/owner in exchange for any form of compensation from the business, including independent contractors.

CE. "Massage" means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances or with or without such supplementary aids as rubbing alcohol, liniments, antiseptic, oils, powder, creams, lotions, ointments, or other preparations commonly used in this practice.

DF. "Massage establishment" means an establishment where massage is administered.

EG. "Massage practitioner," "massage technician," or "technician" means any person, including a holistic health practitioner as defined in subsection OH, who gives or administers to another person of the same or opposite gender, for any form of consideration, a "massage" as defined in this chapter.

1Editor's note(s)—Ord. No. 2019-2454, § 6, adopted Jan. 22, 2019, amended Ch. 10.79 in its entirety to read as herein set out. Former Ch. 10.79, §§ 10.79.010—10.79.110, pertained to similar subject matter, and derived from Ord. 2204 § 8 (part), 2002; Ord. 2220 § 4, 2003).

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FH. "Massage establishment operator" or "operator" means any person, in cluding a holistic health practitioner as defined in subsection OH, who operates an establishment to give or administer to another person of the same or opposite gender, for any form of consideration, a "massage" as defined in this chapter. This includes any person who supervises, manages, directs, organizes, controls, or in any other way is responsible for or in charge of the daily operation, conduct, or activities of a massage establishment.

GI. "Massage practitioner certification" means a certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code.

J. “Patron” means any individual that provides financial support to athe massage establishment and receives ing or waitsing to receive massage therapy services.

HK. "Permit" under this chapter means an annual permit to operate a massage establishment as required by this code.

L. “Sexually suggestive advertising” means advertising matter that depicts any portion of the human body or includes language in the text of such advertising that would reasonably suggest to prospective clients that any services is available other than those services listed are as an available. service as described in compliance with the provisions of this chapter.

M. “Sole Proprietorship” means a massage establishment where the owner owns one hundred percent of the business and has one or no other employees or independent contractors.

IN. The term "specified anatomical areas" means any of the following areas of the human body: pubic region, human genitals, perineum, anal region, and the areas of the female breasts that include the areola and the nipple.

JO. "Holistic health practitioner" means a non-medical or other health care therapist who uses acupressure (excluding "acupuncture") or a massage specialty and therapeutic approach in caring for clients, and who is not licensed by the state of California.

P. “Visitor” means any individual not retained or employed by the massage establishment and not receiving or waiting to receive massage therapy services, but excluding law enforcement personnel or government officials performing governmental business.

Q. “Working directly under the supervision” means that the person is an employee of the licensed person, is working at the same location as the licensed person, has his or her work supervised by the licensed person, and that the licensed person is present when the employee is performing massage. This exemption shall not apply if the business performs massage on persons for whom the licensed person does not provide professional services.
(Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.040 Massage operator permit required.

A. It is unlawful for any person to operate a massage establishment in or upon any premises within the city without first obtaining the permit from the Department of Public Safety as required by this chapter and Chapter 10.70, except as exempted by Section 10.79.170.

B. A massage establishment police regulated permit required by this chapter and Chapter 10.70 shall be valid for one year, coinciding with the city business license effective and expiration dates. Permit renewal shall be made by the applicant within thirty days prior to the expiration of the permit. If an application for renewal of a permit and all required information is not timely received and the permi t expires, no right or privilege to continue the massage establishment governed by Chapter 10.79 shall exist.

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C. It is unlawful for the operator, owner, or other responsible person, of a massage establishment to employ or otherwise allow a person to perform massage for compensation on the premises, unless that person has a who does not have a valid massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code or CAMTC certificateand unless that person is identified as an authorized massage practitioner on the permit issued pursuant to this chapter.

D. The owner or operator of a massage establishment shall submit a revised list with the information specified in Section 10.70.030.B.15 to the police department within five business days upon any change to the list. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.050 Massage technician's certification required.

A. It is unlawful for any person to perform services as a massage technician without a valid massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapte r 10.5 of the California Business and Professions Code.

B. A massage practitioner certification does not authorize the operation of a massage establishment. Any person or massage technician who desires to operate a massage establishment must apply separat ely to the city for a permit and a business license.
(Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.060 Minimum facilities required.

No permit to conduct a massage establishment shall be granted unless an inspection by the chief of police or designee and the county health officer and the fire and building officials demonstrates that the proposed establishment does or will comply with each of the following minimum requirements:

A. A recognizable and legible sign is posted at the main entrance identifying the premises as a massage establishment;
B. Minimum lighting of at least forty watts is provided in accordance with the building code of t he city; C. Minimum ventilation is provided in accordance with the building code of the city; D. Equipment approved by the health department for disinfecting and sterilizing instruments used in performing acts of massage is provided;
E. Hot and cold running water is provided at all times; F. Closed cabinets are provided, which cabinets shall be utilized for the storage of clean linen; G. Adequate dressing, locker, and toilet facilities are provided for patrons. A minimum of one dressing room containing a separate locker for each person to be served, which locker shall be capable of being locked, and a minimum of one toilet and one wash basin shall be provided by every massage establishment;
H. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. Wooden surfaces must be painted with a washable, mold resistant paint. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments and toilet rooms must be thoroughly cleaned and disinfected each day the business is in operation with a disinfectant approved by the

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health department. Bathtubs must be thoroughly cleaned and disinfected afte r each use with a disinfectant approved by the health department; and
I. A minimum of one separate wash basin is provided in each massage establishment for the use of employees of any such establishment, which basin shall provide soap or detergent and hot and cold running water at all times, and is located within or as close as practicable to the area devoted to the performing of massage services. In addition, there must be provided at each washbasin sanitary towels placed in permanently installed dispensers.
(Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.070 Massage establishment operating requirements.

No person, association, partnership, or corporation may engage in, conduct or carry on, or permit to be engaged in, conducted or carried on the operation of a massage establishment unless each and all of the following requirements are met:

A. Massage operations may only be carried on, and the premises may only be open, between the hours of 10:00 a.m. and 10:00 p.m.

B. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises. The service shall be described in readily understandable language in English and may also then be described in any other language. No owner, operator, responsible managing employee, manager, permittee, or licensee in charge of or in control of the massage establishment shall permit and no massage technician shall offer or perform, any service other than those posted.

C. It is unlawful for a massage establishment to operate under any name or conduct business under any designation not specified in the massage establishment permit issued pursuant to this chapter.

CD. The massage establishment business tax license, massage establishment permit, and a copy of the permit CAMTC certification of each and every massage technician employed by or working in the establishment must be displayed in an open and conspicuous public place on the premises.

DE. Hot and cold running water under pressure shall be provided to all washbasins, bathtubs, showers, and similar equipment. Each washbasin shall be provided with soap or detergent and sanitary towels placed in permanently installed dispensers. A trash receptacle shall be provided in ea ch toilet room.

EF. Clean and sanitary towels, sheets and linens shall be provided for each patron receiving massage services. No common use of towels or linens shall be permitted, and reuse is prohibited unless they have been first laundered. Heavy white paper may be substituted for sheets, provided that such paper is used once for each person and then discarded into a sanitary receptacle.

FG. Disinfecting agents and sterilizing equipment shall be available for any instruments used in performing any massage. Instruments will be disinfected or sterilized after each use.

GH. Pads used on massage tables shall be covered in a workmanlike manner with durable, washable plastic or other waterproof material.

HI. Each establishment shall provide to all patrons clean, sanitary, and opaque coverings capable of covering the patron's specified anatomical areas. Such coverings shall be used for one customer only and shall not be reused without first being cleaned.

IJ. No owner, operator, responsible managing employee, manager, or permittee in charge of or in control of a massage establishment shall permit a massage to be given unless the patron's specified anatomical areas are covered during the entire massage by the covering referred to in subsection (HI).

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JK. With the exception of bathrooms or dressing rooms not open to public view, no person or persons shall be permitted in any area within the massage establishment which is used in common by the patrons or which can be viewed by patrons from such an area, unless the specified anatomical areas of all persons within that area are fully covered.

KL. It is unlawful for an owner, operator, responsible managing employee, manager, permittee in charge of or in control of a massage establishment to permit any massage technician to perform any service or task while in the presence of a patron or to be on the premises of a massage establishment during its hours of operation unless the massage technician is dressed in a manner that does not violate paragraph (10) of subdivision (a) of Section 4609 of the California Business and Professions Code.

LM. Any person performing services as a massage technician must wear a visible CAMTC identification card and have a copy of their driver's license or any other photo identification card issued by a state or federal agency readily available for inspection by city or county investigating officials.

MN. An operator or owner must be on the business premises at all times during hours of operat ion of the business.

NO. For each massage service provided, every massage establishment shall keep a complete and legible written record of the following information: the date and hour that service was provided; the service received; the name or initials of the employee entering the information; and the name of the massage practitioner administering the service. Such records shall be open to inspection and copying by the chief of police or designee, or may be used by any massage practitioner or operator as records of service provided, but may not be provided to other parties by the massage practitioner or operator unless otherwise required by law. Such records shall be retained on the premises of the massage establishment for a period of two years and be immediately available for in spection during business hours.

OP. Persons of a massage establishment outside the waiting area shall be a patron, employee, or the massage establishment owner or operator.

Q. Visitors shall only be permitted in the waiting area; however, the following e xceptions may apply:
a. The parent or guardian of a patron who is a minor may be present in the massage therapy room with that minor;
b. The minor of a patron may be present in the massage therapy room with the patron when necessary for the supervision of the minor; or
c. The conservator, aid, or other caretaker of a patron who is elderly or disabled may be present in the massage therapy room with that elderly or disabled person.

R. No massage establishment located in a building or structure with exteri or windows fronting a public street, highway, walkway or parking area shall block visibility into the interior reception and waiting area through the use of curtains, closed blinds, tints, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises.

PS. All signs shall be in accordance with the current ordinances of the City of National City. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.080 Massage establishment—Prohibited conduct.

In addition to the conduct/activities, items, and/or substances prohibited by federal and state laws, the following conduct is prohibited at massage establishments:

A. A. The sale, service, or consumption of alcohol or marijuana; and

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B. Operate under any name or conduct business under any designation not specified in the massage establishment permit issued pursuant to this chapter; and C. The employment of a person lacking state certification as a receptionist without prior notification and approval by the license authority; and
A.D. Continue to operate following the sale or transfer of any interest in the massage establishment to a person who was not identified as an owner in the massage establishment permit application; and E. Audio and/or video recording of, or monitoring of, the patron, the massage therapist, or the massage therapy, without the prior written consent of the patron; and F. Residing in or at the massage establishment by any person including but not limited to the operator, owner, responsible person, or employee of the massage establishment; and G. Advertising or marketing illegal activity, advertising or marketing sexual ly suggestive content related to massage therapy , or advertising or marketing sexual content in the promotion of the massage establishment; and
H. Use or possession of adult-oriented merchandise, including "sex toys" and/or condoms, in any part of a massage establishment; and
I. Any sexual activity at a massage establishment; and
J. No owner, operator, responsible managing employee, manager, permittee, or licensee in charge of or in control of a massage establishment shall permit any person to massage or intentionally touch the specified anatomical areas of another person while performing the services of a massage technician. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.090 Off-premises massage—Prohibited.

It is unlawful for any person to engage in, conduct, carry on, or permit to be engaged in, conducted or carried on, massage, for any form of consideration, in any hotel room, motel room, guesthouse or other place of public accommodation. This section shall not be construed to prohibit:

A. Maintaining a licensed massage establishment upon the premises of a place of public accommodation; or
B. The holder of a massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code from giving or adm inistering massages within hospitals, convalescent centers, rest homes, offices, or the private home of a patron.

For the purposes of this section, offices and private homes shall not include hotel rooms, motel rooms, or guest houses.
(Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.100 Existing businesses—Regulated.

Any existing massage technician who performs massage and any massage establishment that employs or utilizes persons to perform massage within the jurisdiction of the city, that operates with a valid and current business license issued by the city and all other necessary approvals issued prior to the effective date of any amended regulations in this chapter or Chapter 10.70, and that operates in compliance with all local, state and federal laws,

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ordinances, rules and regulations, must be in full compliance with Chapters 10.70 and 10.79 no later than sixty days following the effective date of any new regulations. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.110 Exemptions.

This chapter shall not apply to:

A. Physicians, surgeons, chiropractors, osteopaths, nurses, psychiatrists, psychologists, acupuncturists, physical therapists, family counselors or other health care professionals who are duly licensed to practice their respective professions by the state of California or who are permitted to practice temporarily under the auspices of an associate or establishment duly licensed by the state of California, pursuant to the Business and Professions Code and persons working directly under the supervision of such licensed persons;;
B. Nurses and other health care professionals who are registered or licensed under the laws of this state and administer a massage in the normal course of professional health care duties; BC. A trainer of any duly constituted amateur, semi-professional, or professional athlete or athletic team athletic team or athlete who administers massage in the normal course of training duties to the team or athlete and trainers in conjunction with a specific athletic event such as an outdoor road or bike race;
D. Barbers, beauticians, cosmetologists, and estheticians, and other persons duly licensed to practice any healing art duly licensed under the laws of the state who administer a massage incidental to a bar ber or beauty service provided in the normal performance of their profession , and who perform massages only on the neck, face, and/or scalp of the customers. This exemption shall apply only if massage is provided from a fixed and permanent location of business; E. Therapeutic massage administered in or under the auspices of any health facility, hospital , nursing homes, sanitariums, or other establishment duly licensed under California statutes in which the above- described persons practice their respective professions, provided the massages are given only by exempt individuals or persons acting under their supervision; F. Any bona fide personal fitness training centers, gymnasiums, athletic facilities or health clubs which offers tennis, racquetball, swimming or other sport activities and possesses a sauna or steam room.

Massage shall only be administered to members of the athletic club by persons who are exempt under this section.
(Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.120 Inspection by officials.

The city, county, or any investigating official shall have the right to enter the premises of the massage establishment from time to time during regular business hours to conduct reasonable inspections to enforce compliance with this chapter, Chapter 10.70, and with building, fire, electrical, plumbing, and/or state and local health and safety regulations.

No person shall refuse to permit or interfere with a lawful inspection of the massage establishment by city or county investigating officials.
(Ord. No. 2019-2454, § 8, 1-22-2019)

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10.79.130 Unlawful massage establishment or operation.

Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter, Chapter 10.70 and/or state and federal laws shall be and the same is hereby declared to be unlawful and a public nuisance. The city attorney may, in addition to, or in lieu of prosecuting a criminal act ion hereunder, commence an action or actions, proceeding or proceedings for the abatement, removal, or enjoinment thereof, in any manner provided by law, including as provided in Chapter 10.70. (Ord. No. 2019-2454, § 8, 1-22-2019)

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ORDINANCE NO. 2023-

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, AMENDING CHAPTER 10.70 POLICE REGULATED BUSINESS

REGULATIONS OF THE NATIONAL CITY MUNICIPAL CODE

WHEREAS, the City of National City (the “City”), pursuant to police powers delegated to it by the California Constitution, has the authority to enact or amend laws that promote the public health, safety, and general welfare of its residence; and

WHEREAS, pursuant to the terms and provisions of the Government Code of the State of California, proceedings were duly initiated for the amendment of the National City Municipal Code; and

WHEREAS, the National City P olice Department has requested that the National City Municipal Code (NCMC) Section 10.70 Police Regulated Business Regulations be reviewed and updated; and

WHEREAS, the National City Police Department submitted Section 10.70 of the NCMC to the California Massage Therapy Council (CAMTC) for review to which they have provided several recommended corrections, additions and modifications to aid the City of National City Police Department, Code Enforcement, and the City Attorney’s Office with enforcement, regulation, and removal of illicit massage parlors in the City of National City; and

WHEREAS, pursuant to a published 10 -day notice of the adoption of said Ordinance, a public hearing was held by the City Council on November 7, 2023, and at said public hearing, all persons interested were given the opportunity to appear and be heard before the City Council.

NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:

Section 1. All protests, if any, against said amendment to the Municipal Code and each of them be and hereby are denied and overruled.

Section 2. Section 10.70 Police Regulated Business Regulations is hereby amended to read as follows in Attachment A attached to this Ordinance.

Section 3. This Ordinance shall take effect and be in force thirty (30) days from the date of its passage, and before the expiration of fifteen (15) days after its passage, it or a summary of it, shall be published once, with the names of the members of the City Council voting for and against the same in the Star News, a newspaper of general circulation published in the County of San Diego, California.

Section 5. The City Clerk shall certify to the adoption of this Ordinance and shall publish in accordance with the law.

INTRODUCED at Regular Meeting of the City Council of the City of National City, held on this November 7, 2023

PASSED and ADOPTED this day of , 2023.

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__________________________
Ron Morrison,
Mayor

ATTEST:

____________________
Shelley Chapel, MMC
City Clerk

APPROVED AS TO FORM:

___________________
Barry J. Schultz,
City Attorney

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Chapter 10.70 POLICE REGULATED BUSINESS REGULATIONS

10.70.010 Purpose and intent—Permit required.

A. It is the purpose and intent of the city council to establish procedures for permit issuance and regulation of certain businesses and activities as police regulated for the protection of the public health, safety, and welfare. Businesses identified in this Division X (Chapters 10.70 through 10.79) have a higher degree of potential for one or more types of illicit activity - prostitution, disorderly conduct, gambling, fraudulent practices, or the concealment or facilitation of transfers of stolen property. T herefore, regulation of the operations of these establishments is appropriate to protect legitimate business practice and the public health, safety and welfare.

B. A business, activity or a performer or technician which is identified in Chapters 10.71 through

10.79 is designated a "regulated business," "regulated activity," "regulated performer" or "regulated technician," as the case may be, and the specific regulations applicable to their conduct are set out in Chapters 10.71 through 10.79. The procedures set out in this Chapter

10.70 shall uniformly govern the administration and appeals process regarding the issuance, denial, suspension, or revocation of any permit required to operate as a regulated business or activity or as a regulated performer or tech nician pursuant to Chapters 10.71 through

10.79. C. The issuance of a permit pursuant to this chapter does not excuse a regulated business, activity, performer, or technician from complying with any other revenue or regulatory requirement of this code or state law. A separate permit shall be required for each type of activity regulated by Chapters 10.71 through 10.79, unless otherwise provided. The issuance of a certificate or permit under other provisions of this code does not excuse compliance with or create a defense to any violation of the requirements of this chapter or Chapters 10.71 through 10.79, as applicable, or any other provisions of law or ordinance, including conditional use permits required under Title 18.

D. It is unlawful for any person to operate a business or activity or perform or practice as a performer or technician regulated by this chapter and Chapters 10.71 through 10.79, as applicable, without a valid permit issued by the chief of police or designee, or to operate, perform or practice while the permit is suspended or revoked. Each day a violation of this section exists constitutes a separate misdemeanor.
(Ord. 2220 § 1(part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.020 Definitions.

For purposes of Chapters 10.70 through 10.79, the following definitions shall apply:

A. "Person" means and includes a natural person, a partnership, joint venture or a corporation.

B. "Operator" means any person who supervises, manages, directs, organize s, controls, or in any other way is responsible for or in charge of the daily operation, conduct or activities of the regulated business or activity.

C. "Owner" means any person or entity having an ownership interest in the establishment.

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E. "Permit" means a permit issued by or under the a uthority of the chief of police or designee that authorizes activity regulated under Chapters 10.71 through 10.79.

F. "Permittee" means an owner to whom a permit issued by or under the authority of the chief of police or designee that authorizes activity regulated under Chapters 10.71 and

10.79. G. "Applicant" means the natural person(s) who complete and sign an application pursuant to this chapter.
(Ord. 2220 § 1 (part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.030 Applications.

A. Any person required to obtain a permit pursuant to Chapters 10.71 through 10.79 shall file a written application with the chief of police or designee on a city-approved form, and pay the non-refundable fee set forth in the National City fee schedule, to re coup all investigative costs. The applicant shall provide proof of payment of any regulatory fees imposed by the state of California or county of San Diego contemporaneously with the filing. Written application forms prepared by the chief of police or designee may require the applicant to be photographed, finger printed and to provide, in addition to the information listed below, such other information as is reasonably necessary to carry out the purposes of this chapter. The application form shall be approv ed as to form by the city attorney. For massage establishments, the application shall be completed and signed by the owner of the proposed massage establishment, if a sole proprietorship; one general partner, if the owner is a partnership; or two officers, if the owner is a corporation.

B. An applicant for a permit shall submit the following information:

1. The full name of the business, including the name under which the business will be conducted;

2. The address where the business is to be conducted;

3. The applicant's full, true name, and any other names used;

4. The applicant's date of birth;

5. The applicant's present residential address and telephone number;

6. The previous addresses of the applicant for the three years immediately prior to the date of the application and the dates of residence at each;

7. Applicant's height, weight, color of eyes and hair;

8. Three recent portrait photographs at least two inches by two inches taken within the preceding six months, which accurately depict the current appearance of the applicant;

9. The applicant's driver's license and/or identification card issued by a state or federal governmental agency, or other photographic identification bearing a bona-fide seal of a foreign government;

10. If the owner i s a corporation, domestic stock, domestic non -profit, qualified foreign corporation, limited liability company, general partnership, or limited partnership, the application shall include the following:
a. A business entity status report issued by the California Secretary of State; b. Organizational documents for the business entity including but not limited to a copy of the fictitious name statement and/or articles of incorporation;

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c. Full name, date of birth, residential address, and business address for each officer and director;
d. The name, date of birth, and residence addresses of the responsible employee(s) to be principally in charge of the day-to-day operations of the establishment. e. The full name of the owner, including any DBAs.

11. The tax identification number for the business;

12. The name, address, email address, and telephone number of the real property owner where the business will be operated, and a copy of the lease or rental agreement, if applicable;

16. For massage establishment businesses regulated under Chapter 10.79, all services must be described on the application for the permit;

17. Business, occupation, or employment history of the applicant for the three years immediately preceding the date of the application;

18. A list, broken down for each applicant, each responsible employee(s) to be principally in charge of the day -to-day operations of the establishment, and all partners if a partnership, or all officers and directors if a corporation, of all criminal convictions, including pleas of nolo contender, within the preceding five years, including those dismissed or expung ed pursuant to Penal Code section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction, as well as a full explanation of the circumstances;

19. A complete set of fingerprints taken for each owner if a sole proprie torship, or each natural person, including the owner and operator or person to be principally in charge of the day -to-day operations of the establishment; unless in the case of massage establishment businesses, they hold a valid massage practitioner certif icate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code;

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20. A signed statement authorizing the city, through its officers, agents, and employees, to conduct a background check of the applicant, owners(s), and natural persons to be principally in charge of the day -to-day operations to seek information and conduct an investigation into the truthfulness of the statements set forth in the application and to ensure continual compliance with all applicable provisions of the law;

21. A signed acknowledgment that the owner(s) shall be responsible for the conduct of all employees or independent contractors working on the premises of the business and acknowledging that failure to comply with th e provisions of this chapter or any local, state or federal law and, for massage establishment businesses regulated under Chapter 10.79, failure to comply with California Business and Professions Code section 4600 et seq., may result in the suspension, revocation, or denial of the permit;

24. A signed statement by the applicant certifying under penalty of p erjury that all information in the application is true and correct, and acknowledging that failure to be truthful may result in denial of the application.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.040 Investigation.

The chief of police or designee, upon receipt of a written application for a permit and payment of the necessary fees shall promptly conduct an appropriate investigation to determine whether a permit should be issued in accordance with the provisions of this chapter. The chief of police or designee shall consider any relevant factual material relating to such application. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.050 Permit issuance or denial.

A. Issuance. The chief of police or designee may deny a permit application, based upon investigation and substantial evidence, if he or she finds one or more of any of the following:

1. That the operation or the premises of the activity, as proposed by the a pplicant, would violate any applicable laws, including but not limited to the city's fire, building, zoning and health regulations; or

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10.70.050A.2.d, or any provision of this chapter or Chapter 10.79, irrespective of a conviction or acquittal; or
c. Has had a permit to operate a business that is or would be regulated pursuant to Chapters 10.70 through 10.79 suspended or revoked in any jurisdiction, within the preceding five years; or
d. Within the five years immediately preceding the date of the filing of the application, has been convicted in a court of competent jurisdiction of any of the following offenses:
(1) An offense that requires registration under California Penal Code Section 290; or
(2) An offense which is a violation of Sections 311 through 311.7, 313.1, 314, 315, 316, 318 or 647(a), 647(b), 647(d), 647(h), 653.23 or 290 of the California Penal Code; or
(3) An offense that is a reduction from any offense listed in Section

10.70.050A.2.d. (1) or (2) to some other offense under the Penal Code which would not require registration, pursuant to a plea of guilty negotiated prior to trial; or
(4) Any misdemeanor or felony involving theft of property; or

4. The applicant has not complied with the provisions of this chapter and Chapter

10.79; or

5. For establishments regulated by Chapter 10.79, the applicant proposes to locate the massage establishment in the same building as a massage establishment that has surrendered its permit or had its permit revoked within five years of the application date because a person engaged in any criminal conduct and/or violation of this chapter or Chapter 10.79 while on the premises of the former massage establishment; or

6. That the application is incomplete and the required information or documents were not submitted within twenty days of a request for the information or documents.

B. Timeliness and Conditional Issuance of Permit. Upon receipt of a properly completed application, the chief of police or designee shall either approve or deny the application within thirty days. Failure to take action on a permit application within thirty days shall not result in an automatic approval. If the chief of police or designee is awaiting investigation results from another governmental agency within those thirty days, the chief of police or designee shall issue a revocable conditional permit on the thirtieth day if a local records check fails to disclose any disqualifying information and the operation would otherwise be in compliance with all other applicable laws and regulations; except that a revocable conditional permit shall not be issued to an escort or massage technician or operator until it af firmatively appears that there is no disqualifying information, in order to avoid the potential for physical harm to

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a potential patron pending final action. Any revocable conditional permit shall be revoked if further investigation discloses the existence of a disqualifying factor under this Section

10.70.050.

D. Permits must be exercised within one year of issuance or shall be deemed abandoned.

E. A permit is deemed abandoned if the establishment which has exercised its permit ceases operations covered by the permit for one hundred eighty days.

F. A permit issued pursuant to this chapter shall not be operative until and unless all other required local, state, or federal licenses and permits have been obtained. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.060 Notice of decision.

The notice of decision shall inform the applicant or permittee of the right to appeal under Section

10.70.070 and the time limits prescribed for such review. The chief of police or designee shall file a proof of service with the city clerk establishing the method and date of service. The issuance of the notice of decision shall begin the running of any period of limitation for judicial review under Section 10.70.070 as follows:

B. Immediately upon personal service or personal delivery of the notice of decision to the applicant or permittee.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.070 Appeal.

1.42.020.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.080 Suspension and revocation.

A. The chief of police or designee may suspend or revoke any permit issued under the provisions of this chapter if he or she finds that:

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3. The permittee, including a regulated performer or technician, or any other person who is directly engaged in the management and operation of the regulated business has, while the permit is in effect:
a. Allowed, committed or been convicted of an act that constitutes a violation of law which rationally and reasonably relates to the conduct of the regulated activity, b. Allowed or committed acts listed in Section 10.70.050(A)(2) to occur at a regulated business, irrespective of adjudication, conviction or acquittal, or c. Allowed a regulated performer or technician with a contagious or communicable disease to perform services under the auspices of the permittee; or

4. The applicant or permittee had knowingly made a false, misleading, or fraudulent material statement of fact in the permit application or any other document required in connection with the application.

B. The chief of police or designee shall serve the permittee with a written order stating the reasons for the suspension or revocation. The order may be fo r a limited period, not to exceed ninety days, or for permanent revocation. The order shall advise the permittee of appeal rights under Section 10.70.070. The chief of police or designee may issue the order without regard to the status of prosecution or finality of a conviction affecting a permittee, so long as the chief of police or designee has determined that sufficient facts exist to justify the suspension. The order shall be effective immediately if personally served, or three calendar days after it ha s been deposited in the course of regular transmission in the United States Postal Service.

C. Except as provided under Section 10.70.080(D), immediately upon the order becoming effective, the permittee shall cease all operations under the permit and shal l surrender the permit to the chief of police or designee.

10.70.070 shall then be applicable.

E. Only when an appeal is taken to the city council shall the order of suspension or revocation be stayed pending determination by the city council in the manner set forth in Section

10.70.070 of this chapter. The determination of the city council will be final and conclusiv e and constitute the exhaustion of administrative remedies. A written notice of decision of city

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council shall be served on the permittee in accordance with Section 10.70.060, and service shall begin the period of limitation for judicial review under Code of Civil Procedure Sections 1094.6 or 1094.8, whichever is applicable.

F. Police permits issued for an establishment to conduct business regulated under Chapters

10.71 through 10.79 are separate from and independent of any conditional use permit that is required or issued under the provisions of Title 18 of this code. Revocation or suspension of a police permit shall not operate to revoke or suspend a conditional use permit, notwithstanding that the same or similar terms and conditions may be applicable to both permits. Revocation or suspension of a police permit affects only the authority of the establishment to provide or allow a particular form of entertainment or activity at the premises for which the police permit is issued. The establishment may conti nue to conduct all other business for which it is licensed or allowed by law to conduct, unless separate action is taken to abate the establishment as a public nuisance or to revoke or suspend any other issued permit, including a conditional use permit.
(Ord. 2220 § 1 (part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.090 Posting or exhibiting.

A. Permits issued to an operator shall be posted in plain view at the main entrance to the premises where the business or activity for which the permit is issued is conducted, and shall remain posted while the permit is in force.

B. The massage establishment shall comply with the requirements in California Civil Code Section 52.6 related to the posting of information for victims of human trafficking.

B. Certificates issued to a regulated performer or technician shall be carried on their person, except that the permit of a regulated performer or technician may instead be posted on the regulated premises together with the permit issued for the regulated business or activity.

C. It is unlawful and a misdemeanor for any person subject to this chapter or Chapters 10.71 through 10.79 to fail to post or carry an issued permit or certificate as required by this section, or to fail to exhibit an issued permit or certificate upon demand of the chief of police or designee.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.100 Inspection of premises.

A. Issuance of a police permit is conditional upon the premises regulated under Chapters 10.71 through 10.79 being available for reasonable inspection by the police department, the fire department, the health officer, or city code compliance officials followi ng approval of the application and during the operating hours of the regulated business or activity. Refusal to allow reasonable inspection during operating hours upon demand of an authorized official is grounds for the suspension or revocation of an issued permit, or the denial of an application for a permit. No application shall be granted if the premises do not meet applicable requirements of law or ordinance.

B. If necessary or appropriate, the official may obtain an inspection warrant after inspection has been denied. Inspection pursuant to an issued inspection warrant does not mitigate or exonerate the suspension or revocation of the permit.

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10.70.110 Duration.

Unless provided otherwise in Chapters 10.71 through 10.79, permits issued pursuant to this chapter remain valid until revoked, surrendered, or abandoned. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.120 Transfer of permit.

It is unlawful to transfer a permit from one person to another. It is unlawful to use a permit at another location except with the written approval of the chief of police or designee. An application for transfer of permit to another location shall be in writing and accompanied by a processing fee established in the National City fee schedule. The application for transfer shall contain the same information required for an initial application for a permit. Any transfer of a permi t in violation of this Section 10.70.120 is void and shall confer no rights upon the transferee nor create any obligation upon the city to honor the transfer or to afford notification or appeal rights under Sections 10.70.060 or 10.70.070 to either the transferor or the transferee. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

10.70.130 Transition provisions.

A. A business lawfully conducting business in the city as of the effective date of this Chapter

10.70 that is to be regulated by Chapters 10.71 through 10.79 will be issued an appropriate police permit by the chief of police or designee without further payment of fees, provided the business or activity was otherwise in compliance with the regulatory and fiscal provisions of the municipal code in effect immediately prior to the enactment of this ordinance. Permits issued pursuant to this Section 10.70.130(A) shall thereafter be fully subject to the provisions of Chapter 10.70 and Chapters 10.71 through 10.79, as applicable, regarding administration, operation and licensing.

B. An existing business that does not meet the compliance standards for permit issuance under Section 10.70.130(A), and all new businesses commencing operations shall comply with Chapter 10.70 and Chapters 10.71 through 10.79, as applicable. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)

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10.70.140 Notice of changes.

10.70.150 Public nuisance.

Each regulated business or any business that is required to be regulated that operates in violation of Chapter 10.70 through 10.79, as may be applicable, is a public nuisance and may be enjoined civilly or administratively. In addition, and to the extent not expressly provided elsewhere in this code, it is unlawful and a misdemeanor to maintain a public nuisance. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019 -2454, § 6, 1 -22-2019)10.70.160 Violations and regulatory enforcement.

Violation of any of the mandatory requirements or prohibitions contained in Chapters 10.70 through 10.79 are misdemeanors and constitute grounds for suspension or revocation of an issued permit, except that any requirement or prohibition designated as "regulatory only" will be treated only as grounds for suspension or revocation of an issued permit, and criminal prosecution may not occur for that violation.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)10.70.170 Severability.

The City Council declares that the invalid ity of any section or portion of Chapters 10.70 through 10.79 shall not affect the validity of any other remaining section or portion; that the council would have adopted each of those remaining portions, notwithstanding any later declared invalidity. Any provision determined invalid under the preceding sentence may either be severed or, if it can be judicially interpreted in a way that could harmonize it with the remaining provisions, then it may be so judicially interpreted and, as interpreted, be applied so as to give full purpose, meaning, and effect to the remaining provisions.
(Ord. 2204 § 5 (part), 2002)(Ord. No. 2019-2454, § 6, 1-22-2019)

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ORDINANCE NO. 2023-

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, AMENDING CHAPTER 10.79 MASSAGE ESTABLISHMENTS

REGULATIONS OF THE NATIONAL CITY MUNICIPAL CODE

WHEREAS, pursuant to the terms and provisions of the Government Code of the State of California, proceedings were duly initiated for the amendment of the National City Municipal Code (NCMC); and

WHEREAS, the National City Police Department submitted Section 10.7 9 Massage E stablishments of the NCMC to the California Massage Therapy Council (CAMTC) for review to which they have provided several recommended corrections, additions and modifications to aid the City of National City Police Department, Code Enforcement, and the City Attorney’s Office with enforcement, regulation, and removal of illicit massage parlors in the City of National City; and

NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF NATIONAL CITY,

CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:

Section 1. All protests, if any, against said amendment to the Municipal Code and each of them be and hereby are denied and overruled.

Section 2. Section 10.79 Massage Establishments is hereby amended to read as follows in Attachment A attached to this Ordinance.

Section 3. This Ordinance shall take effect and be in force thirty (30) days from the date of its passage, and before the expiration of fifteen (15) days after its passage, it or a summary of it, shall be published once, wit h the names of the members of the City Council voting for and against the same in the Star News, a newspaper of general circulation published in the County of San Diego, California.

Section 4. The City Clerk shall certify to the adoption of this Ordinance and shall publish in accordance with the law.

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INTRODUCED at Regular Meeting of the City Council of the City of National City, held on this November 7, 2023

PASSED and ADOPTED this day of , 2023.

__________________________
Ron Morrison,
Mayor

ATTEST:

____________________
Shelley Chapel, MMC
City Clerk

APPROVED AS TO FORM:

___________________
Barry J. Schultz,
City Attorney

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Chapter 10.79 MASSAGE ESTABLISHMENTS1

10.79.010 Title and administration.

This chapter may be referred to as the National City massage establishment ordinance.

Issuance and administration of permits is governed by Chapter 10.70. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.020 Purpose and intent.

10.79.030 Definitions.

Whenever in this chapter the following words or phrases are used, they shall mean as follows:

B. "CAMTC certificate" means a current and valid certificate issued by the California Massage Therapy Council to a massage technician.

C. “Compensation” means the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value.

E. "Massage" means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances or with or without such supplementary aids as rubbing alcohol, liniments, antiseptic, oils, powder, creams, lotions, ointments, or other preparations commonly used in this practice.

F. "Massage establishment" means an establishment where massage is administered.

G. "Massage practitioner," "massage technician," or "technician" means any person, including a holistic health practitioner as defined in subsection O, who gives or

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administers to another person of the same or opposite gender, for any form of consideration, a "massage" as defined in this chapter.

H. "Massage establishment operator" or "operator" means any person, including a holistic health practitioner as defined in subsection O, who operates an establishment to give or administer to another pe rson of the same or opposite gender, for any form of consideration, a "massage" as defined in this chapter. This includes any person who supervises, manages, directs, organizes, controls, or in any other way is responsible for or in charge of the daily operation, conduct, or activities of a massage establishment.

I. "Massage practitioner certification" means a certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code.

J. “Patron” means any individual that provides financial support to a massage establishment and receives or waits to receive massage therapy services.

K. "Permit" under this chapter means an annual permit to operate a massage establishment as required by this code.

L. “Sexually suggestive advertising” means advertising that depicts any portion of the human body or includes language that would reasonably suggest to prospective clients that services other than those services listed are available.

M. “Sole Propriet orship” means a massage establishment where the owner owns one hundred percent of the business and has one or no other employees or independent contractors.

N. The term "specified anatomical areas" means any of the following areas of the human body: pubic region, human genitals, perineum, anal region, and the areas of the female breasts that include the areola and the nipple.

O. "Holistic health practitioner" means a non -medical or other health care therapist who uses acupressure (excluding "acupuncture") or a massage specialty and therapeutic approach in caring for clients, and who is not licensed by the state of California.

P. “Visitor” means any individual not retained or employed by the massage establishment and not receiving or waiting to receive mass age therapy services, but excluding law enforcement personnel or government officials performing governmental business.

10.79.040 Massage operator permit required.

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received and the permit expires, no right or privilege to continue the massage establishment governed by Chapter 10.79 shall exist.

C. It is unlawful for the operator, owner, or other responsible person, of a massage establishment to employ or otherwise allow a person to perform massage for compensation on the premises, unless that person has a valid massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code and unless that person is identified as an authorized massage practitioner on the permit issued pursuant to this chapter.

10.79.050 Massage technician's certification required.

A. It is unlawful for any person to perform services as a massage technician without a valid massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code.

B. A massage practitioner certification does not authorize the operation of a massage establishment. Any person or massage technician who desires to operate a massage establishment must apply separately to the city for a permit and a business license. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.060 Minimum facilities required.

No permit to conduct a massage establishment shall be granted unless an inspection by the chief of police or designee and the county health officer and the fire and building officials demonstrates that the proposed establishment does or will comp ly with each of the following minimum requirements:

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H. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. Wooden surfaces must be painted with a washable, mold resistant paint. Wet and dry heat rooms, steam o r vapor rooms, or steam or vapor cabinets, shower compartments and toilet rooms must be thoroughly cleaned and disinfected each day the business is in operation with a disinfectant approved by the health department. Bathtubs must be thoroughly cleaned and disinfected after each use with a disinfectant approved by the health department; and
I. A minimum of one separate wash basin is provided in each massage establishment for the use of employees of any such establishment, which basin shall provide soap or detergent and hot and cold running water at all times, and is located within or as close as practicable to the area devoted to the performing of massage services. In addition, there must be provided at each washbasin sanitary towels placed in permanently installed dispensers.
(Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.070 Massage establishment operating requirements.

A. Massage operations may only be carried on, and the premises may only be open, between the hours of 10:00 a.m. and 10:00 p.m.

B. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises. The service shall be described in readily understandable language in English and may also then be described in any other language. No owner, op erator, responsible managing employee, manager, permittee, or licensee in charge of or in control of the massage establishment shall permit and no massage technician shall offer or perform, any service other than those posted.

C. It is unlawful for a mas sage establishment to operate under any name or conduct business under any designation not specified in the massage establishment permit issued pursuant to this chapter.

D. The massage establishment business tax license, massage establishment permit, and a copy of the CAMTC certification of each and every massage technician employed by or working in the establishment must be displayed in an open and conspicuous public place on the premises.

E. Hot and cold running water under pressure shall be provided to all washbasins, bathtubs, showers, and similar equipment. Each washbasin shall be provided with soap or detergent and sanitary towels placed in permanently installed dispensers. A trash receptacle shall be provided in each toilet room.

F. Clean and sanitary towels, sheets and linens shall be provided for each patron receiving massage services. No common use of towels or linens shall be permitted, and reuse is prohibited unless they have been first laundered. Heavy white paper may be substituted for sheets, provided that such paper is used once for each person and then discarded into a sanitary receptacle.

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G. Disinfecting agents and sterilizing equipment shall be available for any instruments used in performing any massage. Instruments will be disinfected or sterilized after each use.

H. Pads used on massage tables shall be covered in a workmanlike manner with durable, washable plastic or other waterproof material.

I. Each establishment shall provide to all patrons clean, sanitary, and opaque coverings capable of covering the patron's specified anatomical areas. Such coverings shall be used for one customer only and shall not be reused without first being cleaned.

J. No owner, operator, responsible managing employee, manager, or permittee in charge of or in control of a massage establishment shall permit a massage to be given unless the patron's specified anatomical areas are covered during the entire massage by the covering referred to in subsection (I).

K. With the exception of bathrooms or dressing rooms not open to public view, no person or persons shall be permitted in any area within the massage establishment which is used in common by the patrons or which can be viewed by patrons from such an area, unless the specified anatomical areas of all persons within that area are fully covered.

L. It is unlawful for an owner, operator, responsible managing employee, manager, permittee in charge of or in control of a massage establishment to permit any massage technician to perform any service or task while in the presence of a patron or to be on the premises of a massage establishment during its hours of operation unless the massage technician is dressed in a manner that does not violate paragraph (10) of subdivision (a) of Section 4609 of the California Business and Professions Code.

M. Any person performing services as a massage technician must wear a visible CAMTC identification card and have a copy of their driver's license or any other photo identification card issued by a state or federal agency readily available for inspection by city or county investigating officials.

N. An operator or owner must be on the business premises at all times during hours of operation of the business.

O. For each massage service provided, every massage establishment shall keep a complete and legible written record of the following information: the date and hour that service was provided; the service received; the name or initials of the employee entering the information; and the name of the massage practitioner administeri ng the service.

Such records shall be open to inspection and copying by the chief of police or designee, or may be used by any massage practitioner or operator as records of service provided, but may not be provided to other parties by the massage practitioner or operator unless otherwise required by law. Such records shall be retained on the premises of the massage establishment for a period of two years and be immediately available for inspection during business hours.

P. Persons of a massage establishme nt outside the waiting area shall be a patron, employee, or the massage establishment owner or operator.

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c. The conservator, aid, or other caretaker of a patron who is elderly or disabled may be present in the massage therapy room with that elderly or disabled person.

R. No massage establishment located in a building or structure with exterior windows fronting a public street, highway, walkway or parking area shall block visibility into the interior reception and waiting area through the use of curtains, closed blinds, tints, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises.

S. All signs shall be in accordance with the current ordinances of the City of National City. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.080 Massage establishment—Prohibited conduct.

In addition to the conduct/activities, items, and/or substances prohibited by federal and state laws, the following conduct is prohibited at massage establishments:

A. The sale, service, or consumption of alcohol or marijuana; and B. Operate under any name or conduct business under any designation not specified in the massage establishment permit issued pursuant to this chapter; and C. The employment of a person lacking state certification as a receptionist without prior notification and approval by the license authority; and D. Continue to operate following the sale or transfer of any interest in the massage establishment to a person who was not identified as an owner in the massage establishment permit application; and
E. Audio and/or video recording of, or monitoring of, the patron, the massage therapist, or the massage therapy, without the prior written consent of the patron; and F. Residing in or at the massage establishment by any person including but not limited to the operator, owner, responsible person, or employee of the massage establishment; and
G. Advertising or marketing illegal activity, advertising or marketing sexually suggestive content related to massage therapy or in the promotion of the massage establishment; and
H. Use or possession of adult-oriented merchandise, including "sex toys" and/or condoms, in any part of a massage establishment; and
I. Any sexual activity at a massage establishment; and
J. No owner, operator, responsible managing employee, manager, permittee, or licensee in charge of or in control of a massage establishment shal l permit any person to massage or intentionally touch the specified anatomical areas of another person while performing the services of a massage technician.
(Ord. No. 2019-2454, § 8, 1-22-2019)

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10.79.090 Off-premises massage—Prohibited.

A. Maintaining a licensed massage establishment upon the premises of a place of public accommodation; or
B. The holder of a massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code from giving or administering massages within hospitals, convalescent centers, rest homes, offices, or the private home of a patron. For the purposes of this section, offices and private homes shall not include hotel rooms, motel rooms, or guest houses. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.100 Existing businesses—Regulated.

The provisions of this chapter shall be applicable to all persons and businesses described in this chapter whether the described activities in the chapter were established before or after the effective date of this chapter. Any existing massage technician who performs mass age and any massage establishment that employs or utilizes persons to perform massage within the jurisdiction of the city, that operates with a valid and current business license issued by the city and all other necessary approvals issued prior to the effe ctive date of any amended regulations in this chapter or Chapter 10.70, and that operates in compliance with all local, state and federal laws, ordinances, rules and regulations, must be in full compliance with Chapters 10.70 and 10.79 no later than sixty days following the effective date of any new regulations. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.110 Exemptions.

This chapter shall not apply to:

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exemption shall apply only if massage is provided from a fixed and permanent location of business;
E. Therapeutic massage administered in or under the auspices of any health facility, hospital, nu rsing homes, sanitariums, or other establishment duly licensed under California statutes in which the above -described persons practice their respective professions, provided the massages are given only by exempt individuals or persons acting under their supervision;
F. Any bona fide personal fitness training centers, gymnasiums, athletic facilities or health clubs which offers tennis, racquetball, swimming or other sport activities and possesses a sauna or steam room. Massage shall only be administered to members of the athletic club by persons who are exempt under this section.
(Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.120 Inspection by officials.

No p erson shall refuse to permit or interfere with a lawful inspection of the massage establishment by city or county investigating officials. (Ord. No. 2019-2454, § 8, 1-22-2019)

10.79.130 Unlawful massage establishment or operation.

Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter, Chapter 10.70 and/or state and federal laws shall be and the same is hereby declared to be unlawful and a public nuisance. The city attorney may, in addition to, or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings for the abatement, removal, or enjoinment thereof, in any manner provided by law, including as provided in Chapter 10.70.
(Ord. No. 2019-2454, § 8, 1-22-2019)

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AGENDA REPORT

Department: Administrative Services - Finance
Prepared by: Paul Valadez, Budget Manager
Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager

SUBJECT:

Fiscal Year 2024 First Quarter Budget Review

RECOMMENDATION:

Accept and File this Report, and Adopt a Resolution Entitled, “Resolution of the City Council of the City of National City, California, Auth orizing Various Fiscal Year 2024 1st Quarter Budget Adjustments.”

BOARD/COMMISSION/COMMITTEE PRIOR ACTION:

Not Applicable.

EXPLANATION:

Summary
As part of the City of National City’s Strategic Plan objective to provide consistent financial reports, this staff report presents an update on the City’s financial operations for the first quarter of fiscal year 2024.

Discussion
Budgets are projections based on known and anticipated future revenues and expenditures.

Throughout the year, staff monitor and analyze revenues and expenditures, develop projections, and provide periodic financial reports to the City Council, City Manager, and department directors.

The totals presented herein reflect revenue and expenditure totals for the period of July 1st through September 30th for the current and prior years.

1st Quarter Fiscal Year 2024
The fiscal year 2024 adopted budget estimated a use of General Fund unassigned fund balance of $1.1 million Since it is early in the fiscal year, the ability to project year -end revenue and expenditure totals and actual use of fund balance is limited. The mo st useful information at the end of the first quarter is a comparison of the fiscal-year-to-date totals of the City’s major revenue sources and expenditure categories for the period for the current and prior fiscal years. This information is summarized in the tables below.

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Revenues

Revenue Source FY 24 FY 23 change
Sales & Use Tax $1,800,980 $ 1,966,351 ($165,370)
District Transactions & Use Tax 1,166,816 1,221,101 (54,286) Property Tax 54,853 60,077 (5,224)
Property Tax in Lieu of VLF - - -
Other Revenues 3,726,595 3,074,144 652,451
Total $6,749,244 $ 6,321,673 ($427,571)

The sales & use tax and district transactions & use tax revenue amounts shown are those distributed to the City by the State in September for July sales activity. Fiscal year 2024 sales & use tax and district transaction & use tax revenues are $200,000 lower than fiscal year 2023’s through the end of the first quarter. Alth ough it is too early to draw definitive conclusions from this limited data, staff will review this information with the City’s sales tax consultant to determine whether an adjustment to our sales tax projections is warranted.

Fiscal year 2024 property tax revenue for the first quarter, consisting primarily of payments related to unsecured and supplemental property tax bills, is $5,000 lower than that of fiscal year 2023 for the period. While the revenue is low for both years, this is normal at this point of the year, as the largest portions of property tax revenues are typically received in December and April, corresponding to tax payment due dates. Early reports from the County indicate that secured property taxes, the most significant component of the P roperty Tax category, will be in line with the City’s adopted budget.

Because the distribution of property tax in lieu of VLF revenue occurs in January and May, no allocation of this revenue was received in the first quarter of the current or previous fis cal year.

However, staff estimates this revenue will be $8.6 million in fiscal year 2024 compared to $8.2 million in fiscal year 2023.

First quarter fiscal year 2024 revenues in the “Other Revenues” category are $0.7 million higher than for fiscal year 2 023 at the same point in time. While the overall increase is spread across many accounts within the category, the primary increases are in refunds and reimbursements, franchise fees, and permits.

Expenditures

Expenditure Type FY 24 FY 23 change
Personnel Services $9,278,153 $10,349,625 ($1,071,472) Maintenance & Operations (M&O) 850,155 819,340 30,815
Capital Projects 133,121 10,861 122,261
Internal Service Charges 2,376,576 2,095,456 281,120
Total $ 12,638,006 $13,275,281 $(637,275)

Although Personnel Services costs in the General Fund are $1.1 million less than fiscal year 2023 through the first quarter, the primary driver of this is the absence of an unfunded accrued liability (“UAL”) payment towards the City’s annual pension contribution in fiscal year 2024. If we disregard savings from the UAL payment, standard personnel expenditures saw a combined increase of $1.3 million due to compensation increases authorized as part of the labor group agreements, as well as increases to health care an d retirement rates. These costs are being continuously monitored and projections will be compared to the budget in the mid -year budget status report.

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Fiscal-year-to-date 2024 Maintenance & Operations expenditures as of September 30 th are $31,000 higher than in fiscal year 2023. Although there are increases and decreases across the various accounts within the category, overall year-to-date expenditures are in line with prior fiscal years.

Capital outlay expenditures are $122,000 higher than first quarter 2023 due to miscellaneous facilities upgrades and traffic system improvements that took place in the first quarter of 2024.

Internal service charges for the first quarter of fiscal year 2024 are $281,000 higher than the same point last fiscal year. This is due to the increase in annual budgeted building services charges and information systems maintenance charges, as well as increased maintenance and replacement costs for the City’s vehicle fleet.

Conclusion / Budgetary Outlook
As noted above, the adopt ed fiscal year 2024 budget estimated the use of General Fund unassigned fund balance of $1.0 million. At such an early point in the fiscal year, the ability to project year-end revenue and expenditure totals and actual use of fund balance is limited. A clearer picture can be drawn mid-year when the City will have received multiple months of sales tax receipts and received our initial secured property tax allocation in December.

Staff will continue to monitor revenues and expenditures and will provide info rmation regarding comparisons to the budget and the prior year in future staff reports to the City Council. The next report will be the mid -year budget status report which includes projections to year -end for revenues and expenditures and their combined estimated impact on unassigned fund balance.

Budget Adjustments
During the quarterly budget review process, the Finance Department, in conjunction with City department staff, identified budget adjustments necessary due to expenses unanticipated during the annual budgeting process. The attached schedule (“Exhibit ‘A’”) details the recommended adjustments.

FINANCIAL STATEMENT:

If approved, the recommended General Fund budget adjustments will result in additional General Fund appropriations of $146,000. The appropriation adjustments for the other funds combined total $133,000, funded by available fund balances in the respective funds.

RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:

Balanced Budget and Economic Development

ENVIRONMENTAL REVIEW:

This is not a project under CEQA and is therefore not subject to environmental review.CCR15378; PRC 21065.

PUBLIC NOTIFICATION:

Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.

ORDINANCE:

Not Applicable

EXHIBITS:

Exhibit A – Budget Adjustment Detail
Exhibit B – Resolution

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Exhibit A
Fund Expenditure Revenue Net
General Fund
Fire
Requests from  Various City Departments for CPR Classes 6,500 $                           6,500 $ Fire Total 6,500$                           6,500 $
City Manager's Office
Signage and Façade Improvement Program for ART
S 25,000$                         25,000 $
Drinking water for the Finance Deptartment 1,200 $                           1,200 $ City Manager's Office Total 26,200$                         26,200 $ Police Department
Membership costs omitted from the adopted budget. 11,113 $                         11,113 $ Police Department Total 11,113$                         11,113 $ Neighborhood Services
Additional training and travel to accommodate new staff. 2,000 $                           2,000 $ Special code prosecution services from Silver & Wright LLC 100,0 00$                       100,000 $ Neighborhood Services Total 102,000$                       102,000 $ General Fund Total 145,813$                       ‐ $                        145,813$ Fund Expenditure Revenue Net
Parking Authority Fund
Neighborhood Services
Due to additional upcoming training. 2,000 $                           2,000 $ Neighborhood Services Total 2,000$                           2,000 $ Parking Authority Fund Total 2,000$                           2,000 $ Fund Expenditure Revenue Net
Housing Authority Fund
Housing
FY24 reduction so that cumulative expenditures will align wih total PLHA award (4,874) $                          (4,874) $ Housing Total (4,874)$                          (4,874) $ Housing Authority Fund Total (4,874)$                          ‐ $                        (4,874)$ Q1 SUPPLEMENTAL APPROPRIATION REQUESTS -Summary
Fiscal Year 2024

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Exhibit A
Q1 SUPPLEMENTAL APPROPRIATION REQUESTS -Summary
Fiscal Year 2024
Fund Expenditure Revenue Net
Liability Insurance Fund
City Attorney
Property Program ‐ invoices higher than initial estimate 25,566 $ 25,566 $ General Liability Program ‐ invoices higher than initial estimate 109,850 $ 109,850 $ City Attorney Total 135,416$ 135,416 $ Liability Insurance Fund Total 135,416$ ‐ $ 135,416$

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RESOLUTION NO. 2023 -

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY , CALIFORNIA, AUTHORIZING VARIOUS FISCAL YEAR 2024 1st QUARTER BUDGET ADJUSTMENTS

WHEREAS, on June 20, 2023, the City Council of the City of National City adopted Resolution No. 2023-98, adopting the budget for fiscal year 2024; and

WHEREAS, as part of the 1st quarter review process, the Finance Department reviewed the first three months for actual revenues and expenditures; and

WHEREAS, the 1st quarter budget review was presented to the City Council and members of the public on November 7, 2023; and

WHEREAS, the City Manager has requested approval of the Recommended 1st quarter Budget Adjustments (“Exhibit A”); and

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:

Section 1: That the City Council hereby authorizes the fiscal year 2024 recommended 1st quarter budget adjustments (“Exhibit A”) and authorizes the City Manager to make the associated adj ustments to the Fiscal Year 2024 Budget.

Section 2: That the City Clerk shall certify to the passage and adoption of thi s Resolution and enter it into the book of original Resolutions.

PASSED and ADOPTED this 7th day of November, 2023.

Ron Morrison, Mayor

ATTEST:

Shelley Chapel, MMC, City Clerk

APPROVED AS TO FORM:

Barry J. Schultz, City Attorney

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AGENDA REPORT

Department: City Manager's Office
Prepared by: Ben Martinez, City Manager
Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager

SUBJECT:

Consideration of a Project Labor Agreement with the San Diego Building and Construction Trades Council and Associated Craft Unions.

RECOMMENDATION:

Adopt a Resolution Entitled, “Resolution of the City Council of the City of National City, California, Authorizing Entering into a Project Labor Agreement with the San Diego Building and Construction Trades Council and Associated Craft Unions.”

BOARD/COMMISSION/COMMITTEE PRIOR ACTION:

Not Applicable.

EXPLANATION:

Background
On September 7, 2021, the City Council formed an ad-hoc committee, consisting of former Mayor Sotelo-Solis and former Councilmember Rios, related to a potential Project Labor Agreement (“PLA”) with the San Diego Building and Construction Trades Council (the “Trades Council”) and directed that the committee report back to the City Council. On December 7, 2021, the committee reported back and recommended directing staff to enter into PLA negotiations with the Trades Council. The City Council accepted the comm ittee’s recommendation to direct staff to enter into negotiations with the Trades Council for a PLA.

PLA History and Negotiations
In general, the purpose of PLAs has been to assist awarding agencies such as the City of National City in providing on time, conflict-free project completions. PLAs spell out the specific terms and conditions that govern the employment of labor on covered projects, with the goal of reducing overall construction costs by helping to ensure that the work on a covered project will be completed efficiently, cooperatively, economically and without interruption. PLAs generally include, among other requirements, prohibitions on picketing and work stoppages. PLAs may also serve the community through targeted hiring and apprenticeship training, including for individuals with barriers to employment in their background. Under the proposed PLA, contractors and subcontractors would still be required to comply with all applicable federal, state, and local laws and regulations regarding the paym ent of prevailing wages and other similar requirements for public works projects.

City staff (including the City Manager’s Office, City Attorneys’ Office, and Public Works/Engineering) and representatives from the Trades Council negotiated the PLA for consideration and possible approval by the City Council. In negotiating the PLA, City staff reviewed and considered similar PLAs adopted by other agencies in the region and met with

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representatives of some of those agencies. If approved, the PLA will be appli cable to public projects that have a construction value of at least $1,000,000. Key conditions of the PLA include:

 A 3-year term with an automatic 3-year extension at the parties’ option, for a total term of 6 years.
 Exceptions for certain projects to proceed outside of the PLA, including:
o Upon a 4/5 of the City Council, where it determined that implementation of a project under the PLA would result in substantial inefficiency or impracticability (e.g., the City Council may exclude a project if the PLA would jeopardize the City’s eligibility to receive state or federal grant funding);
o If the City does not receive at least 3 bids for a covered project; o Where all bids for a project bid under the PLA exceed the engineer’s estimate by 10% or greater.
 At the City Council’s discretion, the PLA may be amended to include provisions from future project labor agreements negotiated by other cities (with a population of 100,000 or less) that are more favorable or beneficial.

FINANCIAL STATEMENT:

The financial impact of requiring City projects to comply with the requirements of a PLA are unknown at this time. The impacts, if any, will not be known until application of the PLA to particular project(s).

RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:

Not Applicable

ENVIRONMENTAL REVIEW:

This is not a project under CEQA and is therefore not subject to environmental review.CCR15378; PRC 21065.

PUBLIC NOTIFICATION:

Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.

ORDINANCE:

Not Applicable

EXHIBITS:

Exhibit A - Agreement
Exhibit B - Resolution

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CITY OF NATIONAL CITY

PROJECT LABOR AGREEMENT

Effective Date: _______, 202_

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TABLE OF CONTENTS
Page

- i -
ARTICLE 1 RECITALS ......................................................................................................... - 1 - ARTICLE 2 DEFINITIONS .................................................................................................... - 2 - ARTICLE 3 SCOPE OF THE AGREEMENT........................................................................ - 4 - ARTICLE 4 UNION RECOGNITION AND EMPLOYMENT ........................................... - 10 - ARTICLE 5 UNION ACCESS AND STEWARDS ............................................................. - 14 - ARTICLE 6 WAGES AND BENEFITS ............................................................................... - 16 - ARTICLE 7 WORK STOPPAGES AND LOCKOUTS ....................................................... - 17 - ARTICLE 8 WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES................... - 22 - ARTICLE 9 MANAGEMENT RIGHTS .............................................................................. - 23 - ARTICLE 10 SETTLEMENT OF GRIEVANCES AND DISPUTES ................................... - 25 - ARTICLE 11 COMPLIANCE................................................................................................. - 28 - ARTICLE 12 SAFETY AND PROTECTION OF PERSON AND PROPERTY .................. - 28 - ARTICLE 13 TRAVEL, SUBSISTENCE AND PARKING .................................................. - 29 - ARTICLE 14 APPRENTICES ................................................................................................ - 29 - ARTICLE 15 LEGAL ACTION ............................................................................................. - 30 - ARTICLE 16 PRE-JOB CONFERENCE................................................................................ - 30 - ARTICLE 17 LABOR/MANAGEMENT AND COOPERATION ........................................ - 31 - ARTICLE 18 SAVINGS AND SEPARABILITY .................................................................. - 32 - ARTICLE 19 WAIVER........................................................................................................... - 33 -

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TABLE OF CONTENTS
(Continued)
Page

- ii -
ARTICLE 20 AMENDMENTS .............................................................................................. - 33 - ARTICLE 21 DURATION OF THE PLA .............................................................................. - 33 - ARTICLE 22 HELMETS TO HARDHATS ........................................................................... - 34 - ATTACHMENT A – LETTER OF ASSENT .......................................................................... - 39 - ATTACHMENT B-1 – WORKFORCE DISPATCH REQUEST FORM ............................... - 40 - ATTACHMENT B-2 – CONTRACTOR CORE WORKFORCE FORM ............................... - 42 - ATTACHMENT C – DRUG AND ALCOHOL TESTING POLICY ..................................... - 44 -

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- 1 -

CITY OF NATIONAL CITY

PROJECT LABOR AGREEMENT

This Project Labor Agreement (hereinafter the “PLA” or “Agreement”) is entered into this __ day of ______ 202_ by and between the San Diego Building and Construction Trades Council (hereinafter the “Council”), and the signatory Craft Unions (hereinafter, together with the Council, collectively, the “Union” or “Unions”), and the City of National City (“City”).

ARTICLE 1

RECITALS
WHEREAS, the City desires the completion of the Covered Projects in a professional, safe, efficient, and economical manner, without undue delay or work stoppages; and
WHEREAS, the timely, efficient, economical and successful completion of the Covered Projects is of the utmost importance to the City; and WHEREAS, large numbers of workers of various skills will be required in the performance of the construction work on Covered Projects, including workers affiliated with and/or represented by the Unions; and
WHEREAS, it is recognized that on construction projects with multiple contractors and bargaining units on the job site at the same time over an extended period of time, the potential for work disruption is substantial without an overriding commitment to maintain continuity of work; and
WHEREAS, the Parties agree that by establishing and stabilizing wages, hours, and working conditions for the workers employed on Covered Projects, a satisfactory, continuous, and harmonious relationship will exist among labor and management that will lead to the efficient and economical completion of Covered Projects; and WHEREAS, in recognition of the special needs of the Covered Projects and to maintain a spirit of harmony, cooperative labor-management relations, peace, and stability during the term of this PLA, the Parties agree to establish effective and binding methods for the settlement of all misunderstandings, disputes and grievances without any strikes, slowdowns, work interruptions, or disruption of Covered Projects, and the Contractors agree not to engage in any lockout; and

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- 2 -
WHEREAS, the City places high priority upon the development of comprehensive programs for the recruitment, training, and employment of local residents, and also recognize the ability of local Apprenticeship Programs to provide meaningful and sustainable careers in the building and construction industry. The Parties will encourage local residents to participate in Covered Projects through programs and procedures jointly developed to prepare and encourage such individuals for entrance into Apprenticeship Programs and formal employment on the Covered Projects through the referral programs sponsored and/or supported by the Parties to this PLA; and
WHEREAS, it is further understood that the City shall actively administer and apply the obligations of this PLA.

NOW, THEREFORE, IT IS AGREED BETWEEN AND AMONG THE
PARTIES AS FOLLOWS:

ARTICLE 2

DEFINITIONS
Capitalized terms utilized in this PLA which are not otherwise defined herein shall have the meanings ascribed to said terms below.
“Agreement” means this Project Labor Agreement (PLA).
“Applicable Prevailing Wage Determination” means the prevailing wage determinations applicable to a Covered Project issued by the Department of Industrial Relations pursuant to the California Labor Code.
“Apprentice” means an apprentice properly registered in an Apprenticeship Program for the time they are employed on a Covered Project. “Apprenticeship Program” as used in this PLA shall be defined as an apprenticeship program approved by the California Division of Apprenticeship Standards (DAS). “Contractor” means the Prime Contractor and any subcontractor of any tier awarded Covered Work. The term “Contractor” includes any individual, firm, partnership, corporation, owner operator, consultant or combination thereof, including joint ventures, performing Covered Work.
“Core Employees” are defined in Article 4, Section 4.6 (e). “Council” means the San Diego County Building & Construction Trades Council.

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- 3 -
“Covered Contract” means a prime contract or subcontract awarded for performance of Covered Work, or an individual job order constituting a Covered Project as defined below.
“Covered Project” means a construction project with a prime contract awarded by the City with an estimated construction contract award value of $1,000,000 or greater. “Covered Projects” also includes individual task orders valued at $100,000 or greater for Surveyors and/or Building/Construction Inspectors and/or Field Soils and Material Testers (Inspectors) that are related to a Covered Project.
“Covered Work” means construction work in furtherance of a Covered Project, other than work excluded pursuant to specific exemptions set forth in this PLA. “Joint Labor-Management Apprenticeship Program” means a Joint Labor- Management Apprenticeship Program approved by the State of California DAS as provided for in the Schedule A’s.
“Party” means the City, Council, and each Union.
“Prime Contractor” means the contractor awarded a Covered Contract in privity directly with the City.
“Project Labor Coordinator” means the designee of the City, either from its own staff (including, but not limited to, the City Engineer) and/or an independent entity acting on behalf of the City, to monitor compliance with this PLA and assist with developing, implementing and administering the requirements, policies and programs referenced herein. “Schedule A’s” means the local master labor agreements of the Unions. “Union” or “Unions” means any labor organization signatory to this Agreement acting on their own behalf and on behalf of their respective affiliates and member organizations whose names are subscribed hereto and who have, through their officers, executed this Agreement.
“Veteran” means a veteran or the eligible spouse of a veteran of the United States Armed Forces, under Section 2(a) of the Jobs for Veterans Act (38 U.S.C. 4215[a]). “Workforce Dispatch Request Form” means the project-specific form by which Contractors request workers from the Union hiring halls on Covered Projects, an example of which is attached as Attachment B-1.

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- 4 -
ARTICLE 3

SCOPE OF THE AGREEMENT
Section 3.1 Scope.

(a) This Agreement covers, without limitation, all on-site site preparation, surveying, construction, alteration, demolition, installation, improvement, landscaping, painting or repair of buildings, structures and other works, and related activities for the Covered Project that is within the craft jurisdiction of one of the Unions and which is directly part of the Covered Project, including, without limitation to the following examples, geotechnical and exploratory drilling, temporary HV AC, landscaping, temporary fencing, pipelines (including those in linear corridors built to serve the Project), pumps, and pump stations. On-site work includes work done solely for the Covered Project in temporary yards, dedicated sites, or other areas provided that they are adjacent to the Covered Project, and at any on-site or off-site batch plant constructed solely to supply materials to the Covered Project.

(b) This Agreement applies to any start-up, calibration, commissioning, performance testing, repair, maintenance or operational revisions to systems and/or subsystems for the Project that are required as part of a Covered Contract, including warranty work performed after completion, unless such work is performed by City employees. Covered Work includes all onsite physical craft work that is part of startup and commissioning, including, but not limited to, system flushes and testing, loop checks, rework and modifications, and functional and operational testing up to and including the final running test. It is understood that the City’s personnel and/or its representatives, together with the manufacturer’s and/or vendor’s representatives, and/or plant operating personnel may supervise and direct the startup, commissioning, rework, and modification activity, and that the onsite physical craft work is typically performed as part of a joint effort with these representatives and personnel. A manufacturer or its representatives may perform industry standard startup and commissioning work to satisfy its guarantee or warranty on a piece of equipment, and such work will be exempt from the Project Labor Agreement to the extent the work is excluded by Section 3.2(b) and/or Section 3.2(d).

(c) This Agreement covers all on-site fabrication work over which Contractors possess the right of control (including work done for a Covered Project in any temporary yard or area established for the Covered Project). This

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- 5 -
Agreement also covers off-site fabrication to the extent that it is covered by existing Master Agreements in effect at the time of the execution of this PLA. All fabrication work over which a Contractor possesses the right of control, including without limitation, the fabrication of medical gas piping, air-handling systems and ducts, and HV AC sheet metal work, and which is traditionally claimed as on-site fabrication shall be performed on-site. Purchase of manufactured items from a genuine manufacturing facility for the supply of products is not considered fabrication and not subject to this PLA.

(d) On-site construction shall also include the site of any batch plant constructed solely to supply materials to the Project. Construction trucking work for the delivery of ready-mix, asphalt, aggregate, sand, or other fill or material which are directly incorporated into the construction process as well as the off- hauling of debris and excess fill, material and/or mud, shall be covered by the terms and conditions of this Agreement to the fullest extent allowed by law and by the prevailing wage determinations of the California Department of Industrial Relations.

Section 3.2 Exclusions. Items specifically excluded from the scope of this PLA include the following:
(a) Work of non-manual employees, including but not limited to, superintendents, supervisors, staff engineers, quality control and quality assurance personnel, timekeepers, mail carriers, clerks, office workers, messengers, guards, safety personnel, emergency medical and first aid technicians, and other professional, engineering, administrative, supervisory, and management employees; and
(b) All employees of the City, Project Labor Coordinator, design teams (including, but not limited to, architects, engineers, and master planners), or any other consultants for the City (including, but not limited to, project managers and construction managers and their employees where not engaged in Covered Work) and their subconsultants, and other employees of professional service organizations, not performing manual labor within the scope of this PLA.

Notwithstanding the foregoing, however, this exclusion shall not apply to surveying and inspection services on a Covered Project, within the State of California’s general prevailing wage determination for Field Surveyors and/or Building/Construction Inspectors and Field Soils and Material Tester, when this work is performed under a Covered Contract or under a professional services agreement. This shall also specifically include such work where it is referred to by utilization of such terms as “quality control” or “quality assurance.” Every

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- 6 -
Surveyor and Inspector performing under the wage classifications of Field Surveyors and/or Building/Construction Inspectors and Field Soils and Material Tester (Inspectors) on Covered Work pursuant to a professional services agreement or a construction contract shall be bound to all applicable requirements of this Agreement regardless of the manner in which the work was awarded; and (c) Any work performed by state, county, city, or other governmental bodies, or their contractors (other than work within the scope of this PLA undertaken by contractors to the City); or by private utilities, or their contractors; and (d) Work performed by employees of a manufacturer or vendor necessary to install, commission and/or maintain such manufacturer’s or vendor’s warranty or guarantee and provided that the warranty agreement is the manufacturer’s or vendor’s usual and customary warranty agreement for such equipment and is consistent with industry practice. Any work to be excluded pursuant to this subsection (d) shall be identified and discussed at the relevant pre-job conference.

Upon request from the Council, the City shall review with the vendor whether installation or application may be performed pursuant to terms of the PLA without affecting the status of the warranty; and
(e) Specialized or technical work requiring specialized training, unique skills, or a level of specific technical experience which employees represented by the Unions do not possess. At least ten (10) working days’ notice shall be given to the Council before any work is performed pursuant to this exemption; and (f) Laboratory testing work; and
(g) Non-construction support services contracted by the City, Project Labor Coordinator, or Contractor in connection with a Covered Project; and (h) Contracts for which there are less than three (3) unrelated, qualified bidders for a Covered Contract, in which case the City reserves the right to reject all bids and readvertise the contract not as a Covered Project or Covered Contract and not subject to this PLA; and
(i) Non-construction support services contracted by the City in connection with Covered Projects; and
(j) Emergency work; and
(k) Substantial impracticality or inefficiency. The City may exclude any work constituting a Covered Project upon a 4/5 vote of its City Council finding and

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determining that said work as a Covered Project would result in a substantial inefficiency or impracticality; and
(l) If the lowest apparent responsive and responsible bid is ten percent (10%) or greater than the engineer’s estimate, in which case the City reserves the right to reject all bids and readvertise the contract not as a Covered Project or Covered Contract and not subject to this PLA; and
(m) All off-site manufacturing, fabrication, maintenance, and handling of materials, equipment, or machinery; and
(n) All operation of equipment and machinery owned or controlled by the City.

Section 3.3 Awarding of Contracts.

Notwithstanding any obligation, term, duty or condition contained herein to the contrary, this Agreement shall be subject to all applicable laws, including the California Public Contract Code. The City shall maintain absolute and sole discretion regarding the application and the related enforcement of said laws. (a) The City has the absolute right to bid or award Covered Contracts regardless of delivery method to any Contractor notwithstanding the existence or non-existence of any agreements between such Contractor and any Union, provided only that such Contractor is willing, ready, and able to execute a Letter of Assent as set forth in Attachment A hereto, and comply with this PLA in performance of Covered Work.
(b) Each Union shall enroll in the electronic bidding system used at the time of bidding (currently, PlanetBids) and provide the listing information to all Union contractors able to provide services to the trades required of the project. Each Union contractor may provide bids to each prime bidding contractor in accordance with California law and the bidding documents. Union prime contractors may bid the project in accordance with California law and the bidding documents.
(c) It is agreed that all Contractors who have been awarded a contract for Covered Work shall be required to accept and be bound by the terms and conditions of this PLA. Contractors shall evidence their acceptance of this Agreement by executing a Letter of Assent as set forth in Attachment A hereto.

No Contractor shall commence Covered Work without first providing a copy of the signed Letter of Assent to the Project Labor Coordinator.

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(d) The City and all Contractors awarded Covered Work agree that to the extent permitted by law and consistent with the economy and efficiency of construction and operation, they will use best efforts to purchase materials, equipment, and supplies that will not create labor strife. Under all circumstances, however, the City and Contractors shall retain the absolute right to select Contractors for the award of contracts and subcontracts on all Covered Projects. (e) Project funding-source restrictions. Notwithstanding anything contained in this PLA to the contract, the City shall comply with any and all restrictions related to any funding source for project work including, but not limited to, federal, state or local (e.g., County of San Diego, State of California Department of Transportation, or San Diego Association of Governments) regulations.

Section 3.4 Schedule A’s.
(a) The provisions of this PLA, including the Schedule A's (which are the local Master Labor Agreements of the signatory Unions having jurisdiction over Covered Work, as such may be changed from time to time consistent with Section

21.3, and which are incorporated herein by reference), shall apply to the work covered by this PLA. Where a subject covered by the provisions of this PLA is also covered by a Schedule A, the provisions of this PLA shall prevail. Where a subject is covered by a provision of a Schedule A and not covered by this PLA, the provisions of the Schedule A shall govern. Any dispute as to the applicable source between this PLA and any Schedule A shall be resolved under the procedures established in Article 10.
(b) It is understood that this PLA, together with the referenced Schedule A's, constitutes a self-contained, stand-alone agreement and, by virtue of having become bound to this PLA, the Contractor will not be obligated to sign any other local, area, or national collective bargaining agreement as a condition of performing work within the scope of this PLA (provided, however, that the Contractor may be required to sign a uniformly applied non-discriminatory Participation or Subscription Agreement at the request of the trustees or administrator of a trust fund established pursuant to Section 302 of the Labor Management Relations Act, and to which such Contractor may be bound to make contributions under this PLA, provided that such Participation or Subscription Agreement does not purport to bind the Contractor beyond the terms and conditions of this PLA and/or expand its obligation to make contributions pursuant thereto). It shall be the responsibility of the Prime Contractor to have each of its Contractors of any tier sign the documents with the appropriate Union prior to the Contractor beginning work on Covered Projects.

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Section 3.5 The Parties agree that this PLA will be made available to, and will fully apply to, any successful bidder for Covered Work, without regard to whether that successful bidder performs work at other sites on either a Union or non-Union basis. This PLA shall not apply to any work of any Contractor other than that on Covered Projects specifically covered by this PLA.

Section 3.6 Binding Signatories Only. This PLA and Letter of Assent shall only be binding on Contractors in the performance of Covered Work, and shall not apply to the parents, affiliates, subsidiaries, or other ventures of any such Contractors.

Section 3.7 Other Work. Nothing contained herein shall be interpreted to prohibit, restrict, or interfere with the performance of any other operation, work, or function not covered by this PLA, which may be performed by City employees or contracted for by City for its own account, on its property, or in and around Covered Project sites.

Section 3.8 Separate Liability. It is understood that the liability of the Contractor(s) and the liability of the separate Unions under this PLA shall be several and not joint. The Unions agree that this PLA does not have the effect of creating any joint employment status between or among the City or Project Labor Coordinator and/or any Contractor.

Section 3.9 Completed Covered Projects. As portions of Covered Projects are completed, this PLA shall have no further force or effect on such items or areas except where the Contractor is directed by the City or its representatives to engage in repairs, modification and/or check-out functions required by its contract(s) with the City.

Section 3.10 Except for all work performed under the NTL Articles of Agreement, the National Stack/Chimney Agreement, and the National Cooling Tower Agreement, all instrument calibrations work and loop checking shall be performed under the terms of the UA/IBEW Joint National Agreement for Instrument and Control Systems Technicians, and the National Agreement of the International Union of Elevator Constructors, with the exception of Article 7 (Work Stoppages and Lockouts), Article 8 (Work Assignments and Jurisdictional Disputes) and Article 10 (Settlement of Grievances and Disputes) of this PLA, which shall apply to such work.

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ARTICLE 4

UNION RECOGNITION AND EMPLOYMENT
Section 4.1 Recognition. The Contractors recognize the Unions as the exclusive bargaining representative for the employees engaged in Covered Work. Such recognition does not extend beyond the period when the employee is engaged in Covered Work.

Section 4.2 Contractor Selection of Employees. The Contractors shall have the right to determine the competency of all employees, the number of employees required, the duties of such employees within their craft jurisdiction, and shall have the sole responsibility for selecting employees to be laid off, consistent with this Article.

The Contractors shall also have the right to reject any applicant referred by a Union for any reason, subject to any reporting time requirements of the applicable Schedule A; provided, however, that such right is exercised in good faith and not for the purpose of avoiding the Contractors’ commitment to employ qualified workers through the procedures endorsed in this PLA.

Section 4.3 Referral Procedures.
(a) For signatory Unions to this Agreement having a job referral system contained in a Schedule A, the Contractor agrees to comply with such system and it shall be used exclusively by such Contractor, except as modified by this PLA.

Such job referral system will be operated in a nondiscriminatory manner and in full compliance with federal, state, and local laws and regulations that require equal employment opportunities and non-discrimination.
(b) The local Unions will exert their best efforts to recruit and refer sufficient numbers of skilled craft workers to fulfill the labor requirements of the Contractor, including specific employment obligations to which the Contractor may be legally and/or contractually obligated; and to refer Apprentices as requested to develop a larger, skilled workforce. The Unions will work to identify and refer competent craft persons as needed for Covered Work, and to identify individuals, particularly local residents, for entrance into Apprenticeship Programs, or participation in other identified programs and procedures to assist individuals in qualifying and becoming eligible for such Apprenticeship Programs, all maintained to increase the available supply of skilled craft personnel for Covered Projects.
(c) The Union shall not knowingly refer an employee currently employed by a Contractor on a Covered Project to any other Contractor.

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Section 4.4 Non-Discrimination in Referral, Employment, and Contracting. The Unions and Contractors agree that they will not discriminate against any employee or applicant for employment on the basis of sex, race, ethnicity, color, ancestry, religious creed, national origin, sexual orientation, physical disability, mental disability, medical condition, age, marital status, denial of family care leave, genetic information, gender, gender identity, gender expression, military and veteran status, criminal records, past incarceration, previous status as a foster youth, political affiliation or membership in a labor organization in hiring and dispatching workers for the Covered Projects. The Parties and Contractors will ensure that the evaluation and treatment of their employees, members, and applicants for employment or membership are free from such discrimination and harassment.

Section 4.5 Employment of Local Residents.
(a) In recognition of the City’s mission to serve its residents, the Unions and Contractors agree that, to the extent allowed by law, and as long as they possess the requisite skills and qualifications, the Unions shall first refer for Covered Projects permanent residents of zip codes 91950, 91951 and 91947 (“qualifying zip codes”) at the time of initial employment on a Covered Project or Veterans residing anywhere.

(b) To facilitate the dispatch of Local Residents, as well as all Contractor requests for referral and dispatch of workers from the applicable Union referral system, the Parties will develop and utilize a Workforce Dispatch Request Form for Covered Projects.

(c) It is the Parties’ goal that at least 80% of the total craft hours to be performed on a Covered Project shall be performed by residents of San Diego County, graduates of, or recipients of a GED from a school in San Diego County residing anywhere, or Veterans residing anywhere, of which 5% should be from qualifying zip codes or graduates of, or recipients of a GED from, Sweetwater High School residing anywhere, or Veterans residing anywhere.

Section 4.6 Core Employees. This Section only applies to Contractors who are not directly signatory to an applicable Schedule A.
(a) The Parties recognize the City’s interest in promoting competition and inclusion of disadvantaged business enterprises (DBEs) which may not be signatory to a current Schedule A. For purposes of this Section, DBEs shall be as defined by the United States Department of Transportation, as

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that definition may be amended from time to time. (See, e.g., https://www.transportation.gov/civil-rights/disadvantaged-business- enterprise/definition-disadvantaged-business-enterprise; see also Appendix E to Part 26 of 49 CFR Part 26.) In order to promote participation and attract DBEs to work under this Agreement, and subject to the limitations set forth below, each Contractor that is a DBE may employ up to five (5) Core Employees per craft on a Covered Project, alternating with Core Employees and Union referrals (first a Core Employee, then a referral from the appropriate Union hiring hall, then a Core Employee, and so on). After five (5) Core Employees have been employed, all additional employees in the affected trade or craft shall be requested and referred from the appropriate Union hiring hall.

The preceding Core Employee hiring procedures for DBEs are subject to the following limitation:
(1) Each Contractor is limited to utilizing the preceding Core Employee hiring procedure on one Covered Project.
(b) Contractors who are not otherwise signatory to a current Schedule A may employ, as needed, a Core Employee first, then a referral from the appropriate Union hiring hall, then a second Core Employee, then a second employee through the referral system, then a third Core Employee, and so on, until a maximum of three (3) Core Employees are employed per craft on the Project. Thereafter, all additional employees in the affected trade or craft shall be requested and referred from the appropriate Union hiring hall in accordance with this Article. (b) Section 4.6 only applies to Contractors who are not directly signatory to a current Schedule A for the craft worker in its employ and is not intended to limit the transfer provisions of the Schedule A of any trade. As part of this process, and in order to facilitate the contract administration procedures, as well as appropriate fringe benefit fund coverage, all Contractors shall require their Core Employees and any other persons employed other than through the referral process, to register with the appropriate Union hiring hall, if any, prior to their first day of employment working under the Construction Contract at the Project site. The registration process shall be administered by the Contractors and Union reasonably, but without impacting the Project schedule. (c) Prior to each Contractor performing any work on a Covered Project, each Contractor shall provide a list of Core Employees to the Project Labor Coordinator and the Council. After submitting the Core Employee list prior to commencing work on that Covered Project, Contractors shall not make any

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changes or substitutions to the Core Employee list for the duration of that Covered Project without prior agreement by the Parties, unless one or more Core Employees retires, changes employer, resigns or is terminated. (d) Upon request by any Party to this Agreement, the Contractor hiring any Core Employee shall provide satisfactory proof (i.e., payroll records, quarterly tax records, and such other documentation) evidencing the Core Employee’s qualification as a Core Employee to the Project Labor Coordinator and the Council.
(e) Core Employees must meet the following eligibility requirements to qualify for employment on Covered Projects:
(1) A Core Employee must be a journeyperson and appear on the Contractor’s active payroll for at least ninety (90) of the last one-hundred-eighty (180) working days prior to being designated as a Core Employee. The date a Core Employee is designated is the date the Core Employee list is submitted to the Project Labor Coordinator and Council prior to the Contractor commencing work; and
(2) A Core Employee must possess any license required by state or federal law for the Covered Work to be performed; and
(3) A Core Employee must have the ability to safely perform the basic functions of the applicable trade; and
(4) A Core Employee must be a resident of San Diego, Imperial, Riverside or Orange Counties.
(f) In addition to the Core Employee provisions set forth herein, all Contractors may avail themselves of any opportunity provided for in the applicable Schedule A’s to call for specific employees by name. (g) During any layoffs or reductions in workforce, Contractors shall lay off employees in an order and manner consistent with the Core Employee hiring procedures and maintain the required Core Employee-to-Union referral ratios required by this Section for the duration of the Project.

Section 4.7 Time for Referral. If any Union’s registration and referral system does not fulfill the requirements for specific classifications of covered employees (including Local Residents) requested by any Contractor within forty-eight (48) hours (excluding Saturdays, Sundays, and holidays), that Contractor may employ Core Employees without reference to the ratio requirements in Section 4.6 or use

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employment sources other than the Union registration and referral services, and may employ applicants from any other available source. The Contractor shall promptly inform the Union of any applicants hired from other sources, and such applicants shall register with the appropriate hiring hall, if any.

Section 4.8 Lack of Referral Procedure. If a signatory local Union does not have a job referral system as set forth in Section 4.3 above, the Contractors shall give the Union equal opportunity to refer applicants. The Contractors shall notify the Union of employees so hired, as set forth in Section 4.7.

Section 4.9 Union Membership. Employees are not required to become or remain union members, or pay dues or fees to a union, as a condition of performing Covered Work under this Agreement. Employers shall make and transmit all deductions for union dues, fees, and assessments that have been authorized by employees in writing in accordance with the applicable Schedule A. Nothing in this Section 4.9, however, is intended to supersede independent requirements in applicable local union agreements such as those in Schedule A as to those Employers that are otherwise signatory to those agreements and as to the employees of those Employers who are performing Covered Work.

Section 4.10 Foremen. The selection and number of craft foremen and/or general foremen shall be the responsibility of the Contractor, consistent with the Schedule A’s. All foremen shall take orders exclusively from the designated Contractor representatives. Craft foremen shall be designated as working foremen at the request of the Contractors.

ARTICLE 5

UNION ACCESS AND STEWARDS
Section 5.1 Access to Project Sites. Authorized representatives of the Union shall have access to Covered Projects, provided that they do not interfere with the work of employees and further provided that such representatives fully comply with posted visitor, security, and safety rules.

Section 5.2 Stewards.
(a) Each signatory local Union shall have the right to dispatch a working journeyperson as a steward for each shift, and shall notify the Contractor in writing of the identity of the designated steward or stewards prior to the assumption of such person's duties as steward. Such designated steward or

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stewards shall not exercise any supervisory functions. There will be no non- working stewards. Stewards will receive the regular rate of pay for their respective crafts.
(b) In addition to his/her work as an employee, the steward should have the right to receive, but not to solicit, complaints or grievances and to discuss and assist in the adjustment of the same with the employee's appropriate supervisor.

Each steward should be concerned only with the employees of the steward's Contractor and not with the employees of any other Contractor. The Contractor will not discriminate against the steward in the proper performance of his/her Union duties.
(c) When a Contractor has multiple, non-contiguous work locations at one site, the Contractor may request and the Union shall appoint such additional working stewards as the Contractor requests to provide independent coverage of one or more such locations. In such cases, a steward may not service more than one work location without the approval of the Contractor. (d) The stewards shall not have the right to determine when overtime shall be worked or who shall work overtime.

Section 5.3 Steward Layoff/Discharge. The Contractor agrees to notify the appropriate Union twenty-four (24) hours before the layoff of a steward, except in the case of disciplinary discharge for just cause. If the steward is protected against such layoff by the provisions of the applicable Schedule A, such provisions shall be recognized when the steward possesses the necessary qualifications to perform the remaining work. In any case in which the steward is discharged or disciplined for just cause, the appropriate Union will be notified immediately by the Contractor, and such discharge or discipline shall not become final (subject to any later filed grievance) until twenty-four (24) hours after such notice has been given; provided, however, that during the 24-hour period before the discipline or discharge becomes final, the steward will be considered suspended pending investigation without pay.

Section 5.4 Employees on Non-Covered Projects. On work where the personnel of the City may be working in close proximity to the construction activities covered by this PLA, the Union agrees that the Union representatives, stewards, and individual workers will not interfere with City personnel, or with personnel employed by any other employer not a Party to this PLA.

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ARTICLE 6

WAGES AND BENEFITS
Section 6.1 Wages. At a minimum, all employees covered by this PLA shall be classified in accordance with work performed and paid the hourly wage rates and benefits for those classifications in compliance with the applicable Prevailing Wage Determination established pursuant to the California Labor Code by the California Department of Industrial Relations.

Section 6.2 Benefits.
(a) Payment of Benefits. For all employees performing Covered Work, Contractors shall pay all fringe benefits and other required employer contributions to the established Union employee benefit funds in the amounts required by the applicable Schedule A. In addition, the Contractors and Unions agree that only such bona fide employee benefits that accrue to the direct benefit of the employees (such as pension and annuity, health and welfare, vacation, apprenticeship, and training funds) shall be included in this requirement and required to be paid by the Contractor on Covered Projects. (c) Where applicable, the Contractor adopts and agrees to be bound by the written terms of the applicable, legally established, Union trust agreement(s) specifying the detailed basis how payments will be made into, and benefits paid out of, such trust funds for its employees. The Contractor authorizes the sponsoring Parties to such trust funds to appoint trustees and successor trustees to administer the trust funds and hereby ratifies and accepts the trustees so appointed as if made by the Contractor. The Contractor obligations to the applicable Union benefit fund(s) and trust agreement(s) are limited to work performed on Covered Work. The Union benefit funds and trust agreement(s) applicable to each Contractor are determined by the pre-job conference and Union work assignment process described in Articles 8 and 16.
(d) Each Contractor is required to certify to the Project Labor Coordinator that it has paid all benefit contributions due and owing to the appropriate Union trust(s) and benefit funds prior to the receipt of its final payment and/or retention.

Further, upon timely notification by a Union to the Project Labor Coordinator, the Project Labor Coordinator shall work with any Contractor who is delinquent in payments to assure that proper benefit contributions are made, to the extent of requesting the City or the prime Contractor to withhold payments otherwise due

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such Contractor, until such contributions have been made or otherwise guaranteed.

Section 6.3 Wage Premiums, with the exception of shift premiums, shall not be applicable to work performed under this PLA, except to the extent provided for in any applicable prevailing wage determination. The types of wage premiums that will not apply to the Project include, but are not limited to, pay based on height of work, hazard pay, scaffold pay, and special skills, except to the extent provided for in any prevailing wage determination. Similarly, there will be no wage premiums based on staggered start times or start times that are earlier or later than set forth in the applicable Schedule A, with the exception of shift premiums.

Section 6.4 Compliance with Prevailing Wage Laws. All complaints regarding possible prevailing wage violations may be referred to the Project Labor Coordinator or Labor Compliance Program, if any, for referral to the Department of Industrial Relations, State Labor Commissioner.

ARTICLE 7

WORK STOPPAGES AND LOCKOUTS
Section 7.1 No Work Stoppages or Disruptive Activity. The Council and the Unions signatory hereto agree that neither they, nor their respective officers, agents or representatives, shall incite or encourage, condone or participate in any strike, walk-out, slowdown, picketing, observation of picket lines, or other activity of any nature or kind whatsoever, for any cause or dispute whatsoever with respect to or any way related to Covered Work, or which interferes with or otherwise disrupts Covered Work, including, but not limited to, economic strikes, unfair labor practice strikes, safety strikes, sympathy strikes, and jurisdictional dispute strikes, whether or not the underlying dispute is arbitrable. Any such actions by the Council, or any Union, or their members, agents, representatives, or the employees they represent shall constitute a material violation of this PLA. The Council and the Union shall take all steps necessary to obtain compliance with this Article.

Section 7.2 Employee Violations. The Contractor may discharge any employee violating Section 7.1 above, and any such employee will not be eligible for rehire under this PLA.

Section 7.3 Standing to Enforce. Any Contractor affected by an alleged violation of Section

7.1 shall have standing and the right to enforce the obligations established therein.

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Section 7.4 Expiration of Schedule A’s. If a collective bargaining agreement between a signatory Contractor and one or more of the Union(s) expires before the Contractor completes the performance of a Contract for Covered Work, and the Union or the Contractor gives notice of demand for a new or modified collective bargaining agreement, the Unions agree that they will not strike the Contractor on the Project, and the Union and the Contractor agree that the expired collective bargaining agreement will continue in full force and effect for the Covered Work until a new or modified collective bargaining agreement is reached between the Union and the Contractor. If the new or modified collective bargaining agreement reached between the Union and the Contractor provides that any terms of the collective bargaining agreement shall be retroactive, the Contractor agrees to comply, consistent with the terms of this PLA and the Prevailing Wage Statute, with any retroactive terms of the new or modified collective bargaining agreement which are applicable to employees of said Contractor that are employed on the Project within seven (7) days at no cost to the City. All employees shall continue to work and to perform all their obligations with respect to Covered Work despite the expiration of a Schedule A agreement. Should a Contractor engaged in Covered Work enter into an interim agreement with the Unions for work being performed elsewhere after the expiration, and before the renewal of a local collective bargaining agreement forming the basis for Schedule A, such interim agreement shall be utilized by that Contractor for Covered Work, subject to the provisions of Section 21.3.

Section 7.5 No Lock Outs. Contractors shall not cause, incite, encourage, condone or participate in any lock-out of employees with respect to Covered Work during the term of this PLA. The term “lock-out” refers only to a Contractor’s exclusion of employees in order to secure collective bargaining advantage, and does not refer to the discharge, termination, or lay off of employees by the Contractor for any reason in the exercise of rights pursuant to any provision of this PLA, or any other agreement, nor does “lock-out” include the City’s decision to stop, suspend, or discontinue any Covered Project or any portion thereof for any reason.

Section 7.6 Best Efforts to End Violations.
(a) If a Contractor contends that there is any violation of this Article, it shall, prior to invoking the procedures of Section 7.7, provide written notification to the Council of the involved Union(s) and to the Project Labor Coordinator, setting forth the facts which the Contractor contends violates this Article. The Council and the leadership of the involved Union(s) will immediately instruct, order, and use their best efforts to cause the cessation of any violation of the Article.

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(b) If the Union contends that any Contractor has violated this Article, it will notify the Contractor and the Project Labor Coordinator, setting forth the facts which the Union contends violate this Article, prior to invoking the procedures of Section 7.7. The Project Labor Coordinator shall promptly order the involved Contractor(s) to cease any violation of the Article.

Section 7.7 Expedited Enforcement Procedure. Any Party, and affected Contractors, may institute the following procedures, in lieu of or in addition to any other action at law or equity, when a breach of this Article is alleged. (a) The Party invoking this procedure shall notify Robert M. Hirsch, who has been selected by the negotiating Parties, and whom the Parties agree shall be the permanent arbitrator under this procedure, and if Mr. Hirsch is unavailable, shall notify John Kagel, who has been selected as the alternate arbitrator under this procedure. If the permanent arbitrator is unavailable at any time, the alternate will be contacted. If neither is available, then a selection shall be made from the list of arbitrators as set forth in Article 10. Notice to the arbitrator shall be by the most expeditious means available, with notices to the Parties alleged to be in violation, and to the Project Labor Coordinator and the Council. For purposes of this Article, written notice may be given by email, facsimile, hand delivery, or overnight mail and will be deemed effective upon receipt. (b) Upon receipt of said notice, the arbitrator named above or his/her alternate shall sit and hold a hearing within seventy-two (72) hours if it is contended that the violation still exists, but not sooner than twenty-four (24) hours after notice has been dispatched to the Council of the involved Union(s) and/or Contractor as required by Section 7.6, above.
(c) The arbitrator shall notify the Parties of the place and time chosen for this hearing, which may be a Zoom proceeding or the equivalent. Said hearing shall be completed in one session, which, with appropriate recesses at the arbitrator's discretion, shall not exceed twenty-four (24) hours unless otherwise agreed upon by all Parties. A failure of any Party or Parties to attend said hearings shall not delay the hearing of evidence or the issuance of any award by the arbitrator. (d) The sole issue at the hearing shall be whether or not a violation of this Article has in fact occurred, and if so, whether the arbitrator shall order the applicable union(s) to return to work. The arbitrator shall have no authority to consider any matter in justification, explanation, or mitigation of such violation or to award damages, (except for damages as set forth in Section 7.8 below) which issue is reserved for court proceedings, if any. The award shall be issued in writing within three (3) hours after the close of the hearing and may be issued

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without an opinion. If any Party desires a written opinion, one shall be issued within fifteen (15) days, but its issuance shall not delay compliance with, or enforcement of, the award. The arbitrator may order cessation of the violation of this Article and other appropriate relief, and such award shall be served on all Parties by hand, facsimile, email or registered mail upon issuance. The amount of liquidated damages pursuant to Section 7.8 below shall be determined at a second hearing scheduled by the arbitrator within thirty (30) days of the first hearing to determine if a violation of this Article has occurred.
(e) Such arbitration award(s) shall be final and binding on all Parties and may be enforced by any court of competent jurisdiction upon the filing of this PLA and all other relevant documents referred to herein above in the following manner.

Written notice of the filing of such enforcement proceedings shall be given to the other Party. In any judicial proceeding to obtain a temporary order enforcing the arbitrator's award as issued under Section 7.7(d) of this Article, all Parties waive the right to a hearing and agree that such proceedings may be ex parte. Such agreement does not waive any Party's right to participate in a hearing for a final order of enforcement. The court's order or orders enforcing the arbitrator's award shall be sent to all disputing parties.
(f) The fees and expenses of the arbitrator shall be equally divided between the Party or Parties initiating this procedure and the respondent Party or Parties.

Section 7.8 Liquidated Damages.
(a) If the arbitrator determines in accordance with Section 7.7 above that a work stoppage has occurred, the respondent Union(s) shall, within eight (8) hours of receipt of the Award, direct all the employees they represent on the project to immediately return to work. If the craft(s) involved do not return to work by the beginning of the next regularly scheduled shift following such eight (8) hour period after receipt of the arbitrator's Award, and the respondent Union(s) have not complied with their obligations to immediately instruct, order, and use their best efforts to cause a cessation of the violation and return the employees they represent to work, then the non-complying Union(s) found in violation of Section

7.7 shall each pay liquidated damages in accordance with subsection (c) below. (b) If the arbitrator determines in accordance with Section 7.7 above that a lock out has occurred, the respondent Contractor(s) found in violation of Section

7.7 shall pay liquidated damages in accordance with subsection (c) below. (c) The Parties agree that project delays caused by violations of this Article will cause the City to sustain damages. They agree that it would be impractical or

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extremely difficult to fix the amount of such damages. Therefore, the Parties agree that, in the event of a breach of either of these provisions, the Party in breach shall pay to the impacted parties the sum of $10,000 per shift from the time the arbitrator determines that a delay has occurred until the arbitrator determines that the project is no longer disrupted. If the breaching party is a Union, the liquidated damages will be paid to the Prime Contractor and other affected Contractors as determined by the Arbitrator. If the breaching party is a Contractor, the liquidated damages will be apportioned among the affected employees and the benefit funds as determined by the Arbitrator. The payment of liquidated damages, when made, shall constitute a damages remedy for the delay specified, but shall not prevent the impacted party or parties from seeking an injunction or equitable relief, including termination of this PLA. Payment of these sums as liquidated damages is not intended as a forfeiture or penalty within the meaning of California Civil Code sections 3275 or 3369, but instead, is intended to constitute liquidated damages to the affected party or parties pursuant to section 1671 of the California Civil Code.

Section 7.9 Payroll and Benefit Delinquencies. Notwithstanding other provisions of this PLA, it shall not be a violation of this PLA for any Union to withhold the services of its members from a Contractor who fails to timely pay its weekly payroll in accordance with the applicable Schedule A, or fails to make timely payments to the applicable Union benefit funds. This Section 7.9 does not inhibit or affect responsibilities of the Council and the Union under Section 7.1 to refrain from picketing or other disruption of Covered Projects.

Prior to withholding its members' services for the Contractor's failure to meet its weekly payroll, the Union shall give at least five (5) calendar days written notice of such failure to pay by certified mail, and by facsimile or email transmission to the involved Contractor, Prime Contractor and Project Labor Coordinator. The Prime Contractor, together with the involved Contractor and affected Union, shall meet within five (5) working days after the written notice of such failure to pay was sent to attempt to resolve the payroll delinquency. If the payroll delinquency remains unresolved, then the affected Union may withhold the services of its members from the involved Contractor. Upon the payment of all monies due and then owing for wages, the Union shall direct its members to immediately return to work and the Contractor shall return all such members back to work.

Prior to withholding its members' services for the Contractor's failure to make timely payments to the applicable Union benefit funds, the Union shall give at least thirty (30) days written notice of such failure to pay by certified mail, and by facsimile or email transmission to the involved Contractor, the Prime Contractor

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and Project Labor Coordinator. The Prime Contractor, together with the involved Contractor and affected Union, shall meet within five (5) working days after the written notice of such failure to pay was sent to attempt to resolve the delinquency. If the delinquency remains unresolved, then the affected Union may withhold the services of its members from the involved Contractor. Upon payment by the delinquent Contractor of all monies due and then owing for employee benefit contributions, the Union shall direct its members to immediately return to work and the Contractor shall return all such members back to work.

Nothing in this section should be construed to prevent the Union having jurisdiction over the involved work from submitting a grievance under the procedures of Article 10 for any alleged or actual violations of Article 6 or referring any alleged or actual prevailing wage violation to the Project Labor Coordinator and Department of Industrial Relations for review and enforcement, in accordance with Section 6.4.

The City shall have the right to replace any delinquent Contractor in accordance with the terms and conditions of the applicable prime contract with the City and applicable law.

The City is not liable for any unpaid benefits or wages, or damages that flow from non-payment of either, regardless of any action or failure to act by the City.

ARTICLE 8

WORK ASSIGNMENTS AND JURISDICTIONAL DISPUTES
Section 8.1 No Jobsite Disruption. There will be no strikes, work stoppages, picketing, sympathy strikes, slowdowns, or other interference with the work because of jurisdictional disputes between Unions. The assignment of work will be solely the responsibility of the Contractor performing the work involved; and such work assignments will be in accordance with the Plan for Settlement of Jurisdictional Disputes in the Construction Industry (the “Plan”) or any successor Plan.

Section 8.2 All jurisdictional disputes on this project shall be settled and adjusted according to the present Plan established by the Building and Construction Trades Department or any other plan or method of procedure that may be adopted by the Building and Construction Trades Department. Decisions rendered shall be final and binding and conclusive on the Contractors and Unions parties to this PLA.

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All jurisdictional disputes shall be resolved without the occurrence of any of the activities prohibited in Article 7 (Work Stoppages and Lockouts), and the Contractor’s assignment shall be adhered to until the dispute is resolved.

Individuals violating this section shall be subject to immediate discharge.

Section 8.2.1 If a dispute arising under this Article involves the Southwest Regional Council of Carpenters or any of its subordinate bodies, an arbitrator shall be chosen by the procedures specified in Article V , Section 5, of the Plan from a list composed of Thomas Pagan, Thomas Angelo, Robert Hirsch, and John Kagel, and the arbitrator’s hearing on the dispute shall be held at the offices of the Council within fourteen (14) days of the selection of the arbitrator. All other procedures shall be as specified in the Plan.

Section 8.3 Failure to Comply. If any Union or Contractor fails to immediately and fully comply with the final decision rendered by the Plan, affected Union(s) or Contractor(s) may seek legal redress for such conduct, including, but not limited to, injunctive relief and/or damages.

Section 8.4 Labor Pre-job Conference. It is required that a pre-job conference be held not later than fourteen (14) calendar days prior to the start of work by each Contractor for the Project in accordance with the procedure described in Article 16.

ARTICLE 9

MANAGEMENT RIGHTS
Section 9.1 Contractor and City Rights. The Contractors and the City have the sole and exclusive right and authority to oversee and manage construction operations on Covered Projects without any limitations unless expressly limited by a specific provision of this PLA. In addition to the following and other rights of the Contractors enumerated in this PLA, the Contractors expressly reserve their management rights and all the rights conferred upon them by law. The Contractor's rights include, but are not limited to, the right to:
(a) Plan, direct, and control operations of all work; and (b) Hire, promote, transfer, and lay off their own employees, respectively, as deemed appropriate to satisfy work and/or skill requirements; and (c) Promulgate and require all employees to observe reasonable job rules and security and safety regulations; and

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(d) Discharge, suspend, or discipline their own employees for just cause; and (e) Utilize, in accordance with City approval, any work methods, procedures, or techniques, and select, use, and install any types or kinds of materials, apparatus, or equipment, regardless of source of manufacture or construction; and (f) Assign and schedule work at their discretion; and
(g) Assign overtime, determine when it will be worked and the number and identity of employees engaged in such work, subject to such provisions in the applicable Schedule A(s) requiring such assignments be equalized or otherwise made in a nondiscriminatory manner.

Section 9.2 Specific City Rights. In addition to the following and other rights of the City and Prime Contractor enumerated in this PLA, the City expressly reserves its management rights and all the rights conferred on it by law and contract. The City’s rights (and those of the Project Labor Coordinator on its behalf) include, but are not limited to the right to:
(a) Inspect any construction site or facility to ensure that the Contractor follows the applicable safety and other work requirements; and (b) At its sole option, terminate, delay, and/or suspend any and all portions of Covered Projects at any time; prohibit some or all work on certain days or during certain hours of the day to accommodate the ongoing operations of the City and/or to mitigate the effect of ongoing Covered Work on businesses and residents in the neighborhood of the Covered Project sites; and/or require any other operational or schedule changes it deems necessary, in its sole judgment, to meet Project deadlines and remain a good neighbor to those in the area of the Covered Project. (In order to permit the Contractors and Unions to make appropriate scheduling plans, City will use best efforts to provide the Project Labor Coordinator and the affected Contractor[s] and Union[s] with reasonable notice of any changes it requires pursuant to this section); and (c) Approve any work methods, procedures, and techniques used by Contractors whether or not these methods, procedures, or techniques are part of industry practices or customs; and
(d) Investigate and process complaints or disagreements, through its Project Labor Coordinator.

Section 9.3 Use of Materials. Subject to the terms of this Agreement, there shall be no limitations or restrictions by the Union upon a Contractor's choice of materials or

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design, nor, regardless of source or location, upon the full use and utilization of equipment, machinery, packaging, precast, prefabricated, prefinished, preassembled or modular materials, products, tools, or other labor-saving devices, subject to the application of the California Public Contract and Labor Codes.

Generally, the onsite installation or application of such items shall be performed by the craft having jurisdiction over such work.

Section 9.4 Special Equipment, Warranties, and Guaranties. (a) It is recognized that certain equipment of a highly technical and specialized nature may be installed at Covered Project sites. The nature of the equipment, together with the requirements for manufacturer's warranties, may dictate that it be prefabricated, pre-piped, and/or pre-wired and that it be installed under the supervision and direction of the manufacturer's personnel. The Unions agree that such equipment is to be installed without incident. (b) The Parties recognize that the Contractor will initiate from time to time the use of new technology, equipment, machinery, tools, and other labor-savings devices and methods of performing Covered Work. The Unions agree that they will not restrict the implementation of such devices or work methods. The Unions will accept and will not refuse to handle, install, or work with any standardized and/or catalogue parts, assemblies, accessories, prefabricated items, preassembled items, partially assembled items, modular products or materials, whatever their source of manufacture or construction.
(c) If any disagreement between the Contractor and the Unions concerning the methods of implementation or installation of any equipment, device, or item, or method of work arises, or whether a particular part or pre-assembled item is a standardized or catalog part or item, the work will proceed as directed by the Contractor, and the Parties shall immediately consult over the matter. If the disagreement is not resolved, the affected Union(s) shall have the right to proceed through the procedures set forth in Article 10.

ARTICLE 10

SETTLEMENT OF GRIEV ANCES AND DISPUTES
Section 10.1 Cooperation and Harmony on Site.
(a) This PLA is intended to establish and foster continued close cooperation between management and labor. The Council shall assign a representative to this

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Project for the purpose of assisting the local Unions, and working with the Project Labor Coordinator, together with the Contractors, to complete construction of the Covered Projects economically, efficiently, continuously, and without any interruption, delays, or work stoppages.
(b) The Project Labor Coordinator, the Contractors, Unions, and employees, collectively and individually, realize the importance to all Parties of maintaining continuous and uninterrupted performance of Covered Work, and agree to resolve all disputes in accordance with the grievance provisions set forth in this Article or, as appropriate, those of Article 7 or 8.
(c) The Project Labor Coordinator shall observe the processing of grievances under this Article and Articles 7 and 8, including the scheduling and arrangement of facilities for meetings, selection of the arbitrator from the agreed-upon panel to hear the case, and any other administrative matters necessary to facilitate the timely resolution of any dispute; provided, however, it is the responsibility of the principal Parties to any pending grievance to ensure the time limits and deadlines are met.

Section 10.2 Processing Grievances. Any disputes arising out of and during the term of this PLA involving its interpretation and application, and all disputes involving the interpretation or application of the applicable Schedule A's, but not alleged violations of Articles 7 or 8, shall be considered a grievance and subject to resolution under the following procedures.

Step 1. (a) Employee Grievances. When any employee subject to the provisions of this PLA feels aggrieved by an alleged violation of this PLA or the applicable Schedule A, the employee shall, through his local Union business representative or job steward, within ten (10) working days after the occurrence of the violation, give notice to the work site representative of the involved Contractor stating the provision(s) alleged to have been violated, the details of the alleged violation and the remedy sought to resolve the matter. A grievance shall be considered null and void if notice of the grievance is not given within the ten (10) day period. A business representative of the local Union or the job steward and the work site representative of the involved Contractor shall meet and endeavor to adjust the matter within ten (10) working days after timely notice has been given. If they fail to resolve the matter within the prescribed period, the grieving Party may, within ten (10) working days thereafter, pursue Step 2 of this grievance procedure provided the grievance is reduced to writing, setting forth the relevant information, including a short description thereof, the date on which the alleged violation occurred, and the provision(s) of the applicable agreement

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alleged to have been violated. Grievances and disputes settled at Step 1 shall be non-precedential except as to the Parties directly involved. (b) Union or Contractor Grievances. Should the Union(s) or any Contractor have a dispute with the other Party(ies) and, if after conferring within ten (10) working days after the disputing Party knew or should have known of the facts or occurrence giving rise to the dispute, a settlement is not reached within five (5) additional working days, the dispute shall be reduced to writing and processed to Step 2 in the same manner as outlined in Step 1(a) above for the adjustment of an employee complaint.

Step 2. The business manager of the involved local Union or his designee, together with the site representative of the involved Contractor, and the labor relations representative of the Project Labor Coordinator shall meet within seven (7) working days of the referral of the dispute to this second step to arrive at a satisfactory settlement thereof. If the Parties fail to reach an agreement, the dispute may be appealed in writing in accordance with the provisions of Step 3 within seven (7) calendar days after the initial meeting at Step 2.

Step 3. (a) If the grievance shall have been submitted but not resolved under Step 2, either the Union or Contractor Party may request in writing to the Project Labor Coordinator (with copy[ies] to the other Party[ies]) within seven (7) calendar days after the initial Step 2 meeting, that the grievance be submitted to an arbitrator selected from the agreed-upon list below, on a rotational basis in the order listed. Those arbitrators are: (1) Robert M. Hirsch; (2) Kenneth Perea; (3) Sara Adler; (4) John Kagel; (5) Michael Prihar; (6) Michael Rappaport; and (7) Fred Horowitz. The decision of the arbitrator shall be final and binding on all Parties, and the costs and expenses of such arbitrations shall be borne equally by the involved Contractor(s) and the involved Union(s).
(b) Failure of the grieving Party to adhere to the time limits established herein shall render the grievance null and void. The time limits established herein may be extended only by written consent of the Parties involved at the particular step where the extension is agreed upon. The arbitrator shall have the authority to make decisions only on issues presented and shall not have the authority to change, amend, add to, or detract from any of the provisions of this PLA or the applicable Schedule A.

Section 10.3 Limit on Use of Procedures. Procedures contained in this Article shall not be applicable to any alleged violation of Article 7 or 8, with a single exception that any employee discharged for violation of Section 7.2 may resort to the procedures of this Article to determine only if he/she was, in fact, engaged in that violation.

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Section 10.4 Notice. The Project Labor Coordinator shall be notified by the involved Contractor of all actions at Steps 2 and 3, and further, the Project Labor Coordinator shall, upon its own request, be permitted to participate fully in all proceedings at such steps.

ARTICLE 11

COMPLIANCE
Section 11.1 Compliance with All Laws. The Council and all Unions, Contractors, and their employees shall comply with all applicable federal and state laws, ordinances, and regulations including, but not limited to, those relating to safety and health, employment, and applications for employment. All employees shall comply with the safety regulations established by the City, the Project Labor Coordinator, and the Contractor. Employees must promptly report any injuries or accidents to a supervisor.

ARTICLE 12

SAFETY AND PROTECTION OF PERSON AND PROPERTY
Section 12.1 Safety.
(a) It shall be the responsibility of each Contractor to ensure safe working conditions and employee compliance with all applicable safety laws and regulations and any safety rules contained herein or established by City, the Prime Contractor, or the Contractor. It is understood that employees have an individual obligation to use diligent care to perform their work in a safe manner and to protect themselves and the property of the Contractor and the City. (b) All Parties and Contractor employees shall be bound by the safety, security, and visitor rules established by CalOSHA, the Prime Contractor, Contractor and the City. These rules will be published and posted. An employee's failure to satisfy his/her obligations under this Section will subject him/her to discipline, up to and including discharge.

Section 12.2 Drug and Alcohol Testing Policy. The Parties agree to adopt the Drug and Alcohol Testing Policy attached hereto as Attachment C, which is the exclusive Drug and Alcohol Testing Policy for the Project, except when the prime contract designates special funding source requirements.

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Section 12.3 Inspection. All inspections shall be performed in accordance with the requirements in the prime contract.

ARTICLE 13

TRA VEL, SUBSISTENCE AND PARKING
Section 13.1 Travel expenses, travel time, subsistence allowances and/or zone rates, and parking reimbursements shall not be applicable to work under this PLA, except to the extent provided for in any applicable prevailing wage determination. Parking for employees covered by this PLA shall be provided by the Contractor(s) according to the provision of the applicable Schedule A’s.

ARTICLE 14

APPRENTICES
Section 14.1 Importance of Training. The Parties recognize the need to maintain continuing support of the programs designed to develop adequate numbers of competent workers in the construction industry, the obligation to capitalize on the availability of the local workforce in the area served by the City, and the opportunities to provide continuing work on Covered Projects for Local Residents. To these ends, and consistent with any laws or regulations, the Parties will facilitate, encourage, and assist Local Residents to commence and progress in Apprenticeship Programs and/or apprenticeship readiness programs in the construction industry leading to participation in such Joint-Labor Management Apprenticeship Programs. The Project Labor Coordinator, the Contractors, the City, and the Council and Unions, will work cooperatively to identify, or establish and maintain, effective programs and procedures for persons interested in entering the construction industry and which will help prepare them for entry into Apprenticeship Programs.

Apprentices, if utilized, must be enrolled in a California Apprenticeship Council- approved Program.

Section 14.2 Use of Apprentices.
(a) The Unions and Contractors agree to cooperate in referring and employing Apprentices up to the maximum percentage allowed by the State Labor Code and the standards of each Joint Labor-Management Apprenticeship Program. The minimum ratios for Apprentice to journeyperson hours worked shall be in compliance, at a minimum, with the applicable provisions of the California Labor

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Code relating to utilization of Apprentices. The City, unless otherwise required by law, shall encourage such utilization, and, both as to Apprentices and the overall supply of experienced workers, the Project Labor Coordinator will work with the Council, Apprenticeship Programs, and Contractors to assure appropriate and maximum utilization of Apprentices and the continuing availability of both Apprentices and journeypersons.
(b) The Parties and Contractors will comply with all applicable laws and regulations in the request for dispatch and employment of Apprentices. (c) The Parties agree that Apprentices will not be dispatched to Contractors working under this PLA unless there is a journeyperson or other Contractor employee working on the Project where the Apprentice is to be employed who is qualified to assist and oversee the Apprentice's progress through the program in which he/she is participating.

ARTICLE 15

LEGAL ACTION
Section 15.1 Legal Action. The City, Council and Unions recognize the substantial legal costs (including all attorney’s fees and associated disbursements) that might accrue with regard to any legal challenge over this PLA and related to claims directly challenging the legality of this PLA, or a particular section or language that has been adopted herein. In the event of a legal challenge, the Council, on behalf of itself and affiliated Unions, agrees to seek to intervene in the legal action and actively participate in the litigation or other action to defend the legality of this PLA, or a particular section or language herein. The failure of the Council to seek to intervene in the legal action and actively participate to defend the legality of this PLA will constitute a material breach of this PLA. In the event the Council is denied leave to intervene in the legal action, the Council shall have its counsel coordinate with counsel for the City, at the Council’s own expense, regarding how the Council can best support the City’s legal position.

ARTICLE 16

PRE-JOB CONFERENCE
Section 16.1 Each Contractor is required to conduct a pre-job conference with the Unions not later than fourteen (14) calendar days prior to commencing work. The purpose of

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the conference will be to, among other things, convey craft manpower needs, the schedule of work for the Covered Project, project work rules, and propose preliminary Union work assignments. The Project Labor Coordinator may work with the Prime Contractor and Council to facilitate the scheduling of all pre-job conferences, but ensuring each Contractor conducts a pre-job conference in accordance with this Agreement is the responsibility of the Prime Contractor. All preliminary Union work assignments shall be disclosed by each Contractor at a pre-job conference. Should there be work within the scope of a Construction Contract for a Covered Project that was not previously assigned at a pre-job conference, or additional work be added to the scope of a Covered Project, the Contractor(s) performing such work will conduct a separate pre-job conference.

Any Union in disagreement with a proposed assignment shall notify the affected Contractor of its position in writing, with a copy sent to the Project Labor Coordinator, within seven (7) calendar days after the pre-job conference occurred.

Within seven (7) calendar days after the period allowed for Union notices of disagreement with the Employer’s proposed assignments, but prior to the commencement of any work, the Employer shall make final assignments in writing with copies sent to the Project Labor Coordinator and Council.

Section 16.2 A Contractor’s failure to conduct a pre-job conference in accordance with this PLA is considered a breach of contract, and any affected Union may pursue a grievance under Article 10 of this PLA to seek a remedy for such a violation.

Provided, however, if the Contractor has conducted a pre-job conference in accordance with this PLA, that Contractor is not required to participate in any additional pre-job conferences or mark-up meetings related to the original scope(s) of work assigned at the pre-job conference.

Section 16.3 The Project Labor Coordinator may attend and facilitate each pre-job conference.

At each pre-job conference, the Unions shall address the programs, goals and outcomes related to Local Resident employment.

ARTICLE 17

LABOR/MANAGEMENT AND COOPERATION
Section 17.1 Labor/Management Collaboration Meetings. The Parties will conduct periodic labor/management cooperation meetings, which will be chaired jointly by a designee of the City and a designee of the Council. The co-chairs shall determine the frequency and scheduling of the meetings with the assistance of the Project Labor Coordinator. The purpose of the meetings shall be to update the Parties

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about the progress and schedule of Covered Projects, promote harmonious and stable labor management relations, ensure effective and constructive communication between labor and management Parties, advance the proficiency of work in the industry, and to evaluate and ensure an adequate supply of skilled labor for all Covered Projects. All Parties will be invited to attend the labor/management cooperation meetings. Substantive grievances or disputes shall not be reviewed or discussed by this Committee but shall be processed pursuant to the provisions of the appropriate Article.

ARTICLE 18

SA VINGS AND SEPARABILITY
Section 18.1 Savings Clause. It is not the intention of the City, the Project Labor Coordinator, Contractor, or the Union Parties to violate any laws governing the subject manner of this PLA. The Parties hereto agree that in the event any provision of this PLA is finally held or determined to be illegal or void as being in contravention of any applicable law or regulation, the remainder of the PLA shall remain in full force and effect unless the part or parts so found to be void are wholly inseparable from the remaining portions of this PLA. Further, the Parties agree that if and when any provision(s) of this PLA is finally held or determined to be illegal or void by a court of competent jurisdiction, the Parties will promptly enter into negotiations concerning the substantive effect of such decision for the purposes of achieving conformity with the requirements of any applicable laws and the intent of the Parties hereto. If the legality of this PLA is challenged and any form of injunctive relief is granted by any court, suspending temporarily or permanently the implementation of this PLA, then the Parties agree that all Covered Projects that would otherwise be covered by this PLA should be continued to be bid and constructed without application of this PLA so that there is no delay or interference with the ongoing planning, bidding, and construction of any Covered Projects.

Section 18.2 Effect of Injunctions or Other Court Orders. The Parties recognize the right of the City to withdraw, at its absolute discretion, the utilization of the PLA as part of any bid specification should a court of competent jurisdiction issue any order, or any applicable statute that could result, temporarily or permanently, in delay of the bidding, awarding, and/or construction on the Project.

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ARTICLE 19

WAIVER
Section 19.1 Waiver. A waiver of or a failure to assert any provisions of this PLA by any or all of the Parties hereto shall not constitute a waiver of such provision for the future.

Any such waiver shall not constitute a modification of the PLA or a change in the terms and conditions of the PLA and shall not relieve, excuse or release any of the Parties from any of their rights, duties, or obligations hereunder.

ARTICLE 20

AMENDMENTS
Section 20.1 Amendments. The provisions of this PLA can be renegotiated, supplemented, rescinded, or otherwise altered only by mutual agreement in writing, hereafter signed by the Parties.

Section 20.2 Most Favored Nation. In the event that any city with a population of 100,000 or less (as of the effective date of this PLA) executes a project labor agreement with the Council, the City shall maintain an option, in its sole and exclusive discretion, to amend this PLA to contain substantively all of the provisions as that of said project labor agreement.

ARTICLE 21

DURATION OF THE PLA
Section 21.1 Duration. This Agreement shall be effective thirty (30) days after the date when it has been executed by both the Council and the City. The Agreement shall continue in full force and effect for a term of three (3) years after the initial effective date (provided, however, it shall continue in effect for all work awarded prior to such termination date until the completion of such work). At the end of the initial three (3) year term, this PLA shall automatically renew for an additional term of three (3) years unless either Party provides written notice to the other at least sixty (60) days before the expiration date of its intention to renegotiate or terminate the PLA.

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Section 21.2 Turnover and Final Acceptance of Completed Work.

Turnover and final acceptance of Completed Work shall be in accordance with the requirements of the prime contract and City policy. As areas and systems of the Covered Project are inspected and construction-tested and/or approved and accepted by the City or third parties with approval of the City, the PLA shall have no further force or effect on such items or areas, except when the Contractor is directed by the City to engage in repairs, modifications or warranty work required by its Contract(s) with the City or the Prime Contractor.

Section 21.3 Continuation of Schedule A’s. Schedule A's incorporated as part of this PLA shall continue in full force and effect with regard to Covered Work, until the Schedule A is modified by parties thereto.

The Parties agree to recognize and implement all applicable changes on their effective dates, except as otherwise provided by this PLA; provided, however, that any such provisions negotiated in said collective bargaining agreements will not apply to work covered by this PLA if such provisions are less favorable to the Contractor under the PLA than those uniformly required of Contractors for construction work normally covered by those agreements in San Diego County; nor shall any provision be recognized or applied if it may be construed to apply exclusively or predominantly to work covered by this PLA. Any disagreement between the Parties over the incorporation into a Schedule A of any such provision agreed upon in a negotiation of the local collective bargaining agreement that is the basis for a Schedule A shall be resolved under the procedures established in Article 10.

Section 21.4 Final Termination. Final termination of all obligations, rights, and liabilities, and disagreements shall occur upon action by the City Council of the City of National City of final acceptance of the project and resolution of all matters concerning the Covered Project.

ARTICLE 22

HELMETS TO HARDHATS
Section 22.1 Veterans Entry into Building and Construction Trades. The Parties recognize a desire to facilitate the entry into the building and construction trades of Veterans who are interested in careers in the building and construction industry. The Contractors and Unions agree to utilize the services of the Center for Military Recruitment, Assessment and Veterans Employment (hereinafter the “Center”)

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and the Center’s “Helmets to Hardhats” program to serve as a resource for preliminary orientation, assessment, and construction aptitude, referral to Apprenticeship Programs or hiring halls, counseling and mentoring, support network, employment opportunities, and other needs as identified by the Parties.

Section 22.2 Integrated Database. The Unions and Contractors agree to coordinate with the Center to create and maintain an integrated database of Veterans interested in working on this Project and of apprenticeship and employment opportunities for this Project.

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In witness whereof, the Parties have caused this Project Labor Agreement for the City to be executed as of the date and year above stated.

Dated: _____________ SAN DIEGO BUILDING AND CONSTRUCTION

TRADES COUNCIL

By: _____________________________________
Carol Kim, Business Manager
Dated: _____________ CITY OF NATIONAL CITY

By: _____________________________________
Ron Morrison, Mayor

Approved as to form: _____________________________________ Barry J. Schultz, City Attorney

SIGNATORY UNIONS AND
(See Attached)

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SIGNATORY UNIONS

By: By
:

Allied Workers Local 5 Boilermakers Local 92

By: By
:

Bricklayer & Allied Crafts Local 4 Cement Masons Local 500 / Area 744

By: By
:

Electrical Workers Local 569 Elevator Constructors Local 18

By: By
:

Painters and Allied Trades Local 1399 Iron Workers Local 229

By: By
:

Laborers Local 89 Plasterers Local 200

By: By
:

Plaster Tenders Local 1414 Operating Engineers Local 12

By: By
:

Plumbers & Pipefitters Local 230 Road Sprinkler Fitters Local 669

By: By
:

Roofers & Waterproofers Local 45 Sheet Metal Workers’ Local 206

By: By
:

Laborers Local 1184 Teamsters Local 166

By: By
:

Laborers Local 345 Tradeshow & Sign Crafts Local 831

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By: By
:

UA Local 345 Laborers Local 300

By:

Southwest Regional Council of Carpenters

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ATTACHMENT A – LETTER OF ASSENT
To be signed by all Contractors awarded work covered by the Project Labor Agreement prior to commencing work.
[CONTRACTOR’S LETTERHEAD]
DATE
City Engineer
1243 National City Blvd
National City, CA 91950
Attention: ________________________
Re: City of National City Project Labor Agreement

Dear Sir:

This is to confirm that [Name of Company] agrees to be party to and bound by the City of National City Project Labor Agreement, effective ______, 2023, as such Agreement may from time to time be amended by the negotiating Parties or interpreted pursuant to its terms. Such obligation to be a Party and bound by this Agreement shall extend to all work covered by the Agreement undertaken by this Company on the Project pursuant to [Contract No. __________], and this Company shall require all of its subcontractors of whatever tier to be similarly bound for all work within the scope of the Agreement by signing and furnishing to you an identical Letter of Assent prior to their commencement of work.

Sincerely,
[Name of Construction Company]
By:
[Name and Title of Authorized Executive]

[Copies of this Letter must be submitted to the Project Labor Coordinator and to the Council consistent with Article 3, Section 3.3]

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ATTACHMENT B-1 – WORKFORCE DISPATCH REQUEST FORM

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PROJECT LABOR AGREEMENT (PLA)
Workforce Dispatch Request Form
CONTRACTOR USE ONLY Contractor Information Requesting Contractor
Phone: Fax: Email:

Job Site Information
Project Name:

Address:

Job Superintendent:

Work Request Start Date & Time: Estimated Work Duration:

Contractor Requirements
Employee Classification Requested Skills, Experience,
Certifications and/or Equipment
to Be Utilized
Indicate Level Craft/Classification Quantity Journeyman □
Apprentice □
UNION USE ONLY Dispatch Information Name of Applicant(s) Dispatched:

Date of Dispatch:

UNION DISPATCHER: PLEASE CIRCLE THE ZIP CODE OF THE DISPATCHED WORKER(S) Tier One Zip Codes
(National City)
91947 91950 91951

Tier Two Zip
Codes
(San Diego County)
91901 91902 91903 91905 91906 91908 91909 91910
91911 91912 91913 91914 91915 91917 91931 91934
91935 91941 91942 91943 91944 91945 91948 91950
91962 91963 91977 91978 91979 91980 92003 92004
92007 92008 92009 92010 92011 92014 92019 92020
92021 92024 92025 92026 92027 92028 92029 92036
92037 92040 92054 92055 92056 92057 92058 92059
92060 92061 92064 92065 92066 92067 92069 92070
92071 92075 92078 92081 92082 92083 92084 92086
92091 92093 92096 92101 92102 92103 92104 92105
92106 92107 92108 92109 92110 92111 92113 92114
92115 92116 92117 92119 92120 92121 92122 92123
92124 92126 92127 92128 92129 92130 92131 92134
92135 92136 92139 92140 92145 92147 92155 92158

92159 92160 92161 92163 92164 92165 92166 92167
92168 92169 92170 92171 92172 92174 92175 92176
92177 92179 92182 92187 92536 92672 91916
Tier One (National City) Zip Codes: 4% of contractor’s total workforce by craft (5% of SD County Residents) Tier Two (SD County) Zip Codes: 80% of contractor’s total workforce by craft Veteran Status: Names of Applicants with Verified DD 214 Forms:

District Graduate Status: Names of Applicants with Diploma or GED from Sweetwater H.S.:

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ATTACHMENT B-2 – CONTRACTOR CORE WORKFORCE FORM

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PROJECT LABOR AGREEMENT (PLA)
Contractor Core Workforce Form
CONTRACTOR USE ONLY Contractor Information Requesting Contractor
Phone: Fax: Email:

Job Site Information

Project Name:

Address:

Job Superintendent:

Work Request Start Date & Time: Estimated Work Duration:

Union Registration
Employee Classification Contractors Workforce Information Name and Zip Code of Applicant
Indicate Level Craft/Classification
Journeyman
□

UNION USE ONLY Dispatch Information Applicant’s Information Reviewed By:

Date of Union Registration (Referral):

UNION DISPATCHER: PLEASE CIRCLE THE COUNTY OF RESIDENCE OF THE

DISPATCHED WORKER

SAN DIEGO COUNTY

IMPERIAL COUNTY

RIVERSIDE COUNTY

ORANGE COUNTY

San Diego, Imperial, Riverside or Orange Counties: Maximum of 3 core workers Note to Dispatching Agent: Please fax a copy of the form to the PLA Coordination Team at: [insert fax number here]

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ATTACHMENT C – DRUG AND ALCOHOL TESTING POLICY
The Parties recognize the problems that drug and alcohol abuse have created in the construction industry and the need to develop drug and alcohol abuse prevention programs. Accordingly, the Parties agree that in order to enhance the safety of the workplace and to maintain a drug and alcohol-free work environment, individual Contractors shall require applicants or employees to undergo drug and alcohol testing in accordance with this PLA and this policy, Attachment C – Drug and Alcohol Testing Policy, hereafter “Policy.”

1. It is understood that the use, possession, transfer, or sale of illegal drugs, narcotics, or other unlawful substances, as well as being under the influence of alcohol and the possession of or consuming alcohol is absolutely prohibited while employees are on the Contractor’s job premises or while working on any jobsite in connection with work performed under the PLA.

2. No Contractor may implement a drug and alcohol testing program that does not conform in all respects to the provisions of this Policy.

3. No Contractor may implement drug and alcohol testing at any jobsite unless written notice is given to the Union setting forth the location of the jobsite, a description of the project under construction, and the name and telephone number of the Prime Contractor's project manager. Said notice shall be provided at the pre-job conferences for each Covered Project. Failure to give such notice shall make any drug and alcohol testing engaged in by the Contractor a violation of the Agreement and subject to the Article 10 grievance procedure.

4. A Contractor who elects to implement drug and alcohol testing pursuant to this Policy shall require all craft employees on the Covered Project to be tested. With respect to individuals who become employed on the Covered Project subsequent to the proper implementation of a valid drug and alcohol testing program, such test shall be administered upon the commencement of employment on the project, whether by referral from a Union Dispatch Office, transfer from another project, or another method.

Individuals who were employed on the project prior to proper implementation of a valid drug and alcohol testing program may only be subjected to testing for the reasons set forth in paragraphs 5(g)(l) through 5(g)(3) and paragraphs 6(a) through 6(e) of this Policy. Refusal to undergo such testing shall be considered sufficient grounds to deny employment on the project.

5. The following procedure shall apply to all drug and alcohol testing:
a. The Contractor may request urine samples only. The applicant or employee shall not be observed when the urine specimen is given. An applicant or employee, at his or her sole option, shall, upon request, receive a blood test in lieu of a urine test. No employee of the Contractor shall draw blood from a bargaining unit employee, touch or handle

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urine specimens, or in any way become involved in the chain of custody of urine or blood specimens. A Union Business Representative, subject to the approval of the individual applicant or employee, shall be permitted to accompany the applicant or employee to the collection facility to observe the collection, bottling, and sealing of the specimen.
b. A Contractor may request an applicant or employee promptly, within four (4) hours of the Contractor’s request, perform an alcohol breathalyzer test at a certified laboratory only, and cutoff levels shall be those mandated by applicable state or federal law. c. The testing shall be done by a laboratory approved by the Substance Abuse & Mental Health Services Administration (SAMHSA), which is chosen by the Contractor and the Union.
d. An initial test shall be performed using the Enzyme Multiplied Immunoassay Technique (EMIT). In the event a question or positive result arises from the initial test, a confirmation test must be utilized before action can be taken against the applicant or employee. The confirmation test will be by Gas Chromatography/Ma ss Spectrometry (GC/MS). Cutoff levels for both the initial test and confirmation test will be those established by SAMHSA and this Polic y. Should these SAMHSA levels be changed during the course of the PLA or new testing procedures are approved, then t hese new regulations will be deemed as part of this existing PLA. Confirmed positive samples will be retained by the testing laboratory in secured long -term frozen storage for a minimum of one (1) year. Handling and transportation of each sample must be documented through strict chain-of-custody procedures.
e. In the event of a confirmed positive test result, the applicant or employee may request, within forty-eight (48) hours, a sample of his/her specimen from the testing laboratory for purposes of a second test to be performed at a second laboratory, designated by the Union and approved by SAMHSA. The retest must be performed within ten (10) days of the request. Chain of custody for this sample shall be maintained by the Contractor between the original testing laboratory and the Union's designated laboratory. Retesting shall be performed at the applicant’s or employee’s expense. In the event of conflicting test results, the Contractor may require a third test, at the Contractor’s expense. f. If, as a result of the above testing procedure, it is determined that an applicant or employee has tested positive, this shall be considered sufficient grounds to deny the applicant or employee his/her employment on the project. g. No individual who tests negative for drugs and alcohol pursuant to the above procedure and becomes employed on the project shall again be subjected to drug and alcohol testing with the following exceptions:
1) Employees who are involved in industrial accidents resulting in damage to plant, property, or equipment or injury to him/her or others may be tested for drugs or alcohol pursuant to the procedures stated hereinabove.
2) The Contractor may test employees following thirty (30) days' advance written notice to the employee(s) to be tested and to the applicable Union. Notice to the applicable Union shall be sent by certified mail to the affected Union with a copy

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to the Project Labor Coordinator. Such testing shall be pursuant to the procedures stated hereinabove.
3) The Contractor may test an employee where the Contractor has reasonable cause to believe that the employee is impaired from performing his/her job. Reasonable cause shall be defined as being aberrant or unusual behavior, the type of which is a recognized and accepted symptom of impairment (e.g., slurred speech, unusual lack of muscular coordination). Such behavior must be actually observed by at least two (2) persons, one (1) of whom shall be a supervisor who has been trained to recognize the symptoms of drug and alcohol abuse or impairment a nd the other of whom shall be the Job Steward. If the Job Steward is unavailable or there is no Job Steward on the Covered Project , the other person shall be a member of the applicable Union’s bargaining unit. Testing shall be pursuant to the procedures stated hereinabove. Employees who are tested pursuant to the exceptions set forth in this paragraph and who test positive will be removed from the Contractor's payroll.
h. Applicants or employees who do not test positive shall be paid for all time lost while undergoing drug and alcohol testing. Payment shall be at the applicable wage and benefit rates set forth in the applicable Union’s Master Labor Agreement. Applicants who have been dispatched from the Union and who are not put to work pending the results of a test will be paid waiting time until such time as they are put to work. It is understood that an applicant must pass the test as a condition of employment.

Applicants who are put to work pending the results of a test will be considered probationary employees.

6. The Contractors will be allowed to conduct periodic jobsite drug and alcohol testing on the Project under the following conditions:
a. The entire jobsite must be tested, including any employee or subcontractor's employee who worked on that project three (3) working days before or after the date of the test; b. Jobsite testing cannot commence sooner than fifteen (15) days after start of the work on the project;
c. Prior to start of periodic testing, a Business Representative will be allowed to conduct an educational period on company time to explain periodic jobsite testing program to affected employees;
d. Testing shall be conducted by an SAMHSA -certified laboratory, pursuant to the provisions set forth in paragraph 5 hereinabove.
e. Only two (2) periodic tests may be performed in a twelve (12)-month period.

7. It is understood that the unsafe use of prescribed medication, or where the use of prescribed medication impairs the employee's ability to perform work, is a basis for the Contractor to remove the employee from the jobsite.

8. Any grievance or dispute that may arise out of the application of this Policy shall be subject to the grievance and arbitration procedures set forth in the PLA.

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9. The establishment or operation of this Policy shall not curtail any right of any employee found in any law, rule, or regulation. Should any part of this Policy be found unlawful by a court of competent jurisdiction or a public agency having jurisdiction over the Parties, the remaining portions of the Agreement shall be unaffected, and the Parties shall enter negotiations to replace the affected provision.

10. Present employees, if tested positive, shall have the prerogative for rehabilitation program at the employee’s expense. When such program has been successfully completed, the Contractor shall not discriminate in any way against the employee. If work for which the employee is qualified exists, he/she may be reinstated.

11. The Contractor agrees that results of urine and blood tests performed hereunder will be considered medical records held confidential to the extent permitted or required by law.

Such records shall not be released to any persons or entities other than designated Contractor representatives and the applicable Union. Such release to the applicable Union shall only be allowed upon the signing of a written release by the employee, and the information contained therein shall not be used to discourage the employment of the individual applicant or employee on any subsequent occasion.

12. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking such assistance. Requests from employees for such assistance shall remain confidential and shall not be revealed to other employees or management personnel without the employee's consent. Employees enrolled in substance abuse programs will be subject to all Contractor rules, regulations, and job performance standards with the understanding that an employee enrolled in such a program is receiving treatment for an illness.

13. The Contractor shall indemnify and hold the Union harmless against any and all claims, demands, suits, or liabilities that may arise out of the application of this Policy.

14. This Policy shall constitute the only Policy in effect between the Parties concerning drug and alcohol abuse, prevention, and testing. Any modifications thereto must be accomplished pursuant to collective bargaining negotiations between the Parties.

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SPECIMEN REPORTING CRITERIA
Initial Test Analyte Initial Test Cutoff 1 Confirmatory Test Analyte
Confirmatory Test Cutoff
Concentration
Marijuana metabolites
(THCA)2 50 ng/ml 3 THCA 15 ng/ml
Cocaine metabolite
(Benzoylecgonine) 150 ng/ml 3 Benzoylecgonine 100 ng/ml Codeine/
Morphine 2000 ng/ml Codeine Morphine 2000 ng/ml
2000 ng/ml
Hydrocodone/
Hydromorphone 300 ng/ml Hydrocodone
Hydromorphone
100 ng/ml
100 ng/ml
Alcohol 0.02% Ethanol 0.02%
Oxycodone/
Oxymorphone 100 ng/ml Oxycodone
Oxymorphone
100 ng/ml
100 ng/ml
6-Acetylmorphine 10 ng/ml 6-Acetylmorphine 10 ng/ml
Phencyclidine 25 ng/ml Phencyclidine 25 ng/ml
Amphetamine/
Methamphetamine 500 ng/ml Amphetamine
Methamphetamine
250 ng/ml
250 ng/ml
MDMA4/MDA5 500 ng/ml MDMA
MDA
250 ng/ml
250 ng/ml
Initial Test Analyte Initial Test Cutoff Confirmatory Test Analyte
Confirmatory Test Cutoff
Concentration
Barbiturates 300 ng/ml Barbiturates 200 ng/ml
Benzodiazepines 300 ng/ml Benzodiazepines 300 ng/ml
Methadone6 300 ng/ml Methadone 100 ng/ml
Methaqualone 300 ng/ml Methaqualone 300 ng/ml
Propoxyphene 300 ng/ml Propoxyphene 100 ng/ml

1 For grouped analytes (i.e., two or more analytes that are in the same drug class and have the same initial test cutoff):

Immunoassay: The test must be calibrated with one analyte from the group identified as the target analyte.

The cross-reactivity of the immunoassay to the other analyte(s) within the group must be 80 percent or greater; if not, separate immunoassays must be used for the analytes within the group.

Alternate technology: Either one analyte or all analytes from the group must be used for calibration, depending on the technology. At least one analyte within the group must have a concentration equal to or greater than the initial test cutoff or, alternatively, the sum of the analytes present (i.e., equal to or greater than the laboratory's validated limit of quantification) must be equal to or greater than the initial test cutoff. 2 An immunoassay must be calibrated with the target analyte, 9-tetrahydrocannabinoJ-9- carboxylic acid (THCA). 3 Alternate technology (THCA and benzoylecgonine): The confirmatory test cutoff must be used for an alternate technology initial test that is specific for the target analyte (i.e., 15 ng/ml for THCA, 100 ng/ ml for benzoylecgonine).
4 Methylenedioxymethamphetamine (MDMA)
5 Methylenedioxyamphetamine (MDA)
6 Employees with a prescription for methadone who are using the medication as prescribed, and are not impaired and can safely perform their work, will not be considered to have violated this Policy.

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MEMORANDUM OF UNDERSTANDING REGARDING
“QUICK” DRUG SCREENING TESTS PURSUANT TO
ATTACHMENT C – DRUG AND ALCOHOL TESTING POLICY

It is hereby agreed between the Parties hereto that a Contractor who has otherwise properly implemented drug and alcohol testing, as set forth in the Policy, shall have the right to offer an applicant or employee a "quick" drug screening test. This “quick” screen test shall consist either of the “ICUP” urine screen or similar test or an oral screen test. The applicant or employee shall have the absolute right to select either of the two “quick” screen tests, or to reject both and request a full drug test.

An applicant or employee who selects one of the "quick" screen tests, and who passes the test, shall be put to work immediately. An applicant or employee who fails the "quick" screen test, or who rejects the "quick" screen tests, shall be tested pursuant to the procedures set forth in the Policy. The sample used for the "quick" screen test shall be discarded immediately upon conclusion of the test. An applicant or employee shall not be deprived of any rights granted to them by the Policy as a result of any occurrence related to the “quick” screen test.

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National City City CouncilNovember 7, 2023

National City City Council
November 7, 2023