Nevada City City Council
September 28, 2022

Regular Meeting of
Nevada City Council
City Hall – Beryl P. Robinson, Jr. Conference Room
317 Broad Street, Nevada City, CA 95959
WEDNESDAY September 28, 2022 6:30 P.M.

MISSION STATEMENT
The City of Nevada City is dedicated to preserving and enhancing its small town character and historical architecture while providing quality public services for our current and future residents, businesses and visitors.

Doug Fleming, Mayor
Daniela Fernández, Vice Mayor Gary Petersen, Council Member Adam Kline, Council Member Lou Ceci, Council Member
NOTICE TO THE PUBLIC: Please be advised that the Council Chambers are currently open to the public. This meeting is accessible to the public in person, via Zoom video conference, via YouTube, or on the local government cable channel 17. Individual City Council members may participate remotely in accordance with applicable open meeting law requirements. In-person meetings will be conducted in accordance with local and State Department of Public Health orders and guidance and requirements of the California Division of Occupational Safety and Health (CalOSHA).

The public is encouraged to participate or observe this meeting by:

1. Attending this meeting in person at the City of Nevada City Council Chambers located at 317 Broad Street Nevada City, California.

2. Attending this meeting via Zoom video conference by linking to the following site:
https://us02web.zoom.us/j/89009138474 or,
by telephone: Dial 1-669-900-9128 Webinar ID: 890 0913 8474

3. Observing this meeting live from the City of Nevada City YouTube channel at:
https://www.youtube.com/channel/UCXSQwrXtey12YIl3IbyGMYQ

4. Observe this meeting live from the local government cable channel 17 Public comments may be made:

1. In person: Live at the meeting. Members of the public desiring to speak on a matter appearing on the agenda should ask the Mayor for the opportunity to be heard when the item comes up for Council consideration. Comments for all agenda items are limited to a speaking time of three minutes.

2. Via Zoom: If you choose to join the City Council Meeting via Zoom video conference you will be able to utilize the “Raise Hand”. If joining by telephone: Dial 1-669-900-9128 Webinar ID: 890 0913 8474, dial *9 to “Raise Hand”. The Mayor will call on those who wish to speak at the appropriate time, not to exceed three minutes.

3. In writing: Email your comments to [email protected] Comments will be accepted until 7pm on the Monday prior to the meeting date. Comments will not be read during the City Council meeting (due to virtual participation option above), but will be forwarded to all Council Members prior to the City Council Meeting, so they have time to read them before to the meeting time. When sending an email it is extremely helpful to include the following:
• Full Name
• Address (specific or general, ie: resident in unincorporated Nevada City) • The item number that you are commenting on
Any writing that is a public record that relates to an agenda item for open session distributed less than 72 hours prior to the meeting will be available for public inspection at City Hall, 317 Broad Street, Nevada City, California during normal business hours. Government Code § 54957.5(b)(1). Copies will also be provided at the appropriate meeting.

In compliance with the Americans with Disabilities Act of 1990, if you need special assistance to participate in this meeting, please contact the Deputy City Clerk at 530-265-0187 Extension 133. Notification at least 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR 35.102.35.104 ADA Title II].

CALL TO ORDER
NISENAN TRIBE RECOGNITION: This City Council Meeting Convenes On the Ancestral Territories of the Nevada City Rancheria Nisenan Tribe

PLEDGE OF ALLEGIANCE
ROLL CALL _____ Mayor Fleming
_____ Vice-Mayor Fernández
_____ Councilmember Petersen
_____ Councilmember Kline
_____ Councilmember Ceci
MEETING PROCEDURES: All items on agenda will be open for public comments before final action is taken. Citizens wishing to introduce written material into the record at the public meeting on any item are requested to provide a copy of the written material to the Deputy City Clerk prior to the meeting date so that the material may be distributed to the City Council prior to the meeting.

Speakers must restrict comments to the item as it appears on the agenda and stay within a three minutes time limit (or lesser time if the Mayor determines it necessary due to the number of persons who may wish to speak on an item). The Mayor similarly has the discretion of limiting the total discussion time for an item as may be necessary.

ADOPTION OF THE AGENDA (This is the time for agenda modifications) ANNOUNCEMENT OF ACTION FROM CLOSED SESSION (if needed)
PUBLIC COMMENT: Government Code Section 54954.3 provides that any member of the public may address the City Council on any matter NOT ON THE AGENDA that is within the subject matter jurisdiction of the city. The Brown Act, with limited exceptions, does not allow the Council or staff to discuss issues brought forth under Public Comment. The Council cannot take action on non-agenda items. Concerns may be referred to staff or placed on a future agenda. Please note that comments from the public will also be taken on each agenda item. At the time it is heard. Speakers must restrict comments to the item as it appears on the agenda and stay within a three minutes time limit (or lesser time if the Mayor determines it necessary due to the number of persons who may wish to speak on an item). The Mayor similarly has the discretion of limiting the total discussion time for an item as may be necessary.

CONSENT AGENDA: All items listed under the Consent Agenda are considered to be routine in nature and will be approved by one motion. There will be no separate discussion of these items unless a member of the Council or staff has requested a change under Adoption of the Agenda, in which case the item will be removed for separate consideration. Any item so removed will be taken up following the motion to approve the Consent Agenda

1. Fire Activity Report – August 2022
Recommended Action: Receive and file

2. Second Reading and Consideration of Adoption of Ordinance No. 2022-10: An Ordinance of the City Council of the City of Nevada City, State of California, Adding Chapter 12.05 to the Nevada City Municipal Code, Establishing an Encroachment Permit Process for Allowing Outdoor Dining Operations within the City Rights-OfWay, Including Sidewalk and Parklet Dining Recommended Action: Hold second reading and adopt ordinance

3. Second Reading and Consideration of Adoption of Ordinance No. 2022-11: An Ordinance Repealing Chapter 8.12 (“Garbage Disposal”) and Readopting Chapter

8.12 (“Solid Waste; Integrated Waste Management”) of Title 8 (“Health and Safety”) of the City of Nevada City Municipal Code Relating to Integrated Waste Management Recommended Action: Hold second reading and adopt ordinance

4. Consideration of Adoption of Resolution No. 2021-44: A Resolution of the City Council of the City of Nevada City Making the Legally Required Findings to Continue to Authorize the Conduct of Remote “Telephonic” Meetings During the State of Emergency
Recommended Action: Reconfirm resolution

5. Consideration of the Special Event Request for the Display of Cultural District Flags During a Regional Tour
Recommended Action: Review, approve, and authorize the special event request

6. Consideration of Award of Contract with PSCE in an Amount Not-To-Exceed $65,000 for Water Main Abandonment at Miners Foundry; Authorize a Project Contingency of 10%, Not-To-Exceed $6,500; and Authorize the City Manager to Execute any Contracts or Related Documents
Recommended Action: Award the contract, authorize the contingency, and authorize the City Manager to execute related documents
CONSENT ITEMS FORWARD (if needed): Items pulled from the Consent Agenda will be discussed individually with action taken by separate motion.

BUSINESS

7. Hear, Receive, and File the Impact Report on the Nevada City Historic Neighborhoods District Initiative Also Known as Measure W on the November 8, 2022, Ballot for Nevada City
Recommended Action: Hear a presentation, receive and file the report. No further action required or permitted.

8. Consideration of Adoption of Resolution 2022-60 Approving the Map and Conditions of Approval for Recordation of the Tentatively Approved Map at 400 Providence Mine Road; and Adoption of Resolution 2022-61 Making a Land Use Consistency Finding for Proposed Activity on the Resulting Parcels
Recommended Action: After reviewing and considering the approved Map and Conditions of Approval, adopt Resolution 2022-60 and authorize the Mayor to sign the map to be recorded at the Nevada County Recorder’s Office; and After reviewing and considering the applicant’s proposed land use activity including a classic car show room and storage facility with ancillary activities and events, adopt Resolution 2022-61 and authorize the Mayor to sign.

9. Consideration of Award of a Professional Services Contract with Chargie LLC for the Installation, Maintenance and Data Collection for Six Electric Vehicle (EV) Chargers in the Commercial Street Parking Lot in an Amount Not-to-Exceed $48,000 and Authorize the City Manager to Execute the Related Documents Recommended Action: Award the Professional Services Contract and authorize the City Manager to execute documents.

10. Consideration of the First Amendment to Employment Agreement for City Manager Between the City of Nevada City and Sean Grayson
Recommended Action: Approve the first amendment to the Employment Agreement with the City Manager.

CITY MANAGER, COUNCILMEMBER REPORTS AND FUTURE AGENDA ITEMS

ADJOURNMENT
The meeting will adjourn at 9:30 P.M. unless a decision is made by motion of a Councilmember to extend the time.

Certification of Posting of Agenda
I, Sean Grayson, City Manager for the City of Nevada City, declares that the foregoing agenda for the September 28, 2022 Regular Meeting of the Nevada City City Council was posted September 23, 2022 at the entrance of City Hall. The agenda, along with staff reports, is also posted on the City’s website.

Signed September 23, 2022 at Nevada City, California
____________________________________________________________ Sean Grayson, City Manager
Regular Meeting of
Nevada City Council
City Hall – Beryl P. Robinson, Jr. Conference Room
317 Broad Street, Nevada City, CA 95959
WEDNESDAY September 28, 2022 6:30 P.M.

MISSION STATEMENT
The City of Nevada City is dedicated to preserving and enhancing its small town character and historical architecture while providing quality public services for our current and future residents, businesses and visitors.

Doug Fleming, Mayor
Daniela Fernández, Vice Mayor Gary Petersen, Council Member Adam Kline, Council Member Lou Ceci, Council Member
NOTICE TO THE PUBLIC: Please be advised that the Council Chambers are currently open to the public. This meeting is accessible to the public in person, via Zoom video conference, via YouTube, or on the local government cable channel 17. Individual City Council members may participate remotely in accordance with applicable open meeting law requirements. In-person meetings will be conducted in accordance with local and State Department of Public Health orders and guidance and requirements of the California Division of Occupational Safety and Health (CalOSHA).

The public is encouraged to participate or observe this meeting by:

1. Attending this meeting in person at the City of Nevada City Council Chambers located at 317 Broad Street Nevada City, California.

2. Attending this meeting via Zoom video conference by linking to the following site:
https://us02web.zoom.us/j/89009138474 or,
by telephone: Dial 1-669-900-9128 Webinar ID: 890 0913 8474

3. Observing this meeting live from the City of Nevada City YouTube channel at:
https://www.youtube.com/channel/UCXSQwrXtey12YIl3IbyGMYQ

4. Observe this meeting live from the local government cable channel 17 Public comments may be made:

1. In person: Live at the meeting. Members of the public desiring to speak on a matter appearing on the agenda should ask the Mayor for the opportunity to be heard when the item comes up for Council consideration. Comments for all agenda items are limited to a speaking time of three minutes.

2. Via Zoom: If you choose to join the City Council Meeting via Zoom video conference you will be able to utilize the “Raise Hand”. If joining by telephone: Dial 1-669-900-9128 Webinar ID: 890 0913 8474, dial *9 to “Raise Hand”. The Mayor will call on those who wish to speak at the appropriate time, not to exceed three minutes.

3. In writing: Email your comments to [email protected] Comments will be accepted until 7pm on the Monday prior to the meeting date. Comments will not be read during the City Council meeting (due to virtual participation option above), but will be forwarded to all Council Members prior to the City Council Meeting, so they have time to read them before to the meeting time. When sending an email it is extremely helpful to include the following:
• Full Name
• Address (specific or general, ie: resident in unincorporated Nevada City) • The item number that you are commenting on
Any writing that is a public record that relates to an agenda item for open session distributed less than 72 hours prior to the meeting will be available for public inspection at City Hall, 317 Broad Street, Nevada City, California during normal business hours. Government Code § 54957.5(b)(1). Copies will also be provided at the appropriate meeting.

In compliance with the Americans with Disabilities Act of 1990, if you need special assistance to participate in this meeting, please contact the Deputy City Clerk at 530-265-0187 Extension 133. Notification at least 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. [28 CFR 35.102.35.104 ADA Title II].

CALL TO ORDER
NISENAN TRIBE RECOGNITION: This City Council Meeting Convenes On the Ancestral Territories of the Nevada City Rancheria Nisenan Tribe

PLEDGE OF ALLEGIANCE
ROLL CALL _____ Mayor Fleming
_____ Vice-Mayor Fernández
_____ Councilmember Petersen
_____ Councilmember Kline
_____ Councilmember Ceci
MEETING PROCEDURES: All items on agenda will be open for public comments before final action is taken. Citizens wishing to introduce written material into the record at the public meeting on any item are requested to provide a copy of the written material to the Deputy City Clerk prior to the meeting date so that the material may be distributed to the City Council prior to the meeting.

Speakers must restrict comments to the item as it appears on the agenda and stay within a three minutes time limit (or lesser time if the Mayor determines it necessary due to the number of persons who may wish to speak on an item). The Mayor similarly has the discretion of limiting the total discussion time for an item as may be necessary.

ADOPTION OF THE AGENDA (This is the time for agenda modifications) ANNOUNCEMENT OF ACTION FROM CLOSED SESSION (if needed)
PUBLIC COMMENT: Government Code Section 54954.3 provides that any member of the public may address the City Council on any matter NOT ON THE AGENDA that is within the subject matter jurisdiction of the city. The Brown Act, with limited exceptions, does not allow the Council or staff to discuss issues brought forth under Public Comment. The Council cannot take action on non-agenda items. Concerns may be referred to staff or placed on a future agenda. Please note that comments from the public will also be taken on each agenda item. At the time it is heard. Speakers must restrict comments to the item as it appears on the agenda and stay within a three minutes time limit (or lesser time if the Mayor determines it necessary due to the number of persons who may wish to speak on an item). The Mayor similarly has the discretion of limiting the total discussion time for an item as may be necessary.

CONSENT AGENDA: All items listed under the Consent Agenda are considered to be routine in nature and will be approved by one motion. There will be no separate discussion of these items unless a member of the Council or staff has requested a change under Adoption of the Agenda, in which case the item will be removed for separate consideration. Any item so removed will be taken up following the motion to approve the Consent Agenda

1. Fire Activity Report – August 2022
Recommended Action: Receive and file

2. Second Reading and Consideration of Adoption of Ordinance No. 2022-10: An Ordinance of the City Council of the City of Nevada City, State of California, Adding Chapter 12.05 to the Nevada City Municipal Code, Establishing an Encroachment Permit Process for Allowing Outdoor Dining Operations within the City Rights-OfWay, Including Sidewalk and Parklet Dining Recommended Action: Hold second reading and adopt ordinance

3. Second Reading and Consideration of Adoption of Ordinance No. 2022-11: An Ordinance Repealing Chapter 8.12 (“Garbage Disposal”) and Readopting Chapter

8.12 (“Solid Waste; Integrated Waste Management”) of Title 8 (“Health and Safety”) of the City of Nevada City Municipal Code Relating to Integrated Waste Management Recommended Action: Hold second reading and adopt ordinance

4. Consideration of Adoption of Resolution No. 2021-44: A Resolution of the City Council of the City of Nevada City Making the Legally Required Findings to Continue to Authorize the Conduct of Remote “Telephonic” Meetings During the State of Emergency
Recommended Action: Reconfirm resolution

5. Consideration of the Special Event Request for the Display of Cultural District Flags During a Regional Tour
Recommended Action: Review, approve, and authorize the special event request

6. Consideration of Award of Contract with PSCE in an Amount Not-To-Exceed $65,000 for Water Main Abandonment at Miners Foundry; Authorize a Project Contingency of 10%, Not-To-Exceed $6,500; and Authorize the City Manager to Execute any Contracts or Related Documents
Recommended Action: Award the contract, authorize the contingency, and authorize the City Manager to execute related documents
CONSENT ITEMS FORWARD (if needed): Items pulled from the Consent Agenda will be discussed individually with action taken by separate motion.

BUSINESS

7. Hear, Receive, and File the Impact Report on the Nevada City Historic Neighborhoods District Initiative Also Known as Measure W on the November 8, 2022, Ballot for Nevada City
Recommended Action: Hear a presentation, receive and file the report. No further action required or permitted.

8. Consideration of Adoption of Resolution 2022-60 Approving the Map and Conditions of Approval for Recordation of the Tentatively Approved Map at 400 Providence Mine Road; and Adoption of Resolution 2022-61 Making a Land Use Consistency Finding for Proposed Activity on the Resulting Parcels
Recommended Action: After reviewing and considering the approved Map and Conditions of Approval, adopt Resolution 2022-60 and authorize the Mayor to sign the map to be recorded at the Nevada County Recorder’s Office; and After reviewing and considering the applicant’s proposed land use activity including a classic car show room and storage facility with ancillary activities and events, adopt Resolution 2022-61 and authorize the Mayor to sign.

9. Consideration of Award of a Professional Services Contract with Chargie LLC for the Installation, Maintenance and Data Collection for Six Electric Vehicle (EV) Chargers in the Commercial Street Parking Lot in an Amount Not-to-Exceed $48,000 and Authorize the City Manager to Execute the Related Documents Recommended Action: Award the Professional Services Contract and authorize the City Manager to execute documents.

10. Consideration of the First Amendment to Employment Agreement for City Manager Between the City of Nevada City and Sean Grayson
Recommended Action: Approve the first amendment to the Employment Agreement with the City Manager.

CITY MANAGER, COUNCILMEMBER REPORTS AND FUTURE AGENDA ITEMS

ADJOURNMENT
The meeting will adjourn at 9:30 P.M. unless a decision is made by motion of a Councilmember to extend the time.

Certification of Posting of Agenda
I, Sean Grayson, City Manager for the City of Nevada City, declares that the foregoing agenda for the September 28, 2022 Regular Meeting of the Nevada City City Council was posted September 23, 2022 at the entrance of City Hall. The agenda, along with staff reports, is also posted on the City’s website.

Signed September 23, 2022 at Nevada City, California
____________________________________________________________ Sean Grayson, City Manager

CITY OF NEVADA CITY

CITY COUNCIL STAFF REPORT
MEETING OF: September 28, 2022 Agenda Item No. 01
Subject: Fire Activity Report – August 2022
From: Sam Goodspeed, Division Chief
Date: September 21, 2022
Reviewed & Approved:

Recommended Action: Receive and File.

ISSUE STATEMENT AND DISCUSSION:

The attached Fire Activity Report reviews the monthly responses for Nevada City Fire Station 5.

FINANCIAL AND/OR POLICY IMPLICATIONS:

Not applicable.

ENVIRONMENTAL CONSIDERATIONS:

Not applicable.

LEGAL REVIEW:

City Attorney Pucci has reviewed this item and finds that the recommended action complies with the law.

ATTACHMENTS:
 Outside Unit Responses to Nevada City
 Station 5 Incident Type Summary Report
 Station 5 Response by District
 City of Nevada City Incident Type Report
Basic Incident Date Time:

Basic Incident Zone/District Number (Fd1.32):

Apparatus Resource Id (Fd18.1):

Elite grsnev Outside Unit Responses to Nevada City
Total Responses Total Call Time in Minutes Average Time Spent on Call Apparatus Resource ID (FD18.1): B5112
1 16 16
Total: 1 Total: 16
Avg: 16.00
Apparatus Resource ID (FD18.1): B5113
1 25 25
Total: 1 Total: 25
Avg: 25.00
Apparatus Resource ID (FD18.1): Engine 84
3 43 14
Total: 3 Total: 43
Avg: 14.33
Apparatus Resource ID (FD18.1): Engine 86
6 119 20
Total: 6 Total: 119
Avg: 19.83
Apparatus Resource ID (FD18.1): Engine 90
1 12 12
Total: 1 Total: 12
Avg: 12.00
Apparatus Resource ID (FD18.1): Rescue 84
26 649 25
Total: 26 Total: 649
Avg: 24.96
Total: 38 Total: 864
Avg: 18.69
Report Criteria
Is Equal To Last Month
Is In 5 - Nevada City Stn 5, 5 - Station 5 - City, Nevada City Stn 5 Is Not In Batt 1, Batt 2, Batt 3, Brush 5, CPT11, Chief 1, Engine 1, Engine 2, Engine 201, Engine 202, Engine 205, Engine 5, OESE4104, OESE4609, P 2, P 3, P1, Squad 2, Truck 2, Utility 1, Utility 2, Utility 5, Utility 54 1 of 1 Printed On: 09/14/2022 08:40:14 AM
Basic Incident Type (Fd1.21):

Apparatus Resource Id (Fd18.1):

Basic Incident Date - Derived (Fd1.3):

Elite grsnev Station 5 Incident Type Report (Summary)
Basic Incident Type Code And
Description (FD1.21)
Total
Incidents
Total Incidents Percent of
Incidents
Total Property
Loss
Total Content
Loss
Total
Loss
Total Loss Percent
of Total
Incident Type Category (FD1.21): 1 - Fire
111 - Building fire 1 1.22%
113 - Cooking fire, confined to container 1 1.22%
118 - Trash or rubbish fire, contained 1 1.22%
131 - Passenger vehicle fire 2 2.44%
132 - Road freight or transport vehicle fire 1 1.22%
141 - Forest, woods or wildland fire 1 1.22%
142 - Brush or brush-and-grass mixture
fire
1 1.22%
143 - Grass fire 3 3.66%
162 - Outside equipment fire 1 1.22% 0.00 50.00 50.00 100.00% Total: 12 Total: 14.63% Total: 0.00 Total: 50.00 Total:

50.00 Total: 100.00%
Incident Type Category (FD1.21): 3 - Rescue & Emergency Medical Service Incident 321 - EMS call, excluding vehicle accident
with injury
40 48.78%
322 - Motor vehicle accident with injuries 1 1.22%
323 - Motor vehicle/pedestrian accident
(MV Ped)
2 2.44%
324 - Motor vehicle accident with no
injuries.
1 1.22%
381 - Rescue or EMS standby 1 1.22%
Total: 45 Total: 54.88% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Incident Type Category (FD1.21): 4 - Hazardous Condition (No Fire) 444 - Power line down 1 1.22%
463 - Vehicle accident, general cleanup 1 1.22%
Total: 2 Total: 2.44% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Incident Type Category (FD1.21): 5 - Service Call
552 - Police matter 1 1.22%
553 - Public service 1 1.22%
554 - Assist invalid 3 3.66%
Total: 5 Total: 6.10% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Incident Type Category (FD1.21): 6 - Good Intent Call
611 - Dispatched and cancelled en route 10 12.20%
622 - No incident found on arrival at
dispatch address
4 4.88%
651 - Smoke scare, odor of smoke 1 1.22%
Total: 15 Total: 18.29% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Incident Type Category (FD1.21): 7 - False Alarm & False Call 735 - Alarm system sounded due to
malfunction
1 1.22%
743 - Smoke detector activation, no fire -
unintentional
1 1.22%
745 - Alarm system activation, no fire -
unintentional
1 1.22%
Total: 3 Total: 3.66% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Total: 82 Total: 100.00% Total: 0.00 Total: 50.00 Total:

50.00 Total: 100.00%
Report Criteria
Is Not Blank
Is In Brush 5, Chief 5400, Engine 5, Utility 5
Is Equal To Last Month
1 of 2 Printed On: 09/14/2022 08:05:43 AM
2 of 2 Printed On: 09/14/2022 08:05:43 AM
Apparatus Resource Id (Fd18.1):

Basic Incident Date - Derived (Fd1.3):

Elite grsnev Station 5 Response by District
Basic Incident Zone/District Number (FD1.32) Number of Incidents 5 1 - Station 1 - City 4
2 - Station 2 - City 24
5 - Station 5 - City 33
NCC 54 5
NCC 84 7
NCC 86 4
NCC 87 3
Ophir Hill 1
Other 1
Report Criteria
Is In Brush 5, Chief 5400, Engine 5, Utility 5
Is Equal To Last Month
1 of 1 Printed On: 09/14/2022 08:05:46 AM
Basic Incident Zone/District Number (Fd1.32):

Basic Incident Postal Code (Fd1.19):

Basic Incident Date - Derived (Fd1.3):

Elite grsnev City of Nevada City Incident Type Report (Summary) Basic Incident Type Code And
Description (FD1.21)
Total
Incidents
Total Incidents Percent of
Incidents
Total Property
Loss
Total Content
Loss
Total
Loss
Total Loss Percent
of Total
Incident Type Category (FD1.21): 3 - Rescue & Emergency Medical Service Incident 321 - EMS call, excluding vehicle accident
with injury
37 80.43%
322 - Motor vehicle accident with injuries 2 4.35%
Total: 39 Total: 84.78% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Incident Type Category (FD1.21): 4 - Hazardous Condition (No Fire) 463 - Vehicle accident, general cleanup 1 2.17%
Total: 1 Total: 2.17% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Incident Type Category (FD1.21): 5 - Service Call
554 - Assist invalid 1 2.17%
Total: 1 Total: 2.17% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Incident Type Category (FD1.21): 6 - Good Intent Call
611 - Dispatched and cancelled en route 1 2.17%
622 - No incident found on arrival at
dispatch address
2 4.35%
653 - Smoke from barbecue, tar kettle 1 2.17%
Total: 4 Total: 8.70% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Incident Type Category (FD1.21): 7 - False Alarm & False Call 743 - Smoke detector activation, no fire -
unintentional
1 2.17%
Total: 1 Total: 2.17% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Total: 46 Total: 100.00% Total: 0.00 Total: 0.00 Total:

0.00 Total: 0.00%
Report Criteria
Is In 5 - Station 5 - City, Nevada City Stn 5
Is Equal To 95959
Is Equal To Last Month
1 of 1 Printed On: 09/14/2022 08:05:37 AM

CITY OF NEVADA CITY

CITY COUNCIL STAFF REPORT
MEETING OF: September 28, 2022 Agenda Item No. 02
Subject: Second Reading and Consideration of Adoption of Ordinance No. 2022-10: An Ordinance of the City Council of the City of Nevada City, State of California, Adding Chapter

12.05 to the Nevada City Municipal Code, Establishing an Encroachment Permit Process for Allowing Outdoor Dining Operations within the City Rights-Of-Way, Including Sidewalk and Parklet Dining
From: Amy Wolfson, City Planner
Date: September 23, 2022
Reviewed & Approved:

City Manager:

City Attorney:

Recommended Action: Hold second reading and adopt ordinance.

ISSUE STATEMENT AND DISCUSSION:

At the September 14, 2022, meeting the City Council introduced Ordinance 2022-10 in regards to outdoor dining operations within the City rights-of-way. The City Council approved an amendment to

12.05.050.A of the ordinance in their first reading which is also included in the attached ordinance 2022-

10. At the onset of the Covid-19 pandemic, City Council adopted Urgency Ordinance 2021-06 to allow outdoor dining on public and private property through a staff-issued permit as a pandemic exception to existing ordinances. Council extended the Ordinance multiple times and has most recently extended it until September 30, 2022, at their regular meeting held April 27, 2022, at which time they also directed staff to draft an Ordinance to establish a process for permanent outdoor dining within City Rights-ofWay.

In order to solicit comments from the Chamber of Commerce, merchants, and the broader community, the planning commission scheduled a public workshop at a special meeting on June 14, 2022. The workshop was attended by approximately 15 participants, all five commissioners, and staff. The majority of attendees were members of the Nevada City Chamber of Commerce representing businesses in the downtown. Staff has continued to receive feedback and comments as to the process since the workshop was conducted including through the Chamber of Commerce.

PROPOSED ORDINANCE:

The proposed ordinance is a modification of Title 12 “Streets, Sidewalks, and Public Places” and the City Engineer is the authorizing agent for permitting under this title. If the parklet and/or sidewalk dining environment were inside of businesses, they would be regulated under Title 17 “Zoning” and be subject to review of the City Planner and Planning Commission. In order to bridge the gap between the City rightof-way and the business seeking to have permitted use of the right-of-way, the proposed ordinance will use the Planning Commission, where defined, as a project review body with recommendations as to compliance forwarded to the City Engineer for consideration prior to his/her determination of issuance of an encroachment permit. In order to have the greatest amount of stakeholder input, the Planning Commission aided in the development of the ordinance.

The proposed Ordinance provides a regulatory process for the permitting of sidewalk dining and parklet dining. Discussion at the workshop informed the content of a draft Ordinance, which was presented to the planning commission at a special meeting held on August 4, 2022. Both parklet and sidewalk dining would require an encroachment permit to be issued by the City Engineer. Sidewalk dining will require permittees to select portable furniture based on Outdoor Furniture Design Guidelines and is intended to be a relatively simple process. Parklet permittees, at the discretion of the City Engineer, may go before the planning commission, acting as the architectural review committee, in order to obtain recommended conditions regarding aesthetics.

The commission recommended several amendments including a request to reduce the required width of unobstructed sidewalk alongside sidewalk dining from 4.5 feet to 4 feet so that more restaurants could potentially take advantage of a sidewalk dining encroachment permit. At the commission’s direction, staff also reached out to FREED Center for Independent Living, who advocated for a width of 5 feet, but also indicated that 4.5 feet was far superior to 4. In an attempt to balance the desire of both the merchants and accessibility needs as represented by FREED, the attached Ordinance remains at a 4.5-foot unobstructed sidewalk width requirement.

The commission also requested that staff reconsider adding in provisions for allowing tent structures.

However, tents increase risk of fire and wind uplift, degrade the visual environment, and are prohibited by building code in most circumstances. Outdoor dining permittees may choose to use umbrellas to provide shade to patrons. Shade and trellis structures constructed consistent with California Building Code could be permitted as part of a permit application outside of the Historic District.

APPLICATION AND LEASE FEES:

Staff is recommending a fee schedule for encroachment applications, renewal applications, and for annual lease of a public spaces. Application and renewal fees are intended to cover the direct cost associated with staff time for permit review and inspection including review by the Planning Commission where required.

The proposed fee structure for dining encroachment permits is reflected in the table below:

Application Type Rate
Parklet Dining Encroachment Permit $1500
Sidewalk Dining Encroachment Permit $300
Parklet Lease Fee – if paid monthly $316
Parklet Lease Fee – if paid annually $3000
Parklet Dining Encroachment Renewal $220
Sidewalk Dining Encroachment Renewal $300
The sidewalk dining encroachment permit includes both the permit processing amount of $220 and oneyear lease fee amount of $220 for a total of $300.

The parklet lease fee is based upon the annual use of two parking spots with a revenue loss to the City of $2000, a loss of parking value of $900, and a use of space fee of $900. The total parklet fee if paid annually equates to a commercial lease rate of $1.39 per square foot per month. The parklet lease fee offers a discount for payment in full at time of permit application over monthly payments to account for the reduced processing costs of the City.

Properties with current Temporary Outdoor Dining Permits that apply for a parklet encroachment permit or a conditional use permit for outdoor dining on private property will be charged the renewal Parklet Dining Encroachment Renewal for that application.

EXTENSION OF TEMPORARY PERMITS:

Temporary permits issued for outdoor dining are set to expire on September 30, 2022, pursuant to Council’s action on April 27, 2022 to extend the temporary permits permitted under Urgency Ordinance 2021-06. Once new standards are adopted as part of a regular ordinance, existing temporary permit holders on both private and public property will need to bring their outdoor dining operations into compliance. Furthermore, staff has yet to receive direction to develop ordinance provisions for sign, clothing rack, and planter encroachments within the sidewalk. Staff supports a transitionary time period to allow existing permit holders to obtain approval for compliant outdoor dining operations. Temporary permit holders that apply or file intent to apply for sidewalk or parklet encroachment permits by September 30, 2022, will be given a period of 90 days under which the provisions of the temporary permit may be maintained while processing the encroachment permits except that unsafe, illegal or activities otherwise not allowed by the temporary permits may be discontinued immediately. Staff may extend this 90-day period to align with the completion of application where appropriate. Staff also supports a reduction of application fees for current temporary permit holders and is asking Council to consider processing Dining Encroachment Permits and Conditional Use Permits (applicable to outdoor dining operations on private property) under the renewal fees indicated in the fee schedule above.

FINANCIAL AND/OR POLICY IMPLICATIONS:

The proposed fees are intended to cover the cost associate with staff time to process Dining Encroachment Permits and provide any necessary inspections. The fee reduction recommended for current temporary outdoor dining permit holder will not cover staff’s full cost to process those applications. However, the reduced fees would be limited only to existing permit holders and acts as an acknowledgement of the potential significant cost to be incurred by businesses looking to transition their temporary outdoor dining operations to those that are compliant with the proposed Ordinance and with California Building Code.

ENVIRONMENTAL REVIEW:

Adoption of the attached Ordinance and Resolution are exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines Section 15061(b) (3) of Title 14 of the California Code of Regulations because there is no possibility the adoption and implementation of this Ordinance may have a significant effect on the environment because the outdoor dining in the public rightsof-way will occur in conjunction with established restaurant and bar uses that are already zoned appropriately for the intended use, and in compliance with existing City regulations so their impact on the environment will be collectively minimal. Furthermore, individual outdoor dining encroachment projects that are consistent with these regulations are anticipated to be categorically exempt from CEQA under CEQA Guidelines Sections 15301 (existing facilities) and 15304(e) (minor temporary use of land having negligible or no permanent effects on the environment).

ATTACHMENTS:
• Ordinance No. 2022-10, Ordinance regulating Dining Encroachment Permits ORDINANCE NO. 2022-10

AN ORDINANCE OF THE CITY OF NEVADA CITY, STATE OF CALIFORNIA, ADDING CHAPTER 12.05 TO THE NEVADA CITY MUNICIPAL CODE,

ESTABLISHING AN ENCROACHMENT PERMIT PROCESS FOR ALLOWING

OUTDOOR DINING OPERATIONS WITHIN THE CITY RIGHTS-OF-WAY,

INCLUDING SIDEWALK AND PARKLET DINING
WHEREAS, the City currently has an established process for permitting outdoor dining on private property through a Conditional Use Permit process for established restaurant uses within the Local Business (LB) and General Business (GB) zoning designations; and WHEREAS, the City recognizes that outdoor dining within the City right-of-way poses special issues of equitable use of public space and community health and safety concerns and therefore warrants additional permitting to ensure continued public use and health and safety provisions; and
WHEREAS, despite the ability of businesses to gradually re -open in accordance with State and local health requirements, restaurants are limited in their capacity to provide services in their existing facilities due to existing and ongoing social distancing recommendations and public preferences; and
WHEREAS, the City Council has received input from residents and businesses seeking appropriate City regulations in regulating permanent outdoor dining within public sidewalks and public parking spaces in a manner that promotes public health, safety and welfare; and WHEREAS, the City recognizes that outdoor dining benefits both residents, visitors, and business owners who perceive outdoor use as a safer dining option in light of the COVID-19 pandemic in order to maintain social distancing preferences; and WHEREAS, at their regular meeting held April 27, 2022, the City Council directed staff to draft an Ordinance to establish a process for permanent outdoor dining within the City Rightsof-Way WHEREAS, at its July 21, 2022 regular meeting, the Planning Commission of the City of Nevada City reviewed the Ordinance and having found it consistent with the City’s General Plan and other zoning regulations, recommended its approval to the City Council; and WHEREAS, the City Council finds the Ordinance consistent with the actions, goals, objectives, policies, and programs of the City of Nevada City General Plan in that incorporation of provisions for allowing permanent outdoor dining within the public right-of-way responds to the preference of the community to continue outdoor dining at established restaurants and bars even after the COVID-19 health emergency has ceased while maintaining reasonable traffic levels on local streets to protect residents from safety hazards and maintaining an aesthetic standard consistent with existing aesthetics; and
WHEREAS, the City has an important and substantial public interest in providing regulations to prevent safety, traffic and health hazards, as well as to preserve the peace, safety and welfare of the community.

WHEREAS, the City Council finds that the ordinance would not be detrimental to the public interest, health, safety, convenience, or general welfare of the City, because it is an amendment to the Nevada City Municipal Code that establishes regulations for outdoor dining in the public right-of-way to ensure they are operating according to health and safety standards adopted by the state and that their operation does not pose a safety risks to motorists or pedestrians; and
WHEREAS¸ the City Council hereby finds that it can be seen with certainty that there is no possibility the adoption and implementation of this Ordinance may have a significant effect on the environment because the outdoor dining in the public rights-ofway will occur in conjunction with established restaurant and bar uses that are already zoned appropriately for the intended use, and in compliance with existing City regulations so their impact on the environment will be collectively minimal. The Ordinance is therefore exempt from the environmental review requirements of the California Environmental Quality Act pursuant to Section 15061(b) (3) of Title 14 of the California Code of Regulations.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NEVADA CITY, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. Incorporation of Preamble. The City Council finds that all the facts, findings, and conclusions set forth above in this Ordinance are true and correct.

SECTION 2. Chapter 12.05 entitled “Outdoor Dining within Public Rights-ofWay,” of Title 12 (Streets, Sidewalks, and Public Places) of the Nevada City Municipal Code is hereby to read as follows:

12.05 Outdoor Dining Encroachments within Public Rights-of-Way

12.05.010. Purpose of Provisions
It is the intent of this chapter to provide regulations for use by established indoor restaurant, winery, and/or bar businesses to operate an outdoor operation component within a portion of a City sidewalk (Sidewalk Dining Encroachment Permit) or within a public parking space (Parklet Dining Encroachment Permit). Outdoor dining operations shall be done in conjunction with an indoor dining or drinking operation pursuant to the standards of operation outlined in this chapter.

12.05.020 Definitions.

For purposes of this Chapter, the following words or phrases shall have the following meanings:

A. "Qualifying Business" means any restaurant, food establishment, or bar or winery serving food and/or drink, which will operate both indoors and outdoors, and in compliance with local and State regulations.

B. “Sidewalk Dining Encroachment Permit” means a permit issued to a Qualifying Business by the City Engineer for serving food and/or drink by a restaurant, or winery, or bar business operating in an adjacent building with service occurring on a portion of a City sidewalk.

C. “Parklet Dining Encroachment Permit” means a permit issued to a Qualifying Business by the City Engineer for serving food and/or drink by a restaurant, or winery, or bar business operating in an adjacent building, with service occurring within a curbside parking space or spaces.

D. “Parklet” is a fixed encroachment placed in the curbside parking space that is used principally for commercial activity by a Permittee operating a restaurant, or winery, or bar business within an adjacent building during specified business hours.

E. “Portable” shall mean that furnishings and amenities meet the following criteria: 1) capable of being removed with 24 hours’ notice; 2) can be removed without mechanized equipment; and 3) can be temporarily anchored for safety and security.

12.05.030 Operational Standards Applicable to all Dining Encroachment Permits A. Adjacency to Storefront –Dining Encroachment Permits may only be issued to Permittees along the frontage of the storefront that is applying for the encroachment. Encroachments are not allowed to use the frontage of adjacent storefronts to expand their territory.

Encroachments shared with adjacent businesses may be filed through a joint application and will be considered on a case-by-case basis. The shared encroachment area cannot exceed the frontage for the combined businesses.

B. Smoking of any kindis prohibited on any Sidewalk and/or Parklet space operating under a Dining Encroachment Permit.

C. Proper and adequate storage and disposal of debris andgarbage shall be the responsibility of the business and secured after the business is closed.

D. The Permittee or its employees or volunteers shall walk a 25-foot radius from the Outdoor Dining Encroachment Permit area within 30 minutes after close of business and shall pick up and dispose of any discarded trash within the radius.

E. Any approved use of a Dining Encroachment Permit is limited to the normal hours of the Permittee’s business operation within the adjacent building.

F. The license fee amounts for Dining Encroachment Permits shall be set forth in a Resolution adopted by the City Council.

G. The Dining Encroachment Permit application and renewal fees shall be set forth in a Resolution adopted by the City Council.

H. A Dining Encroachment Permit is not transferrable. Any new business must reapply for a Dining Encroachment Permit and demonstrate compliance with all applicable provisions of this chapter and with the prior Permit, if applicable.

I. All portable furnishings and fixtures shall comply with the following standards:

1. Material shall be natural wood, manufactured stone, or wrought iron, or wrought iron in appearance (see outdoor furniture design guidelines).

2. The furniture shall be traditional in style and consistent with outdoor dining furniture guide, as may be amended by the City Planner

3. The seat of the chair shall not exceed 24" in height and the overall dimension of the chair shall not exceed 24" wide x 24" deep x 42" tall.

4. Furniture shall be rated to meet standards of the California Fire Code.

J. Outdoor dining is not permitted where, in the opinion of the City Engineer, the speed, volume or nearness of vehicular traffic is not compatible with outdoor dining. All outdoor dining areas must be adjacent to and incidental to the operation of a food, wine, or alcohol service establishment providing on-premises customer seating properly licensed for such service pursuant to state and county environmental health regulations.

K. The issuance of a Dining Encroachment Permit shall be at the discretion of the City Engineer and shall not be an obligation of the City. At any time, the City may revoke or limit the terms of the permit in order to address public safety concerns, facilitate adequate traffic flow, address parking needs and ADA access, or other needs of the City.

L. The service of alcoholic beverages shall be restricted solely to on-premises consumption by customers within the outdoor dining area. Each of the following standards apply to outdoor dining areas which provide alcoholic beverage service:

1. The outdoor dining area must be immediately adjacent to and abutting an indoor restaurant which provides food and/or beverage service;

2. The outdoor dining area must be clearly and physically separated from pedestrian traffic;

3. The operator shall post a written notice to customers that the drinking or carrying of an open container of alcohol is prohibited outside the outdoor dining area;

4. The outdoor dining operations must be duly licensed by the state Department of Alcoholic Beverage Control.

M. All heating implements shall meet regulations of the California Fire Code and shall comply with the following:

1. The use of temporary space covers of any type is prohibited.

2. The use of heating devices shall be approved with the following requirements:
i. Heating devices shall have a minimum thirty-six (36) inch clearance between the heat source and any flammable/combustible material(s), such as any umbrella canvas, any foliage, or any other flammable object or material. Heaters are not allowed under umbrellas but can be placed near them if clearances are maintained. Clearance shall always be maintained. ii. A minimum of one (1) fire extinguisher with a minimum size and rating of five (5) lb., 2-A:10-B:C shall be provided. All fire extinguishers shall be serviced annually and have a current service tag issued by a licensed fire extinguisher company within the past one-year period.
iii. Heating devices shall be arranged to eliminate burn and/or tripping hazard to the public and/or workers.

3. Portable LPG tanks used for heating devices:
i. Shall be secured in an upright position and in an approved manner (safety valves located on top)
ii. Shall be located so as not to be a tripping hazard for the public and/or workers.
iii. Shall have a maximum allowable size of twenty (20) pound / five (5) gallon capacity.

4. The use of fuel fired heating and/or flame producing devices is prohibited. This does not limit use of UL listed devices that operate consistent with the Fire Code.

N. All furnishings and fixtures must be designed to be weighted down for wind protection.

O. The maximum term of a dining encroachment permit is one year; thereafter, the City Engineer may renew the license for additional periods, not to exceed one year each, following review and approval of the operation. If the City Engineer considers additional or revised conditions desirable, such new conditions may be imposed upon the extension, including the imposition of a license renewal fee.

P. Limitations on City’s Liability. To the fullest extent permitted by law, the City of Nevada City shall not assume any liability whatsoever with respect to having issued a dining encroachment permit pursuant to this Chapter. As a condition to the approval of any dining encroachment permit, the applicant shall be required to meet all of the following conditions:

1. They must execute an agreement, in a form approved by the city attorney, agreeing to indemnify, defend (at applicant’s sole cost and expense), and hold the City of Nevada City, and its officers, officials, employees, representatives, and agents, harmless, from any and all claims, losses, damages, injuries, liabilities or losses which arise out of, or which are in any way related to, the City’s issuance of the dining encroachment permit, the City’s decision to approve the operation of outdoor dining within the right-of-way or activity, to process used by the City in making its decision, or the alleged violation of any federal, state or local laws by the outdoor dining business or any of its officers, employees or agents.

2. Maintain insurance at coverage limits, and with conditions thereon determined necessary and appropriate from time to time by the city attorney.

3. Reimburse the City of Nevada City for all costs and expenses, including but not limited to attorney fees and costs and court costs, which the City of Nevada City may be required to pay as a result of any legal challenge related to the City’s approval of the applicant’s dining encroachment permit, or related to the City’s approval of outdoor dining activity. The City of Nevada City may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve any of the obligations imposed hereunder.

Q. An application for Outdoor Sidewalk and/or Parklet Dining shall include the following minimum requirements:

1. A list of and frequency schedule for routine maintenance tasks, including pressure washing dining area

2. Material specs and brochures for all material and furniture improvements.

Material specs and brochures for heating implements shall also be provided if use is to be year-round.

3. Photographs of existing conditions on the site, including pictures of the building that hosts the primary business.

4. A conceptual site plan depicting how the space will be configured, including the introduction and placement of any temporary physical elements, dimensions of fixed and portable furniture, dimensions of the space, any existing fixed obstacles and four and one-half feet (54 inches) of unimpeded sidewalk width that is compliant with ADA standards, applicable to Sidewalk outdoor dining. If operation is to occur year-round, applicant must provide a cold-weather conceptual site plan, showing all furniture including location and material specs of heating implements if they are to be used.

5. Permittee’s liability and indemnification Agreement at limits as specified by the City Attorney.

12.05.040. Additional Sidewalk Dining Operational Standards.

A. The City Engineer or his designee shall be responsible for issuance of a Sidewalk Dining Encroachment Permit, provided it complies with the requirements of this chapter.

B. All sidewalk service shall occur in a manner that maintains a path of unimpeded access at least four and one-half feet (54 inches) wide that is compliant with ADA standards across the sidewalk fronting their sidewalk dining space, including any existing fixed obstacles and proposed improvements, as measured to the back of the curb return.

C. All tables, chairs, and fixtures shall be portable and completely removed from the sidewalk during times when the business of the Permittee is not operating.

D. Umbrellas - Umbrellas shall be pressure-treated or manufactured of fire-resistant material.

No portion of an umbrella shall be less than 96 inches above the sidewalk, not including the umbrella support post.

E. A Permittee’s right to occupy the sidewalk shall be conditioned upon the obligation to remove or modify their sidewalk dining amenities at any time, as necessary for any City project or maintenance work.

F. All proposed lighting shall be hardwired to the building’s electrical supply and compliant with Section 17.80.215 of the City Municipal Code, with specific light fixtures to be certified as “Dark Sky Approved” by the International Dark Sky Association and approved under an Architectural Review permit. Existing, permitted lighting may be used to illuminate the dining space.

12.05.050. Additional Parklet Operational Standards.

A. The City Engineer or his designee shall be responsible for reviewing a Parklet Dining Encroachment Permit. Prior to the issuance of a Parklet Dining Encroachment Permit by the City Engineer or designee, the Architectural Review Committee shall review the design of the proposed Parklet and make recommendations to approve, approve with conditions, or deny the design of the Parklet and the compatibility of the Parklet with adjacent buildings. Architectural Review Committee review shall not be required for renewal permits or new permitting of existing parklets that have no design changes.

B. Parklets may only be constructed on streets with speed limits of 25 mph or lower.

C. Portable seating, tables and amenities shall be removed from the Parklet space at such times when the Parklet is not being activated for commercial use by the Permittee during business hours unless the Permittee has provided for one of the following in their approved application:

1. The portable furniture is in place for use by the public as desired by the Permittee, and as indicated in the permit.

2. The portable furniture is secured in a method as approved by the City Engineer to be safe, and aesthetically pleasing, (no tarps or jumbled pile) D. A Permittee’s right to occupy the Parklet Space shall be conditioned upon the obligation to remove or modify the Parklet at any time, as necessary for any City project or maintenance work.

E. Parklet plans shall be designed by a design professional, such as an engineer or an architect and shall be constructed in accordance with an issued building permit consistent with California Building Code and designed pursuant to the following minimum requirements:

1. A parklet shall be located in parallel parking space(s) at a length of one or two parallel parking spaces. A minimum of 48 feet or three parallel parking space buffers, whichever is greater, is required from the nearest parklet.

2. A minimum of 16 feet or one parallel parking space buffer, whichever is greater, is required when adjacent to a driveway or crosswalk.

3. A parklet shall not block sight distance of motorists at intersections. Accordingly, a parklet may not be located less than 25 feet from a roadway intersection. The final distance required may vary based on the surrounding roadway conditions, and shall be subject to the approval of the City Engineer

4. A parklet shall not be permitted directly across the street from another parklet.

5. A parklet shall not be permitted within a green temporary zone, yellow loading zone, blue accessible parking zone, or red no parking zone.

6. A parklet shall not be constructed over or obstruct utility access panels, manhole covers, storm drains, and must maintain a minimum distance of four feet from a fire hydrant. A minimum clearance of 8 feet from storm drains and manhole covers will be required to allow for maintenance access, though the City Engineer may grant an exception to this clearance based on an exceptional design that accommodates access upon immediate notice. Parklets proposed under overhead utility lines will be required to meet the minimum distance requirements as established by the CPUC. Parklets that block the outlet of a sidewalk underdrain will be required to ensure the outlet is functional and flowing.

7. The outer perimeter of a parklet adjacent to the street and parking shall have a reflective element and protective barrier such as bollards or solid planter.

8. Shall be designed as an elevated platform that allows the parklet to serve as an extension of the sidewalks and made fully accessible.

9. Shall incorporate railings to demarcate the exterior of the parklet from the street and surrounding parking spaces. Planters may be interspersed if desired.

10. Parklet seating areas must comply with all requirements of the Americans with Disabilities Act (ADA) and provide sufficient clearance and walkway space to allow safe access and egress
F. Electrical connections – Overhead and on-the-ground extension cords shall not be permitted. Lighting may be solar or battery-operated lighting or may be hardwired using the existing business electrical service and placed in a conduit that runs underground to the parklet platform. All wiring and electrical cords must be exterior rated, GFCI protected, and UL listed. Businesses are not allowed to connect into existing City electrical connections. Generators are not allowed in association with Outdoor dining encroachment permits, except for use during emergency power outage.

1. Lighting shall be consistent with Section 17.80.215 of the City Municipal Code, with specific light fixtures to be certified by the International Dark Sky Association
G. Trellises and shade structures are not allowed within the Historic District.

Trellises and shade structures may be permitted outside the Historic District and must be constructed in accordance with an issued building permit. Tents of any kind are not permitted.

H. The City shall have the right to construct a public Parklet irrespective of the above standards.

I. Platform Design Criteria:

1. Materials - Platforms must be constructed from durable materials that can withstand wear and tear of elements. Pouring concrete for parklet platforms is not allowed. You may use concrete pavers on a platform structure instead. Surface materials must be textured or treated with a non-skid coating to ensure a safe walking surface. Loose particles, such as sand or loose stone, are not permitted.

2. Maintenance access - Parklets must be designed to provide access under the platform to allow for maintenance (e.g. repairs or clearing debris). If the platform base is not a solid mass, access can be provided through access panels, removable pavers, or other means.

3. Platform Threshold - The platform threshold must be flush and even with sidewalk and ADA compliant with a horizontal gap no greater than 1/2 inch, and a change in level of no greater than 1/2 inch. Changes in surface level 1/4-inch through 1/2-inch vertically must be beveled.

4. Drainage - Platforms should allow for curbside drainage flow. A 3-inch height by 12-inch width minimum clear gutter space must be provided along the entire length of the proposed platform. Openings at either end of the parklet may be covered with screens to prevent debris buildup beneath the platform and in the gutter. It is the responsibility of the parklet permittee to clean the cover or screen to prevent any backup of storm water. All parklets must provide access through the parklet platform or threshold to the gutter adjacent to the curb.

5. Bolting Not Allowed - At no time may structures be bolted or affixed in any way to the roadway, a structure, or public fixture (including but not limited to:
buildings, fire hydrants, street trees, streetlight, parking meters, or traffic poles, etc.) An exception to this is that bollards or other barriers for traffic protection may be approved by the City Engineer.

6. ADA Accessibility - All accessibility elements of the proposed platform shall be designed, constructed and/or conform to the applicable provisions, rules, regulations and guidelines of the California Building Code and Americans with Disabilities Act.

7. Railing design shall be consistent with the City’s sidewalk rail design that emulates the design of the historic Pine Street Bridge as provided in the detail below, or another design as may be recommended by the architectural review committee and approved by the City Engineer.

City Sidewalk Railing Aesthetic to be Applied to Parklet Railing Enclosures

12.05.060 Enforcement Actions; Penalties
A. If a permit to place the structure or furniture has been rescinded or expired, before any such structure or furniture is seized, the Permittee shall be notified and given 10 business days to remove the structure or furniture. If the Permittee does not remedy the underlying violation leading to the rescission of the permit and/or apply for a Dining Encroachment Permit within the time prescribed, the City may seize, remove, or demolish the structure or furniture.

B. Seized furniture shall be retained by the City and may be recovered by the responsible party for a period of at least 30 business days following seizure. As a condition ofrecovering any furniture seized pursuant to this Section or receiving a subsequent Outdoor Dining Permit, the Permittee shall pay an impound fee covering the actual cost to the City of transporting and storing such furniture.

C. Public Works may demolish any unpermitted structure placed in the right-of-way. Where a Permittee is responsible for an unpermitted structure that requires demolition, the Permittee shall not be eligible for a subsequent Dining Encroachment Permit until the Permittee has paid the fee covering the actual costs to the City of demolishing and disposing of the structure(s). Such recoverable costs may include those incurred by Public Works and any other City department, including the City Attorney’s Office, fortime and materials spent enforcing the requirements of the permit.

D. If a Permittee does not pay the permit fee within 30 days after it becomes due and payable, the City shall add 10% to the amount of the permit fee as a penalty for nonpayment. If the permittee does not pay the fee within 45 days after it becomes due and payable, the City shall issue notice of overdue payment and may revoke the permit if payment is not made within 60 days after the permit fee is due and payable.

E. Upon revocation or expiration of an outdoor dining permit by the City or withdrawal by the permittee, all improvements shall be removed, and the site returned to its original state to the satisfaction of the City Engineer.

F. Cost Recovery for Removal: As a condition of parklet permit issuance, the parklet permittee shall agree to remove the parklet completely upon revocation by the City or termination by the permittee. If the parklet permittee abandons the parklet prior to the end of the parklet permit term or refuses to remove the parklet upon request or termination of the parklet permit, the City will bill the permittee in an amount the City determines is necessary to pay for the cost to remove the parklet and restore the right of way.

G. Protest of Non-Issuance: Dining Encroachment Permits shall be issued at the discretion of the City Engineer. Protest of non-issuance may be made to the City Manager who may overturn the decision of City Engineer.

SECTION 3. Inconsistences. Any provision of the Nevada City Municipal Code or appendices thereto inconsistent with the provisions of the Ordinance, to the extent of such inconsistencies and no further, are suspended or modified to that extent necessary to affect the provisions of this Ordinance, but only during the term of this Ordinance.

SECTION 4. Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. The City Council of the City of Nevada City declares that it would have adopted all the provisions of this ordinance that remain valid if any provisions of this ordinance are declared invalid
SECTION 5. Effective Date. This ordinance shall take effect thirty (30) days after its final passage and within fifteen (15) days after its passage, the City Clerk of the City of Nevada City shall certify to the passage and adoption of this ordinance and to its approval by the Mayor and City Council and shall cause the same to be published in a newspaper in the manner required by law.

SECTION 6. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted in the manner required by law.

PASSED, APPROVED AND ADOPTED this ________ day of ___________2022 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Doug Fleming, Mayor
ATTEST:

Niel Locke, City Clerk

APPROVED AS TO FORM
Dean J. Pucci, City Attorney

CITY OF NEVADA CITY

CITY COUNCIL STAFF REPORT
MEETING OF: September 28, 2022 Agenda Item No. 03
Subject: Second Reading and Consideration of Adoption of Ordinance No. 2022-11: An Ordinance Repealing Chapter 8.12 (“Garbage Disposal”) and Readopting Chapter 8.12 (“Solid Waste; Integrated Waste Management”) of Title 8 (“Health and Safety”) of the City of Nevada City Municipal Code Relating to Integrated Waste Management
From: Sean Grayson, City Manager
Date: September 23, 2022
Reviewed & Approved:

City Manager:

City Attorney:

Recommended Action: Hold second reading and adopt ordinance.

ISSUE STATEMENT AND DISCUSSION:

At the September 14, 2022, meeting the City Council introduced Ordinance 2022-11 in regards to Solid Waste and Integrated Waste Management. Senate Bill (SB) 1383 (Chapter 395, Statutes of 2016) directed the California Department of Resources Recycling and Recovery ("CalRecycle") to adopt regulations to reduce organic waste statewide by 50% from its 2014 baseline level by 2020 and 75% by 2025. SB 1383 also requires the regulations to recover, for human consumption, at least 20 percent of edible food that is currently thrown away. The purpose of SB 1383 is to reduce methane and greenhouse gas emissions resulting from landfilled organic waste, and the impact on climate change. The regulations promulgated by CalRecycle to implement SB 1383 (the SB 1383 Regulations) were finalized in late 2020 and took effect on January 1, 2022. The SB 1383 Regulations require the City to adopt and enforce an ordinance to implement the SB 1383 Regulations (this SB 1383 Ordinance).

The SB 1383 Ordinance will require all residents and businesses to subscribe to organic waste collection services and source separate organic waste from solid waste and recyclables. The Ordinance requires education and outreach to individuals and businesses who generate waste on how they can properly sort materials for collection, the implementation of an edible food recovery program, inspections to ensure compliance with the SB 1383 Regulations, and enforcement for non-compliance with the SB 1383 Regulations.

Mandatory Subscription to Organic Services
All residents and businesses will be required to subscribe to organic waste collection services beginning January 1, 2022. Commercial businesses and multifamily properties with 5 or more units were already required to subscribe to organic waste services, SB 1383 builds upon Assembly Bill (AB) 1826 (Chapter 727, Statutes of 2014), which required any business generating two (2) or more cubic yards of solid organic waste per week, and multifamily properties with five or more units, to recycle their organic waste. (Under AB 1826, multifamily properties are only required to recycle yard waste.)
Waste Management currently provides solid waste collection services within the City under an exclusive franchise. The SB 1383 Regulations require Waste Management to provide, and all residents and businesses to subscribe to, organic waste collection services. Waste generators must source separate materials in the appropriate color-coded collection container to avoid contaminating the containers and the different waste streams. Waste Management currently provides organic waste collection services to both residents and businesses in the City, so there would be minimal impact to Waste Management’s operations to implement this collection requirement.

Waste Management provides solid waste collection services to residential customers, through a threecontainer service: Trash (Gray Lid), Recycling (Blue Lid), Green and Food Waste (Green Lid). Waste Management also provides trash, recycling and organics collection services to businesses, and the rates vary depending on the size of the container and the frequency of collection.

Waiver from Certain SB 1383 Requirements Related to Collection Under the SB 1383 Regulations, a local jurisdiction may qualify for a low population waiver for a waiver from certain organic waste collection requirements if the local jurisdiction disposed of less than 5,000 tons of solid waste in 2014 as reported in the Disposal Reporting System and has a population less than 7,500. The City of Nevada City met both of these requirements and received the low population waiver.

Low population waivers are valid for a period up to five years.

The City submitted a low population waiver to CalRecycle for an exemption from some of requirements under the SB 1383 Regulations, specifically Article 3 (relating to organic collection services) of Chapter 12 of Title 14 of the California Code of Regulations. Since Waste Management already provides organic waste collection services to residential and commercial businesses, this Ordinance requires residents and businesses to assist the City in meeting state organic waste diversion goals by subscribing to organic waste collection service. The benefit of the City applying for a low population waiver is that it would waive certain requirements related to collection that the City would otherwise have to satisfy beginning January 1, 2022. These requirements include: recordkeeping requirements, certain monitoring requirements to ensure container contamination minimization, and container color and label requirements that identify what materials may be placed in each container.

City Issued Waivers From Organics Waste Collection and Recycling The City must review requests from businesses and/or multifamily buildings for waivers from organic waste collection and recycling requirements, and grant waivers when criteria are met. The City can issue:
• de minimus waivers to a business if the business does generate a low volume of combined solid waste, recyclables, and organic waste and little organic waste or recyclables; • physical space waivers if there are physical limitations for collection containers at a place of business or a multifamily property with 5 or more units; and,
• any additional waivers allowed under the law.

Education and Outreach Requirements
• Businesses and multifamily buildings must acquire and supply an adequate number of labeled, color specific containers for employees, contractors, tenants, and customers, and educate employees and tenants about proper sorting.
• The education and outreach period is from January 1, 2022, through December 31, 2023, and educational materials must be provided to generators who do not comply with the requirements.

Edible Food Recovery Program
• The City must develop and implement an edible food recovery program that recovers edible food from commercial edible food generators for human consumption. • Commercial edible food generators must enter into written agreements with food recovery organizations and services, and the entities must keep specified records. • Under the SB 1383 Regulations, if the county identifies that new or expanded capacity is required to recover edible food currently disposed of by commercial edible food generators in the county and the local jurisdictions within the county, then each jurisdiction that lacks capacity must submit an implementation schedule to CalRecycle regarding how it will ensure new or expanded capacity. The implementation schedule must include timelines of planning efforts to access new capacity, including, but not limited to, obtaining funding for edible food recovery infrastructure, and identification of facilities, operations and activities within the county that could be used for additional capacity. • The City and Nevada County are coordinating their efforts to develop an edible food recovery program and address capacity planning for edible food recovery to comply with the requirements of the SB 1383 Regulations.

Inspection and Enforcement
• The City must inspect and enforce the requirements in the Ordinance. The penalties for violations are consistent with the City’s penalties for other ordinance violations. • The City must provide educational materials, issue notice of violations, and issue administrative citations for violations of the Ordinance as specified. • The focus will be on education and outreach in 2022 and 2023. Penalties for non-compliance will be imposed after January 1, 2024.
• While the City may designate a public or private entity to fulfill some of its SB 1383 regulatory responsibilities by agreement, the City itself remains responsible for its SB 1383 compliance and enforcing other entities compliance with the SB 1383 regulations through the Ordinance. Under the SB 1383 Regulations, the City is also not allowed to delegate the authority to impose civil penalties for any violation of the Ordinance, or to issue waivers, to a private entity.

Other SB 1383 Requirements
• The SB 1383 Regulations require the City to adopt enforceable requirements to comply with specified provisions of the California Green Building Standards Code (CALGreen) and the State Model Water Efficient Landscape Ordinance, unless they already have such an enforceable mechanism in place. • The City must procure recycled content paper in accordance with existing state laws, and procure recovered organic waste products (i.e., compost, mulch, electricity generated from biomass conversion, and renewable natural gas) at levels prescribed by the state annually. Staff is currently reviewing options on how to satisfy these requirements. Staff will bring forward a separate procurement policy at a future Council meeting for consideration to meet these requirements.

SB 619
Under the SB 1383 Regulations, local jurisdictions that do not adopt enforceable mechanism by January 1, 2022 to implement the SB 1383 Regulations locally are subject to penalties issued by CalRecycle. On October 5, 2021, the Governor signed SB 619 to provide some relief from penalties for jurisdictions that may not be fully compliant with SB 1383 requirements by the January 1, 2022, deadline.

FINANCIAL AND/OR POLICY IMPLICATIONS:

Unknown costs related to implementation and enforcement of the Ordinance, which will depend on whether the City or Waste Management will perform some of the City’s responsibilities under the SB 1383 Regulations. Residential customers who subscribe to organic waste collection services for the first time will directly pay Waste Management for services. Unknown costs related to providing capacity for the edible food recovery program under a regional cost sharing plan.

ENVIRONMENTAL REVIEW:

Not applicable
ATTACHMENTS:

Ordinance No. 2022-11, Solid Waste; Integrated Waste Management ORDINANCE NO. 2022-11
AN ORDINANCE REPEALING CHAPTER 8.12 (“GARBAGE
DISPOSAL”) AND READOPTING CHAPTER 8.12 (“SOLID WASTE;
INEGRATED WASTE MANAGEMENT”) OF TITLE 8 (“HEALTH AND
SAFETY”) OF THE CITY OF NEVADA CITY MUNICIPAL CODE

RELATING TO INTEGRATED WASTE MANAGEMENT
WHEREAS, the State of California through its Legislature initiated regulations mandating recycling on all residents and businesses in California through Assembly Bill 32 in 2006; and
WHEREAS, the State of California through its Legislature adopted Assembly Bill 341 and Senate Bill 1018 mandating commercial recycling on all businesses in California allowing for education and voluntary compliance, but mandating forced compliance through adoption of Codes by Cities and Counties as dictated by CalRecycle; and WHEREAS, the State of California through its Legislature adopted Assembly Bill 1826 mandating commercial organics recycling on all businesses in California, and mandating green waste recycling for applicable multi-family residential properties in California allowing for education and voluntary compliance, but mandating forced compliance through adoption of Codes by Cities and Counties as dictated by CalRecycle; and WHEREAS, over the last several years the City through its solid waste franchise contractor has educated the community and developed a program and pursued voluntary compliance of businesses and applicable multi-family properties subject to the forced imposition of the recycling laws upon them; and
WHEREAS, in 2017 the State of California through CalRecycle sent all Cities and Counties in California correspondence referred to as the “Any Time Letter” wherein CalRecycle reiterated the requirements to comply with the mandatory commercial recycling and mandatory organics recycling laws imposed upon all businesses and applicable multi-family properties through Assembly Bill 341, Senate Bill 1018, and Assembly Bill 1826, (the “Recycling Laws”); and
WHEREAS, the City of Nevada City submitted for and received a low population waiver for some components of SB1383 from CalRecycle but is required under the law to adopt an ordinance for all other components of SB1383 and the other Recycling Laws.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NEVADA CITY, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1. Incorporation of Preamble. The City Council finds that all the facts, findings, and conclusions set forth above in this Ordinance are true and correct.

SECTION 2. Chapter 8.12 entitled “Garbage Disposal” of Title 8 (Health and Safety) of the Nevada City Municipal Code is hereby repealed and replaced as Chapter

8.12 entitled “Solid Waste; Integrated Waste Management” of Title 8 (Health and Safety) of the Nevada City Municipal Code to read as follows:

Article I. Solid Waste

8.12.010 Purpose of this Chapter.

This Chapter is the Nevada City Integrated Waste Management Ordinance. The purpose of this Chapter is to establish regulations for the collection, transportation, disposal and recycling of solid waste, organic waste and recyclables generated within the City. This Chapter is enacted in accordance with and to ensure that the City is able to meet its obligations under the California Integrated Waste Management Act of 1989 and any amendments thereto.

8.12.020 Definitions.
"Animal waste" includes feces, manure, urine, or any natural biological excrement from livestock. Animal waste is included within solid waste as defined in this Section. "Authorized collector" means a person, firm, partnership, corporation or other entity authorized under and by virtue of a contract, franchise, or permit with the city to collect, remove or dispose of recyclables and/or organic waste generated in the city. "Blue container" has the same meaning as in 14 CCR Section 18982.2(a)(5) and shall be used for the purpose of storage and collection of source separated recyclable materials or source separated blue container organic waste.
"California Code of Regulations" or "CCR" means the State of California Code of Regulations.

CCR references in this Chapter are preceded with a number that refers to the relevant title of the CCR (e.g., "14 CCR" refers to Title 14 of CCR).
"CalRecycle" means California’s Department of Resources Recycling and Recovery, which is the department designated with responsibility for developing, implementing, and enforcing SB 1383 regulations on the City (and others).
"Commercial business" or "commercial" means a firm, partnership, proprietorship, joint-stock company, corporation, or association, whether for-profit or nonprofit or as otherwise defined in 14 CCR Section 18982(a)(6).
"Compost" has the same meaning as in 14 CCR Section 17896.2(a)(4), which stated, as of the effective date of the ordinance codified in this Section, that "compost" means the product resulting from the controlled biological decomposition of organic solid wastes that are source separated from the municipal solid waste stream, or which are separated at a centralized facility. "Compostable plastics" or "compostable plastic" means plastic materials that meet the ASTM D6400 standard for compostability, or as otherwise described in 14 CCR Section 18984.1(a)(1)(A) or 18984.2(a)(1)(C).
"container contamination" or "contaminated container" means a container, regardless of color, that contains prohibited container contaminants, or as otherwise defined in 14 CCR Section 18982(a)(55).
"C&D" means construction and demolition debris.
"Designee" means an entity that a city contracts with or otherwise arranges to carry out any of the city’s responsibilities of this Chapter as authorized in 14 CCR Section 18981.2. A designee may be a government entity, a hauler, a private entity, or a combination of those entities. "Edible food" means food intended for human consumption, or as otherwise defined in 14 CCR Section 18982(a)(18). For the purposes of this Chapter or as otherwise defined in 14 CCR Section 18982(a)(18), "edible food" is not solid waste if it is recovered and not discarded.

Nothing in this Chapter or in 14 CCR, Division 7, Chapter 12 requires or authorizes the recovery of edible food that does not meet the food safety requirements of the California Retail Food Code.
"Enforcement action" means an action of the City to address noncompliance with this Chapter including, but not limited to, issuing administrative citations, fines, penalties, or using other remedies.
"Enforcement official" means a City enforcement official, designated by the City with responsibility for enforcing this Chapter.
"Excluded waste" means hazardous substance, hazardous waste, infectious waste, designated waste, volatile, corrosive, medical waste, regulated radioactive waste, and toxic substances or material that facility operator(s), which receive materials from the City and its generators, reasonably believe(s) would, as a result of or upon acceptance, transfer, processing, or disposal, be a violation of local, State, or Federal law, regulation, or ordinance, including: land use restrictions or conditions, waste that cannot be disposed of in Class III landfills or accepted at the facility by permit conditions, waste that in City’s, or its designee’s, reasonable opinion would present a significant risk to human health or the environment, cause a nuisance or otherwise create or expose City, or its designee, to potential liability; but not including de minimis volumes or concentrations of waste of a type and amount normally found in single-family solid waste after implementation of programs for the safe collection, processing, recycling, treatment, and disposal of batteries and paint in compliance with Sections 41500 and 41802 of the California Public Resources Code.
"Food distributor" means a company that distributes food to entities including, but not limited to, supermarkets and grocery stores, or as otherwise defined in 14 CCR Section 18982(a)(22). "Food facility" has the same meaning as in Section 113789 of the Health and Safety Code. "Food recovery" means actions to collect and distribute food for human consumption that otherwise would be disposed, or as otherwise defined in 14 CCR Section 18982(a)(24). "Food recovery organization" means an entity that engages in the collection or receipt of edible food from commercial edible food generators and distributes that edible food to the public for food recovery either directly or through other entities or as otherwise defined in 14 CCR Section 18982(a)(25), including, but not limited to:

1. A food bank as defined in Section 113783 of the Health and Safety Code;

2. A nonprofit charitable organization as defined in Section 113841 of the Health and Safety Code; and

3. A nonprofit charitable temporary food facility as defined in Section 113842 of the Health and Safety Code.

A food recovery organization is not a commercial edible food generator for the purposes of this Chapter and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR Section 18982(a)(7). If the definition in 14 CCR Section 18982(a)(25) for food recovery organization differs from this definition, the definition in 14 CCR Section 18982(a)(25) shall apply to this Chapter.
"Food recovery service" means a person or entity that collects and transports edible food from a commercial edible food generator to a food recovery organization or other entities for food recovery, or as otherwise defined in 14 CCR Section 18982(a)(26). A food recovery service is not a commercial edible food generator for the purposes of this Chapter and implementation of 14 CCR, Division 7, Chapter 12 pursuant to 14 CCR Section 18982(a)(7). "Food scraps" means all food such as, but not limited to, fruits, vegetables, meat, poultry, seafood, shellfish, bones, rice, beans, pasta, bread, cheese, and eggshells. Food scraps excludes fats, oils, and grease when such materials are source separated from other food scraps. "Food service provider" means an entity primarily engaged in providing food services to institutional, governmental, commercial, or industrial locations of others based on contractual arrangements with these types of organizations, or as otherwise defined in 14 CCR Section 18982(a)(27).
"Food-soiled paper" is compostable paper material that has come in contact with food or liquid, such as, but not limited to, compostable paper plates, paper coffee cups, napkins, pizza boxes, and milk cartons.
"Food waste" means food scraps, food-soiled paper, and compostable plastics. "Franchisee" means a person franchised by the City to regularly collect solid waste, green waste and recyclable materials from a property owner’s or occupant’s premises. "Gray container" has the same meaning as in 14 CCR Section 18982.2(a)(28) and shall be used for the purpose of storage and collection of gray container waste. "Gray container waste" means solid waste that is collected in a gray container that is part of a three (3) container organic waste collection service that prohibits the placement of organic waste in the gray container as specified in 14 CCR Sections 18984.1(a) and (b), or as otherwise defined in 14 CCR Section 17402(a)(6.5).
"Green container" has the same meaning as in 14 CCR Section 18982.2(a)(29) and shall be used for the purpose of storage and collection of source separated green container organic waste. "Green waste" means food scraps, yard trimmings, and other organic matter capable of being composted. Food scraps include discarded organic materials that will decompose or putrefy, including kitchen and table food waste, and animal or vegetable scraps resulting from the storage, preparation, cooking or handling of food. Yard trimmings may include grass, weeds, prunings, dead plants, brush, and dead trees. Green waste does not include animal waste as defined in this Section.
"Grocery store" means a store primarily engaged in the retail sale of canned food; dry goods; fresh fruits and vegetables; fresh meats, fish, and poultry; and any area that is not separately owned within the store where the food is prepared and served, including a bakery, deli, and meat and seafood departments, or as otherwise defined in 14 CCR Section 18982(a)(30). "Hauler route" means the designated itinerary or sequence of stops for each segment of the City’s collection service area, or as otherwise defined in 14 CCR Section 18982(a)(31.5). "Inspection" means a site visit where a city reviews records, containers, and an entity’s collection, handling, recycling, or landfill disposal of organic waste or edible food handling to determine if the entity is complying with requirements set forth in this Chapter, or as otherwise defined in 14 CCR Section 18982(a)(35).
"Large event" means an event, including, but not limited to, a sporting event or a flea market, that charges an admission price, or is operated by a local agency, and serves an average of more than two thousand (2,000) individuals per day of operation of the event, at a location that includes, but is not limited to, a public, nonprofit, or privately owned park, parking lot, golf course, street system, or other open space when being used for an event. If the definition in 14 CCR Section 18982(a)(38) differs from this definition, the definition in 14 CCR Section 18982(a)(38) shall apply to this Chapter.
"Large venue" means a permanent venue facility that annually seats or serves an average of more than two thousand (2,000) individuals within the grounds of the facility per day of operation of the venue facility. For purposes of this Chapter and implementation of 14 CCR, Division 7, Chapter 12, a venue facility includes, but is not limited to, a public, nonprofit, or privately owned or operated stadium, amphitheater, arena, hall, amusement park, conference or civic center, zoo, aquarium, airport, racetrack, horse track, performing arts center, fairground, museum, theater, or other public attraction facility. For purposes of this Chapter and implementation of 14 CCR, Division 7, Chapter 12, a site under common ownership or control that includes more than one (1) large venue that is contiguous with other large venues in the site is a single large venue. If the definition in 14 CCR Section 18982(a)(39) differs from this definition, the definition in 14 CCR Section 18982(a)(39) shall apply to this Chapter.
"Local education agency" means a school district, charter school, or county office of education that is not subject to the control of city or county regulations related to solid waste, or as otherwise defined in 14 CCR Section 18982(a)(40).
"Multifamily residential dwelling" or "multifamily" means of, from, or pertaining to residential premises with five (5) or more dwelling units. Multifamily premises do not include hotels, motels, or other transient occupancy facilities, which are considered commercial businesses. "Organic waste" means solid wastes containing material originated from living organisms and their metabolic waste products, including but not limited to food, green material, landscape and pruning waste, organic textiles and carpets, lumber, wood, paper products, printing and writing paper, manure, biosolids, digestate, and sludges or as otherwise defined in 14 CCR Section 18982(a)(46). Biosolids and digestate are as defined by 14 CCR Section 18982(a). "Organic waste generator" means a person or entity that is responsible for the initial creation of organic waste, or as otherwise defined in 14 CCR Section 18982(a)(48). "Paper products" include, but are not limited to, paper janitorial supplies, cartons, wrapping, packaging, file folders, hanging files, corrugated boxes, tissue, and toweling, or as otherwise defined in 14 CCR Section 18982(a)(51).
"Prohibited container contaminants" means the following: (1) discarded materials placed in the blue container that are not identified as acceptable source separated recyclable materials for the City’s blue container; (2) discarded materials placed in the green container that are not identified as acceptable source separated green container organic waste for the City’s green container; (3) discarded materials placed in the gray container that are acceptable source separated recyclable materials and/or source separated green container organic wastes to be placed in Jurisdiction’s green container and/or blue container; and (4) excluded waste placed in any container. "Recovery" means any activity or process described in 14 CCR Section 18983.1(b), or as otherwise defined in 14 CCR Section 18982(a)(49).
"Recyclable materials" means residential or commercial source separated by-products of some potential economic value, set aside, handled, packaged, or offered for collection in a manner different from regular solid waste. Recyclable materials shall include, but not be limited to:
cardboard, paper, plastic, scrap metal, and beverage containers. Recyclable materials may also include materials designated as such in the rules and regulations established by the franchisee. "Recycling collection facility" means a business or operation lawfully established for collection of recyclable materials.
"Remote monitoring" means the use of the internet of things (IoT) and/or wireless electronic devices to visualize the contents of blue containers, green containers, and gray containers for purposes of identifying the quantity of materials in containers (level of fill) and/or presence of prohibited container contaminants.
"Restaurant" means an establishment primarily engaged in the retail sale of food and drinks for on-premises or immediate consumption, or as otherwise defined in 14 CCR Section 18982(a)(64).
"SB 1383" means Senate Bill 1383 of 2016 approved by the Governor on September 19, 2016, which added Sections 39730.5, 39730.6, 39730.7, and 39730.8 to the Health and Safety Code, and added Chapter 13.1 (commencing with Section 42652) to Part 3 of Division 30 of the Public Resources Code, establishing methane emissions reduction targets in a Statewide effort to reduce emissions of short-lived climate pollutants as amended, supplemented, superseded, and replaced from time to time.
"SB 1383 regulations" means or refers to, for the purposes of this Chapter, the Short-Lived Climate Pollutants: Organic Waste Reduction regulations developed by CalRecycle and adopted in 2020 that created 14 CCR, Division 7, Chapter 12 and amended portions of regulations of 14 CCR and 27 CCR.
"Single-family" means of, from, or pertaining to a residential premises with one (1) unit. "Solid waste" has the same meaning as defined in State Public Resources Code Section 40191, which defines solid waste as all putrescible and nonputrescible solid, semisolid, and liquid wastes, including garbage, trash, refuse, paper, rubbish, ashes, industrial wastes, demolition and construction wastes, abandoned vehicles and parts thereof, discarded home and industrial appliances, dewatered, treated, or chemically fixed sewage sludge which is not hazardous waste, manure, vegetable or animal solid and semisolid wastes, and other discarded solid and semisolid wastes, with the exception that solid waste does not include any of the following wastes:

1. Hazardous waste, as defined in the State Public Resources Code Section 40141.

2. Radioactive waste regulated pursuant to the State Radiation Control Law (Chapter 8 (commencing with Section 114960) of Part 9 of Division 104 of the State Health and Safety Code).

3. Medical waste regulated pursuant to the State Medical Waste Management Act (Part 14 (commencing with Section 117600) of Division 104 of the State Health and Safety Code). Untreated medical waste shall not be disposed of in a solid waste landfill, as defined in State Public Resources Code Section 40195.1. Medical waste that has been treated and deemed to be solid waste shall be regulated pursuant to Division 30 of the State Public Resources Code.
"Source separated" means materials, including commingled recyclable materials, that have been separated or kept separate from the solid waste stream, at the point of generation, for the purpose of additional sorting or processing those materials for recycling or reuse in order to return them to the economic mainstream in the form of raw material for new, reused, or reconstituted products, which meet the quality standards necessary to be used in the marketplace, or as otherwise defined in 14 CCR Section 17402.5(b)(4). For the purposes of this Chapter, source separated shall include separation of materials by the generator, property owner, property owner’s employee, property manager, or property manager’s employee into different containers for the purpose of collection such that source separated materials are separated from mixed waste or other solid waste for the purposes of collection and processing. "Source separated blue container organic waste" means source separated organic wastes that can be placed in a blue container that is limited to the collection of those organic wastes and nonorganic recyclables as defined in 14 CCR Section 18982(a)(43), or as otherwise defined by 14 CCR Section 17402(a)(18.7).
"Source separated green container organic waste" means source separated organic waste that can be placed in a green container that is specifically intended for the separate collection of organic waste by the generator, excluding source separated blue container organic waste, carpets, noncompostable paper, and textiles.
"Source separated recyclable materials" means source separated nonorganic recyclables and source separated blue container organic waste.
"State" means the State of California.
"Supermarket" means a full-line, self-service retail store with gross annual sales of two million dollars ($2,000,000.00), or more, and which sells a line of dry grocery, canned goods, or nonfood items and some perishable items, or as otherwise defined in 14 CCR Section 18982(a)(71). "Tier one commercial edible food generator" means a commercial edible food generator that is one of the following:

1. Supermarket.

2. Grocery store with a total facility size equal to or greater than ten thousand (10,000) square feet.

3. Food service provider.

4. Food distributor.

5. Wholesale food vendor.

If the definition in 14 CCR Section 18982(a)(73) of tier one commercial edible food generator differs from this definition, the definition in 14 CCR Section 18982(a)(73) shall apply to this Chapter.
"Tier two commercial edible food generator" means a commercial edible food generator that is one of the following:

1. Restaurant with two hundred fifty (250) or more seats, or a total facility size equal to or greater than five thousand (5,000) square feet.

2. Hotel with an on-site food facility and two hundred (200) or more rooms.

3. Health facility with an on-site food facility and one hundred (100) or more beds.

4. Large venue.

5. Large event.

6. A State agency with a cafeteria with two hundred fifty (250) or more seats or total cafeteria facility size equal to or greater than five thousand (5,000) square feet.

7. A local education agency facility with an on-site food facility.

If the definition in 14 CCR Section 18982(a)(74) of tier two commercial edible food generator differs from this definition, the definition in 14 CCR Section 18982(a)(74) shall apply to this Chapter.
"Wholesale food vendor" means a business or establishment engaged in the merchant wholesale distribution of food, where food (including fruits and vegetables) is received, shipped, stored, prepared for distribution to a retailer, warehouse, distributor, or other destination, or as otherwise defined in 14 CCR Section 18982(a)(76).

8.12.030 - Requirements for Single-Family Generators.

A. Single-Family Organic Waste Generators shall comply with the following requirements:

1. Shall subscribe to the City’s organic waste collection services for all organic waste generated. The City shall have the right to review the number and size of a generator’s containers to evaluate adequacy of capacity provided for each type of collection service for proper separation of materials and containment of materials, and the generator shall adjust its service level for its collection services as requested by the City. Generators may additionally manage their organic waste by preventing or reducing their organic waste, managing organic waste through backyard residential composting, and/or using a community composting site.

2. Shall subscribe to the City’s three-container collection service(s) by placing designated materials in designated containers and shall not place prohibited container contaminants in collection containers.

8.12.040 Requirements for Commercial Businesses.

Generators that are Commercial Businesses, including Multi-Family Residential Dwellings, shall:

A. Subscribe to the City’s three-container collection services and comply with requirements of those services as described below in Section 8.12.040.B. The City shall have the right to review the number and size of a generator’s containers and frequency of collection to evaluate adequacy of capacity provided for each type of collection service for proper separation of materials and containment of materials; and, commercial businesses shall adjust their service level for their collection services as requested by the City.

B. Participate in the City’s three-container collection service(s) by placing source separated green container organic waste, including food waste, in the green container; source separated recyclable materials in the blue container; and gray container waste in the gray container.

Generator shall not place materials designated for the gray container into the green container or blue container, nor place materials designated for the green container or blue container into the gray container.

C. Supply and allow access to an adequate number, size and location of collection containers with sufficient labels or colors for employees, contractors, tenants, and customers, consistent with the City’s blue container, green container, and gray container collection service or, if self-hauling, per the commercial businesses’ instructions to support its compliance with its self-haul program.

D. Excluding multi-family residential dwellings, provide containers for the collection of source separated green container organic waste and source separated recyclable materials in all indoor and outdoor areas where disposal containers are provided for customers, for materials generated by that business. Such containers do not need to be provided in restrooms. if a commercial business does not generate any of the materials that would be collected in one type of container, then the business does not have to provide that particular container in all areas where disposal containers are provided for customers. Pursuant to 14 CCR § 18984.9(b), the containers provided by the business shall have either:

1. A body or lid that conforms with the container colors provided through the collection service provided by City, with either lids conforming to the color requirements or bodies conforming to the color requirements or both lids and bodies conforming to color requirements. A Commercial Business is not required to replace functional containers, including containers purchased prior to January 1, 2022, that do not comply with the requirements of the subsection prior to the end of the useful life of those containers, or prior to January 1, 2036, whichever comes first.

2. container labels that include language or graphic images, or both, indicating the primary material accepted and the primary materials prohibited in that container, or containers with imprinted text or graphic images that indicate the primary materials accepted and primary materials prohibited in the container. Pursuant 14 CCR § 18984.8, the container labeling requirements are required on new containers commencing January 1, 2022.

E. Multi-Family Residential Dwellings are not required to comply with container placement requirements or labeling requirement in Section 0(A)(4) pursuant to 14 CCR § 18984.9(b).

F. To the extent practical through education, training, Inspection, and/or other measures, excluding Multi-Family Residential Dwellings, prohibit employees from placing materials in a container not designated for those materials in accordance with Section 8.12.040.B., or if Recycling Organic Waste onsite or selfhauling under Section 8.12.380 per the Commercial Businesses’ instructions to support its compliance with its onsite recycling or self-haul program.

G. Excluding Multi-Family Residential Dwellings, periodically inspect containers for contamination and inform employees if containers are contaminated and of the requirements to keep contaminants out of those containers pursuant to 14 CCR § 18984.9(b)(3).

H. Annually provide information to employees, contractors, tenants, and customers about organic waste recovery requirements and about proper sorting of source separated green container organic waste and source separated recyclable materials.

I. Provide education information before or within fourteen (14) days of occupation of the premises to new tenants that describes requirements to keep source separated green container organic waste and source separated recyclable materials separate from gray container waste (when applicable) and the location of containers and the rules governing their use at each property.

J. Provide or arrange access for the City or its agent to their properties during all inspections conducted in accordance with Section 8.12.420 to confirm compliance with the requirements of this chapter.

K. Accommodate and cooperate with City’s remote monitoring program, if implemented, for inspection of the contents of containers for prohibited container contaminants, to evaluate generator’s compliance with sections 8.12.030 and 8.12.040. The remote monitoring program may involve installation of remote monitoring equipment on or in the blue containers, green containers, and gray containers.

L. If a commercial business wants to self-haul, meet the self-hauler requirements in section

8.12.380
M. Nothing in this section prohibits a generator from preventing or reducing waste generation, managing organic waste on site, or using a community composting site.

N. Commercial Businesses that are Tier One or Tier Two Commercial Edible Food Generators shall comply with food recovery requirements, pursuant to the remainder of this ordinance.

8.12.050 - Unauthorized disposal prohibited.

It is unlawful for any person in the city to throw or deposit any solid waste, or to cause the same to be thrown or deposited, upon any street, alley, gutter, park or other public place, or to throw or deposit the same in or upon any vacant lot or backyard, or to store or keep the same otherwise than in cans or receptacles as required by the provisions of this chapter; and it is unlawful to have, store, deposit or keep garbage where rats can have access thereto or feed thereon.

Notwithstanding the above, it is unlawful for any person in the city to deposit his or her household trash in city trash receptacles. Household trash means any garbage or waste matter, which was generated or collected in a person's residence or automobile prior to being deposited into the city of Nevada City's trash receptacles. Each day's violation of this section shall be treated and considered, and the same shall be, a separate and distinct offense.

8.12.060 Contract for Disposal
The city council may, at any time, enter into a contract or franchise agreement with a qualified company or individual to provide any and all services related to the collection, management, and processing of solid waste, organic waste and recyclable materials (the “franchisee”.) In letting such contracts, the city council shall not be required to let the contract to the lowest bidder, but shall award such contract to the company or individual deemed best qualified and capable to comply with the terms of this chapter and the contract.

8.12.070 Exclusivity to franchisee.

At such time as there is in force a contract entered into by the city and any person or entity for the collecting and removal of solid waste, recyclable material and organic waste in the city, it shall be unlawful for any person or entity other than the contractor having such contract, or his employees, to collect within the city, dispose of or transport, carry or convey through the streets, alleys, or public thoroughfares of the city, any garbage, recyclable material or organic waste or other matter offensive to the sight, or to interfere in any manner with any containers, or to remove such containers after they are placed by the lessees or owners thereof. This shall not prevent self-haulers in the city (city to be the city limits as they exist on January 1, 2021, and includes any subsequent annexations of land into the city limits from collecting, removing, or transporting their own solid waste, recyclable material and organic waste in accordance with Section 8.12.230 and 8.12.380, but shall not allow such self-hauler to provide such services for pay.

8.12.080 Duty of franchisee.

It shall be the duty of the franchisee to gather, collect and dispose of solid waste, organic waste and recyclable materials from a property owner’s or occupant’s premises, by disposal at authorized facilities, or other authorized disposal method allowed by law, all solid waste, organic waste and recyclable materials within the city in a manner satisfactory to the city council, and in compliance with this chapter and applicable laws.

8.12.090 Franchisee to furnish vehicles, equipment.

The franchisee shall furnish at their own expense all the vehicles and all other equipment necessary for the collection and removal of solid waste, recyclable material and organic waste in accordance with the provisions of this chapter; provided, that all such vehicles and equipment shall first be approved by the city.

8.12.100 Fees, rates and charges.

All solid waste, recyclable material and organic waste service collection fees, charges, and rate schedules which are set by the city's franchisee through the contract for solid waste, recyclable material and organic waste collection described in this chapter shall not exceed the maximum rates for such fees and charges as established and fixed by resolution of the city council, which resolution may be amended from time to time, upon majority vote of the city council.

8.12.110 Collection of fees.

The contract executed pursuant to this chapter shall provide that the Franchisee shall have the right to collect and receive the collection charges and fees provided in this chapter for the collection of garbage, recyclable material and organic waste in the city and no more, as and for their sole compensation.

8.12.120 Payment due date.

The fees and charges specified in this chapter shall, in all cases, be payable and due on either the date prescribed by resolution of the city council, or the date prescribed by the city’s franchisee subject to this chapter and approved by the city.

8.12.130 Failure to pay.

Failure or refusal to pay fees assessed pursuant to this chapter may result in the non-collection of solid waste, including garbage, organic waste, and recyclables, creating a condition which the city may declare to be a public nuisance if permitted to exist. In the event that there is nonpayment, the city manager may direct the city’s franchisee to make collection, and the expenses and charges of such collection may be assessed against the property as provided herein.

8.12.140 Charges constituting a lien and procedures to lien.

A. Service charges imposed pursuant to these regulations shall constitute a lien upon the parcel of real property to which such service was rendered.

B. Lien Recorded—Procedure.

1. The city manager shall transmit to city council, a report of delinquent charges.

2. Notwithstanding any provision in this code to the contrary, any solid waste, organic waste, or recyclables collection service charges which have become delinquent, shall cause the owner of such property to be subject to a lien on the property pursuant to the procedure provided in this section. Any such lien shall be recorded with the county recorder.

3. Prior to the recordation of a lien for delinquent charges, the city manager shall cause the notice of a hearing on the delinquent charges to be mailed to the owner. The notice shall contain the date, time and location of the hearing and shall be mailed at least ten calendar days before the date of the hearing. The hearing shall be held before the city council. The decision of the city council shall be final and conclusive.

4. Upon a decision adverse to the owner after hearing, the city council shall cause such lien to be recorded with the county recorder in the form and manner prescribed by law.

Thereafter, such lien shall not be released by the city manager unless and until it is fully and completely paid or an acceptable arrangement with the city has been agreed to by the city.

5. The city manager is authorized to determine the administrative cost of the delinquency, including costs associated with processing the delinquent account, which will be subject to an individual lien pursuant to the recording procedures of this section. Delinquent charges will be collected as a special assessment. The city manager may, as needed, initiate proceedings to make delinquent garbage, solid waste, organic waste, and recyclables collection service charges a special assessment against the parcels of property to which such service was rendered.

C. Hearing.

1. At the time fixed for consideration of the report, the city council shall hear it along with any objections of the property owners liable to be assessed for delinquent accounts. The city council may make such revisions, corrections, or modifications to the report as it may deem just; and in the event the city council is satisfied with the correctness of the report (as submitted or as revised, corrected or modified), it shall be confirmed or rejected by resolution.

2. The decision of the city council on the report, and on all protests or objections thereto, shall be final and conclusive.

D. Method of Collection—Applicability of Other Liens, Laws, Etc.

1. Upon confirmation of the report by the city council, the delinquent charges contained therein shall constitute a special assessment against the property at which the services were rendered. Thereafter, such assessment may be collected at the same time and in the same manner as ordinary property taxes are collected and shall be subject to the same penalties and same procedure of sale as provided for delinquent ordinary property taxes.

2. The assessments shall be subordinate to all existing special assessment liens previously imposed upon the property, and paramount to all other liens except those for state, county and municipal taxes with which it shall be upon parity. The lien shall continue until the assessment and all interest and penalties due and payable thereon are paid. All laws applicable to the levy, collection and enforcement of property taxes shall be applicable to the special assessments.

3. A certified copy of the confirmed report shall be filed annually with the county auditor on or before August 1st. The descriptions of the parcels subject to the special assessment shall be those used for the same parcels on the county assessor’s map books for the current year.

4. The city’s franchisee shall give written notice to the city of the name and address of any person or owner he or she discovers who fails to subscribe for such collection disposal service and the address of the premises for which such solid waste, organic waste, and recyclables collection and disposal service has not been subscribed, unless he or she has been notified by the owner or other person in lawful possession that the property is vacant, or temporarily not occupied, and when he or she has determined that such condition actually exists on the premises.

8.24.150 Authority to administer.

The city manager is empowered and directed to administer the provisions of this article, subject to such rules and regulations consistent herewith as may, from time to time, be established by the city council. In the event that any provision of any such agreement is inconsistent with any provision of this article, the provisions of this article and this Code shall prevail.

8.12.160 Regulations governing collections.

The city manager, with the approval of the city council, shall have the power to establish sanitary rules and regulations governing the collection of solid waste, recyclable material and organic waste in the city. Such rules and regulations, when published, shall become a part of this chapter, and any person violating any such rules shall be subject to the penalty provided for the violation of this chapter.

8.12.170 Approved containers.

Every property owner, tenant, lessee or occupant of any premise in the city shall make available and at all times shall keep within such building, or on the lot on which such building is situated, suitable and sufficient watertight containers provided by the franchisee, for receiving and holding without leakage or escape of odors, and without being filled to within four inches of the top, all the solid waste, recyclable material and organic waste which would ordinarily accumulate on such premises within one week's time.

8.12.180 Weekly collection.

All solid waste, recyclable material and organic waste containers required by this chapter shall be emptied by the authorized franchisee at least once each week, or as otherwise directed by the city in the contract with the franchisee.

8.12.190 Unlawful use of containers.

A. It is unlawful for any person to dump or place any material into, or to utilize, any container without the express consent of the owner or lessee of the container or unless a notice has been placed on the container denoting that it is for the use of the public.

B. It is unlawful for any person, without the consent of the owner or lessee of the container, to enter into, or access, a container, whether or not a notice has been placed on such container, for the purpose of salvaging garbage, recyclable material or organic waste therein or for the purpose of utilizing the container to rest or sleep therein.

8.12.200 Mandatory use of containers.

No person shall keep, place or deposit solid waste including recyclable materials, organic waste or garbage on any private grounds or premises whatsoever, except in accordance with the rules and regulations established under this chapter. Persons approved to self-haul under sections

8.12.230 and 8.12.380 may keep, place or deposit solid waste including recyclable materials, organic waste or garbage for the purposes of separating recyclable materials and organic waste generated on-site prior to hauling organic waste to a high diversion organic waste processing facility.

8.12.210 Container capacity.

A. Containers for single-family premises, shall have a capacity of not less than ten gallons nor more than ninety-six gallons; and containers at all other places including commercial businesses shall each have a capacity of not less than ten gallons.

B. Generators shall arrange for a size, quantity and collection frequency of containers to adequately store all solid waste, recyclable material and organic waste generated in connection with the premise between the times designated for collection service. The City shall have the right to review the number and size of such containers to evaluate the adequacy of capacity provided for each type of collection service and to review the separation and containment of materials. Generators shall adjust service levels for their collection services as requested by the City in order to meet the standards set forth in this chapter.

8.12.220 Placement for collection.

A. Commercial containers required by this chapter for receiving solid waste, recyclable material and organic waste shall be so placed as to be readily accessible for removing and emptying by the collector.

B. On the day for collection, residential containers required by this chapter, shall be placed on the portion of the resident's real property nearest the public right-of-way which is readily accessible for removing and emptying by the authorized collector. All persons who are physically unable to place such containers as required in this section shall be exempt from this requirement.

C. No container for receiving solid waste, recyclable material and organic waste shall be placed on any street, alley, sidewalk, footpath, or any public place, except in accordance with rules and regulations established under this chapter or an arrangement made with the city in consultation with the Franchisee for an alternate collection location.

D. In all cases of disputes or complaints arising from or concerning the place where the containers shall be placed while awaiting the removal of their contents, the city manager, or his designee, shall forthwith designate the place and such designation shall be final.

8.12.230 Self-hauler requirements.

Self-haulers of solid waste shall:

A. In addition to the regulations prescribed herein, adhere to all regulations in this chapter, including, but not limited to, the collection service subscription requirements in section

8.12.030.

B. Self-haulers shall source separate all recyclables and organic waste generated on site from solid waste in a manner consistent with 14 CCR Sections 18984.1 and 18984.2, or shall haul organic waste to a high diversion organic waste processing facility as specified in 14 CCR Section 18984.3, as may be amended.

8.12.240 - Composting.

A. Waste organic matter generated by a household or an individual may be composted by households or individuals provided that the composting:

1. Is conducted in accordance with accepted composting practices;

2. Is conducted in accordance with applicable federal, state and local laws and regulations;

3. Does not generate offensive odors or provide a source of food or harborage for vermin; and

4. Does not create a public or private nuisance.

B. Any individual generator may choose to compost their own organic material in compliance with this section without reliance on the city’s solid waste or recycling franchisee.

8.12.250 Violations, enforcement and penalty.

A. Any section of this chapter may be enforced by the city, or, if agreed to, by another enforcement agency designated by the city.

B. Violation of all provisions of this chapter, unless otherwise specified, shall constitute an infraction and shall be subject to enforcement action pursuant to Title 1 of the Nevada City Municipal Code.

C. A violation of this chapter may be punishable by administrative penalty, in amounts that shall not exceed the following:

1. For a first violation, the amount of the base penalty shall be fifty to one hundred dollars per violation.

2. For a second violation, the amount of the base penalty shall be one hundred to two dollars per violation.

3. For a third or subsequent violation, the amount of the base penalty shall be two hundred fifty to five hundred dollars per violation of the same provision within a twelve-month period. This remedy is not exclusive and is in addition to any other remedy or penalty provided by law.

D. The maximum penalties described in subsection (C) of this section shall be increased automatically if the maximum penalties established 14 CCR Section 18997.2 are amended.

E. The City’s procedures on imposition of administrative fines are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this chapter and any rule or regulation adopted pursuant to this section, except as otherwise indicated in this chapter.

F. Nothing in this section shall be construed as preventing the city from revoking, suspending, or denying a permit, registration, license, or other authorization consistent with local requirements in addition to the imposition of penalties authorized under this section.

G. Any person engaged in the unauthorized collection or theft of recyclable materials or organic waste is guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed five hundred dollars or incarceration in the county jail for a period not to exceed six months or both.

H. As an alternative to criminal enforcement, both the city and the authorized collector have the independent authority to civilly enforce any provisions of this article, to and including the authority to seek treble damages pursuant to California Government Code Section 66764.

The city administrator may invoke these remedies, or any of them whenever he or she deems it appropriate.

I. Other remedies allowed by law may be used, including civil action or prosecution as an infraction. City may pursue civil actions in the California courts to seek recovery of unpaid administrative citations. City may choose to delay court action until such time as a sufficiently large number of violations, or cumulative size of violations, exists such that court action is a reasonable use of City staff and resources.

Article II. Recyclable Materials, Organic Waste and Edible Food Recovery

8.12.260 Purpose.

A. The city council finds and determines that a municipal program for the collection and recycling of recyclable materials and organic waste within the city and the licensing of persons engaged therein, is in the public interest and serves to promote the general welfare of the city.

B. This article is enacted to increase participation rates, improve recyclable material recovery rates, reduce landfill dependency, and ultimately maintain a cost effective overall recyclable material and organic waste collection service program for the citizens, businesses and institutions of the city.

C. It is also recognized that the recyclable material and organic waste collection service program established in this article may be victimized by unauthorized scavengers and that the theft of recyclable materials before they can be picked up by the authorized collector would be destructive to the economic interest of the city at large, and the citizens, businesses and institutions in particular. It is the additional purpose of this article to define clear ownership of recyclable materials and organic waste and to provide for the protection of those ownership rights.

8.12.270 Franchisee duties for collection of recyclable material and organic waste.

A franchisee providing single-family, multi-family and commercial organic waste and recyclables collection service to generators within the city shall meet the following requirements and standards in connection with collection of organic waste and recyclables:

A. Supply all subscribers with appropriate containers for solid waste, recyclables, and organic waste collection.

B. Through written notice or written report to the city annually identify the facilities to which they will transport organic waste including facilities for source separated recyclable materials and source separated organic waste.

C. Transport source separated recyclable materials to a facility that recycles those materials and transport source separated organic waste to a facility, operation, activity, or property that recovers organic waste as defined in 14 CCR, Division 7, Chapter 12, Article 2.

D. Obtain approval from the city to haul organic waste, which can be through a franchise agreement or contract, unless it is transporting source separated organic waste to a community composting site or lawfully transporting C&D in a manner that complies with 14 CCR Section 18989.1.

8.12.280 Container requirements.

A. Pursuant to the terms and conditions of any exclusive contract between the city and the authorized collector, the authorized collector shall provide suitable and sufficient containers to store source separated recyclable materials and source separated organic waste for each premise to be made available for curbside pickup. The color, style and markings of the containers shall be determined by the authorized collector and subject to approval by the city.

B. All such containers shall be and remain the property of the authorized collector, and shall not be used for any purpose other than the separation and curbside placement of recyclable materials and organic waste. Participating persons relocating out of the city shall leave all containers at the premises.

C. It is the duty of every generator in the city to maintain containers in a reasonably safe and secure manner; and all such containers shall be so placed and kept at the designated collection location so as to be readily accessible for removal and collection therefrom and placed such that they will not be a public nuisance or in any degree offensive.

8.12.290 Authority to administer.

The city manager is empowered and directed to administer the provisions of this article, subject to such rules and regulations consistent herewith as may, from time to time, be established by the city council. The city manager shall further administer the provisions of this article subject to the terms of any agreement entered into by the city with a franchisee or authorized collector pertaining to recyclable material and organic waste collection and/or recycling, as such agreements may from time to time be amended. In the event that any provision of any such agreement is inconsistent with any provision of this article, the provisions of this article and this Code shall prevail.

8.12.300 Ownership of recyclable material and organic waste.

Upon the collection of recyclable material and organic waste at a designated collection location by an authorized collector, the recyclable material and organic waste shall become the property of the authorized collector.

8.12.310 General requirements.

A. It is unlawful for any person to keep, deposit, bury or dispose of any recyclable material or organic waste, except as in this article provided, in or upon any private or public property, street, alley, sidewalk, gutter, park or upon the banks of any stream or creek in the city, or in or upon any of the waters of it; and every person in the city who disposes of recyclable material or organic waste shall dispose of same only in the manner provided in this article.

B. The city's designated enforcement agency is authorized to administer a SB 1383 permit system to monitor compliance with the requirements of this article. Generators are required to obtain an SB 1383 permit and pay associated application or enforcement fees, should such fees be incurred.

8.12.320 Collection service.

A. A recyclable material and organic waste collection service program is established and shall be available to all persons, residents, businesses and institutions in the city for the purpose of providing for the orderly and regular collection of recyclable material and organic waste within the city under this program.

B. Every single-family dwelling unit or commercial business (throughout this chapter, commercial business includes multifamily residential dwellings of five or more units, unless otherwise excluded) in the city, except those single-family generators who meet the self-haul requirements contained in Section 8.12.330 of this chapter, shall be required to subscribe with the authorized collector for, recycling container and organics container collection; comply with the relevant sections of this chapter, state law and local ordinances; and to pay for the collection and disposal of such containers, unless commercial business owner receives a waiver as provided in this chapter.

C. No provision of this chapter shall be construed to prevent any person from self-hauling their own waste in their own vehicles or composting in the rear yard of their residence, provided that such composting does not constitute a nuisance to neighboring property because it is injurious to health or is offensive to the senses. Nor shall any provision of this chapter limit the right of any person to donate or sell recyclable materials.

D. Recyclable material and organic waste for donation, sale or collection by or to any person or entity other than the authorized collector, may not be stored or transferred by use of the containers described in this article, or any other containers used for recycling provided by the authorized collector. Storage of recyclable materials and organic waste at the designated collection location other than for pickup by the authorized collector as defined in this article, is prohibited.

8.12.330 Separation of recyclable materials and organic waste.

Generators subject to the requirements of the Act shall fully comply with all applicable requirements of the Act.

A. All generators in the city, except those that meet self-hauler requirements set forth in this chapter or commercial businesses that obtain a waiver pursuant to requirements in this chapter shall:

1. Prepare and separate those recyclable materials and organic waste that the city has contracted to pick up by the authorized collector from other garbage and solid waste as required in this section, and thereafter have the separated recyclable materials and organic waste placed within containers as required by this article, or within the designated collection location, which shall be collected by the authorized collector.

2. Participate in the collection services provided by the authorized collector, by placing designated materials in designated containers as described below, and not placing prohibited container contaminants in containers. Generators shall place source separated organic waste, in the organics container; source separated recyclable materials in the recycling container; and garbage in the garbage container. The franchised collector may, in its discretion, designate the categories of nonhazardous or toxic materials accepted in the organics container, recycling container or garbage container. Generators shall not place materials designated for the garbage container in the organics container or the recycling container.

3. Place recycling containers and organics containers for single-family residential premises at curbside for collection by the authorized collector; but shall not be placed at curbside earlier than twelve hours prior to the date and time for scheduled collection, nor left remaining at curbside longer than twelve hours following the date and time for scheduled collection.

4. Maintain garbage containers, recycling containers and organics containers in a sanitary condition at all times. Any bulky material must be reduced in size so that it may be placed in the appropriate container not overflowing and with the cover tightly closed and without excessive tamping, so that the container may be easily emptied.

5. Recycling containers and organics containers for multi-family, commercial and/or institutional locations shall be of a size and serviceability agreed to by the parties and thereafter placed at the designated collection location. Generators shall arrange for a sufficient number of such containers to adequately store all source separated recyclable materials and source separated organic waste generated in connection with the residence or business between the times designated for collection. The city shall have the right to review the number and size of such containers to evaluate the adequacy of capacity provided for each type of collection service and to require additional or larger containers (or additional service days) and to review the separation and containment of materials. Generators shall adjust service levels for their collection services as requested by the city in order to meet the standards set forth in this chapter.

6. Generators may manage their organic waste by preventing or reducing their organic waste, managing organic waste on site, and/or using a community composting site pursuant to 14 CCR Section 18984.9(c) to the extent permitted by other applicable laws.

7. Organic waste may be fed to animals on the premises where such organic waste is produced, provided that the premises are always kept in a sanitary condition to the satisfaction of the city manager; and provided further that the keeping and feeding of such animals shall at all times conform to the applicable regulations of those entities governing the same now in force or which thereafter may be enacted or promulgated.

B. In addition to the requirements in Subsection A above, commercial businesses shall also:

1. Commercial business owners including multifamily, shall provide or arrange for garbage container, organics container and recycling container collection service for employees, contractors, tenants and customers, and supply and allow access to adequate number, size and location of collection containers with sufficient labels or colors as noted in subsection (B)(2)(a) and (b) or, if self-hauling, in compliance with self-hauling requirements set forth in this chapter.

2. Commercial business that are not multifamily residential dwellings shall provide containers for the collection of source separated organic waste and source separated recyclable materials in all areas where the commercial business provides disposal containers for employees, contractors, tenants, customers and other users of the premises ("user disposal containers"). Such user disposal containers do not need to be provided in restrooms. If a commercial business does not generate, or has a waiver pertaining to, any of the materials that would be collected in one type of user disposal container, then the business does not have to provide that particular type of container in all areas where user disposal containers are provided. Pursuant to 14 CCR Section 18984.9(b), the user disposal containers provided by the business shall have either:
a. A body or lid that conforms with the following container colors, with either lids conforming to these color
requirements or bodies conforming to these color
requirements, or both lids and bodies conforming to these color requirements: gray or black containers for garbage, blue containers for source separated recyclable materials, and green containers for organics containers.

Notwithstanding the foregoing, a commercial business is not required to replace functional containers, including containers purchased prior to January 1, 2022, that do not comply with the color requirements of this section prior to the end of the useful life of those containers, or prior to January 1, 2036, whichever comes first; or
b. Container labels that include language or graphic images, or both, indicating the primary materials accepted and the primary materials prohibited in that container, or containers with imprinted text or graphic images that indicate the primary materials accepted and primary materials
prohibited in the container. The container labeling
requirements are required on new containers commencing
January 1, 2022.

8.12.340 Commercial education and outreach requirements.

All commercial business owners are required to:

A. Excluding multifamily residential dwellings, to the extent practical through education, training, inspection, and/or other measures, prohibit employees from placing materials in a container not designated for those materials per the recycling container, organics container, and garbage container collection service.

B. Excluding multifamily residential dwellings, periodically inspect recycling containers, organics containers, and garbage containers for contamination and inform employees if containers are contaminated and of the requirements to keep contaminants out of those containers.

C. Including multifamily residential dwellings, annually provide information to employees, contractors, tenants, building residents, and customers about organic waste recovery requirements and about proper sorting of organic waste and recyclable materials. A copy of such instructions shall be provided to the city or designee, upon request.

D. Including multifamily residential dwellings, provide information before or within fourteen days of new occupation of the premises to new tenants and no less than fourteen days before tenants move out of the premises, unless a tenant does not provide fourteen or more days' notice to before moving out, that describes requirements to keep organics container organic waste and recyclable materials separate from each other and from garbage, the location of containers, and the rules governing their use at the premises.

E. Including multifamily residential dwellings, prominently post and maintain one or more signs where recyclable materials and/or organic waste are collected and/or stored that set forth what materials are required to be source separated, in addition to collection procedures for such materials.

8.12.350 Waivers.

A. De Minimis Waivers. The city or enforcement agency may waive commercial business' obligation to comply with some or all of the organic waste and recycling collection service requirements of this chapter if documentation is provided demonstrating that the commercial business generates below a certain amount of organic waste material, (de minimis) as described below. A commercial business requesting a de minimis waiver shall:

1. Submit an application to the city or enforcement agency specifying the service or requirements for which it is requesting a waiver. Applicant must supply all required proof of qualifications in writing together with the application submittal. Applicants may be required to provide information in forms provided by the city. Applicants are subject to one or more site inspection(s) prior to approval of a waiver.

2. Provide documentation with the de minimis waiver application that either:
a. The commercial business' total solid waste collection service is two cubic yards or more per week and organic waste subject to collection in a recycling container or organics container comprises less than twenty gallons per week per applicable container of the business' total waste; or,
b. The commercial business' total solid waste collection service is less than two cubic yards per week and organic waste subject to collection in a recycling container or organics container comprises less than ten gallons per week per applicable container of the business' total waste.

3. For the purposes of subsections (2)(a) and (b) above, total solid waste shall be the sum of weekly garbage, source separated recyclable materials, and source separated organics container organic waste measured in cubic yards.

4. If the de minimis waiver is granted, notify the city or enforcement agency granting the waiver if circumstances change such that the conditions under which the waiver was granted are no longer being met, in which case the waiver will be rescinded.

5. If the waiver is granted, provide written verification of continued eligibility for de minimis waiver to the city or enforcement agency every five years.

B. Physical Space Waivers. The city or enforcement agency may waive a commercial business' or property owner's obligation to comply with some or all of the organic waste collection service requirements of this chapter if the enforcement agency has evidence from a licensed contractor, licensed architect, licensed engineer, or other person authorized by the enforcement agency demonstrating that the premises lacks adequate space for the collection containers required for compliance with the organic waste collection service requirements set forth in this chapter. A commercial business or property owner requesting a physical space waiver shall:

1. Submit an application to the city or enforcement agency specifying the service or requirements for which it is requesting a waiver.

2. Provide documentation with the application for a physical space waiver that the premises lacks adequate space for recycling containers and/or organics containers, which shall include documentation from its licensed contractor, licensed architect, licensed engineer, or other person authorized by the enforcement agency.

3. If the waiver is granted, the commercial business or property owner, shall notify the city if the commercial business' physical space configurations or amounts of solid waste generation change, in which case the waiver may be rescinded.

4. If the waiver is granted, the commercial business or property owner shall provide written verification to the city of continued eligibility for a physical space waiver every five years.

C. Change of ownership of a premises automatically revokes a waiver and the new owner must comply with this chapter or obtain its own waiver.

D. Upon the determination of the city or enforcement agency a written notification of the approval or denial of a waiver shall be issued to the applicant.

8.12.360 Commercial edible food generator requirements.

A. Tier one commercial edible food generators must comply commencing January 1, 2024, pursuant to 14 CCR Section 18991.3, or such later deadline established by State law or regulations.

B. Large venue or large event operators not providing food services, but allowing for food to be provided by others, shall require food facilities, operating at the large venue or large event to comply with the requirements of this section, commencing January 1, 2024, or such later deadline established by state law or regulations.

C. Commercial edible food generators shall comply with the following requirements:

1. Arrange to safely recover for human consumption the maximum amount of edible food that would otherwise be disposed.

2. Enter into a contract or other written agreement with food recovery organizations or food recovery services for:
a. The collection for food recovery of edible food that would otherwise be disposed; or
b. Acceptance of edible food that would otherwise be disposed that the commercial edible food generator self-hauls to the food recovery organization for food recovery.

3. Use best efforts to abide by all contractual or written agreement requirements specified by the food recovery organizations or food recovery services on how edible food should be prepared, packaged, labeled, handled, stored, distributed or transported to the food recovery organizations or food recovery services.

4. Not intentionally donate food that has not been prepared, packaged, handled, stored and/or transported in accordance with the safety requirements of the California Retail Food Code.

5. Not intentionally spoil edible food that is capable of being recovered by a food recovery organizations or food recovery services.

6. Allow the enforcement agency to review records upon request, including by providing electronic copies or allowing access to the premises.

7. Keep records that include the following information, or as otherwise specified in 14 CCR Section 18991.4:
a. A list of each food recovery organizations or food recovery services that collects or receives its edible food pursuant to a contract or written agreement established under 14 CCR Section 18991.3(b).
b. A copy of all contracts and written agreements established under 14 CCR Section 18991.3(b) and/or this chapter.
c. A record of the following information for each of those food recovery organizations or food recovery services:
i. The name, address and contact information of the food recovery organizations or food recovery services.
ii. The types of food that will be collected by or selfhauled to food recovery organizations or food recovery services.
iii. The established frequency that food will be collected or self-hauled.
iv. The quantity of food, measured in pounds recovered per month, collected or self-hauled to a food recovery
organizations or food recovery services for food
recovery.

8. If it has not entered into a contract or written agreement with food recovery organizations or food recovery services, a record that describes:
a. Its direct donation of edible food to end recipients (including employees); and/or
b. Its food waste prevention practices that result in it generating no surplus edible food that it can donate.

9. Tier one commercial edible food generators and tier two commercial edible food generators shall provide, upon request, a food recovery report to the enforcement agency that includes the information in subsection (C)(7)(c).

Entities shall provide the requested information within sixty days of the request.

D. Nothing in this chapter shall be construed to limit or conflict with:

1. The protections provided by the California Good Samaritan Food Donation Act of 2017, the Federal Good Samaritan Act, or share table and school food donation guidance pursuant to Senate Bill 557 of 2017; or

2. Otherwise applicable food safety and handling laws and regulations.

E. Nothing in this chapter prohibits a commercial edible food generator from donating edible food directly to end recipients for consumption, pursuant to Health and Safety Code Section 114432(a).

8.12.370 Food recovery organizations and service requirements.

A. Food recovery services collecting or receiving edible food directly from commercial edible food generators, via a contract or written agreement established under 14 CCR Section 18991.3(b), shall maintain the following records:

1. The name, address, and contact information for each commercial edible food generator from which the service collects edible food.

2. The quantity in pounds of edible food collected from each commercial edible food generator per month. This may also include the total quantity in pounds of food collected that was spoiled when received from a commercial edible food generator or otherwise not able to be used to feed people.

3. The quantity in pounds of edible food transported to each food recovery organization per month.

4. The name, address, and contact information for each food recovery organization to which the food recovery service transports edible food for food recovery.

B. Food recovery organizations collecting or receiving edible food directly from commercial edible food generators, via a contract or written agreement established under 14 CCR Section 18991.3(b), shall maintain the following records:

1. The name, address, and contact information for each commercial edible food generator from which the organization receives edible food.

2. The quantity in pounds of edible food received from each commercial edible food generator per month. This may also include the total quantity in pounds of food collected that was spoiled when received from a commercial edible food generator or otherwise not able to be used to feed people.

3. The name, address, and contact information for each food recovery service that the organization receives edible food from for food recovery.

C. Food recovery organizations or food recovery services that have their primary address physically located in the city and contract with or have written agreements with one or more commercial edible food generators shall report to the city, or its enforcement agency, the total pounds of edible food recovered from the tier one commercial edible food generators and tier two commercial edible food generators they have established a contract or written agreement with (regardless of whether those commercial edible food generators are located in the city) according to the following schedule:

1. No later than August 15, 2022, submit an initial report covering the period of January 1, 2022, to June 30, 2022; and

2. No later than March 31, 2023, and no later than every March 31 thereafter, submit a report covering the period of January 1 to December 31 of the previous calendar year.

D. In order to support edible food recovery capacity planning assessments and similar studies, food recovery services and food recovery organizations operating in the city shall provide, upon request, information and consultation to the city and Nevada County regarding existing, or proposed new or expanded, food recovery capacity in a form that can be provided to or that can be accessed by the city and county and commercial edible food generators. A food recovery service or food recovery organization contacted by an enforcement agency shall respond to such request for information within sixty days, unless a shorter timeframe is otherwise specified by the enforcement agency.

8.12.380 Self-hauler requirements.

Self-haulers shall:

A. Source separate their recyclable materials and organic waste generated on-site from solid waste in a manner consistent with this section or haul organic waste to a high diversion organic waste processing facility.

B. Haul their source separated recyclable materials to a facility that recovers those materials; and haul their source separated organic waste to a solid waste facility, operation, activity, or property that processes or recovers source separated organic waste or to a high diversion organic waste processing facility; and haul their garbage to a fully permitted solid waste facility.

C. Self-haulers, which are commercial businesses including multi-family residential dwellings, shall keep a record of the amount of organic waste delivered to each solid waste facility, operation, activity, or property that processes or recovers organic waste for a minimum of five years; this record shall be subject to inspection by the city. The records shall include the following information:

1. Delivery receipts and weight tickets from the entity accepting the waste.

2. The amount of material in cubic yards or tons transported by the generator to each entity.

3. If the material is transported to an entity that does not have scales on-site or employs scales incapable of weighing the self-hauler's vehicle in a manner that allows it to determine the weight of materials received, the self-hauler is not required to record the weight of material but shall keep a record of the entities that received the organic waste.

D. Self-haulers that are commercial businesses including multi-family residential dwellings, shall provide these records, upon request, to the city or designee. Self-haulers shall provide the requested information within sixty days.

E. Landscapers, who self-haul organic waste generated at a customer's site, must also meet the requirements in this section.

F. A single-family organic waste generator that self-hauls organic waste is not required to record or report this information.

8.12.390 Unauthorized collection prohibited.

It is unlawful for any person other than an authorized collector to remove recyclable material or organic waste which has been placed at a designated collection location.

8.12.400 Individual may dispose of recyclables.

Nothing in this article shall limit the right of an individual person, organization, or other entity to donate, sell or otherwise dispose of recyclable material and organic waste; provided, that any such disposal is in accordance with the provisions of this article.

8.24.410 Theft of authorized receptacle.

Theft or the unauthorized diversion from its designated purpose of any designated recycling container or organics container of an authorized collector constitutes a misdemeanor and shall be punishable as such.

8.12.420 Inspections and investigations.

A. The city manager shall be designated as an enforcement agent for purposes of enforcing this chapter. Said enforcement agent may deputize one or more employees of the city to carry out the duties of enforcement agent.

B. The city and enforcement agent is authorized to conduct any inspections, remote monitoring, or other investigations as reasonably necessary to further the goals of this chapter, subject to applicable laws. This may include inspections and investigations, at random or otherwise, of any collection container, collection vehicle load, or transfer, processing, or disposal facility to confirm compliance with this chapter, subject to applicable laws. This section does not allow entry in a private residential dwelling unit for inspection. For the purposes of inspecting commercial business containers for compliance, the city or designee may conduct container inspections for prohibited container contaminants using remote monitoring, and commercial businesses shall accommodate and cooperate with the remote monitoring.

C. A person subject to the requirements of this chapter shall provide or arrange for access during all inspections (with the exception of the interior a private residential dwelling unit) and shall cooperate with the city or designee during such inspections and investigations. Such inspections and investigations may include confirmation of proper placement of materials in containers, inspection of edible food recovery activities, review of required records, or other verification or inspection to confirm compliance with any other requirement of this chapter, inspection of county-run transfer stations, McCourtney Road landfill and any other landfills that the county may establish or acquire. Failure to provide or arrange for any of the following is a violation of this chapter:

1. Access to the premises;

2. Installation and operation of remote monitoring equipment, if a remote monitoring program is adopted; or

3. Access to records for any inspection or investigation.

D. Any records obtained by the city or designee during inspections, remote monitoring, and other reviews shall be subject to the requirements and applicable disclosure exemptions of the California Public Records Act as set forth in Government Code Section 6250 et seq.

E. The city or designee shall accept written complaints from persons regarding an entity that may be potentially noncompliant with this chapter. Written complaints may be submitted using the city form for code complaints.

ARTICLE III: CONSTRUCTION AND DEMOLITION DEBRIS RECYCLING

8.12.430 DEFINITIONS.

For the purpose of this article, the following definitions shall apply unless the context indicates or requires a different meaning.

APPLICANT. Any individual, firm, limited liability company, association, partnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity whatsoever who applies to the city for the applicable permits to undertake construction, demolition, or renovation project within the city.

CONSTRUCTION. The building of any facility or structure or any portion thereof including tenant improvements to an existing facility or structure.

CONSTRUCTION AND DEMOLITION DEBRIS or C&D DEBRIS. Used or discarded materials removed from premises during construction or renovation of a structure resulting from construction, remodeling, repair, or demolition operations on any pavement, house, commercial building, or other structure.

CONVERSION RATE. The California Integrated Waste Management's accepted conversion rate used in estimating the volume or weight of materials identified in a waste management plan.

COVERED PROJECT shall have the meaning set forth in§ 6-3.202 and must comply with the 2019 California Green Building Standards Code (CALGreen) and any future changes made to the threshold for covered projects under that code.

DECONSTRUCTION. The process of carefully dismantling a building or structure in order to salvage components for reuse or recycling.

DEMOLITION. The decimating, razing, ruining, tearing down or wrecking of any facility, structure, pavement or building, whether in whole or in part, whether interior or exterior.

DIVERSION REQUIREMENT. The redirection from the waste stream of at least 65% of the total construction and demolition debris generated by a project via reuse or recycling, and must comply with the 2019 California Green Building Standards Code (CALGreen) and any future changes made to the diversion rate under that code unless the applicant has been granted an infeasibility exemption, in which case the DIVERSION REQUIREMENT shall be the maximum feasible diversion rate established by the WMP Compliance Official for the project.

DIVERT. To use material for any purpose other than disposal in a landfill or transformation facility.

NONCOVERED PROJECT shall have the meaning set forth in § 6-3.202(8).

PROJECT. Any activity, which requires an application for a building or demolition permit, or any similar permit from the city.

RECYCLING. The process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise become Solid Waste, and returning them to the economic mainstream in the form of raw material for new, reused, or reconstituted products which meet the quality standards necessary to be used in the marketplace.

RENOVATION. Any change, addition, or modification in an existing structure. REUSE. Further or repeated use of materials in their original form.

SALVAGE. The controlled removal of construction or demolition debris from a permitted building or demolition site for the purpose of recycling, reuse, or storage for later recycling or reuse.

TENANT IMPROVEMENTS. A project involving structural or other modifications of an existing property resulting in the generation of C&D debris.

TOTAL COSTS. The total construction value of the project using standard commercial and residential valuation formulas.

VENDOR. A hauler of commercial recycling materials authorized by the City of Antioch.

WASTE MANAGEMENT PLAN (WMP). A completed WMP form, approved by the city for the purpose of compliance with this article, submitted by the applicant for any covered project.

Prior to project start, the WMP shall identify the types of C&D debris materials that will be generated for disposal and recycling. A completed WMP contains actual weight or volume of the material disposed or recycled.

WMP COMPLIANCE OFFICIAL. The City Manager and/or Community Development Director either his and/or her designees.

8.12.440 THRESHOLD FOR COVERED PROJECTS.

A. Covered projects. The following projects shall comply with this article:

1. All new structures;

2. All permitted non-residential additions and alterations;

3. Permitted residential additions or alterations that add to the conditioned area of the property; and

4. Demolition of any structure or portion of a structure larger than 120 square feet.

B. For the purposes of determining whether a project meets the foregoing thresholds, all phases of a project and all related projects taking place on a single or adjoining parcel, as determined by the WMP Compliance Official, shall be deemed a single project.

C. Noncovered projects. Applicants for construction, demolition, and renovation projects within the city which are not covered projects ("noncovered projects") shall be encouraged to divert as much project-related construction and demolition debris as possible.

D. Building and demolition permits. No building, site development or demolition permit shall be issued for a covered project unless and until the WMP Compliance Official has approved a WMP for the project. Compliance with the provisions of this article shall be listed as a condition of approval on any building, site development or demolition permit issued for a covered project. Projects sponsored by the city. All construction, demolition and renovation projects sponsored by the city shall be considered covered projects for the purposes of this chapter. The project sponsor shall submit a WPM to the official prior to beginning any or activities and shall be subject to all applicable provisions of this chapter.

8.12.450 SUBMISSION OF WASTE MANAGEMENT PLAN.

A. WMP forms. Applicants for building, demolition, or site development permits involving any covered project shall complete and submit a waste management plan ("WMP"), on a WMP form approved by the city for this purpose as part of the application packet for the building, demolition, or site development permit. The completed WMP shall indicate all of the following:

1. A list of the C&D Debris material types to be generated;

2. The vendor or facility that the applicant proposes to use to collect or receive the materials; and

3. Acknowledgment of responsibility. The WMP shall be signed by both the contractor and owner indicating that:
a. Understanding of consequences of not meeting the diversion requirement including being subject to fines; and
b. They are responsible for the actions of their subcontractors with regard to this diversion requirement.

B. Deconstruction. In preparing the WMP, applicants for building, demolition, or site development permits involving the removal of all or part of an existing structure shall consider deconstruction, to the maximum extent feasible, and shall make the materials generated thereby available for salvage prior to landfilling. Materials generated in this process shall be considered divertable C&D debris and included in the amount of waste generated.

8.12.460 REVIEW OF WASTE MANAGEMENT PLAN.

A. Approval.

Notwithstanding any other provision of this code, no building, demolition, or site development permits shall be issued for any covered project, nor shall any demolition, construction or renovation take place on any covered project, unless and until the WMP Compliance Official has approved the WMP. The WMP Compliance Official shall only approve a WMP if he or she first determines that all of the following conditions have been met:

1. The WMP provides all of the information required by this article; and

2. The WMP indicates that diversion requirement for all C&D debris generated by the project will be met.

3. If the WMP Compliance Official determines that these two conditions have been met, he or she shall mark the WMP "Approved" and return a copy of the WMP to the applicant.

B. Nonapproval.

If the WMP Compliance Official determines that the WMP fails to 1) list all C&D materials to be generated, 2) indicate that diversion requirement will be met, or 3) have both the contractor's and owner's signatures, he or she shall either:

1. Return the WMP to the applicant marked "Denied," including a statement of reasons, or

2. Return the WMP to the applicant marked "Further Explanation Required", or

3. Return the WMP to the applicant marked "Temporary Permit" which will be valid for the period specified.

8.12.470 INFEASIBILITY EXEMPTION.

A. Application. If an applicant for a covered project experiences unique circumstances that the applicant believes make it infeasible to comply with the diversion requirement, the applicant may apply for an exemption at the time that he or she submits the WMP.

Increased costs to the applicant generally will not be a sufficient basis for an exemption unless such costs are extraordinary. The applicant shall indicate on the WMP the maximum amount of diversion he or she believes is feasible for each material and the specific circumstances that he or she believes make it infeasible to comply with the diversion requirement.

B. Meeting with WMP Compliance Official. The WMP Compliance Official shall review the information supplied by the applicant and may meet with the applicant to discuss possible ways of meeting the diversion requirement. Upon request of the city, the WMP Compliance Official may request the staff from the Solid Waste Division attend this meeting or may require the applicant to request a separate meeting with Solid Waste Division staff. Based on the information supplied by the applicant and, if applicable, Solid Waste Division staff, the WMP Compliance Official shall determine whether it is possible for the applicant to meet the diversion requirement.

C. Granting of Exemption. If the WMP Compliance Official determines that it is infeasible for the applicant to meet the diversion requirement due to unique circumstances, he or she shall establish a minimum feasible diversion rate for each material and shall indicate this rate on the WMP submitted by the applicant. The WMP Compliance Official shall return a copy of the WMP to the applicant marked "Approved for Infeasible Exemption." D. Denial of exemption. If the WMP Compliance Official determines that it is feasible for the applicant to meet the diversion requirement, he or she shall so inform the applicant in writing. The applicant shall have 30 days to resubmit a WMP form.

8.12.480 SUBMITTAL OF COMPLETED WASTE MANAGEMENT PLAN.

A. Documentation. No permit or approvals related to the project site shall be issued by the city until the applicant complies with the provisions of this section. The completed WMP must be approved prior to final occupancy. A temporary occupancy may be granted by the Building Official.

B. The applicant shall submit documentation along with a completed WMP that documents the diversion requirement for the project has been met to the City Compliance Official in order to receive final occupancy approval. This documentation shall include the following:

1. The completed WMP submitted for approval shall list for each construction and demolition material type generated the actual material volume or weight the project generated and receipts from both the disposal and recycling facilities and/or licensed haulers and vendors that received each material showing clearly whether the material was disposed or recycled; and

2. Any additional information the applicant believes is relevant to determining its efforts to comply in good faith with this article.

C. Weighing of wastes. Applicants shall make reasonable efforts to ensure that all C&D debris diverted or landfilled are measured and recorded using the most accurate method of measurement available. To the extent practical, all construction and demolition debris shall be weighed by measurement on scales. Such scales shall be in compliance with all regulatory requirements for accuracy and maintenance. For construction and demolition debris for which weighing is not practical due to small size or other considerations, a volumetric measurement shall be used.

D. Determination of compliance and release of permit. The WMP Compliance Official shall review the information submitted under division (A) above and determine whether the applicant has complied with the diversion requirement, as follows:

1. Full compliance. If the WMP Compliance Officer determines that the applicant has fully complied with the diversion requirement applicable to the project, he or she shall indicate such compliance on the WMP.

2. Good faith effort to comply. If the WMP Compliance Official determines that the diversion requirement has not been achieved, he or she shall determine on a case-by-case basis whether the applicant has made a good faith effort to comply with this article. In making this determination, the WMP Compliance Official shall consider the availability of markets for the C&D debris landfilled, the size of the project, and the documented efforts of the applicant to divert C&D debris. If the WMP Compliance Official determines that the applicant has made a good faith effort to comply with this article, he or she shall so indicate on the WMP.

3. Noncompliance. If the WMP Compliance Official determines that the applicant has not made a good faith effort to comply with this article, or if the applicant fails to submit the documentation required by division (A) above within the required time period, then the applicant shall be in violation of this article and be liable for a civil penalty, including that authorized by§ 9-5.2707.1 of this code, in addition to any other remedy provided by this article.

8.12.490 APPEAL.

Appeal of a determination made under this article shall be made to the City Manager or his or her designee.

SECTION 3. Inconsistences. Any provision of the Nevada City Municipal Code or appendices thereto inconsistent with the provisions of the Ordinance, to the extent of such inconsistencies and no further, are suspended or modified to that extent necessary to affect the provisions of this Ordinance, but only during the term of this Ordinance.

SECTION 4. Severability. Should any provision of this Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this Ordinance or the application of this Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. The City Council of the City of Nevada City declares that it would have adopted all the provisions of this ordinance that remain valid if any provisions of this ordinance are declared invalid
SECTION 5. Effective Date. This ordinance shall take effect thirty (30) days after its final passage and within fifteen (15) days after its passage, the City Clerk of the City of Nevada City shall certify to the passage and adoption of this ordinance and to its approval by the Mayor and City Council and shall cause the same to be published in a newspaper in the manner required by law.

SECTION 6. Certification. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted in the manner required by law.

PASSED, APPROVED AND ADOPTED this ________ day of ___________2022 by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Doug Fleming, Mayor
ATTEST:

Niel Locke, City Clerk

APPROVED AS TO FORM
Dean J. Pucci, City Attorney

CITY OF NEVADA CITY

CITY COUNCIL STAFF REPORT
MEETING OF: September 28, 2022 Agenda Item No. 04
Subject: Consideration of Reaffirming Resolution No. 2021- 44: A Resolution of the City Council of the City of Nevada City Making the Legally Required Findings to Continue to Authorize the Conduct of Remote “Telephonic” Meetings
During the State of Emergency
From: Sean Grayson, City Manager
Date: September 20, 2022
Reviewed & Approved:

City Manager:

City Attorney:

Recommended Action: Reconfirm resolution.

ISSUE STATEMENT AND DISCUSSION:

This is the resolution previously adopted by council authorizing the continued use of remote “telephonic” council meetings. As advised by the City Attorney, this resolution must be reaffirmed at each council meeting until such time as the requirement is rescinded.

FINANCIAL AND/OR POLICY IMPLICATIONS:

None.

ENVIRONMENTAL CONSIDERATIONS:

None
ATTACHMENTS:

Resolution No. 2021-44

CITY OF NEVADA CITY

CITY COUNCIL STAFF REPORT
MEETING OF: September 28, 2022 Agenda Item No. 05
Subject: Consideration of the Special Event Request for the Display of Cultural District Flags During a Regional Tour From: Sean Grayson, City Manager
Date: September 23, 2022
Reviewed & Approved:

City Manager:

City Attorney:

Recommended Action: Review, approve, and authorize the special event request.

ISSUE STATEMENT AND DISCUSSION:

On October 13, 2022, Senator Ben Allen’s Joint Committee on the Arts and Assemblymember Tasha Boerner Horvath’s Assembly Arts, Entertainment, Sports, Tourism and Internet Media Committee will tour the Grass Valley – Nevada City Cultural District. They note, “First-hand experiences will educate committee members about the vital role that CCDs play in creating community partnerships, enhancing identity and pride, fostering arts education opportunities, and supporting economic development. The research will inform policy regarding cultural districts (a type of creative placemaking) as the program comes up for expansion and legislative review.”
The Nevada City Chamber of Commerce and Grass – Valley Nevada City Cultural District have requested that the Cultural District flags be flown on City streetlights for the tour. No road closures or other event impacts are requested. The Chamber of Commerce and the Cultural District will be responsible for placing the flags no sooner than October 10th and removing them no later than October 17th. The request is submitted as an addendum to the master event submission from the Chamber of Commerce already approved by the City Council through February of 2023.

FINANCIAL AND/OR POLICY IMPLICATIONS:

There are no fees associated with the request and the Cultural District will be responsible for the placement and recovery of the flags before and after the event without the use of City staff time.

CITY OF NEVADA CITY

CITY COUNCIL STAFF REPORT
MEETING OF: September 28, 2022 Agenda Item No. 06
Subject: Consideration of Award of Contract with PSCE
in an Amount Not-To-Exceed $ 65,000 for Water Main
Abandonment at Miners Foundry; Authorize a Project
Contingency of 10%, Not-To-Exceed $6,500; and
Authorize the City Manager to Execute any Contracts or
Related Documents

From: Bryan McAlister, City Engineer
Date: September 21, 2022
Reviewed & Approved:

City Manager:

City Attorney:

Recommended Action: Award the contract, authorize the contingency, and authorize the City Manager to execute related documents.

ISSUE STATEMENT AND DISCUSSION:

City Engineering and Public Works staff identified areas where Water Improvements are needed to abandon and eventually replace a 140+/- year old waterline within the Downtown Historic District. Water Distribution System projects are prioritized for capital improvements based on inspection reports, Age-Class maps and the City’s Water and Wastewater Infrastructure and Operations Audit, completed in November 2017.

This project is a ‘Priority 1 – Critically needed project’ for replacement due to the age of pipe and location of the existing waterline. The existing 6” waterline is located under the foundations of Miners Foundry at Spring Street then across Deer Creek with portions of the pipe above ground and is beneath the foundations of a residential building at Tribulation Trail. The project consists of abandonment of the existing waterline by capping off both ends of the pipe at Spring Street and at Jordan Street and by relocating four water services and a fire hydrant that are currently connected to the old line.

A second phase of project will be implemented at a later date when funded to fully replace the waterline. This project is part of the City’s Capital Improvement Plan which was adopted by City Council on January 26th, 2022. This future phase project will require additional funding and will be advertised for bid when funding is procured in FY 23/24 or 24/24. The future project will consist of a new 8” water main on South Pine Street and across the Pine Street Bridge to provide a new waterline connection between Clark/Sacramento/Zion and the downtown area.

Request for bids was advertised on September 7, 2022 and bids were received on September 15, 2022 from local contractors, as follows:

PSCE, Brownsville CA $ 65,000.00
Hansen Bros, Grass Valley CA $ 86,248.00
Hardcore Construction., Grass Valley CA $ 81,809.76
Peter Schack Construction Engineering (PSCE) was selected as the lowest responsive and responsible bidder..

FINANCIAL AND/OR POLICY IMPLICATIONS:

The Water Main Abandonment at Miners Foundry project will be funded as authorized by fiscal year 2022/2023 water fund appropriations and by Measure S for drainage improvements.

ENVIRONMENTAL CONSIDERATIONS:

None.

ATTACHMENTS:
 Contract for Water Main Abandonment at Miners Foundry

8 GENERAL CONDITIONS

1. Inspection of Construction
The Engineer shall have access to the work and the site of the work at all times and the Contractor shall afford such access to the Engineer and shall furnish all relevant information requested by him. At the request of the Engineer the Contractor shall open for inspection any part of the work which has been covered up, and if any part of the work has been covered up in contravention of the instructions of the Engineer, or if on being opened up, is found not to be in accordance with the terms of the contract, the expense of opening and recovering shall be charged to the Contractor. If the work has been covered up but not in contravention of such instructions and is found to be in accordance with the terms of the contract, the actual cost of opening and recovering shall be borne by the City, and in such case, if the work of opening and recovering is done by the Contractor, it shall be considered as extra work and paid for accordingly.

2. Change Orders
If for any reason it becomes necessary or desirable to change the alignment, dimensions, or design of the work, the City shall have the right to issue written change orders therefore. If the Contractor considers that any such change involves extra work, he shall immediately so notify the Engineer in writing, and shall make claim for compensation for such work not later than the first day of the month following the month in which the work was performed. If, in the opinion of the Engineer, any change order results in a change in the amount of work performed, the contract price shall be adjusted for extra work or omitted work, as the case may be.

3. Contractor’s Employees and Subcontractors
The Contractor shall at all times be responsible for the adequacy and efficiency of his employees and any subcontractor and the latter’s employees. All workers shall have adequate skill and experience to perform properly the work assigned to them.

4. Errors and Omissions
If the Contractor in the course of the work becomes aware of any error or omission in the contract documents, or of any discrepancy between such documents and the physical conditions of the work site, he shall immediately inform the Engineer, who shall take such action as he may deem necessary in order to rectify the matter. Any work done after such discovery and without the authorization of the Engineer will be at the Contractor’s risk.

5. Guaranty of Work
For a period of one (1) year after final acceptance of the work by the City, the Contractor shall make all Improvements and replacements arising out of any defective workmanship or materials. If the Contractor fails to make such repairs or replacements within ten (10) days after receiving written notice to do so, or within such further time as may be allowed by the City, the City may undertake such repairs or replacements, in which case the Contractor shall be liable to the City for the cost thereof. 9 6. Contractor’s Responsibility for Work
The Contractor shall be responsible for the proper care and protection of the work, and of all materials delivered to the work site, until completion of the work and its final acceptance by the City.

7. Performance Bond
No Performance bond shall be required for this project.

8. Payment Bond
A payment (labor and materials) bond is required for public works contracts involving an expenditure in excess of twenty-five thousand dollars ($25,000). If the contract is in excess of this amount the contractor shall provide a payment bond to the City of Nevada City before commencement of work. Cost for the bond shall be included in the contractor bid proposal and no additional compensation will be provided.

A payment bond shall be in an amount not less than 100 percent of the total amount payable pursuant to the contract. The bond shall be in the form of a bond and not a deposit in lieu of a bond. The bond shall be executed by an admitted surety insurer and in accordance with Section [9550 - 9566] of the CA Code.

9. Workmen’s Compensation Insurance
The Contractor shall carry workmen’s compensation insurance for all employees working on or about the site of the work, and if any work is subcontracted, the Contractor shall require each subcontractor to carry such insurance for all of the latter’s employees, unless they are covered by the Contractor’s insurance.

10. Insurance Requirements
CONTRACTOR shall purchase and maintain insurance in amounts of coverage not less than the following amounts:

General Liability: $1,000,000 per occurrence for bodily injury, (Including operations, personal injury and property damage. If products and completed General Liability Insurance or
operations) other form with a general aggregate limit is used either the general aggregate limit shall
apply separately to this project/location or
the general aggregate limit shall be twice
the required occurrence limit.

Automobile Liability: $1,000,000 per accident for bodily injury and property damage.

The Contractor shall deliver to the City, concurrently with the execution of the contract, certificates evidencing all insurance required by the contract, and each such certificate shall include a provision to the effect that the policy or policies cannot be canceled or materially modified unless the insurer gives the City at least fifteen (15) days written notice thereof prior to such cancellation or modification. 10 11. Prevailing Wages
Contractor shall pay each laborer, workman or mechanic in accordance with State and Federal Prevailing Wage Rates and the California Labor Code. These wage rates are hereby made a part of this contract:

State General Prevailing Wage Determinations in effect on date advertised General prevailing wage determination
Journeyman and Apprentice Prevailing Wage Rates can be accessed at the following websites:
https://www.dir.ca.gov/oprl/DPreWageDetermination.html
And http://www.dir.ca.gov/das/publicworks.html
Reference: Labor Code http://www.labor.ca.gov/laborlawreg.htm Electronic Certified Payroll Records
 All contractors must furnish electronic certified payroll records to the Labor Commissioner using the online eCPR data system
 No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].  No contractor or subcontractor may be awarded a contract for public work on a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.  This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
 The contractor shall post job site notices prescribed by regulation. (See 8 Calif. Code Reg. §16451(d) 11 PART B

GENERAL CONDITIONS
Article
Number Title
1 Definitions
2 Preliminary Matters
3 Correlation, Interpretation and Intent of Contract Documents 4 Availability of Lands; Physical Conditions; Reference Points 5 Bonds of Insurance
6 Contractor's Responsibilities
7 Work by Others
8 Owner's Responsibilities
9 Engineer's Status During Construction
10 Changes in the Work
11 Change of the Contract Price
12 Change of the Contract Time
13 Warranty and Guarantee; Tests and Inspections; Correction, Removal or Acceptance of Defective Work
14 Payments and Completion
15 Suspension of Work and Termination
16 Arbitration
17 Miscellaneous
12 INDEX TO GENERAL CONDITIONS
Article or Paragraph
Number
Access to the Work 13.5
Addenda--definition of (see definition of Specifications) 1 Agreement--definition of 1
Agreement, Execution of 2.1
Application for Payment--definition of 1
Application for Payment, Final 14.12
Application for Progress Payment 14.2
Approval of Final Payment 14.13, 14.14
Approval of Payments--in general 14.4 thru 14.7.5
Arbitration 16
Availability of Lands 4.1
Award--Notice of--defined 1
Before Starting Construction 2.7 thru 2.9
Bid--definition 1
Bidder--definition 1
Bonds, Additional and Insurance 5.12
Bonds and Insurance--in general 5
Bonds--definition of 1
Bonds, Delivery of 2.2
Bonds, Performance and Payment 5.1, 5.2
Cash Allowances 11.9
Change Order--definition of 1
Changes in the Work 10
Claims, Waiver of 14.16
Clarifications and Interpretations 9.3
Cleaning 6.29
Completion, Payments and 14
Completion, Substantial 14.8, 14.9
Contract Documents--definition of 1
Contract Price, Change of 11
Contract Price--definition of 1
Contract Time, Change of 12
Contract Time--Commencement of 2.5
Contract Time--definition of 1
Contractor--definition of 1
Contractor May Stop Work or Terminate 15.5
Contractor, Neglected Work by 13.12
Contractor's Continuing Obligation 14.15
Contractor's Fee 11.6
Contractor's Liability Insurance 5.3
Contractor's Pre-Start Representations 2.4
Contractor's Responsibilities--in general 6
Contractor's Warranty of Title 14.3
Copies of Documents 2.3
Correction or Removal of Defective Work 13.9
Correction Period, One Year 13.10
Correction, Removal or Acceptance of Defective Work--in general 13 Correlation, Interpretation and Intent of Contract Documents 3 Cost of Work 11.4, 11.5
13 Costs, Supplemental 11.4.5
Day--definition of 1
Defective Work, Acceptance of 13.11
Defective Work, Correction or Removal of 13.9
Defective Work--definition of 9.4
Defective Work--in general 13
Defective Work, Rejecting 9.4
Definitions 1
Delivery of Bonds 2.2
Disagreements, Decisions by Engineer 9.9, 9.10
Documents, Copies of 2.3
Drawings--definition of 1
Drawings, Record 6.19
Emergencies 6.22
Engineer--definition of 1
Engineer's Responsibilities, Limitations on 9.11 thru 9.13 Engineer's Status During Construction--in general 9
Execution of Agreement 2.1

Fee, Contractor's 11.6
Field Order--definition of 1
Field Order--issued by Engineer 10.2
Final Acceptance for Payment 14.12
Final Inspection 14.11
Final Payment, Approval of 14.13, 14.14
General--Miscellaneous Provisions 17.3 thru 17.7
Giving Notice 17.1
Guarantee 13.1
Indemnification 6.30 thru 6.32
Inspection, Final 14.11
Inspection, Tests and 13.2, 13.3
Insurance--Additional Bonds and 5.12
Insurance, Bonds and--in general 5
Insurance--Certificates of 2.9 and 5
Insurance, Contractor's Liability 5.3
Insurance, OWNER's Liability 5.4
Insurance, Property 5.5 thru 5.11
Interpretations and Clarifications 9.3
Labor, Materials and Equipment 6.3 thru 6.6
Laws and Regulations 6.15
Limitations on Engineer's Responsibilities 9.11 thru 9.13 Local Conditions--Contractor's familiarity with 2.4
Materials and Equipment--furnished by Contractor 6.3
Materials or Equipment, Substitute 6.7
Miscellaneous Provisions 17
Modification--definition of 1

Neglected Work by Contractor 13.12
Notice, Giving of 17.1
Notice of Award--definition of 1
Notice to Proceed--definition of 1
14 Notice to Proceed--giving of 2.5
"Or-Equal" Items 6.7
OWNER--definition of 1
OWNER May Stop Work 13.8
OWNER May Suspend Work, Terminate 15.1 thru 15.4
OWNER's Liability Insurance 5.4
OWNER's Representative--Engineer to serve as 9.1
OWNER's Responsibilities--in general 8
Partial Utilization 14.10
Patent Fees and Royalties 6.13
Payments and Completion--in general 14
Payments, Approval of 14.4 thru 14.7.5
Performance, Payment and other Bonds 5.1 thru 5.2
Permits 6.14, 6.15
Physical Conditions--Surveys and Reports 4.2
Physical Conditions, Unforeseen 4.3
Preconstruction Conference 2.9
Premises, Use of 6.17, 6.18
Price--Change of Contract 11
Price--Contract--definition of 1
Progress Payment, Applications for 14.2
Progress Schedule 2.8, 14.1
Project--definition of 1
Project Representative, Resident--definition of 1
Project Representative, Resident--provision of 9.8
Project, Starting 2.6
Property Insurance 5.5 thru 5.11
Protection, Safety and 6.20 thru 6.21
Record Drawings 6.19
Reference Points 4.4
Regulations, Laws and 6.15
Rejecting Defective Work 9.4
Removal or Correction of Defective Work 13.9
Resident Project Representative--definition of 1
Resident Project Representative--provision of 9.8
Responsibilities, Contractor's 6
Responsibilities, OWNER's 8
Royalties, Patent Fees and 6.13
Safety and Protection 6.20 thru 6.21
Samples 6.23
Schedule of Shop Drawings Submissions 2.8, 14.1
Schedule of Values 14.1
Shop Drawings and Samples 6.23 thru 6.28
Shop Drawings--definition of 1
Site inspection--by Contractor 2.8
Site, Visits to--by Engineer 9.2
Specifications--definition of 1
Starting Construction, Before 2.7 thru 2.9
Stopping Work--by Contractor 15.5
Stopping Work--by OWNER 13.8
Subcontractor--definition of 1
Subcontractors--in general 6.8 thru 6.12
Substantial Completion--certification of 14.8
15 Substantial Completion--definition of 1
Substitute Materials or Equipment 6.7
Subsurface Conditions 4.2, 4.3
Supplemental Costs 11.4.5
Surety--consent to payment 14.12, 14.14
Surety--qualification of 5.1, 5.2
Suspending Work, by OWNER 15.1
Suspension of Work and Termination--in general 15
Superintendent--Contractor's 6.2
Supervision and Superintendence 6.1, 6.2
Taxes 6.16
Termination--by Contractor 15.5
Termination--by OWNER 15.2 thru 15.4
Termination, Suspension of Work and--in general 15
Tests and Inspections 13.2, 13.3, 13.7
Time, Change of Contract 12
Time, Computation of 17.2
Time, Contract--definition of 1
Uncovering Work 13.6, 13.7
Use of Premises 6.17, 6.18
Values, Schedule of 14.1
Visits to Site--by Engineer 9.2
Waiver of Claims 14.16
Warranty and Guarantee--by Contractor 13.1
Warranty of Title, Contractor's 14.3
Work, Access to 13.5
Work by Others--in general 7
Work, Cost of 11.4
Work--definition of 1
Work, Neglected by Contractor 13.12
Work, Stopping by Contractor 15.5
Work, Stopping by OWNER 15.1 thru 15.4
16 GENERAL CONDITIONS
ARTICLE 1 - DEFINITIONS
Whenever used in these General Conditions or in the other Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof:

Agreement - The written agreement between OWNER and CONTRACTOR covering the Work to be performed; other Contract Documents are attached to the Agreement.

Application for Payment - The form furnished by ENGINEER which is to be used by CONTRACTOR in requesting progress payments and which is to include the schedule of values required by paragraph 14.1 and an affidavit of CONTRACTOR that progress payments therefore received on account of the Work have been applied by CONTRACTOR to discharge in full all of CONTRACTOR's obligations reflected in prior Applications for Payment.

Bid - The offer or proposal of the Bidder submitting on the prescribed form setting forth the prices for the Work to be performed.

Bidder - Any person, firm, or corporation submitting a Bid for the Work.

Bonds - Bid, performance, and payment bonds and other instruments of security, furnished by CONTRACTOR and his surety in accordance with the Contract Documents.

Change Order - A written order to CONTRACTOR signed by OWNER authorizing an addition, deletion, or revision in the Work, or an adjustment in the Contract Price or the Contract Time issued after execution of the Agreement.

Contract Documents - The Agreement, Addenda (whether issued prior to the opening of Bid or the execution of the Agreement), Instructions to Bidders. CONTRACTOR's Bid, the Bonds, the Notice of Award, these General Conditions, the Supplementary Conditions, the Specifications, Drawings and Modifications.

Contract Price - The total moneys payable to CONTRACTOR under the Contract Documents.

Contract Time - The number of days stated in the Agreement for the completion of the Work, computed as provided in paragraph 17.2.

CONTRACTOR - The person, firm, or corporation with whom OWNER has executed the Agreement.

Day - A calendar day of twenty-four hours measured from midnight to the next midnight.

Drawings - The drawings which show the character and scope of the Work to be performed and which have been prepared or approved by ENGINEER and are referred to in the Contract Documents.

ENGINEER - The person, firm or corporation named as such in the Agreement.

Field Order - A written order issued by ENGINEER which clarifies or interprets the Contract Documents in accordance with paragraph 9.3 or orders minor changes in the Work in accordance with paragraph 10.2.

Modification - (a) A written amendment of the Contract Documents signed by both parties, (b) a Change Order, (c) 17 a written clarification or interpretation issued by ENGINEER in accordance with paragraph 9.3, or (d) a written order for a minor change or alteration in the Work issued by ENGINEER pursuant to paragraph 10.2. A Modification may only be issued after execution of the Agreement.

Notice of Award - The written notice by OWNER to the apparent successful Bidder stating that upon compliance with the conditions precedent to be fulfilled by him within the time specified, OWNER will execute and deliver the Agreement to him.

Notice to Proceed - A written notice given by OWNER to CONTRACTOR (with a copy to ENGINEER) fixing the date on which the Contract Time will commence to run and on which CONTRACTOR shall start to perform his obligations under the Contract Document.

OWNER - A public body or authority, corporation, association, partnership, or individual for whom the Work is to be performed.

Project - The entire construction to be performed as provided in the Contract Documents.

Resident Project Representative - The authorized representative of ENGINEER who is assigned to the Project site or any part thereof.

Shop Drawings - All drawings, diagrams, illustrations, brochures, schedules, and other data which are prepared by CONTRACTOR, a Subcontractor, manufacturer, supplier, or distributor and which illustrate the equipment, material, or some portion of the Work.

Specifications - Those portions of the Contract Documents consisting of written technical descriptions of materials, equipment, construction systems, standards, and workmanship as applied to the Work. The specifications are customarily organized in 16 divisions in accordance with the Uniform System for Construction Specifications endorsed by the Construction Specifications Institute. [Note: the term "Technical Provisions" formerly described what is now referred to as the Specifications. For uniformity with the usage of other professional societies the term "Project Manual" is used to describe the volume formerly referred to as "The Specifications." The Project Manual contains documents concerning bidding requirements which in general govern relationships prior to the execution of the Agreement (such as the Invitation to Bid, Instructions to Bidders and Notice of Award) and the other portions of the Contract Documents.]
Subcontractor - An individual, firm, or corporation having a direct contract with CONTRACTOR or with any other Subcontractor for the performance of a part of the Work at the site.

Substantial Completion - The date as certified by ENGINEER when the construction of the Project or a specified part thereof is sufficiently completed, in accordance with the Contract Documents, so that the Project or specified part can be utilized for the purpose for which it was intended: or if there be no such certification, the date when final payment is due in accordance with paragraph 14.13.

Work - Any and all obligations, duties and responsibilities necessary to the successful completion of the Project assigned to or undertaken by CONTRACTOR under the Contract Documents, including all labor, materials, equipment and other incidentals, and the furnishing thereof. 18 ARTICLE 2 - PRELIMINARY MATTERS

Execution of Agreement:

2.1 At least three counterparts of the Agreement and such other Contract Documents as practicable will be executed and delivered by CONTRACTOR to OWNER within fifteen days of the Notice of Award: and OWNER will execute and deliver one counterpart to CONTRACTOR within ten days of receipt of the executed Agreement from CONTRACTOR. ENGINEER will identify those portions of the Contract Documents not so signed and such identification will be binding on all parties. OWNER, CONTRACTOR, and ENGINEER shall each receive an executed counterpart of the Contract Documents and additional conformed copies as required.

Delivery of Bonds:

2.2 When he delivers the executed Agreement to OWNER, CONTRACTOR shall also deliver to OWNER such Bonds as he may be required to furnish in accordance with paragraph 5.1.

Copies of Documents:

2.3 OWNER shall furnish to CONTRACTOR up to ten copies (unless otherwise provided in the Supplementary Conditions) of the Contract Documents as are reasonably necessary for the execution of the Work.

Additional copies will be furnished, upon request, at the cost of reproduction.

Contractor's Pre-Start Representations:

2.4 CONTRACTOR represents that he has familiarized himself with, and assumes full responsibility for having familiarized himself with, the nature and extent of the Contract Documents, Work, locality, and with all local conditions and federal, state, and local laws, ordinances, rules, and regulations that may in any manner affect performance of the Work, and represents that he has correlated his study and observations with the requirements of the Contract Documents. CONTRACTOR also represents that he has studied all surveys and investigation reports of subsurface and latent physical conditions referred to in the General Requirements (Division 1) of the Specifications and made such additional surveys and investigations as he deems necessary for the performance of the Work at the Contract Price in accordance with the requirements of the Contract Documents and that he has correlated the results of all such data with the requirements of the Contract Documents.

Commencement of Contract Time: Notice to Proceed:

2.5 The Contact Time will commence to run on the thirtieth day after the day on which the executed Agreement is delivered by OWNER to CONTRACTOR: or if Notice to Proceed is given, on the day indicated in the Notice to Proceed; but in no event shall the Contract Time commence to run later than the ninetieth day after the day of Bid opening or the thirtieth day after the day on which OWNER delivers the executed Agreement to CONTRACTOR. A Notice to Proceed may be given at any time within thirty days after the day on which OWNER delivers the executed Agreement to CONTRACTOR.

Starting the Project:

2.6 CONTRACTOR shall start to perform his obligations under the Contract Documents on the date when the Contract Time commences to run. No Work shall be done at the site prior to the date on which the Contract Time commences to run.
19 Before Starting Construction:

2.7 Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon and all applicable field measurements.

He shall at once report in writing to ENGINEER any conflict, error, or discrepancy which he may discover, however, he shall not be liable to OWNER or ENGINEER for his failure to discover any conflict, error, or discrepancy in the Drawings or Specifications.

2.8 Within ten days after delivery of the executed Agreement by OWNER to CONTRACTOR, CONTRACTOR shall submit to ENGINEER for approval, an estimated progress schedule indicating the starting and completion dates of the various stages of the Work, and a preliminary schedule of Shop Drawing submissions.

2.9 Before starting the Work at the site, CONTRACTOR shall furnish OWNER and ENGINEER certificates of insurance as required by Article 5. Within twenty days after delivery of the executed Agreement by OWNER to CONTRACTOR, but before starting the Work at the site, a conference will be held to review the above schedules to establish procedures for handling Shop Drawings and other submissions and for processing Applications for Payment, and to establish a working understanding between the parties as to the Project. Present at the conference will be OWNER or his representative, ENGINEER, Resident Project Representatives, CONTRACTOR, and his Superintendent.

ARTICLE 3 - CORRELATION, INTERPRETATION, AND INTENT OF

CONTRACT DOCUMENTS

3.1 It is the intent of the Specifications and Drawings to describe a complete Project to be constructed in accordance with the Contract Documents. The Contract Documents comprise the entire Agreement between OWNER and CONTRACTOR. They may be altered only by a Modification.

3.2 The Contract Documents are complementary; what is called for by one is as binding as if called for by all.

The CONTRACTOR finds a conflict, error, or discrepancy in the Contract Documents, he shall call it to ENGINEER's attention in writing at once and before proceeding with the Work affected thereby; however, he shall not be liable to OWNER or ENGINEER for his failure to discover any conflict, error, or discrepancy in the Specifications or Drawings. In resolving such conflicts, errors, or discrepancies, the documents shall be given precedence in the following order: Agreement, Modifications, Addenda, Supplementary Conditions, Specifications and Drawings. Figure dimensions on Drawings shall govern over scale dimensions, and detailed Drawings shall govern over general Drawings. Any Work that may reasonably be inferred from the Specifications or Drawings as being required to produce the intended result shall be supplied whether or not it is specifically called for. Work, materials, or equipment described in words which so applied have a well-known technical or trade meaning shall be deemed to refer to such recognized standards.

ARTICLE 4 - AVAILABILITY OF LANDS; PHYSICAL CONDITIONS;

REFERENCE POINTS

Availability of Lands:

4.1 OWNER shall furnish, as indicated in the Contract Documents and not later than the date when needed 20 by CONTRACTOR, the lands upon which the Work is to be done, rights-of-way thereto, and such other lands which are designated for the use of CONTRACTOR. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by OWNER, unless otherwise specified in the Contract Documents. If CONTRACTOR believes that any delay in OWNER's furnishing these lands or easements entitles him to an extension of the Contract Time, he may make a claim therefore as provided in Article 12. CONTRACTOR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment.

Physical Conditions - Surveys and Reports:

4.2 Reference is made to the General Requirements (Division 1) of the Specifications for identification of those surveys and investigation reports of subsurface and latent physical conditions at the Project site or otherwise affecting performance of the Work which have been relied upon by ENGINEER in preparation of the Drawings and Specifications.

Unforeseen Physical Conditions:

4.3 CONTRACTOR shall promptly notify OWNER and ENGINEER in writing of any subsurface or latent physical conditions at the site differing materially from those indicated in the Contract Documents. ENGINEER will promptly investigate those conditions and advise OWNER in writing if further surveys or subsurface tests are necessary. Promptly thereafter, OWNER shall obtain the necessary additional surveys and tests and furnish copies to ENGINEER and CONTRACTOR. If ENGINEER finds that the results of such surveys or tests indicate that there are subsurface or latent physical conditions which differ materially from those intended in the Contract Documents, and which could not reasonably have been anticipated by CONTRACTOR, a Change Order shall be issued incorporating the necessary revisions.

Reference Points:

4.4 OWNER shall provide engineering surveys for construction to establish reference points which in his judgment are necessary to enable CONTRACTOR to proceed with the Work. CONTRACTOR shall be responsible for surveying and laying out the Work (unless otherwise provided in the Supplementary Conditions), and shall protect and preserve the established reference points and shall make no changes or relocations without the prior written approval of OWNER. He shall report to ENGINEER whenever any reference point is lost or destroyed or requires relocation because of necessary changes in grades or locations. CONTRACTOR shall replace and accurately relocate all reference points so lost, destroyed, or moved.

ARTICLE 5 - BONDS AND INSURANCE
Performance and Payment Bonds:

5.1 Upon execution of the contract agreement, CONTRACTOR shall also provide, at his own expense, a separate Payment bond, in an amount equal to at least 100 percent of the contract price, as security for payment of all persons performing labor and furnishing materials regarding the contract. This payment bond must remain in full force and effect until the work is accepted by the City and until all claims for materials and labor are paid and shall 21 otherwise comply with civil code. Sureties for these bonds shall be satisfactory to the City Attorney.

Should any bond become insufficient, CONTRACTOR shall renew the bond within 10 working days after receipt of notice from the City.

Should any surety at any time be unsatisfactory to the City, a notice will be given to CONTRACTOR to that effect.

No further payments shall be deemed due or will be made under said agreement until a new surety shall qualify and be accepted by the City.

Changes in said agreement or extensions of time, made pursuant to the agreement, shall in no way release CONTRACTOR or surety from its obligations. Notice of such changes or extensions shall be waived by the surety.

Contractor's Liability Insurance:

5.2 CONTRACTOR shall purchase and maintain such insurance as will protect him from claims under workman's compensation laws, disability benefit laws, or other similar employee benefit laws; from claims for damages because of bodily injury, occupational sickness or disease, or death of his employees, and claims insured by usual personal injury liability coverage; and from claims for injury to or destruction of tangible property, including loss of use resulting therefrom – any or all of which may arise out of or result from CONTRACTOR's operations under the Contract Documents, whether such operations be by himself or by any Subcontractor or anyone directly or indirectly employed by any of them or for whose acts any of them may be legally liable. This insurance shall include the specific coverages and be written for not less than any limits of liability and maximum deductibles specified in the Supplementary Conditions or General Requirements (Division 1) or required by law, whichever is greater, shall include parties. Before starting Work, CONTRACTOR shall file with OWNER and ENGINEER certificates of such insurance, acceptable to OWNER; these certificates shall contain a provision that the coverage afforded under the policies will not be cancelled or materially changed until at least fifteen days prior written notice has been given to OWNER and ENGINEER.

Any deductibles or self-insured retentions must be declared to and approved by the OWNER. At the option of the OWNER, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the OWNER, its officers, officials, employees and volunteers; or the CONTRACTOR shall provide a financial guarantee satisfactory to the OWNER guaranteeing payment of losses and related investigations, claim administration and defense expenses.

The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

1. The ENGINEER and the OWNER, its officers, officials, employees, and volunteers are to be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the CONTRACTOR; and with respect to liability arising out of work or operations performed by or on behalf of the CONTRACTOR including materials, parts or equipment furnished in connection with such work or operations.

General liability coverage can be provided in the form of an endorsement to the CONTRACTOR's insurance.

2. For any claims related to this project, the CONTRACTOR's insurance coverage shall be primary insurance as respects the ENGINEER and the OWNER, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the ENGINEER and the OWNER, its officers, officials, employees, or volunteers 22 shall be excess of the CONTRACTOR's insurance and shall not contribute with it.

3. Each insurance policy required by this clause shall be endorsed to state that coverage shall be cancelled by either party, except after fifteen (15) days prior written notice by certified mail, return receipt requested, has been given to the OWNER and the ENGINEER.

4. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) of Section 2782 of the Civil Code.

Insurance is to be placed with a current A.M. Best's rating of no less than A:VII.

CONTRACTOR shall furnish the OWNER with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the OWNER or on other than the OWNER's forms, provided those endorsements or policies conform to the requirements. All certificates and endorsements are to be received and approved by the OWNER before work commences. The OWNER reserved the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.

CONTRACTOR shall include all Subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each Subcontractor. All coverages for Subcontractors shall be subject to all of the requirements stated herein.

OWNER's Liability Insurance:

5.4 OWNER shall be responsible for purchasing and maintaining his own liability insurance and, at his option, may purchase and maintain such insurance as will protect him against claims which may arise from operations under the Contract Documents.

Property Insurance:

5.5 Unless otherwise provided, OWNER shall purchase and maintain property insurance upon the Project to the full insurable value hereof. This insurance shall include the interests of OWNER, CONTRACTOR, and Subcontractors in the Work, shall insure against the perils of Fire, Extended Coverage, Vandalism, and Malicious Mischief, and such other perils as may be specified in the Supplementary Conditions or General Requirements (Division 1), and shall include damages, losses, and expenses arising out of or resulting from any insured loss or incurred in the repair or replacement of any insured property (including fees and charges of engineers, architects, attorneys, and other professionals).

5.6 OWNER shall purchase and maintain such steam boiler and machinery insurance as may be required by the Supplementary Conditions or by law. This insurance shall include the interests of OWNER, CONTRACTOR, and Subcontractors in the Work.

5.7 Any insured loss under the policies of insurance required by paragraphs 5.5 and 5.6 is to be adjusted with OWNER and made payable to OWNER as trustee for the insureds, as their interests may appear, subject to the requirements of any applicable mortgage clause and of paragraph 5.11.

5.8 OWNER shall file a copy of all policies with CONTRACTOR before an exposure to loss may occur. If 23 OWNER does not intend to purchase such insurance, he shall inform CONTRACTOR in writing prior to commencement of the Work. CONTRACTOR may then effect insurance which will protect the interests of himself and his Subcontractors in the Work, and by appropriate Change Order the cost thereof shall be charged to OWNER.

If CONTRACTOR is damaged by failure of OWNER to purchase or maintain such insurance and so to notify CONTRACTOR, then OWNER shall bear reasonable costs properly attributable thereto.

5.9 If CONTRACTOR requests in writing that other special insurance be included in the property insurance policy, OWNER shall, if possible, include such insurance and the cost thereof shall be charged to CONTRACTOR by appropriate Change Order.

5.10 OWNER and CONTRACTOR waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance provided under paragraphs 5.5 through 5.11, inclusive, except such rights as they may have to the proceeds of such insurance held by OWNER as trustee. CONTRACTOR shall require similar waivers by Subcontractors in accordance with paragraph 6.12.

5.11 OWNER as trustee shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing within five days after the occurrence of loss to OWNER's exercise of this power, and if such objection be made, arbitrators shall be chosen as provided in Article 16. OWNER as trustee shall, in that case, make settlement with the insurers in accordance with the directions of such arbitrators. If distribution of the insurance proceeds by arbitration is required, the arbitrators will direct such distribution.

Additional Bonds and Insurance:

5.12 Prior to delivery of the executed Agreement by OWNER to CONTRACTOR, OWNER may require CONTRACTOR to furnish such other Bonds and such additional insurance, in such form and with such sureties or insurers as OWNER may require. If such other Bonds or such other insurance are specified by written instructions given prior to opening of Bids, the premiums shall be paid by CONTRACTOR; if subsequent thereto, they shall be paid by OWNER (except as otherwise provided in paragraph 6.7).

ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES

Supervision and Superintendence:

6.1 CONTRACTOR shall supervise and direct the Work efficiently and with his best skill and attention. He shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction, but he shall not be solely responsible for the negligence of others in the design or selection of a specific means, method, technique, sequence, or procedure of construction which is indicated in and required by the Contract Documents.

CONTRACTOR shall be responsible to see that the finished Work complies accurately with the Contract Documents.

6.2 CONTRACTOR shall keep on the Work at all times during its progress a competent resident superintendent, who shall not be replaced without written notice to OWNER and ENGINEER except under extraordinary circumstances. The superintendent will be CONTRACTOR's representative at the site and shall have authority to act on behalf of CONTRACTOR. All communications given to the superintendent shall be as binding as if given to CONTRACTOR.
24 Labor, Materials, and Equipment:

6.3 CONTRACTOR shall provide competent, suitably qualified personnel to survey and lay out the Work and perform personnel to survey and lay out the Work and perform construction as required by the Contact Documents. He shall at all times maintain good discipline and order at the site.

6.4 CONTRACTOR shall furnish all materials, equipment, labor, transportation, construction equipment, and machinery, tools, appliances, fuel, power, light, heat, telephone, water, and sanitary facilities and all other facilities and incidentals necessary for the execution, testing, initial operation, and completion of the Work.

6.5 All materials and equipment shall be new, except as otherwise provided in the Contract Documents. If required by ENGINEER, CONTRACTOR shall furnish satisfactory evidence as to the kind and quality of materials and equipment.

6.6 All materials and equipment shall be applied, installed, connected, erected, used, cleaned, and conditioned in accordance with the instructions of the applicable manufacturer, fabricator, or processors, except as otherwise provided in the Contract Documents.

Substitute Materials or Equipment:

7.1 If the General Requirements (Division 1 of the Specifications), law, ordinance, or applicable rules or regulations permit CONTRACTOR to furnish or use a substitute that is equal to any material or equipment specified, and if CONTRACTOR wishes to furnish or use a proposed substitute, he shall, prior to the conference called for by paragraph 2.9 (unless another time is provided in the General Requirements), make written application to ENGINEER for approval of such substitute certifying in writing that the proposed substitute will perform adequately the functions called for by the general design, be similar and of equal substance to that specified and be suited to the same use and capable of performing the same function as that specified; stating whether or not its incorporation in or use in connection with the Project is subject to the payment of any license fee or royalty; and identifying all variations of the proposed substitute from that specified and indicating available maintenance service. No substitute shall be ordered or installed without the written approval of ENGINEER who will be the judge of equality and may require CONTRACTOR to furnish such other data about the proposed substitute as he considers pertinent. No substitute shall be ordered or installed without such performance guarantee and bonds as OWNER may require which shall be furnished at CONTRACTOR's expense.

Concerning Subcontractors:

6.8 CONTRACTOR shall not employ any Subcontractor or other person or organization (including those who are to furnish the principal items of materials or equipment), whether initially or as a substitute, against whom OWNER or ENGINEER may have reasonable objection. A Subcontractor or other person or organization identified in writing to OWNER and ENGINEER by CONTRACTOR prior to the Notice of Award and not objected to in writing by OWNER or ENGINEER prior to the Notice of Award will be deemed acceptable to OWNER and ENGINEER. Acceptance of any Subcontractor, other person or organization by OWNER or ENGINEER shall not constitute a waiver of any right of OWNER or ENGINEER to reject defective Work or Work not in conformance with the Contract Documents. If OWNER or ENGINEER after due investigation has reasonable objection to any Subcontractor, other person or organization proposed by CONTRACTOR after the Notice of Award.

CONTRACTOR shall submit an acceptable substitute and the Contract Price shall be increased or decreased by the 25 difference in cost occasioned by such substitution, and an appropriate Change Order shall be issued. CONTRACTOR shall not be required to employ any Subcontractor, other person or organization against whom he has reasonable objection. CONTRACTOR shall not without the consent of OWNER and ENGINEER make any substitution for any Contractor, other person or organization who has been accepted by OWNER and ENGINEER unless ENGINEER determines that there is good cause for doing so.

6.9 CONTRACTOR shall be fully responsible for all acts and omissions of his Subcontractors and of persons and organizations directly or indirectly employed by them and of persons and organizations for whose acts any of them may be liable to the same extent that he is responsible for the acts and omissions of persons directly employed by him. Nothing in the Contract Documents shall create any contractual relationship between OWNER or ENGINEER and any Subcontractor or other person or organization having a direct contract with CONTRACTOR, nor shall it create any obligation on the part of OWNER or ENGINEER or pay or to see to the payment of any moneys due any Subcontractor or other person or organization, except as may otherwise be required by law. OWNER or ENGINEER may furnish to any Subcontractor or other person or organization, to the extent practicable, evidence of amounts paid to CONTRACTOR on account of specific Work done in accordance with the schedule of values.

6.10 The divisions and sections of the Specifications and the identifications of any Drawings shall not control CONTRACTOR in dividing the Work among Subcontractors or delineating the Work to be performed by any specific trade.

6.11 CONTRACTOR agrees to bind specifically every Subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of OWNER.

6.12 All Work performed for CONTRACTOR by a Subcontractor shall be pursuant to an appropriate agreement between CONTRACTOR and the Subcontractor which shall contain provisions that waive all rights the contracting parties may have against one another for damages caused by fire or other perils covered by insurance provided in accordance with paragraphs 5.5 through 5.11, inclusive, except such rights as they may have to the proceeds of such insurance held by OWNER as trustee under paragraph 5.9. CONTRACTOR shall pay each Subcontractor a just share of any insurance moneys received by CONTRACTOR under paragraph 5.5 through 5.11, inclusive.

Patent Fees and Royalties:

6.13 CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work of an invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if to the actual knowledge of OWNER or ENGINEER its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by OWNER in the Contract Documents. CONTRACTOR shall indemnify and hold harmless OWNER and ENGINEER and anyone directly or indirectly employed by either of them from and against all claims, damages, losses, and expenses (including attorneys' fees) arising out of any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents, and shall defend all such claims in connection with any alleged infringement of such rights.

Permits:
26 6.14 CONTRACTOR shall obtain and pay for all construction permits and licenses and shall pay all governmental charges and inspection fees necessary for the prosecution of the Work, which are applicable at the time of his Bid. OWNER shall assist CONTRACTOR, when necessary, in obtaining such permits and licenses.

CONTRACTOR shall also pay all public utility charges.

Laws and Regulations:

6.15 CONTRACTOR shall give all notices and comply with all laws, ordinances, rules, and regulations applicable to the Work. If CONTRACTOR observes that the Specifications and Drawings are at variance therewith, he shall give ENGINEER prompt written notice thereof, and any necessary changes shall be adjusted by an appropriate Modification. If CONTRACTOR performs any Work knowing it to be contrary to such laws, ordinances, rules, and regulations, and without such notice to ENGINEER, he shall bear all costs arising therefrom; however, it shall not be his primary responsibility to make certain that the Specifications and Drawings are in accordance with such laws, ordinances, rules, and regulations.

Taxes:

6.16 CONTRACTOR shall pay all sales, consumer, use, and other similar taxes required to be paid by him in accordance with the law of the place where the Work is to be performed.

Use of Premises:

6.17 CONTRACTOR shall confine his equipment, the storage of materials and equipment, and the operations of his workmen to areas permitted by law, ordinances, permits, or the requirements of the Contract Documents, and shall not unreasonably encumber the premises with materials or equipment.

6.18 CONTRACTOR shall not load nor permit any part of any structure to be loaded with weights that will endanger the structure, nor shall he subject any part of the Work to stresses or pressures that will endanger it.

Record Drawings:

6.19 CONTRACTOR shall keep one record copy of all Specifications, Drawings, Addenda, Modifications, and Shop Drawings at the site in good order and annotated to show changes made during the construction process.

These shall be available to ENGINEER and shall be delivered to him for OWNER upon completion of the Project. [Note: Further provisions in respect of such record drawings may be included in the General Requirements (Division 1).]
Safety and Protection:

6.20 CONTRACTOR shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. He shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury, or loss to:

6.20.1 all employees on the Work and other persons who may be affected thereby,

6.20.2 all the Work and all materials or equipment to be incorporated therein, whether in storage on or off the site and
27 6.20.3 other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, and utilities not designated for removal, relocation, or replacement in the course of construction.

CONTRACTOR shall comply with all applicable laws, ordinances, rules, regulations, and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury, or loss. He shall erect and maintain, as required by the conditions and progress of the Work, all necessary safeguards for its safety and protection. He shall notify OWNERs of adjacent utilities when prosecution of the Work may affect them. All damage, injury, or loss to any property referred to in paragraph 6.20.2 or 6.20.3 caused, directly or indirectly, in whole or in part, by CONTRACTOR, any Subcontractor or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by CONTRACTOR: except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of OWNER or ENGINEER or anyone employed by either of them or anyone for whose acts either of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of CONTRACTOR. CONTRACTOR's duties and responsibilities for the safety and protection of the Work shall continue until such time as all the Work is completed and ENGINEER has issued a notice to OWNER and CONTRACTOR in accordance with paragraph 14.13 that Work is acceptable

6.21 CONTRACTOR shall designate a responsible member of his organization at the site whose duty shall be the prevention of accidents. This person shall be CONTRACTOR's superintendent unless otherwise designated in writing by CONTRACTOR to OWNER.

Emergencies:

6.22 In emergencies affecting the safety of persons or the Work or property at the site or adjacent thereto, CONTRACTOR, without special instruction or authorization from ENGINEER or OWNER, is obligated to act, at his discretion, to prevent threatened damage, injury, or loss. He shall give ENGINEER prompt written notice of any significant changes in the Work or deviations from the Contract Documents caused thereby, and a Change Order shall thereupon be issued covering the changes and deviations involved. If CONTRACTOR believes that additional work done by him in any emergency which arose from causes beyond his control entitles him to an increase in the Contract Price or an extension of the Contract Time, he may make a claim therefore as provided in Articles 11 and

12. Shop Drawings and Samples:

6.23 After checking and verifying all field measurements. CONTRACTOR shall submit to ENGINEER for approval, in accordance with the accepted schedule of Shop Drawing submissions (see paragraph 2.8) five copies (or at ENGINEER's option, one reproducible copy) of all Shop Drawings, which shall have been checked by and stamped with the approval of CONTRACTOR and identified as ENGINEER may require. The data shown on the Shop Drawings will be complete with respect to dimensions, design criteria, materials of construction, and the like to enable ENGINEER to review the information as required.

6.24 CONTRACTOR shall also submit to ENGINEER for approval with such promptness as to cause no delay in Work, all samples required by the Contract Documents. All samples will have been checked by and stamped with the approval of CONTRACTOR, identified clearly as to material, manufacturer, any pertinent catalog numbers and the use for which intended.
28 6.25 At the time of submission, CONTRACTOR shall in writing call ENGINEER's attention to any deviations that the Shop Drawing or sample may have from the requirements of the Contract Documents.

6.26 ENGINEER will review and approve with reasonable promptness Shop Drawings and samples, but his review and approval shall be only for conformance with the design concept of the Project and for compliance with the information given in the Contract Documents. The approval of a separate item as such will not indicate approval of the assembly in which the item functions. CONTRACTOR shall make any corrections required by ENGINEER and shall return the required number of corrected copies of Shop Drawings and resubmit new samples until approved.

CONTRACTOR shall direct specific attention in writing or on resubmitted Shop Drawings to revisions other than the corrections called for by ENGINEER on previous submissions. CONTRACTOR's stamp of approval on any Shop Drawing or sample shall constitute a representation to OWNER and ENGINEER that CONTRACTOR has either determined and verified all quantities, dimensions, field construction criteria, materials, catalog numbers, and similar data or he assumes full responsibility for doing so, and that he has reviewed or coordinated each Shop Drawing or sample with the requirements of the Work and the Contract Documents.

6.27 Where a Shop Drawing or sample submission is required by the Specifications, no related Work shall be commenced until the submission has been approved by ENGINEER. A copy of each approved Shop Drawing and each approved sample shall be kept in good order by CONTRACTOR at the site and shall be available to ENGINEER.

6.28 ENGINEER's approval of Shop Drawings or samples shall not relieve CONTRACTOR from his responsibility for any deviations from the requirements of the Contract Documents unless CONTRACTOR has in writing called ENGINEER's attention to such deviation at the time of submission and ENGINEER has given written approval to the specific deviation, nor shall any approval by ENGINEER relieve CONTRACTOR from responsibility for errors or omissions in the Shop Drawings.
[Note: Further provisions in respect to Shop Drawings and samples may be included in the General Requirements (Division 1).]
Cleaning:

6.29 CONTRACTOR shall keep the premises free from accumulations of waste materials, rubbish, and other debris resulting from the Work, and at the completion of the Work he shall remove all waste materials, rubbish, and debris from and about the premises as well as all tools, construction equipment and machinery, and surplus materials, and shall leave the site clean and ready for occupancy by OWNER. CONTRACTOR shall restore to their original condition those portions of the site not designated for alteration by the Contract Documents. [Note: Further provisions in respect to cleaning may be included in the General Requirements (Division 1).] Indemnification:

6.30 CONTRACTOR shall indemnify and hold harmless OWNER and ENGINEER and their agents and employees from and against all claims, damages, losses, and expenses including attorneys' fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss, or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including the loss of use resulting therefrom and (b) is caused in whole or in part by any negligent act or omission of CONTRACTOR, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified 29 hereunder.

6.31 In any and all claims against OWNER or ENGINEER or any of their agents or employees by an employee of CONTRACTOR, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under paragraph 6.30 shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for CONTRACTOR or any Subcontractor under workmen's compensation acts, disability benefit acts or other employee benefit acts.

6.32 The obligations of CONTRACTOR under paragraph 6.30 shall not extend to the liability of ENGINEER, his agents, or employees arising out of (a) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications or (b) the giving of or the failure to give directions or instructions by ENGINEER, his agents, or employees provided such giving or failure to give is the primary cause of injury or damage.

ARTICLE 7 - WORK BY OTHERS

7.1 OWNER may perform additional work related to the Project by himself, or he may let other direct contracts therefore which shall contain General Conditions similar to these. CONTRACTOR shall afford the other CONTRACTOR'S who are parties to such direct contracts (or OWNER, if he is performing the additional work himself), reasonable opportunity for the introduction and storage of materials and equipment and the execution of work, and shall properly connect and coordinate his Work with theirs.

7.2 If any part of CONTRACTOR's Work depends for proper execution or results upon the work of any such other contractor (or OWNER), CONTRACTOR shall inspect and promptly report to ENGINEER in writing any defects or deficiencies in such work that render it unsuitable for such proper execution and results. His failure so to report shall constitute an acceptance of the other work as fit and proper for the relationship of his Work except as to defects and deficiencies which may appear in the other work after the execution of his Work.

7.3 CONTRACTOR shall do all cutting, fitting, and patching of his Work that may be required to make its several parts come together properly and fit it to receive or be received by such other work. CONTRACTOR shall not endanger any work by others by cutting, excavating, or otherwise altering their work and will only cut or alter their work with the written consent of ENGINEER and of the other CONTRACTOR'S whose work will be affected.

7.4 If the performance of additional work by other CONTRACTOR'S or OWNER is not noted in the Contract Documents prior to the execution of the contract, written notice thereof shall be given to CONTRACTOR prior to starting any such additional work. If CONTRACTOR believes that the performance of such additional work by OWNER or others involves him in additional expenses or entitles him to an extension of the Contract Time, he may make a claim therefore as provided in Articles 11 and 12.

ARTICLE 8 - OWNER'S RESPONSIBILITIES

8.1 OWNER shall issue all communications to CONTRACTOR through ENGINEER. 30 8.2 In case of termination of the employment of ENGINEER, OWNER shall appoint an engineer against whom CONTRACTOR makes no reasonable objections, whose status under the Contract Documents shall be that of the former ENGINEER. Any dispute in connection with such appointment shall be subject to arbitration.

8.3 OWNER shall furnish the data required of him under the Contract Documents promptly and shall make payments to CONTRACTOR promptly after they are due as provided in paragraph 14.4 and 14.13.

8.4 OWNER's duties in respect to providing lands and easements and providing engineering surveys to establish reference points are set forth in paragraphs 4.1 and 4.4. Paragraph 4.2 refers to OWNER's identifying and making available to CONTRACTOR copies of surveys and investigation reports of subsurface and latent physical conditions at the site or otherwise affecting performance of the Work which have been relied upon by ENGINEER in preparing the Drawings and Specifications.

8.5 OWNER's responsibilities in respect of liability and property insurance are set forth in paragraph 5.4 and

5.5. 8.6 In addition to his rights to request changes in the Work in accordance with Article 10, OWNER (especially in certain instances as provided in paragraph 10.4) shall be obligated to execute Change Orders.

8.7 OWNER's responsibility in respect of certain inspections, tests, and approvals is set forth in paragraph

13.2. 8.8 In connection with OWNER's right to stop Work or suspend Work, see paragraphs 13.8 and 15.1.

Paragraph 15.2 deals with the OWNER's right to terminate services of CONTRACTOR under certain circumstances. 31 ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION

OWNER's Representative:

9.1 ENGINEER will be OWNER's representative during the construction period. The duties and responsibilities and the limitations of authority of ENGINEER as OWNER's representative during construction are set forth in Articles 1 through 17 of these General Conditions and shall not be extended without written consent of OWNER and ENGINEER.

Visits to Site:

9.2 ENGINEER will make periodic visits to the site to observe the progress and quality of the executed Work and to determine, in general, if the Work is proceeding in accordance with the Contract Documents. He will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. His efforts will be directed toward providing assurance for OWNER that the completed Project will conform to the requirements of the Contract Documents. On the basis of his on-site observations as an experienced and qualified design professional, he will keep OWNER informed of the progress of the Work and will endeavor to guard OWNER against defects and deficiencies in the Work of CONTRACTOR'S.

Clarifications and Interpretations:

9.3 ENGINEER will issue with reasonable promptness such written clarifications or interpretations of the Contract Documents (in the form of Drawings or otherwise) as he may determine necessary, which shall be consistent with or reasonably inferable from the overall intent of the Contract Documents. If CONTRACTOR believes that a written clarification or interpretation entitles him to an increase in the Contract Price, he may make a claim therefore as provided in Article 11.

Rejecting Defective Work:

9.4 ENGINEER will have authority to disapprove or reject Work which is "defective" (which term is hereinafter used to describe Work that is unsatisfactory, faulty, or defective, or does not conform to the requirements of the Contract Documents or does not meet the requirements of any inspection, test or approval referred to in paragraph 13.2 or has been damaged prior to approval of final payment). He will also have authority to require special inspection or testing of the Work as provided in paragraph 13.7, whether or not the Work is fabricated, installed, or completed.

Shop Drawings, Change Orders and Payments:

9.5 In connection with ENGINEER's responsibility for Shop Drawings and samples, see paragraphs 6.23 through 6.28 inclusive.

9.6 In connection with ENGINEER's responsibility for Change Orders, see Articles 10, 11, and 12. 32 9.7 In connection with ENGINEER's responsibilities in respect of Applications for Payment, etc., see Article

14. Resident Project Representative:

9.8 If OWNER and ENGINEER agree, ENGINEER will furnish a Resident Project Representative and assistants to assist ENGINEER in carrying out his responsibilities at the site. The duties, responsibilities, and limitations of authority of any such Resident Project Representative and assistants shall be as set forth in an exhibit to be incorporated in the Contract Documents.

Decisions on Disagreements:

9.9 ENGINEER will be the interpreter of the requirements of the Contract Documents and the judge of the performance thereunder. In his capacity as interpreter and judge he will exercise his best efforts to insure faithful performance by both OWNER and CONTRACTOR. He will not show partiality to either and will not be liable for the result of any interpretation or decision rendered in good faith. Claims, disputes, and other matters relating to the execution of or performance under the Contract Documents shall be referred to ENGINEER for decision; which he will render in writing within a reasonable time.

9.10 Either OWNER or CONTRACTOR may demand arbitration with respect to any such claim, dispute or other matter that has been referred to ENGINEER, except any which have been waived by the making or acceptance of final payment as provided in paragraph 14.16, such arbitration to be in accordance with Article 14.16, such arbitration to be in accordance with Article 16. However, no demand for arbitration of any such claim, dispute, or other matter shall be made until the earlier of (a) the date on which ENGINEER has rendered his decision or (b) the tenth day after the parties have presented their evidence to ENGINEER if he has not rendered his written decision before that date. No demand for arbitration shall be made later than thirty days after the date on which ENGINEER rendered his written decision in respect to the claim, dispute, or other matter as to which arbitration is sought; and the failure to demand arbitration within said thirty days' period shall result in ENGINEER's decision being final and binding upon OWNER and CONTRACTOR. If ENGINEER renders a decision after arbitration proceedings have been initiated, such decision may be entered as evidence but shall not supersede the arbitration proceedings, except where the decision is acceptable to the parties concerned.

Limitations on ENGINEER's Responsibilities:

9.11 Neither ENGINEER's authority to act under this Article 9 or elsewhere in the Contract Documents nor any decision made by him in good faith either to exercise or not exercise such authority shall give rise to any duty or responsibility of ENGINEER to CONTRACTOR, any Subcontractor, any materialman, fabricator, supplier, or any of their agents or employees any other person performing any of the Work.

9.12 ENGINEER will not be responsible for CONTRACTOR's means, methods, techniques, sequences or procedures of construction, or the safety precautions and programs incident thereto, and he will not be responsible for CONTRACTOR's failure to perform the Work in accordance with the Contract Documents.

9.13 ENGINEER will not be responsible for the acts or omissions of CONTRACTOR, or any Subcontractors, or any of his or their agents or employees, or any other persons at the site or otherwise performing any of the Work. 33 ARTICLE 10 - CHANGES IN THE WORK

10.1 Without invalidating the Agreement, OWNER may, at any time or from time to time, other additions, deletions, or revisions in the Work; these will be authorized by Change Orders. Upon receipt of a Change Order, CONTRACTOR shall proceed with the Work involved. All such Work shall be executed under the applicable conditions of the Contract Documents. If any Change Order causes an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, an equitable adjustment will be made as provided in Article 11 or Article 12 on the basis of a claim made by either party.

10.2 ENGINEER may authorize minor changes or alterations in the Work not involving extra cost and not inconsistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order. If CONTRACTOR believes that any minor change or alteration authorized by ENGINEER entitles him to an increase in the Contract Price, he may make a claim therefore as provided in Article 11.

10.3 Additional Work performed by CONTRACTOR without authorization of a Change Order will not entitle him to an increase in the Contract Price or an extension of the Contract Time, except in the case of an emergency as provided in paragraph 6.22 and except as provided in paragraphs 10.2 and 13.7.

10.4 OWNER shall execute appropriate Change Orders prepared by ENGINEER covering changes in the Work to be performed as provided in paragraph 4.3, and Work performed in an emergency as provided in paragraph

6.22 and any other claim of CONTRACTOR for a change in the Contract Time or the Contract Price which is approved by ENGINEER.

10.5 It is CONTRACTOR's responsibility to notify his Surety of any changes affecting the general scope of the Work or change in the Contract Price and the amount of the applicable Bonds shall be adjusted accordingly.

CONTRACTOR shall furnish proof of such adjustment to OWNER.

ARTICLE 11 - CHANGE OF THE CONTRACT PRICE

11.1 The Contract Price constitutes the total compensation payable to CONTRACTOR for performing the Work. All duties, responsibilities, and obligations assigned to or undertaken by CONTRACTOR shall be at his expense without change in the Contract Price.

11.2 The Contract Price may only be changed by a Change Order. Any claim for an increase in the Contract Price shall be based on written notice delivered to OWNER and ENGINEER within fifteen days of the occurrence of the event giving rise to the claim. Notice of the amount of the claim with supporting data shall be delivered within forty-five days of such occurrence unless ENGINEER allows an additional period of time to ascertain accurate cost data. All claims for adjustments in the Contract Price shall be determined by ENGINEER if OWNER and CONTRACTOR cannot otherwise agree on the amount involved. Any change in the Contract Price resulting from any such claim shall be incorporated in a Change Order.

11.3 The value of any Work covered by a Change Order or of any claim for an increase or decrease in the Contract Price shall be determined in one of the following ways:

11.3.1 Where the Work involved is covered by unit prices contained in the Contract Documents, by application of unit prices to the quantities of the items involved. 34 11.3.2 By mutual acceptance of a lump sum.

11.3.3 On the basis of the Cost of the Work (determined as provided in paragraphs 11.4 and 11.5) plus a Contractor's Fee for overhead and profit (determined as provided in paragraph 11.6).

Cost of the Work:

11.4 The term Cost of the Work means the sum of all costs necessarily incurred and paid by the CONTRACTOR in the proper performance of the Work. Except as otherwise may be agreed to in writing by OWNER, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items and shall not include any of the costs itemized in paragraph 11.5:

11.4.1 Payroll costs for employees in the direct employ of CONTRACTOR in the performance of the Work under schedules of job classifications agreed upon by OWNER and CONTRACTOR. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on the Work.

Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits which shall include social security contributions, unemployment, excise and payroll taxes, workmen's compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. Such employees shall include superintendents and foreman at the site. The expenses of performing work after regular working hours on Sunday or legal holidays shall be included in the above to the extent authorized by OWNER.

11.4.2 Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof, and manufacturers' field services required in connection therewith. All cash discounts shall accrue to CONTRACTOR unless OWNER deposits funds with CONTRACTOR with which to make payments, in which case the cash discounts shall accrue to OWNER. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to OWNER, and CONTRACTOR shall make provisions so that they may be obtained.

11.4.3 Payments made by CONTRACTOR to the Subcontractors for Work performed by Subcontractors. If required by OWNER, CONTRACTOR shall obtain competitive bids from Subcontractors acceptable to him and shall deliver such bids to OWNER who will then determine with the advice of ENGINEER, which bids will be accepted. If a subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work Plus a Fee, the Cost of the Work shall be determined in accordance with paragraphs 11.4 and 11.5. All subcontracts shall be subject to the other provisions of the Contract Documents insofar as applicable.

11.4.4 Costs of special consultants (including, but not limited to, engineers, architects, testing laboratories, surveyors, lawyers, and accountants) employed for services specifically related to the Work.

11.4.5 Supplemental costs including the following:

11.4.5.1 The proportion of necessary transportation, traveling, and subsistence expenses of CONTRACTOR's employees incurred in discharge of duties connected with the Work.

11.4.5.2 Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office and temporary facilities at the site and hand tools not owned by the workmen, which are consumed in the performance of the Work, and cost less market value of such items used but not consumed which 35 remain the property of CONTRACTOR.

11.4.5.3 Rentals of all construction equipment and machinery and the parts thereof whether rented from CONTRACTOR or others in accordance with rental agreements approved by OWNER with the advice of ENGINEER, and the costs of transportation, loading, unloading, installation, dismantling and removal thereof--all in accordance with terms of said rental agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the Work.

11.4.5.4 Sales, use or similar taxes related to the Work, and for which CONTRACTOR is liable, imposed by any governmental authority.

11.4.5.5 Deposits lost for causes other than CONTRACTOR's negligence, royalty payments and fees for permits and licenses.

11.4.5.6 Losses, damages and expenses, not compensated by insurance or otherwise, sustained by CONTRACTOR in connection with the execution of, and to, the Work, provided they have resulted from causes other than the negligence of CONTRACTOR, any Subcontractor, or anyone directly or indirectly employed by any of them for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of OWNER. No such losses, damages and expenses shall be included in the Cost of the Work for the purpose of determining Contractor's Fee. If, however, any such loss or damage requires reconstruction and CONTRACTOR is placed in charge thereof, he shall be paid for his services a fee proportionate to that stated in paragraph 11.6.2.

11.4.5.7 The cost of utilities, fuel and sanitary facilities at the site.

11.4.5.8 Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressage and similar petty cash items in connection with the Work.

11.4.5.9 Cost of premiums for bonds and insurance which OWNER is required to pay in accordance with paragraph 5.12.

11.5 The term Cost of the Work shall not include any of the following:

11.5.1 Payroll costs and other compensation of CONTRACTOR's officers, executives, principals (of partnership and sole proprietorships), general managers, engineers, architects, estimators, lawyers, auditors, accountants, purchasing and contracting agents, expeditors, timekeepers, clerks and other personnel employed by CONTRACTOR whether at the site or in his principal or a branch office for general administration of the Work and not specifically included in the schedule referred to in subparagraph 11.4.1--all of which are to be considered administrative costs covered by the Contractor's Fee.

11.5.2 Expenses of CONTRACTOR's principal and branch offices other than his office at the site.

11.5.3 Any part of CONTRACTOR's capital expenses, including interest on CONTRACTOR's capital employed for the Work and charges against CONTRACTOR for delinquent payments.

11.5.4 Cost of premiums for all bonds and for all insurance policies whether or not CONTRACTOR is required by the Contract Documents to purchase and maintain the same (except as otherwise provided in 36 subparagraph 11.4.5.9).

11.5.5 Costs due to negligence of CONTRACTOR, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective work, disposal of materials or equipment wrongly supplied and making good any damage to property.

11.5.6 Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in paragraph 11.4.

Contractor's Fee:

11.6 The Contractor's Fee which shall be allowed to CONTRACTOR for his overhead and profit shall be determined as follows:

11.6.1 a mutually acceptable fixed fee; or if none can be agreed upon,

11.6.2 a fee based on the following percentages of the various portions of the Cost of the Work:

11.6.2.1 for costs incurred under paragraphs 11.4.1 and 11.4.2, the Contractor's Fee shall be ten percent,

11.6.2.2 for costs incurred under paragraph 11.4.3, the Contractor's Fee shall be five percent; and if a subcontract is on the basis of Cost of the Work Plus a Fee, the maximum allowable to the Subcontractor as a fee for overhead and profit shall be ten percent, and

11.6.2.3 no fee shall be payable on the tasks of costs itemized under paragraphs 11.4.4, 11.4.5 and

11.5. 11.7 The amount of credit to be allowed by CONTRACTOR to OWNER for any such change which results in a net decrease in cost, will be the amount of the actual net decrease. When both additions and credits are involved in any one change, the combined overhead and profit shall be figured on the basis of the net increase, if any.

11.8 Whenever the cost of any Work is to be determined pursuant to paragraphs 11.4 and 11.5, CONTRACTOR will submit in form prescribed by ENGINEER an itemized cost breakdown together with supporting data.

Cash Allowance:

11.9 It is understood that CONTRACTOR has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be done by such materialmen, suppliers or Subcontractors and for such sums within the limit of the allowances as ENGINEER may approve. Upon final payment, the Contract Price shall be adjusted as required and an appropriate Change Order issued. CONTRACTOR agrees that the original Contract Price includes such sums as he deems proper for costs and profit on account of cash allowances. No demand for additional cost or profit in connection therewith will be allowed. 37 ARTICLE 12 - CHANGE OF THE CONTRACT TIME

12.1 The Contract Time may only be changed by a Change Order. Any claim for an extension in the Contract Time shall be based on written notice delivered to OWNER and ENGINEER within fifteen days of the occurrence of the event giving rise to the claim. Notice of the extent of the claim with supporting data shall be delivered within forty-five days of such occurrence unless ENGINEER allows an additional period of time to ascertain more accurate data. All claims for adjustment in the Contract Time shall be determined by ENGINEER if OWNER and CONTRACTOR cannot otherwise agree. Any change in the Contract Time resulting from any such claim shall be incorporated in a Change Order.

12.2 The Contract Time will be extended in an amount equal to time lost due to delays beyond the control of CONTRACTOR if he makes a claim therefore as provided in paragraph 12.1. Such delays shall include, but not be restricted to, acts or neglect by any separate contractor employed by OWNER, fires, floods, labor disputes, epidemics, abnormal weather conditions, or acts of God.

12.3 All time limits stated in the Contract Documents are of the essence of the Agreement. The provisions of this Article 12 shall not exclude recovery for damages (including compensation for additional professional services) for delay by either party.

38 ARTICLE 13 - WARRANTY AND GUARANTEE; TESTS AND
INSPECTIONS; CORRECTION, REMOVAL OF

ACCEPTANCE OF DEFECTIVE WORK

Warranty and Guarantee:

13.1 CONTRACTOR warrants and guarantees to OWNER and ENGINEER that all materials and equipment will be new unless otherwise specified and that all Work will be of good quality and free from faults or defects and in accordance with the requirements of the Contract Documents and of any inspections, tests or approvals referred to in paragraph 13.2. All unsatisfactory Work, all faulty or defective Work, and all Work not conforming to the requirements of the Contract Documents at the time of acceptance thereof or of such inspections, test or approvals, shall be considered defective. Prompt notice of all defects shall be given to CONTRACTOR. All defective Work, whether or not in place, may be rejected, corrected or accepted as provided in this Article 13.

Tests and Inspections:

13.2 If the Contract Documents, laws, ordinances, rules, regulations or orders of any public authority having jurisdiction require any Work to specifically be inspected, tested, or approved by some public body, CONTRACTOR shall assume full responsibility therefore, pay all costs in connection therewith and furnish ENGINEER the required certificates of inspection, testing or approval. All other inspections, tests and approvals required by the Contract Documents shall be performed by organizations acceptable to OWNER and CONTRACTOR and the costs thereof shall be borne by OWNER unless otherwise specified.

13.3 CONTRACTOR shall give ENGINEER timely notice of readiness of the Work for all inspections, tests or approvals. If any such Work required so to be inspected, tested or approved is covered without written approval of ENGINEER, it must, if requested by ENGINEER, be uncovered for observation, and such uncovering shall be at CONTRACTOR's expense unless CONTRACTOR has given ENGINEER timely notice of his intention to cover such Work and ENGINEER has not acted with reasonable promptness in response to such notice.

13.4 Neither observations by ENGINEER nor inspections, tests or approvals by persons other than CONTRACTOR shall relieve CONTRACTOR from his obligations to perform the Work in accordance with the requirements of the Contract Documents.

Access to Work:

13.5 ENGINEER and his representatives and other representatives of OWNER will at reasonable times have access to the Work. CONTRACTOR shall provide proper and safe facilities for such access and observation of the Work and also for any inspection or testing thereof by others.

Uncovering Work:

13.6 If any Work is covered contrary to the written request of ENGINEER, it must, if requested by ENGINEER, be uncovered for his observation and replaced at CONTRACTOR's expense.

13.7 If any Work has been covered which ENGINEER has not specifically requested to observe prior to its being covered, or if ENGINEER considers it necessary or advisable that covered Work be inspected or tested by others, CONTRACTOR, at ENGINEER's request, shall uncover, expose or otherwise make available for observation, inspection or testing as ENGINEER may require, that portion of the Work in question, furnishing all necessary labor, 39 material and equipment. If it is found that such Work is defective, CONTRACTOR shall bear all the expenses of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction, including compensation for additional professional services, and an appropriate deductive Change Order shall be issued. If, however, such Work is not found to be defective, CONTRACTOR shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both, directly attributable to such uncovering, exposure, observation, inspection, testing and reconstruction if he makes a claim therefore as provided in Articles 11, and 12.

OWNER May Stop the Work:

13.8 If the Work is defective, or CONTRACTOR fails to supply sufficient skilled workmen or suitable materials or equipment, or if CONTRACTOR fails to make prompt payments to Subcontractors or for labor, materials or equipment, OWNER may order CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of OWNER to stop the Work shall not give rise to any duty on the part of OWNER to exercise this right for the benefit of CONTRACTOR or any other party.

Correction or Removal of Defective Work:

13.9 If required by ENGINEER prior to approval of final payment, CONTRACTOR shall promptly, without cost to OWNER and as specified by ENGINEER, either correct or defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by ENGINEER, remove it from the site and replace it with nondefective Work. If CONTRACTOR does not correct such defective Work or remove and replace such rejected Work within a reasonable time, all as specified in a written notice from ENGINEER, OWNER may have the deficiency corrected or the rejected Work removed and replaced. All direct or indirect costs of such correction or removal and replacement, including compensation for additional professional services, shall be paid by CONTRACTOR, and an appropriate deductive Change Order shall be issued. CONTRACTOR shall also bear the expenses of making good all Work of others destroyed or damaged by his correction, removal or replacement of his defective Work.

One Year Correction Period:

13.10 If after the approval of final payment and prior to the expiration of one year after the date of Substantial Completion or such longer period of time as may be prescribed by law or by the terms of any applicable special guarantee required by the Contract Documents, any Work is found to be defective, CONTRACTOR shall promptly, without cost to OWNER and in accordance with OWNER's written instructions, either correct such defective Work, or, if it has been rejected by OWNER, remove it from the site and replace it with nondefective Work. If CONTRACTOR does not promptly comply with the terms of such instructions, OWNER may have the defective Work corrected or the rejected Work removed and replaced, and all direct and indirect costs of such removal and replacement, including compensation for additional professional services, shall be paid by CONTRACTOR.

Acceptance of Defective Work:

13.11 If instead of requiring correction or removal and replacement of defective Work, OWNER (and, prior to approval of final payment, also ENGINEER) prefers to accept it, he may do so. In such case, if acceptance occurs prior to approval of final payment, a Change Order shall be issued incorporating the necessary revisions in the Contract Documents, including appropriate reduction in the Contract Price; or, if the acceptance occurs after approval of final payment, an appropriate amount shall be paid by CONTRACTOR to OWNER. 40 Neglected Work by Contractor:

13.12 If CONTRACTOR shall fail to prosecute the Work in accordance with the Contract Documents, including any requirements of the progress schedule, OWNER, after seven days' written notice to CONTRACTOR may, without prejudice to any other remedy he may have, make good such deficiencies and the cost thereof (including compensation for additional professional services) shall be charged against CONTRACTOR if ENGINEER approves such action, in which case a Change Order shall be issued incorporating the necessary revisions in the Contract Documents including an appropriate reduction in the Contract Price. If the payments then or thereafter due CONTRACTOR are not sufficient to cover such amount, CONTRACTOR shall pay the difference to OWNER.

ARTICLE 14 - PAYMENTS AND COMPLETION

Schedules:

14.1 At least ten days prior to submitting the first Application for a progress payment, CONTRACTOR shall submit a progress schedule, a final schedule of Shop Drawing and a schedule of values of the Work. These schedules shall be satisfactory in form and substance to ENGINEER. The schedule of values shall include quantities and unit prices aggregating the Contract Price, and shall subdivide the Work into component parts in sufficient detail to serve as the basis for progress payments during construction. Upon approval of the schedules of values by ENGINEER, it shall be incorporated into the form of Application for Payment furnished by ENGINEER.

Application for Progress Payment:

14.2 At least ten days before such progress payment falls due (but not more often than once a month), CONTRACTOR shall submit to ENGINEER for review an Application for Payment filled out and signed by CONTRACTOR covering the Work completed as of the date of the Application and accompanied by such data and schedules as ENGINEER may reasonably require. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the site or at another location agreed to in writing, the Application for Payment shall also be accompanied by such data, satisfactory to OWNER, as will establish OWNER's title to the material and equipment and protect his interest therein, including applicable insurance. Each subsequent Application for Payment shall include an affidavit of CONTRACTOR stating that all previous progress payments received on account of the Work have been applied to discharge in full all of CONTRACTOR's obligations reflected in prior Applications for Payment.

Contractor's Warranty of Title:

14.3 CONTRACTOR warrants and guarantees that title to all Work, materials and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to OWNER at the time of payment free and clear of all liens, claims, security interests and encumbrances (hereafter in these General Conditions referred to as "Liens").

Approval of Payments:

14.4 ENGINEER will, within ten days after receipt of each Application for Payment, either indicate in writing 41 his approval of payment and present the Application to OWNER, or return the Application to CONTRACTOR indicating in writing his reasons for refusing to approve payment. In the latter case, CONTRACTOR may make the necessary corrections and resubmit the Application. OWNER shall, within twenty days of presentation to him of an approved Application for Payment, pay CONTRACTOR the amount approved by ENGINEER. Payment to contractor shall be made within thirty (30) days following receipt of a demand for any progress payment due thereunder as to which there is no good faith dispute between the parties (CA State Civil Code § 3260.1).

14.5 ENGINEER's approval of any payment requested in an Application for Payment will constitute a representation by him to OWNER, based on ENGINEER's on-site observations of the Work in progress as an experienced and qualified design professional and on his review of the Application for Payment and the accompanying data and schedules that the Work has progressed to the point indicated; that, to the best of his knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents (subject to the evaluation of the Work as a functioning Project upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and any qualifications stated in his approval); and that CONTRACTOR is entitled to payment of the amount approved. However, by approving any such payment ENGINEER will not thereby be deemed to have represented that he made exhaustive or continuous on-site inspections to check the quality or the quantity of the Work, or that he has reviewed the means, methods, techniques, sequences, or procedures of construction, or that he has made any examination to ascertain how or for what purpose CONTRACTOR has used the moneys paid or to be paid to him on account of the Contract Price, or that title to any Work, materials or equipment has passed to OWNER free and clear of any Liens.

14.6 ENGINEER's approval of final payment will constitute an additional representation by him to OWNER that the conditions precedent to CONTRACTOR's being entitled to final payment as set forth in paragraph 14.13 have been fulfilled.

14.7 ENGINEER may refuse to approve the whole or any part of any payment if, in his opinion, it would be incorrect to make such representations to OWNER. He may also refuse to approve any such payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such payment previously approved, to such extent as may be necessary in his opinion to protect OWNER from loss because:

14.7.1 the Work is defective, or completed Work has been damaged requiring correction or replacement,

14.7.2 claims or Liens have been filed or there is reasonable cause to believe such may be filed,

14.7.3 the Contract Price has been reduced because of Modifications,

14.7.4 OWNER has been required to correct defective Work or complete the Work in accordance with paragraph 13.11, or

14.7.5 of unsatisfactory prosecution of the Work, including failure to furnish acceptable submittals or to clean up.

Substantial Completion:

14.8 Prior to final payment, CONTRACTOR may, in writing to OWNER and ENGINEER, certify that the entire Project is substantially complete and request that ENGINEER issue a certificate of Substantial Completion.

Within a reasonable time thereafter, OWNER, CONTRACTOR and ENGINEER shall make an inspection of the 42 Project to determine the status of completion. If ENGINEER does not consider the Project substantially complete, he will notify CONTRACTOR in writing giving his reasons therefore. If ENGINEER considers the Project substantially complete, he will prepare and deliver to OWNER a tentative certificate of Substantial Completion which shall fix the date of Substantial Completion and the responsibilities between OWNER and CONTRACTOR for maintenance, heat and utilities. There shall be attached to the certificate a tentative list of items to be completed or corrected before final payment, and the certificate shall fix the time within which such items shall be completed or corrected, said time to be within the Contract Time. OWNER shall have seven days after receipt of the tentative certificate during which he may make written objection to ENGINEER as to any provisions of the certificate or attached list. If, after considering such objections, ENGINEER concludes that the Project is not substantially complete, he will within fourteen days after submission of the tentative certificate to OWNER notify CONTRACTOR in writing, stating his reasons therefore. If, after consideration of OWNER's objections, ENGINEER considers the Project substantially complete, he will within said fourteen days execute and deliver to OWNER and CONTRACTOR a definitive certificate of Substantial Completion (with a revised tentative list of items to be completed or corrected) reflecting such changes from the tentative certificate as he believes justified after consideration of any objections from OWNER.

14.9 OWNER shall have the right to exclude CONTRACTOR from the Project after the date of Substantial Completion, but OWNER shall allow CONTRACTOR reasonable access to complete or correct items on the tentative list.

Partial Utilization:

14.10 Prior to final payment, OWNER may request CONTRACTOR in writing to permit him to use a specified part of the Project which he believes he may use without significant interference with construction of the other parts of the Project. If CONTRACTOR agrees, he will certify to OWNER and ENGINEER that said part of the Project is substantially complete and request ENGINEER to issue a certificate of Substantial Completion for that part of the Project. Within a reasonable thereafter OWNER, CONTRACTOR and ENGINEER shall make an inspection of that part of the Project to determine its status of completion. If ENGINEER does not consider that it is substantially complete, he will notify OWNER and CONTRACTOR in writing giving his reasons therefore. If ENGINEER considers that part of the Project to be substantially complete, he will execute and deliver to OWNER and CONTRACTOR a certificate to that effect, fixing the date of Substantial Completion as to that part of the Project, attaching thereto a tentative list of items to be completed or corrected before final payment and fixing the responsibility between OWNER and CONTRACTOR for maintenance, heat and utilities as to that part of the Project.

OWNER shall have the right to exclude CONTRACTOR from any part of the Project which ENGINEER has so certified to be substantially complete, but OWNER shall allow CONTRACTOR reasonable access to complete or correct items on the tentative list.

Final Inspection:

14.11 Upon written notice from CONTRACTOR that the Project is complete, ENGINEER will make a final inspection with OWNER and CONTRACTOR and will notify CONTRACTOR in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. CONTRACTOR shall immediately take such measures as are necessary to remedy such deficiencies.

Final Application for Payment:

14.12 After CONTRACTOR has completed all such corrections to the satisfaction of ENGINEER and delivered 43 all maintenance and operating instructions, schedules, guarantees, Bonds, certificates of inspection and other documents--all as required by the Contract Documents, he may make application for final payment following the procedure for progress payments. The final Application for Payment shall be accompanied by such data and schedules as ENGINEER may reasonably require, together with complete and legally effective releases or waivers (satisfactory to OWNER) of all Liens arising out of the Contract Documents and the labor and services performed and the material and equipment furnished thereunder. In lieu thereof and as approved by OWNER, CONTRACTOR may furnish receipts or releases in full; an affidavit of CONTRACTOR that the releases and receipts include all labor, services, materials and equipment for which a Lien could be filed, and that all payrolls, material and equipment bills, and other indebtedness connected with the Work for which OWNER or his property might in any way be responsible, have been paid or otherwise satisfied; and consent of the Surety, if any, to final payment. If any Subcontractor, materialman, fabricator or supplier fails to furnish a release or receipt in full, CONTRACTOR may furnish a Bond or other collateral satisfactory to OWNER to indemnify him against any Lien.

Approval of Final Payment:

14.13 If, on the basis of his observation and review of the Work during construction, his final inspection and his review of the final Application for Payment--all as required by the Contract Documents, ENGINEER is satisfied that the Work has been completed and CONTRACTOR has fulfilled all his obligations under the Contract Documents, he will, within ten days after receipt of the final Application for Payment, indicate in writing his approval of payment and present the Application to OWNER for payment. Thereupon ENGINEER will give written notice to OWNER and CONTRACTOR that the Work is acceptable subject to the provisions of paragraph 14.16. Otherwise, he will return the Application to CONTRACTOR, indicating in writing his reasons for refusing to approval final payment, in which case CONTRACTOR shall make the necessary corrections and resubmit the Application. OWNER shall, within ten days of presentation to him of an approved final Application for Payment, pay CONTRACTOR the amount approved by ENGINEER.

14.14 If after Substantial Completion of the Work final completion thereof is materially delayed through no fault of CONTRACTOR, and ENGINEER so confirms, OWNER shall, upon certification by ENGINEER, and without terminating the Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if Bonds have been furnished as required in paragraph 5.1, the written consent of the Surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the CONTRACTOR to the ENGINEER prior to certification of such payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims.

Contractor's Continuing Obligation:

14.15 CONTRACTOR's obligation to perform the Work and complete the Project in accordance with the Contract Documents shall be absolute. Neither approval or any progress or final payment by ENGINEER, nor the issuance of a certificate of Substantial Completion, nor any payment by OWNER to CONTRACTOR under the Contract Documents, nor any use or occupancy of the Project or any part thereof by OWNER, nor any act of acceptance by OWNER nor any failure to do so, nor any correction of defective work by OWNER shall constitute an acceptance of Work not in accordance with the Contract Documents.

Waiver of Claim:

14.16 The making and acceptance of final payment shall constitute:
44 14.16.1 a waiver of all claims by OWNER against CONTRACTOR other than those arising from unsettled Liens, from defective work appearing after final inspection pursuant to paragraph 14.11 or from failure to comply with the requirements of the Contract Documents or the terms of any special guarantees specified therein, and

14.16.2 a waiver of all claims by CONTRACTOR against OWNER other than those previously made in writing and still unsettled.

ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION
OWNER May Suspend Work:

15.1 OWNER may, at any time and without cause, suspend the Work or any portion thereof for a period of not more than ninety days by notice in writing to CONTRACTOR and ENGINEER which shall fix the date on which Work shall be resumed. CONTRACTOR shall resume the Work on the date so fixed. CONTRACTOR will be allowed an increase in the Contract Price or an extension of the Contract Time, or both, directly attributable to any suspension if he makes a claim therefore as provided in Articles 11 and 12.

OWNER May Terminate:

15.2 If CONTRACTOR is adjusted a bankrupt or insolvent, or if he makes a general assignment for the benefit of his creditors, or if a trustee or receiver is appointed for CONTRACTOR or for any of his property, or if he files a petition to take advantage of any debtor's act, or to reorganize under the bankruptcy or similar laws, or if he repeatedly fails to supply sufficient skilled workmen or suitable materials or equipment, or if he repeatedly fails to make prompt payments to Subcontractors or for labor, materials or equipment or if he disregards laws, ordinances, rules, regulations or orders of any public body having jurisdiction, or if he disregards the authority of ENGINEER, or if he otherwise violates any provision of the Contract Documents, then OWNER may, without prejudice to any other right or remedy and after giving CONTRACTOR and his Surety seven days' written notice, terminate the services of CONTRACTOR and take possession of the Project and of all materials, equipment, tools, construction equipment and machinery thereon owned by CONTRACTOR, and finish the Work by whatever method he may deem expedient. In such case CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Price exceeds the direct and indirect costs of completing the Project, including compensation for additional professional services, such excess shall be paid to CONTRACTOR. If such costs exceed such unpaid balance, CONTRACTOR shall pay the difference to OWNER. Such costs incurred by OWNER shall be determined by ENGINEER and incorporated in a Change Order.

15.3 Where CONTRACTOR's services have been so terminated by OWNER, said terminations shall not affect any rights of OWNER against CONTRACTOR then existing or which may thereafter accrue. Any retention or payment of moneys by OWNER due CONTRACTOR will not release CONTRACTOR from liability.

15.4 Upon seven days' written notice to CONTRACTOR and ENGINEER, OWNER may, without cause and without prejudice to any right or remedy, elect to abandon the Project and terminate the Agreement. In such case, CONTRACTOR shall be paid for all Work executed and any expense sustained plus a reasonable profit.

Contractor May Stop Work or Terminate:
45 15.5 If, through no act or fault of CONTRACTOR, the Work is suspended for a period of more than ninety days by OWNER or under an order of court or other public authority, or ENGINEER fails to act on any Application for Payment within thirty days after it is submitted, or OWNER fails to pay CONTRACTOR any sum approved by ENGINEER or awarded by arbitrators within thirty days of its approval and presentation, then CONTRACTOR may, upon seven days' written notice to OWNER and ENGINEER, terminate the Agreement and recover from OWNER payment for all Work executed and any expense sustained plus a reasonable profit. In addition and in lieu of terminating the Agreement, if ENGINEER has failed to act on an Application for Payment or OWNER has failed to make any payment as aforesaid, CONTRACTOR may upon seven days' notice to OWNER and ENGINEER stop the Work until he has been paid all amounts then due.

ARTICLE 16 - ARBITRATION

16.1 All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof except for claims which have been waived by the making or acceptance of final payment as provided by paragraph 14.16, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining. This Agreement so to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in any court having jurisdiction thereof.

16.2 Notice of the demand for arbitration shall be filed in writing with the other party to the Agreement and with the American Arbitration Association, and a copy shall be filed with ENGINEER. The demand for arbitration shall be made within the thirty-day period specified in paragraph 9.10 where applicable, and in all other cases within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.

16.3 CONTRACTOR will carry on the Work and maintain the progress schedule during any arbitration proceedings, unless otherwise agreed by him and OWNER in writing.

ARTICLE 17 - MISCELLANEOUS
Giving Notice:

17.1 Whenever any provision of the Contract Documents requires the giving of written notice it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to him who gives the notice.

Computation of Time:

17.2 When any period of time is referred to in the Contract Documents by days, it shall be computed to exclude the first and include the last day of such period. If the last day of such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day shall be omitted from the computation.

General:
46 17.3 All moneys not paid when due hereunder shall bear interest at the maximum rate allowed by law at the place of the Project.

17.4 All Specifications, Drawings and copies thereof furnished by ENGINEER shall remain his property. They shall not be used on another Project, and, with the exception of those sets which have been signed in connection with the execution of the Agreement, shall be returned to him on request upon completion of the Project.

17.5 The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder, and, in particular but without limitation, the warranties, guarantees and obligations imposed upon CONTRACTOR by paragraphs 6.30, 13.1, 13.10 and 14.3 and the rights and remedies available to OWNER and ENGINEER thereunder, shall be in addition to, and shall not be construed in any way as a limitation of, any rights and remedies available to them which are otherwise imposed or available by law, by special guarantees or by other provisions of the Contract Documents.

17.6 Should OWNER or CONTRACTOR suffer injury or damage to his person or property because of any error, omission or act of the other or of any of his employees or agents or others for whose acts he is legally liable, claim shall be made in writing to the other party within a reasonable time of the first observance of such injury or damage.

17.7 The Contract Documents shall be governed by the law of the place of the Project.

47 Excerpts from CA Labor Code
1771.1. (a) A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded. 1774. The contractor to whom the contract is awarded, and any subcontractor under him, shall pay not less than the specified prevailing rates of wages to all workmen employed in the execution of the contract. 1775.
(a) (1) The contractor and any subcontractor under the contractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rates as determined by the director for the work or craft in which the worker is employed for any public work done under the contract by the contractor or, except as provided in subdivision (b), by any subcontractor under the contractor. (2) (A) The amount of the penalty shall be determined by the Labor Commissioner based on consideration of both of the following:
(i) Whether the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor.
(ii) Whether the contractor or subcontractor has a prior record of failing to meet its prevailing wage obligations. (B) (i) The penalty may not be less than forty dollars ($40) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, unless the failure of the contractor or subcontractor to pay the correct rate of per diem wages was a good faith mistake and, if so, the error was promptly and voluntarily corrected when brought to the attention of the contractor or subcontractor. (ii) The penalty may not be less than eighty dollars ($80) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the contractor or subcontractor has been assessed penalties within the previous three years for failing to meet its prevailing wage obligations on a separate contract, unless those penalties were subsequently withdrawn or overturned. (iii) The penalty may not be less than one hundred twenty dollars ($120) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rate, if the Labor Commissioner determines that the violation was willful, as defined in subdivision (c) of Section 1777.1. (C) If the amount due under this section is collected from the contractor or subcontractor, any outstanding wage claim under Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 against that contractor or subcontractor shall be satisfied before applying that amount to the penalty imposed on that contractor or subcontractor pursuant to this section.
(D) The determination of the Labor Commissioner as to the amount of the penalty shall be reviewable only for abuse of discretion.
(E) The difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the contractor or subcontractor, and the body awarding the contract shall cause to be inserted in the contract a stipulation that this section will be complied with. (b) If a worker employed by a subcontractor on a public works project is not paid the general prevailing rate of per diem wages by the subcontractor, the prime contractor of the project is not liable for any penalties under 48 subdivision (a) unless the prime contractor had knowledge of that failure of the subcontractor to pay the specified prevailing rate of wages to those workers or unless the prime contractor fails to comply with all of the following requirements:
(1) The contract executed between the contractor and the subcontractor for the performance of work on the public works project shall include a copy of the provisions of this section and Sections 1771, 1776, 1777.5, 1813, and 1815.
(2) The contractor shall monitor the payment of the specified general prevailing rate of per diem wages by the subcontractor to the employees, by periodic review of the certified payroll records of the subcontractor. (3) Upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages, the contractor shall diligently take corrective action to halt or rectify the failure, including, but not limited to, retaining sufficient funds due the subcontractor for work performed on the public works project. (4) Prior to making final payment to the subcontractor for work performed on the public works project, the contractor shall obtain an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the specified general prevailing rate of per diem wages to his or her employees on the public works project and any amounts due pursuant to Section 1813.
(c) The Division of Labor Standards Enforcement shall notify the contractor on a public works project within 15 days of the receipt by the Division of Labor Standards Enforcement of a complaint of the failure of a subcontractor on that public works project to pay workers the general prevailing rate of per diem wages. (Amended by Stats. 2011, Ch. 677, Sec. 1. Effective January 1, 2012.) 1776.
(a) Each contractor and subcontractor shall keep accurate payroll records, showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
(1) The information contained in the payroll record is true and correct. (2) The employer has complied with the requirements of Sections 1771, 1811, and 1815 for any work performed by his or her employees on the public works project. (b) The payroll records enumerated under subdivision (a) shall be certified and shall be available for inspection at all reasonable hours at the principal office of the contractor on the following basis:
(1) A certified copy of an employee’s payroll record shall be made available for inspection or furnished to the employee or his or her authorized representative on request. (2) A certified copy of all payroll records enumerated in subdivision (a) shall be made available for inspection or furnished upon request to a representative of the body awarding the contract and the Division of Labor Standards Enforcement of the Department of Industrial Relations. (3) A certified copy of all payroll records enumerated in subdivision (a) shall be made available upon request by the public for inspection or for copies thereof. However, a request by the public shall be made through either the body awarding the contract or the Division of Labor Standards Enforcement. If the requested payroll records have not been provided pursuant to paragraph (2), the requesting party shall, prior to being provided the records, reimburse the costs of preparation by the contractor, subcontractors, and the entity through which the request was made. The public may not be given access to the records at the principal office of the contractor. (c) Unless required to be furnished directly to the Labor Commissioner in accordance with paragraph (3) of subdivision (a) of Section 1771.4, the certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or shall contain the same information as the forms provided by the division. The payroll records may consist of printouts of payroll data that are maintained as computer records, if the printouts contain the same information as the forms provided by the division and the printouts are verified in the manner 49 specified in subdivision (a).
(d) A contractor or subcontractor shall file a certified copy of the records enumerated in subdivision (a) with the entity that requested the records within 10 days after receipt of a written request. (e) Except as provided in subdivision (f), any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by the awarding body or the Division of Labor Standards Enforcement shall be marked or obliterated to prevent disclosure of an individual’s name, address, and social security number. The name and address of the contractor awarded the contract or the subcontractor performing the contract shall not be marked or obliterated. Any copy of records made available for inspection by, or furnished to, a multiemployer Taft-Hartley trust fund (29 U.S.C. Sec. 186(c)(5)) that requests the records for the purposes of allocating contributions to participants shall be marked or obliterated only to prevent disclosure of an individual’s full social security number, but shall provide the last four digits of the social security number. Any copy of records made available for inspection by, or furnished to, a joint labormanagement committee established pursuant to the federal Labor Management Cooperation Act of 1978 (29 U.S.C. Sec. 175a) shall be marked or obliterated only to prevent disclosure of an individual’s social security number.
(f) (1) Notwithstanding any other provision of law, agencies that are included in the Joint Enforcement Strike Force on the Underground Economy established pursuant to Section 329 of the Unemployment Insurance Code and other law enforcement agencies investigating violations of law shall, upon request, be provided nonredacted copies of certified payroll records. Any copies of records or certified payroll made available for inspection and furnished upon request to the public by an agency included in the Joint Enforcement Strike Force on the Underground Economy or to a law enforcement agency investigating a violation of law shall be marked or redacted to prevent disclosure of an individual’s name, address, and social security number. (2) An employer shall not be liable for damages in a civil action for any reasonable act or omission taken in good faith in compliance with this subdivision.
(g) The contractor shall inform the body awarding the contract of the location of the records enumerated under subdivision (a), including the street address, city, and county, and shall, within five working days, provide a notice of a change of location and address.
(h) The contractor or subcontractor has 10 days in which to comply subsequent to receipt of a written notice requesting the records enumerated in subdivision (a). In the event that the contractor or subcontractor fails to comply within the 10-day period, he or she shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Upon the request of the Division of Labor Standards Enforcement, these penalties shall be withheld from progress payments then due. A contractor is not subject to a penalty assessment pursuant to this section due to the failure of a subcontractor to comply with this section.
(i) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section.
(j) The director shall adopt rules consistent with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Information Practices Act of 1977 (Title 1.8 (commencing with Section 1798) of Part 4 of Division 3 of the Civil Code) governing the release of these records, including the establishment of reasonable fees to be charged for reproducing copies of records required by this section.
(Amended by Stats. 2014, Ch. 28, Sec. 71. Effective June 20, 2014.) 1777.5
(a) This chapter does not prevent the employment of properly registered apprentices upon public works. (b) (1) Every apprentice employed upon public works shall be paid the prevailing rate of per diem wages for 50 apprentices in the trade to which he or she is registered and shall be employed only at the work of the craft or trade to which he or she is registered.
(2) Unless otherwise provided by a collective bargaining agreement, when a contractor requests the dispatch of an apprentice pursuant to this section to perform work on a public works project and requires the apprentice to fill out an application or undergo testing, training, an examination, or other preemployment process as a condition of employment, the apprentice shall be paid for the time spent on the required preemployment activity, including travel time to and from the required activity, if any, at the prevailing rate of per diem wages for apprentices in the trade to which he or she is registered. Unless otherwise provided by a collective bargaining agreement, a contractor is not required to compensate an apprentice for the time spent on preemployment activities if the apprentice is required to take a preemployment drug or alcohol test and he or she fails to pass that test.
(c) Only apprentices, as defined in Section 3077, who are in training under apprenticeship standards that have been approved by the Chief of the Division of Apprenticeship Standards and who are parties to written apprentice agreements under Chapter 4 (commencing with Section 3070) of Division 3 are eligible to be employed at the apprentice wage rate on public works. The employment and training of each apprentice shall be in accordance with either of the following:
(1) The apprenticeship standards and apprentice agreements under which he or she is training. (2) The rules and regulations of the California Apprenticeship Council. (d) If the contractor to whom the contract is awarded by the state or any political subdivision, in performing any of the work under the contract, employs workers in any apprenticeable craft or trade, the contractor shall employ apprentices in at least the ratio set forth in this section and may apply to any apprenticeship program in the craft or trade that can provide apprentices to the site of the public work for a certificate approving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. However, the decision of the apprenticeship program to approve or deny a certificate shall be subject to review by the Administrator of Apprenticeship. The apprenticeship program or programs, upon approving the contractor, shall arrange for the dispatch of apprentices to the contractor. A contractor covered by an apprenticeship program’s standards shall not be required to submit any additional application in order to include additional public works contracts under that program. “Apprenticeable craft or trade,” as used in this section, means a craft or trade determined as an apprenticeable occupation in accordance with rules and regulations prescribed by the California Apprenticeship Council. As used in this section, “contractor” includes any subcontractor under a contractor who performs any public works not excluded by subdivision (o). (e) Before commencing work on a contract for public works, every contractor shall submit contract award information to an applicable apprenticeship program that can supply apprentices to the site of the public work.

The information submitted shall include an estimate of journeyman hours to be performed under the contract, the number of apprentices proposed to be employed, and the approximate dates the apprentices would be employed. A copy of this information shall also be submitted to the awarding body, if requested by the awarding body. Within 60 days after concluding work on the contract, each contractor and subcontractor shall submit to the awarding body, if requested, and to the apprenticeship program a verified statement of the journeyman and apprentice hours performed on the contract. The information under this subdivision shall be public. The apprenticeship programs shall retain this information for 12 months. (f) The apprenticeship program supplying apprentices to the area of the site of the public work shall ensure equal employment and affirmative action in apprenticeship for women and minorities. (g) The ratio of work performed by apprentices to journeymen employed in a particular craft or trade on the public work may be no higher than the ratio stipulated in the apprenticeship standards under which the apprenticeship program operates if the contractor agrees to be bound by those standards. However, except as otherwise provided in this section, in no case shall the ratio be less than one hour of apprentice work for every five hours of journeyman work.
51 (h) This ratio of apprentice work to journeyman work shall apply during any day or portion of a day when any journeyman is employed at the jobsite and shall be computed on the basis of the hours worked during the day by journeymen so employed. Any work performed by a journeyman in excess of eight hours per day or 40 hours per week shall not be used to calculate the ratio. The contractor shall employ apprentices for the number of hours computed as above before the end of the contract or, in the case of a subcontractor, before the end of the subcontract. However, the contractor shall endeavor, to the greatest extent possible, to employ apprentices during the same time period that the journeymen in the same craft or trade are employed at the jobsite. When an hourly apprenticeship ratio is not feasible for a particular craft or trade, the Administrator of Apprenticeship, upon application of an apprenticeship program, may order a minimum ratio of not less than one apprentice for each five journeymen in a craft or trade classification. (i) A contractor covered by this section who has agreed to be covered by an apprenticeship program’s standards upon the issuance of the approval certificate, or who has been previously approved for an apprenticeship program in the craft or trade, shall employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the applicable apprenticeship standards, but in no event less than the 1-to-5 ratio required by subdivision (g).
(j) Upon proper showing by a contractor that he or she employs apprentices in a particular craft or trade in the state on all of his or her contracts on an annual average of not less than one hour of apprentice work for every five hours of labor performed by journeymen, the Administrator of Apprenticeship may grant a certificate exempting the contractor from the 1-to-5 hourly ratio, as set forth in this section for that craft or trade. (k) An apprenticeship program has the discretion to grant to a participating contractor or contractor association a certificate, which shall be subject to the approval of the Administrator of Apprenticeship, exempting the contractor from the 1-to-5 ratio set forth in this section when it finds that any one of the following conditions is met:
(1) Unemployment for the previous three-month period in the area exceeds an average of 15 percent. (2) The number of apprentices in training in the area exceeds a ratio of 1 to 5. (3) There is a showing that the apprenticeable craft or trade is replacing at least one-thirtieth of its journeymen annually through apprenticeship training, either on a statewide basis or on a local basis. (4) Assignment of an apprentice to any work performed under a public works contract would create a condition that would jeopardize his or her life or the life, safety, or property of fellow employees or the public at large, or the specific task to which the apprentice is to be assigned is of a nature that training cannot be provided by a journeyman.
(l) If an exemption is granted pursuant to subdivision (k) to an organization that represents contractors in a specific trade from the 1-to-5 ratio on a local or statewide basis, the member contractors shall not be required to submit individual applications for approval to local joint apprenticeship committees, if they are already covered by the local apprenticeship standards.
(m) (1) A contractor to whom a contract is awarded, who, in performing any of the work under the contract, employs journeymen or apprentices in any apprenticeable craft or trade shall contribute to the California Apprenticeship Council the same amount that the director determines is the prevailing amount of apprenticeship training contributions in the area of the public works site. A contractor may take as a credit for payments to the council any amounts paid by the contractor to an approved apprenticeship program that can supply apprentices to the site of the public works project. The contractor may add the amount of the contributions in computing his or her bid for the contract.
(2) At the conclusion of the 2002–03 fiscal year and each fiscal year thereafter, the California Apprenticeship Council shall distribute training contributions received by the council under this subdivision, less the expenses of the Department of Industrial Relations for administering this subdivision, by making grants to approved apprenticeship programs for the purpose of training apprentices. The funds shall be distributed as follows:
(A) If there is an approved multiemployer apprenticeship program serving the same craft or trade and 52 geographic area for which the training contributions were made to the council, a grant to that program shall be made.
(B) If there are two or more approved multiemployer apprenticeship programs serving the same craft or trade and county for which the training contributions were made to the council, the grant shall be divided among those programs based on the number of apprentices from that county registered in each program. (C) All training contributions not distributed under subparagraphs (A) and (B) shall be used to defray the future expenses of the Department of Industrial Relations for the administration and enforcement of apprenticeship standards and requirements under this code.
(3) All training contributions received pursuant to this subdivision shall be deposited in the Apprenticeship Training Contribution Fund, which is hereby created in the State Treasury. Upon appropriation by the Legislature, all moneys in the Apprenticeship Training Contribution Fund shall be used for the purpose of carrying out this subdivision and to pay the expenses of the Department of Industrial Relations. (n) The body awarding the contract shall cause to be inserted in the contract stipulations to effectuate this section. The stipulations shall fix the responsibility of compliance with this section for all apprenticeable occupations with the prime contractor.
(o) This section does not apply to contracts of general contractors or to contracts of specialty contractors not bidding for work through a general or prime contractor when the contracts of general contractors or those specialty contractors involve less than thirty thousand dollars ($30,000). (p) An awarding body that implements an approved labor compliance program in accordance with subdivision (b) of Section 1771.5 may, with the approval of the director, assist in the enforcement of this section under the terms and conditions prescribed by the director.
(Amended by Stats. 2016, Ch. 746, Sec. 1. Effective January 1, 2017.) 1813. The contractor or subcontractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit twenty-five dollars ($25) for each worker employed in the execution of the contract by the respective contractor or subcontractor for each calendar day during which the worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of this article. In awarding any contract for public work, the awarding body shall cause to be inserted in the contract a stipulation to this effect. The awarding body shall take cognizance of all violations of this article committed in the course of the execution of the contract, and shall report them to the Division of Labor Standards Enforcement. 1815. Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of this code, and notwithstanding any stipulation inserted in any contract pursuant to the requirements of said sections, work performed by employees of contractors in excess of 8 hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 1 1/2 times the basic rate of pay.

53 General Notes:

A. The CONTRACTOR shall examine the working drawings: architectural, structural, mechanical and electrical, and shall notify the architect and/or engineers of any discrepancies he may find before proceeding with the work.

B. The CONTRACTOR shall verify and be responsible for all dimensions and conditions at the site and shall notify the designer of discrepancies between the actual conditions and information shown on the drawings before proceeding with the work.

C. All work shall conform to the minimum standards for the latest edition of the Uniform Building Code, Caltrans Standard General Specifications and such other regulating agencies exercising authority over any portion of the work.

D. Specifications (if included) are integral to the drawings. Notify designer before proceeding with any work if any disparity arises between drawings and specifications.

E. All work shall conform to the best practice prevailing in the various trades comprising the work.

F. Specific notes and details shall take precedence over General Notes and Typical Details. Dimensions shall supersede scale.

G. Details shown describe the general intent and character of the project. Any specific areas not drawn shall be similar to those details that are related in location, intent, or function.

H. All subcontractors shall be held responsible for all conditions, ordinances, code and requirements pertinent to their category of work as dictated by regulatory agencies.

I. All subcontractors shall be held responsible for any damage to another's work caused by subcontractor, its employees or agents.

J. General CONTRACTOR to maintain site in a clean and neat manner. Remove and legally dispose of all debris, rubbish, etc. Remove all materials from those not intended for their application, such as paint spatters, masking materials, asphalt, etc.

K. The Contractor shall contact the City of Nevada City, City Engineer to schedule a pre-construction meeting at least ten (10) working days prior to the start of construction (telephone 530-265-2496).

L. Contractor shall assume sole and complete responsibility for construction of this project, including safety of all persons and property. This requirement shall apply continuously and not be limited to normal working hours. The contractor shall defend, indemnify and hold the owner and the design engineer harmless from any and all liability, real or alleged in connection with the performance of the work on this project, excepting for liability arising from the intentional negligence of the owner or engineer.

M. The contractor is hereby notified that prior to commencing construction he is responsible for contacting all utility companies for verification at the construction site of the locations of all underground facilities where such facilities may conflict with placement of improvements shown on this plan. Call 54 ‘Underground Service Alert’ at 800-642-2444 prior to any excavation.

N. The locations of all underground facilities shown on this plan are approximate. A reasonable effort has been made to locate and delineate all underground facilities. However, the design engineer assumes no liability for the accuracy of completeness of the existing facilities shown on hereon or for the existence of other underground utilities not shown on these plans. The contractor shall verify the location of all existing facilities interfering with the construction of improvements. If so directed by the design engineer, the contractor shall stop work immediately until remedial action can be taken. Any cost resulting from the contractor’s failure to report and or failure to stop work as directed will be the responsibility of the contractor.

O. The contractor shall request construction staking for any phase of work no less than two working days prior to commencement of construction.

P. The contractor is responsible for the protection of all existing monuments and other survey markers during construction. Monuments disturbed, or lost, due to construction activities will require that the contractor have them replaced, in kind, by a licensed California Land Surveyor-who will be required to file either a Corner Record, or Record of Survey, with the County-whichever will meet the requirements of L.S. Act Section 8773
Q. The Contractor shall provide one complete set of As-Built Drawings. Any changes to the plans shall be shown on a clean set of drawings marked in red and given to the City Engineer at job completion. 55 Project Specifications

PROJECT LIMITS
On Various Streets in Nevada City.  Refer to improvement plans for limits of work.

PROJECT DESCRIPTION
The project consists of new sewer main and reconstruction of sewer services as shown on the plans.

CONSTRUCTION NOTES
Bid items shall include full compensation for furnishing all labor, materials, tools, equipment and incidentals for mobilization, traffic control, potholing, saw cutting, demolition, clearing, removal and disposal of demolition debris or excess materials, earthwork, compaction, shoring, dewatering, temporary bypass facilities, and all other incidental work as noted or shown on the plans.     Clean dirt only may be disposed of on old City airport property and all other materials should be disposed of at the contractor’s cost.   Restoration of disturbed areas with similar materials as exists prior to construction (i.e. concrete or asphalt) and repair of any damaged materials shall be provided by the contractor at their expense.   Final Payment shall not be made until all cleanup and restoration work is complete.   Extra depth of trenching and backfill shall be anticipated and included in the contractors bid for all pipe crossings.

Contractor shall provide written notice to Public Works Supt or City Engineer no fewer than two days in advance of any disruption of service including water, sewer, sidewalk or road access.    The City will provide all notifications to the public.   The contractor shall coordinate and verify with City staff to ensure that property owners, business owners and residents have been provided sufficient notice of the disruption of service.   The Contractor shall not disrupt service without written approval from City staff.

Any complaints or special requests from City residents, business owners or visitors shall immediately be directed to City staff so that City staff can respond appropriately and in a timely manner.   The Contractor shall not make concessions or agreements or attempt to resolve conflicts with residents, property owners or business owners but shall refer all such items to the City Engineer or Public Works Superintendent.

All time limits stated in the Contract Documents are of the essence of the Agreement.  It is acknowledged that the Contractor’s failure to achieve substantial completion of the Work within the Contract Time provided by the Contract Documents will cause the City to incur substantial economic damages and losses of types and in amounts which are impossible to compute and ascertain with certainty as a basis for recovery by the City of actual damages, and that liquidated damages represent a fair, reasonable and appropriate estimate thereof. Accordingly, in lieu of actual damages for such delay, the Contractor agrees that liquidated damages may be assessed and recovered by the City as against Contractor and its Surety, in the event of delayed completion and without the City being required to present any evidence of the amount or character of actual damages sustained by reason thereof; therefore Contractor shall be liable to the Owner for payment of liquidated damages in the amount of One Thousand Dollars ($1,000) for each day that Substantial Completion is delayed beyond the Contract Time as adjusted for time extensions provided by the Contract Documents. Such liquidated damages are intended to represent estimated actual damages and are not intended as a 56 penalty, and Contractor shall pay them to Owner without limiting Owner’s right to terminate this agreement for default as provided elsewhere herein.

TRAFFIC CONTOL
At all times when work is not being performed, streets and driveways shall be safe for through traffic and pedestrians.

Lane closure shall comply with the Manual on Uniform Traffic Control Devices (CA MUTCD) current edition.   Notify Public Works Supt or City Engineer no fewer than two days in advance of proposed lane closure or driveway closure.

The contractor shall coordinate and verify with City staff that homeowners have been provided sufficient notice of any disruption of service including water, sewer or road access.

The Contractor shall provide and install traffic control signage and barricades as required for pedestrian and vehicular safety.    Construction activity requiring lane closures shall conform to the following restrictions:   The travel way may be reduced to one 11 foot lane of traffic with two way stop control (flaggers) provided.    Upon written request by the Contractor and as approved by the City Engineer, a full road closure with detours may be implemented on minor streets (not arterial or collector) provided that there is provision for vehicles to access private parking areas and businesses.   At the end of each work shift, all traffic lanes shall be open for safe pubic use of the roadway.   The Contractor shall provide access to parking, driveways, residences at all times for ingress/egress, trash collection and mail delivery unless otherwise approved by the City Engineer.   Contractor shall coordinate with residents for their access needs during all road closures and shall refer any complaints or special concerns to the City.

MATERIAL NOTES
Aggregate Base shall be Class 2, 3/4" maximum grading, conforming to standard specs. Section 26, placed at 95% Relative Compaction.

Asphalt material shall be Type A or B 1/2‐inch maximum medium gradation and shall conform to the provisions in Sections39. “Asphalt Concrete,” of the Standard Specifications and these Special Provisions.  Asphalt cement shall be grade PG 64‐16 conforming to the requirements of Section 92 of the Standard Specifications.    Asphalt paving to include “T‐Section” edge grind/overlay of 8”‐12” width and 1” depth (beyond sawcut line) where adjoining existing asphalt.

WATER LINE PIPE AND FITTINGS
Contractor shall provide and install all materials necessary for the project including tubing, and pipe, horizontal and vertical elbows (as required for pipe crossings or bends), short pipe pieces, corporation stops, piping connections, couplings, jointing materials, warning tape, valve box and lid, restrained joints, thrust blocks, locating wire, warning tape, excavation, bedding and backfill.   Water pipe 4” and largershall be CL150 C900.   Water pipe smaller than 4” shall be PE polyethylene watersupply line.   Flushing, disinfection testing and pressure testing shall be provided.

Trench backfillshall consist ofsand bedding around pipe per Standard Specifications and trench zone backfill from top ofsand bedding to bottom of roadway pavementsection with compacted aggregate base. 57 WATER SERVICES
New saddles and taps will be Corporation Stops with a double brasssaddle for DIP water main or double stainlesssteelsaddle for PVC water main.   Water service will be shut off and restarted by City personnel.   Each shut off beyond 8 hours will result in a charge of $70 per hour with a 4hour minimum.

B‐16 Water Meter boxesshall be provided by the contractor and placed and centered on watermeters.  Meter will be provided by the City and shall be installed by the contractor.   Contractor shall be responsible for removal and disposal of debris, traffic control, testing, and flushing and tie‐in pipe connections.

CITY OF NEVADA CITY

CITY COUNCIL STAFF REPORT
MEETING OF: September 28, 2022 Agenda Item No. 07
Subject: Hear, Receive, and File the Impact Report on the Nevada City Historic Neighborhoods District Initiative Also Known as Measure W on the November 8, 2022, Ballot for
Nevada City.

From: Sean Grayson, City Manager
Dean Pucci, City Attorney
Date: September 22, 2022
Reviewed & Approved:

City Manager:

City Attorney: DJP
Recommended Action: Hear a presentation, receive and file the report. No further action required or permitted.

ISSUE STATEMENT AND DISCUSSION:

On August 10, 2022, the City Council adopted Resolution 2022-58 calling for a special municipal election on November 8, 2022, for the submission of the Nevada City Historic Neighborhoods District Initiative. The submission was accepted by the Nevada County Registrar of Voters and has been assigned Measure “W”. In addition to adopting the resolution, the City Council directed staff to prepare an impact report on Measure W addressing the same content that a report developed pursuant to Elections Code section 9212 would include, specifically:

1. The fiscal impact of the initiative.

2. Its effect on the internal consistency of the city's general and specific plans, including the housing element, the consistency between planning and zoning, and the limitations on city actions under Section 65008 of the Government Code and Chapters 4.2 (commencing with Section 65913) and 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code.

3. Its effect on the use of land, the impact on the availability and location of housing, and the ability of the city to meet its regional housing needs.

4. Its impact on funding for infrastructure of all types, including, but not limited to, transportation, schools, parks, and open space.

5. Its impact on the community's ability to attract and retain business and employment.

6. Its impact on the uses of vacant parcels of land.

7. Its impact on agricultural lands, open space, traffic congestion, existing business districts, and developed areas designated for revitalization.

Staff conducted an informal request for qualifications from firms capable of providing both the legal and planning analysis required for the impacts of this specific initiative. The law firm of Goldfarb & Lipman LLP was engaged as the most qualified respondent to the processes. Upon initial consultation with Goldfarb & Lipman LLP it was determined that they would produce a report specifically addressing items 2, 3, and 6 from the seven content areas of an Elections Code section 9212 report. The complete report is attached, and the report’s summary of the Initiative’s legal impacts are included here.

Summary of Goldfarb & Lipman LLP Report Findings
• The Initiative does not result in internal inconsistencies in the City’s General Plan that are substantial enough to violate California Government Code Section 65300.5, which requires that elements within the General Plan be internally consistent. • The Initiative will not impede the City’s ability to meet its regional housing needs. However, text in the Initiative emphasizing the discretionary nature of architectural review is inconsistent with the Housing Element’s description of architectural review as ministerial. • The Initiative will not create inconsistencies between the General Plan and zoning, except that certain exceptions to architectural review contained in the City’s Zoning Ordinance are not clearly delineated in the General Plan.
• Although a primary purpose of the Initiative is to prevent the use of SB 9 within the HND, the Attorney General has expressed that the exclusion for historic districts is narrow and that historic districts must meet certain standards. The legislative history for SB 9, however, indicates that the exclusion for historic districts is broad. The HND does not meet all the criteria proposed by the Attorney General, and it is unclear whether the creation of the HND would in fact exclude the use of SB 9 in the HND.
• If the Initiative is adopted and prevents the use of SB 9 within the HND, the development potential of each single-family parcel will decrease by one unit (from four to three units), and the opportunities for homeownership will decrease by three units on each parcel (since accessory dwelling unit and junior accessory dwelling units cannot be sold separately in most cases, while it is possible for SB 9 units to be conveyed separately).
• The City has a duty to affirmatively further fair housing in its planning and community development activities. SB 9 was enacted in part to respond to historic patterns of segregation furthered by the creation of single-family zoning districts. If the Initiative is adopted and prevents the use of SB 9 in a substantial part of the City, it may violate the City’s duty to affirmatively further fair housing, or require the City to undertake other activities to fulfill this duty. The Department of Housing and Community Development is authorized to notify cities of violations of this duty and to refer uncorrected violations to the Attorney General.

Additional Findings
Given the findings from the Goldfarb & Lipman LLP and analysis of the initiative staff provide the following additional findings with regard to items 1, 4, 5, and 7 from the section 9212 report content:

1. The fiscal impact of the initiative.

The initiative does not cause a direct or specific fiscal impact. The initiative does not create or remove taxes, fees or potential revenues for the city. The initiative does not alter the application of SB13 which limits the collection of development impact fees on certain Accessory Dwelling Units (ADUs) and Junior ADUs (JADUs). The initiative could have an indirect fiscal impact amounting to the loss of property tax that would be generated by units that would have otherwise been built under SB9 but for their elimination under the proposed Historical Neighborhood District initiative. Assuming a current median home price of $600,000, the potential elimination of 31 units (see Lot Inclusion, SB9 Eligibility and Market Feasibility below) and a recovery of 5% of the ad valorem property tax from these properties, the annual property tax loss at build-out could amount to $9,000 annually to the City.

4. Its impact on funding for infrastructure of all types, including, but not limited to, transportation, schools, parks, and open space.

The initiative does not impact funding for infrastructure of all types, including, but not limited to, transportation, schools, parks, and open space. The initiative does not change the calculation or collection of development impact fees or the availability of Local, regional and state funding sources for infrastructure.

5. Its impact on the community's ability to attract and retain business and employment.

The initiative does not have direct impact on the community's ability to attract and retain business and employment. The initiative does not impact or alter land use for businesses. The availability of housing for employment as an attraction for employment may impact perception of the initiative but the initiative would not change the permitted density of any site that was in effect when the City’s Housing Element was adopted and does not change existing housing availability.

7. Its impact on agricultural lands, open space, traffic congestion, existing business districts, and developed areas designated for revitalization.

The initiative will not have impact on agricultural lands, open space, traffic congestion, existing business districts, and developed areas designated for revitalization. The initiative focuses on single-family residential zoning and does not impact agricultural lands, open space, existing business districts, and developed areas designated for revitalization. Traffic congestion is not impacted by the initiative as the initiative would not change the permitted density of any site that was in effect when the City’s Housing Element was adopted. The initiative does not create new regulations for existing structures within any zoning.

Mapping
The initiative creates new general plan and zoning maps related to the proposed Historic Neighborhood District. The initiative, as submitted, provide these maps on paper. The proponents also provided the information as shape files for Geographic Information Systems (GIS). Staff created a citywide map that includes a listing of 869 parcels and addresses that are included within the proposed Historic Neighborhoods District as well as a listing of 250 single-family residential parcels and address that are not included in the proposed Historic Neighborhoods District. The map is attached to this staff report.

There were no material discrepancies between the paper map in the initiative and the parcel and address map created using the shape files.

Lot Inclusion, SB9 Eligibility and Market Feasibility
There are 869 lots or parcels included in the proposed Historic Neighborhoods District. The Goldfarb & Lipman report notes, “If the Initiative is adopted and prevents the use of SB 9 within the HND, the development potential of each single-family parcel will decrease by one unit (from four to three units), and the opportunities for homeownership will decrease by three units on each parcel (since accessory dwelling unit and junior accessory dwelling units cannot be sold separately in most cases, while it is possible for SB 9 units to be conveyed separately). This new development potential is consistent with the City’s Housing Element which was adopted prior to SB9 but represents a potential net decrease of 869 potential developable units from current (post-SB9) capacity if the initiative passes.

There are considerations that would make some parcels ineligible for SB9 lots splits or development which include but are not limited to: a minimum lot size of 2,400 square feet, a newly created lot not smaller than 40% of the lot area of the original parcel, and anti-displacement limitations. Additionally, there are market feasibility considerations that would likely, but not definitively, preclude some parcels from being developed under SB9; these are related to either physical capacity for development or financial feasibility for development which are primary drivers of non-SB9 development as well.

The University of California Berkeley Terner Center for Housing Innovation published a July 2021 report subtitled, “Assessing the Viability of New Housing Supply Under California’s Senate Bill 9.” The report is attached to this staff report. The report findings include statewide and county specific analysis of market feasibility for lot development under SB9. Nevada County is listed as one of the four counties in California that would, “see the most new market-feasible potential per parcel.” Specifically, the report found the following within all of Nevada County:
• 43,090 Existing Single-Family Lots
• 5,618 Single-Family Lots Eligible for SB9 (13% of existing lots) • 199 Additional Lots with 1+ Unit Capacity Under SB9
• 1,500 SB9 Net Change in Market-Feasible Units
• 0.27 SB9 Net Units Per Eligible Lot
o The SB9 net units per eligible units statewide are 0.12 Although the passage of the Historical Neighborhood District initiative represents a potential net decrease of 869 potential developable units from current (post-SB9) capacity, applying the countywide metrics from the Terner Center report findings suggests a diminished predicted impact. The report findings of a 13% rate of single-family lots eligible for SB9 would equate to 113 lots in the proposed Historical Neighborhoods District. Using the 0.27 SB9 net units per eligible lot would equate to a predicted net potential increase of 31 units under SB9 that would potentially be eliminated as potential developable units from current (post-SB9) capacity if the Historical Neighborhoods District initiative passes.

These 31 units that would predictably become market feasible under SB9 would not necessarily indicate that the units would be constructed or permitted. The units would not be restricted by law and given current market rates, would likely be classified as above moderate housing unit under the City’s Housing Element.

FINANCIAL AND/OR POLICY IMPLICATIONS:

None.

ENVIRONMENTAL CONSIDERATIONS:

None
ATTACHMENTS:
➢ Goldfarb & Lipman LLP Report
➢ Proposed Ballot Initiative as Submitted
➢ Historic Neighborhoods District Map
➢ Terner Center for Housing Innovation SB9 Report
1 1246\03\3357802.3
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LEGAL IMPACTS
OF THE

NEVADA CITY HISTORIC

NEIGHBORHOODS DISTRICT

INITIATIVE
September 21, 2022
Barbara E. Kautz
Erin Lapeyrolerie
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EXECUTIVE SUMMARY
Legal Impacts of Nevada City Historic Neighborhoods District Initiative The Nevada City Historic Neighborhoods District Initiative (the Initiative) would modify Nevada City’s General Plan and Municipal Code to create a Historic Neighborhoods District (HND) where discretionary architectural review by the Planning Commission would be required for the erection or exterior alteration of any buildings or structures, and for the removal, demolition, or razing of any structures, with limited existing exceptions. The HND consists of residential areas zoned for singlefamily homes and generally comprises the residential neighborhoods surrounding downtown Nevada City, including approximately 869 homes. The boundaries of the HND and the requirement for architectural review could not be modified, except to expand the boundaries of the HND, without a vote of the people. Architectural review is currently required within the HND for the erection or exterior alteration of any buildings or structures, and for the removal, demolition, or razing of any structures, with limited existing exceptions.

The California H.O.M.E.S Act, popularly known as SB 9, allows the development of single-family lots for up to four homes through a ministerial, non-discretionary process. However, SB 9 cannot be used to develop properties within historic districts. The proponents of the Initiative indicate that it is intended to preclude the use of SB 9 within the HND.

Following is a summary of the Initiative’s legal impacts:
 The Initiative does not result in internal inconsistencies in the City’s General Plan that are substantial enough to violate California Government Code Section 65300.5, which requires that elements within the General Plan be internally consistent.  The Initiative will not impede the City’s ability to meet its regional housing needs. However, text in the Initiative emphasizing the discretionary nature of architectural review is inconsistent with the Housing Element’s description of architectural review as ministerial.  The Initiative will not create inconsistencies between the General Plan and zoning, except that certain exceptions to architectural review contained in the City’s Zoning Ordinance are not clearly delineated in the General Plan.
 Although a primary purpose of the Initiative is to prevent the use of SB 9 within the HND, the Attorney General has expressed that the exclusion for historic districts is narrow and that historic districts must meet certain standards. The legislative history for SB 9, however, indicates that the exclusion for historic districts is broad. The HND does not meet all the criteria proposed by the Attorney General, and it is unclear whether the creation of the HND would in fact exclude the use of SB 9 in the HND.
 If the Initiative is adopted and prevents the use of SB 9 within the HND, the development potential of each single-family parcel will decrease by one unit (from four to three units), and the opportunities for homeownership will decrease by three units on each parcel (since state 3 1246\03\3357802.3
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law does not allow accessory dwelling unit and junior accessory dwelling units to be sold separately in most cases, while it is possible for SB 9 units to be conveyed separately).  The City has a duty to affirmatively further fair housing in its planning and community development activities. SB 9 was enacted in part to respond to historic patterns of segregation furthered by the creation of single-family zoning districts. If the Initiative is adopted and prevents the use of SB 9 in a substantial part of the City, it may violate the City’s duty to affirmatively further fair housing, or require the City to undertake other activities to fulfill this duty. The Department of Housing and Community Development is authorized to notify cities of violations of this duty and to refer uncorrected violations to the Attorney General.
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LEGAL IMPACTS
OF THE

NEVADA CITY HISTORIC NEIGHBORHOODS DISTRICT INITIATIVE
A. Introduction
This report evaluates potential legal impacts of the "Nevada City Historic Neighborhoods District Initiative" (the Initiative), an initiative that has qualified for the ballot in Nevada City, California (the City). The full text of the proposed Initiative is included as Attachment A.

If passed, the Initiative would amend the General Plan Land Use Map; add text to the General Plan; amend the Zone District Map contained in the Nevada City Municipal Code; and add Article XI to Chapter 17.68 (HND Historical Neighborhoods Combining District) of the Municipal Code. The specific provisions of the Initiative are discussed in Section C, Description of Initiative, below.

On August 10, 2022, the City Council of Nevada City ordered an election of the voters to approve or reject the Initiative. The Initiative will be presented to the voters for approval or denial as Measure W in the November 8, 2022 general election .

At the August 10, 2022 Council meeting, the City Council also requested that the City prepare an analysis of the proposed initiative, including the topics listed in Elections Code Section 9212 as applicable. This report presents a legal analysis of certain topics listed in Section 9212, as described in Section B below.

B. Scope and Assumptions
This legal analysis of the Initiative addresses three topics listed in Section 9212:
 The Initiative’s effect on the internal consistency of the City’s general and specific plans, including the housing element, the consistency between planning and zoning, and the limitations on city actions under Section 65008 of the Government Code and Chapters 4.2 (commencing with Section 65913) and 4.3 (commencing with Section 65915) of Division 1 of Title 7 of the Government Code.
 The Initiative’s effect on the use of land, the impact on the availability and location of housing, and the ability of the City to meet its regional housing needs.  The Initiative’s impact on the uses of vacant parcels of land.

In addition, this analysis considers the consistency of the Initiative with relevant state housing laws, including but not limited to its consistency with provisions of the California H.O.M.E Act, Chapter 162, Statutes of 2021 (SB 9) and the City’s duty to affirmatively further fair housing (Government Code § 8899.50).
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C. Description of Initiative

1. Existing Municipal Code Requirements
The City’s Zoning Ordinance currently requires that an architectural review permit be obtained for all applications for the erection or exterior alteration of any buildings or structures, and for the removal, demolition, or razing of any structures. (Nevada City Municipal Code (NCMC) §

17.88.040.A.) Strict limitations are placed on the demolition of buildings of “special historical or architectural interest or value, or an example of the Mother Lode type of architecture.” (Id.) The City’s Planning Commission acts as the architectural review committee to review these applications.

These requirements apply throughout the City and apply to single-family homes as well as other uses, with limited exemptions for additions to or the remodeling of a single-family home. (NCMC §

17.88.040.F.)
Additional historic standards currently apply to the exterior alteration of buildings constructed preWorld War II (before 1942) throughout the City. (NCMC Chapter 15.12.) However, under state law architectural review cannot be required for accessory dwelling units or junior accessory dwelling units (Government Code §§ 65852.2 and 65842.22), nor for projects eligible for streamlined ministerial review under SB 9 and SB 35 (Government Code § 65913.4). As an alternative, the City has adopted objective design standards (NCMC Chapter 17.82) that apply only to projects that are exempt from architectural review and are eligible for ministerial review and approval.

2. Initiative Provisions
The Initiative contains extensive findings relating to its purpose and its consistency with the City’s General Plan. The proponents state that its aims include:
 Furthering the General Plan’s purpose to “preserve the existing essential character of Nevada City.”
 Ensuring that architectural review will continue to be required in historic single-family neighborhoods.
 Exempting historic homes from the provisions of SB 9.  Allowing for continued residential growth in areas of the City outside the proposed Historic Neighborhoods District.

General Plan Amendments. The Initiative would designate a portion of the City as a Historic Neighborhoods District ("HND"). Two maps would be added to the General Plan showing the boundaries of the HND. The areas can generally be described as residential neighborhoods containing approximately 869 homes and surrounding the existing downtown historic district. The Initiative states that over 50 percent of the homes in the HND are over 50 years old, although no data has been submitted to the City to verify this statement. 6 1246\03\3357802.3
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The Initiative would also add identical text to the General Plan in Section II: Land Use and Economic Development; and Section III: City Resources, Historic/Cultural Resources, Polices. The text states that, within the HND, the City shall require an architectural review permit for the erection or exterior alteration of any buildings or structures, and for the removal, demolition, or razing of any structures “in order to protect the unique historic character of these neighborhoods.” If the Initiative is approved by the electorate, this policy and the boundaries of the HND may be amended only by another vote of the people. However, the City Council may expand the boundaries of the HND without a vote of the people.

Municipal Code Amendments. The Initiative would also amend the City's Municipal Code to add Article XI to Chapter 17.68, which would create the “HND Historical Neighborhoods Combining District” and to amend the City Zoning Map to show the boundaries of that combining district. The boundaries of the Combining District appear to be identical to the boundaries of the HND that would be adopted as part of the City’s General Plan. Within the Combining District, an architectural review permit would be required for the erection or exterior alteration of any buildings or structures, and for the removal, demolition, or razing of any structures, “pursuant to the standards, procedures, and limited exceptions, in Section 17.88.040.” Additionally, pre-World War II buildings within the HND would be subject to the building alteration and renovation standards currently includes in the Zoning Ordinance. (NCMC Chapter 15.12.)
The Initiative specifies that the Zoning Map and the provisions of the Combining District contained in Article XI may be changed only by a vote of the people. However, it states that the City Council may amend Section 17.88.040 (Architectural Review) and Chapter 15.12 (Building Alteration and Renovation) without a vote of the people.

Summary of Modifications to the Approval Process. For projects not otherwise eligible for the streamlining process provided by SB 9 and SB 35, the current approval process for the erection or exterior alteration of any buildings or structures, and for the removal, demolition, or razing of structures included in the HND, would not change. These activities would continue to require discretionary architectural review and conformance with Chapter 15.12 for pre-World War II buildings. Similarly, accessory dwelling units and junior accessory dwelling units would continue to be exempt from architectural review, but subject to the objective design standards contain in NCMC Chapter 17.82.

The Initiative appears to incorporate the exceptions to the requirement for architectural review contained in Section 17.88.040.F. These exceptions are not included in the General Plan text, but they are incorporated into the Initiative’s findings and into the text of the Municipal Code amendments.1
1 “The following types of architectural changes are exempt from architectural review outside the downtown historical district: changes of paint colors, reroofing, or changes in roof colors, and certain additions and remodels that do not significantly change the architecture of the property in question.” (Initiative, Finding 3, page 3.) See also proposed NCMC Section 17.68.420, stating that architectural review is required “pursuant to the standards, procedures, and limited exceptions, in section 17.88.040.” (emphasis added)
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The Initiative’s proponents indicate that a purpose of the Initiative is to designate the HND as an historic district so that SB 9 would not apply to the properties included in the HND. This issue is discussed in detail below.

If the Initiative is adopted by the voters, no changes could be made in the boundaries of the HND (except to expand the area of the HND), the text inserted into the General Plan, or the provisions of the HND Historical Neighborhoods Combining District without a vote of the people.

While the City Council could amend the provisions of Section 17.88.040 and Chapter 15.12 without a vote of the people, any amendments would need to be consistent with the provisions of the Initiative. For instance, it is unclear whether the Initiative authorizes the City Council to add exemptions to architectural review to Section 17.88.040, given the Initiative’s listing of the specific exemptions now included in that section and its focus on the importance of architectural review. For the most part, the Initiative, if adopted, would require the erection or exterior alteration of any buildings or structures, and for the removal, demolition, or razing of structures in the HND to be subject to architectural review, with limited exemptions, until there is another vote of the people.

D. Effect on the Internal Consistency of the City’s General And Specific Plans, Including the Housing Element
Section 65300.5 of the Government Code states that the general plan and its parts and elements shall comprise an integrated and internally consistent and compatible statement of policies.

The Initiative contains detailed findings regarding its consistency with the General Plan. In particular, it states that:
 The Initiative furthers the main purpose of the General Plan, to “preserve the essential character of Nevada City.”
 The Initiative supports historic preservation goals contained in the General Plan.  The Initiative will support the City’s economy by retaining the historic character of the HND District.
 The Initiative allows for continued growth to meet the City’s regional housing needs.

The Nevada City General Plan was primarily adopted in 1986, with the current Housing Element adopted in 2019. SB 9 had not been enacted when the General Plan was approved and is not addressed in any General Plan element. No specific plan applies to the area that would be included in the HND Combining District.

Consistency with Portions of General Plan Adopted in 1986. As drafted, the Initiative would not create any obvious inconsistencies within the portions of the General Plan adopted in 1986. That plan states that enhancing the historic core is one of its four major principles, and describes the 8 1246\03\3357802.3
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City’s “essence” as that of a “small, compact, historic town surrounded by green, wooded hills.”2 Historic preservation is listed as a “primary” community goal.3 Areas of the City that would be included in the HND are to be enforced as “predominately low-density residential neighborhoods, consistent with their present character.”4 In addition to preserving historic neighborhoods, the General Plan designates a "Single Family Residential" classification for "Historic or other sensitive single family neighborhoods inappropriate for increased densities."5 Additional goals call for maintaining the dominance of the city’s nineteenth-century historical period and allowing new development that is complementary to its context.6
These goals and policies are all consistent with the Initiative. No provisions in the Initiative directly contradict any existing policies in this portion of the City’s General Plan.

Consistency with Housing Element. The City adopted its 2019-2027 Housing Element on November 6, 2019. The Department of Housing and Community Development found the Element to be consistent with state law on December 5, 2019. The Initiative would not change the permitted density of any site and would not modify any approval processes in effect when the City’s Housing Element was adopted. The site inventory in the Housing Element includes 25 above-moderate income single-family homes that would be included in the HND. The lots would remain suitable for the number of units shown on each lot, and the same approval process would be required as shown in the Housing Element.

The Housing Element’s introduction notes that, "Historic preservation is a top priority and ordinances protect not only the downtown district, which is on the National Register of Historic Places, but homes in the residential areas, as well."7 The Housing Element attempts to balance the goal of preserving a historic community against the requirement to create additional housing.

Program 17 states that the City will "continue to monitor and review housing related policies and programs to minimize constraints to housing production and maintenance,"8 while Program 27 provides that the City will "encourage the production of market-rate rental and ownership housing for moderate- and above moderate-income households through its land development policies."9 The Element discusses the City’s architectural review process in detail as a potential constraint and concludes that “Architectural review by the Planning Commission does not elevate the entire project to a discretionary action,” and that both minor architectural review (approved by the City Planner) and Planning Commission architectural review “are ministerial in that they are limited to checking project design to conform to ‘Motherlode’ architecture design criteria as provided in Section

17.88.040 of the Zoning Code.”10 This conclusion is inconsistent with the Initiative’s Finding #9, which states that ministerial review, as required by SB 9, would eliminate “discretionary design review,” and that “thorough and case-by-case analysis” is achieved by architectural review. (emphasis added.)
2 General Plan, Foreword, page 2.
3 General Plan, Statement of Community Goals, page 9.
4 General Plan, Part II, Land Use and Economic Development, page 23. 5 Id., page 28.
6 General Plan, Part III, City Resources, page 37.
7 Housing Element 2019-2027.
8 Id., page 6-9.
9 Id., page 6-11.
10 Id. page 5-20.
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By characterizing architectural review as “discretionary” and rejecting its description as “ministerial,” the Initiative contradicts the constraints analysis contained in the Housing Element. Additionally, by potentially restricting the use of SB 9, the Initiative arguably creates a constraint to the production of housing.

However, courts are very deferential to a city's determination (including a determination in an initiative) of whether a general plan is internally consistent. A court cannot find a general plan to be internally inconsistent unless a reasonable person could not conclude that the plan was internally consistent based, in this case, on the evidence included in the Initiative. (Federation of Hillside & Canyon Associations v. City of Los Angeles (2004) 126 Cal. App. 4th 1180.) Here, the Initiative’s Findings will not be incorporated into the General Plan or Municipal Code, and the Initiative adopts the same standards for approval of architectural review as those that were in effect when the Housing Element was adopted. Given that SB 9 was not discussed as a means to achieve the City’s Housing Element goals, that the Housing Element supports the City’s existing architectural review process, and that no changes are being made to the potential uses or density of sites that were designated for housing, a reasonable person may conclude that the Initiative does not create inconsistencies with the Housing Element.

E. Consistency between Planning and Zoning
A city's zoning ordinance must be consistent with its general plan. (Government Code § 65860(a).) To be consistent, the zoning must be compatible with the objectives, policies, general land uses, and programs specified in the general plan. (Lesher Commc'ns, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 535-36.) The general rule for a zoning consistency determination can be stated as follows: "the zoning ordinance should be considered consistent with the general plan when the allowable uses and standards contained in the text of the zoning ordinance tend to further the policies in the general plan and do not inhibit or obstruct the attainment of those articulated policies." (58 Ops.

Cal.Atty.Gen.21, 25 (1975); see also City of Irvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, 879.)
The Initiative amends the City’s Zoning Ordinance, contained in the Municipal Code, to show the HND on the City’s Zoning Map and to create a Historic Neighborhood District Combining Zone where architectural review is required. The boundaries of the HND Combining Zone, where architectural review is required, are the same as those included in the General Plan-designated Historic Neighborhood District.

The only arguable inconsistency is that the proposed Combining District provisions incorporate the exceptions to the requirement for architectural review contained in Section 17.88.040.F (discussed in Section C above). These exceptions are not explicitly included in the General Plan text, but they are incorporated into the Initiative’s Findings. Given the entire text of the Initiative, it can be concluded that the exceptions to the requirements for architectural review contained in the Combining District do not inhibit the attainment of the General Plan’s goals, and the General Plan and Zoning Ordinance will be consistent if the Initiative is adopted. 10 1246\03\3357802.3
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F. Consistency with the Limitations on City Actions under Section 65008 of the Government Code and Chapters 4.2 (Commencing with Section 65913) and 4.3 (Commencing with Section 65915) of Division 1 of Title 7 of the Government Code

1. Section 65008
Under Government Code section 65008, the City cannot take any action under State Planning and Zoning Law that denies residency; prohibits or discriminates against any residential development; or places different requirements on a residential development because of: (i) its method of financing; (ii) the lawful occupation, age, or any characteristics of the occupants listed in California’s Fair Employment and Housing Act (Government Code Sections 12955 (a) or (d))11; or (iii) the intended occupancy by very low, low, moderate, or middle income households.

The amendments proposed by the Initiative would not facially conflict with Government Code Section 65008 because the requirements for architectural review are based solely on a development’s presence in the HND and not on project financing, personal characteristics of the occupants, or income of the occupants. The boundaries of the HND were determined by the age of the structures and not on any of the prohibited characteristics.

However, opponents to the Initiative introduced evidence at the City Council’s August 10 meeting which they asserted demonstrated that the designation of historic districts may increase housing costs, thus denying residency to lower income households, and may increase housing segregation.

There is no published case finding that the designation of a historic district has the effect of denying residence to any protected class, nor has it been determined that Section 65008 applies to an action that has a disparate impact, as opposed to intentional or facial discrimination. However, this claim could be alleged by opponents of the Initiative.

2. Government Code Chapter 4.2 (Commencing with Section 65913) Government Code Chapter 4.2 of Division 1 of Title 7 of the Government Code contains several distinct provisions, briefly summarized as follows:
a. Least Cost Zoning Law (Government Code Sections 65913-65913.2; 65913.7). These provisions require the City to designate and zone sufficient vacant land for residential use, with appropriate standards, to meet its housing needs as identified in its Housing Element; and to refrain from adopting subdivision standards for the purpose of making housing infeasible.

The Initiative does not change the development standards that were included in the City’s Housing Element or those included in any ordinances adopted to implement the Housing Element and does not make changes to the City’s subdivision standards. SB 9 was not identified in the City’s Housing Element as a means to meet the City’s regional housing needs. Consequently the Initiative has no effect on the City’s compliance with the Least Cost Zoning Law.
11 These include race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, and genetic information. 11 1246\03\3357802.3
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b. Streamlined Multifamily Approvals (SB 35) (Government Code Section 65913.4). Parcels are not eligible for streamlined, ministerial review under SB 35 if they would require the demolition of a historic structure that is placed on a national, state, or local historic register. (Government Code 65913.4(a)(7)(C).) Because the Initiative does not designate specific structures as historic, or even designate specific structures as contributors to the historic district, the HND designation would not exclude parcels from ministerial review under SB

35. Nonetheless, fewer parcels in the HND could qualify for streamlined, ministerial review under SB 35 if the Initiative is adopted by the voters. With only three exceptions, parcels in the HND are zoned either RR (rural residential) or R-1 (single-family residential), both of which permit only single-family homes. The ministerial review provisions under SB 35 apply only to multifamily housing developments that include at least two attached residential units.

Guidelines for implementation of SB 35 prepared by the Department of Housing and Community Development (HCD) define a multifamily development to include a new singlefamily home with an attached accessory dwelling unit.12 These projects on vacant lots would remain eligible for processing under SB 35.

Under SB 9 (discussed below), up to four units may be constructed on an existing singlefamily parcel, and the units may be attached, making them eligible for SB 35 review. If the Initiative is adopted, and SB 9 projects are no longer permitted in the HND, only a new single-family home with an attached accessory dwelling unit would be eligible for SB 35 approval in the HND.
c. 10-Unit Developments in Transit-Rich and Urban Infill Areas (Government Code Section 65913.5). This provision allows a City to zone parcels to permit 10 units in transit-rich and urban infill areas. The Initiative would have no effect on a site’s eligibility for such a rezoning.
d. Parking Requirements for Religious Institutions (Government Code Section 65913.6). This provision allows reduced parking for religious institutions that utilize their sites for parking.

The Initiative would have no effect on these provisions. e. Limits on Improvement Fees (Government Code Sections 65913.8-65913.9). These provisions limits fees for maintenance and operation of public improvements. The Initiative would have no effect on these provisions.
f. Determination of Historic Status (Government Code Section 65913.10). This provision requires the historic status of a site or structure to be determined when the application is determined to be complete under the Permit Streamlining Act. The Initiative would have no effect on these provisions in relation to an individual structure. g. Floor Area Ratio on Multifamily Sites (Government Code Section 65913.11). This provision designates a minimum floor ratio on sites in multifamily districts, but does not apply to a site that is designated or listed as a city historic district pursuant to a city ordinance. 12 Department of Housing and Community Development, Updated Streamlined Ministerial Approval Process Government Code Section 65913.4 Guidelines (March 30, 2021), § 102(p).
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(Government Code Section 65913.11(b)(2)(B).) Because the Initiative designates the HND as an historic district, this section would likely not apply to developments in the HND even if some were rezoned to allow multifamily uses; see discussion of SB 9 applicability below. h. Streamlining for City’s Impacted by 2018 Camp Fire (Government Code Section 65913.15).

This provision is not applicable to Nevada City.
i. Attorneys Fees (Government Code Section 65914). This provision allows cities to obtain attorneys fees if they successfully defend an affordable housing development, but under very limited conditions. The Initiative would have no effect on this provision. j. Extensions of Approval for COVID (Government Code Section 65914.5). This provision extended the expiration of various governmental approvals due to the COVID epidemic.

The Initiative would have no effect on this provision.

3. Government Code Chapter 4.3 (Commencing with Section 65915) These provisions of the Government Code all relate to density bonuses for “housing developments,” which are housing developments or mixed used projects containing five or more housing units. (Government Code Section 65915(i).) The maximum number of units permitted on a lot under the existing R-1 or RR zoning in the proposed HND is three units (a primary unit, accessory dwelling unit, and junior accessory dwelling unit). Under SB 9 and the City’s implementing ordinance, the maximum number of units on a single family parcel is four units.

In both cases, fewer than five units are permitted on a parcel, and the provisions of density bonus law would not apply to development on a single parcel. If one development project included five or more units on contiguous parcels, density bonus law could apply to the development project, but the HND does not affect the proposal’s eligibility for a density bonus.

F. Consistency with Other Relevant Provisions of State Housing Law

1. California H.O.M.E Act (SB 9)
The Findings prepared for the Initiative and the ballot arguments prepared in support of the Initiative state that one purpose of the Initiative is to ensure that properties within the HND are not eligible to utilize SB 9 (§§ 65852.21, 66411.7.). SB 9 is not applicable within a site “designated or listed as a city or county landmark or historic property or district pursuant to a city or county ordinance.” (Government Code §§ 65852.21(a)(6), 66411.7(a)(3)(E).) Summary of SB 9. Under SB 9, local agencies must approve in a ministerial process, without any discretionary review or hearing, two-unit developments and urban lot splits on lots zoned for singlefamily use. Two-unit developments are those that propose either the construction of no more than two new units, or the addition of one new unit to an existing unit. Urban lot splits divide one singlefamily lot into two lots, each of which may contain two units. Each lot may be as small as 1,200 sq. ft.
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To be eligible for a two-unit development or an urban lot split, the property must meet a lengthy series of criteria. If the project meets those criteria, the City must modify its development standards to permit at least two 800 sq. ft. units on each lot, if an urban lot split is used. If an urban lot split is not proposed, an owner may either construct two single-family homes and one accessory dwelling unit (a total of three units) or a duplex plus two detached accessory dwelling units (a total of four units). Zoning standards must be waived to allow each of the units to total 800 sq. ft. All SB 9 developments must be approved through a ministerial process, based only on objective standards.

The City has adopted its own ordinance implementing SB 9, adding Chapter 16.05 to the Subdivision Ordinance and Chapter 17.74 to the Zoning Ordinance (both contained in the Municipal Code). The City has also adopted objective design standards (NCMC Chapter 17.82) that would apply to SB 9 developments as a replacement for architectural review.

Historic District Exemption. The provisions of SB 9 state that it is not applicable on a site within a historic district. The intent of the Initiative is to designate the HND as an historic district so that the provisions of SB 9 will not apply to properties within the HND.

On March 15, 2022 the Attorney General sent a Notice of Violation to the City of Pasadena, asserting that the City’s “landmark districts,” which are local historic districts of Citywide significance, did not qualify as historic districts under SB 9. The most recent district had been established in 2019, well before the passage of SB 9 in 2020. The Attorney General’s specific objections to Pasadena’s landmark districts (as relevant to the Initiative) included the following:
 The exemption from the provisions of SB 9 is intended to be a narrow one;  Only 60 percent of the properties within the district were required to contribute to the landmark district designation; and
 Because a landmark district could be created based on a “defined historic, cultural, development, and/or architectural context,” a landmark district might be designated that was not be based on its historic significance.

Pasadena responded that its landmark districts and their boundaries were evaluated using the same criteria as used for an application for a historic district under National Historic Register criteria and that every landmark district was required to show a relationship to a historical context. Further, the legislative history of SB 9 indicated that, despite the Attorney General’s contentions, the historic exemption was broad and was intended to be so, despite urging of legislative committee staff for a “more focused and rigorous exemption.”
Nonetheless, the City amended its ordinance to define a landmark district using National Historic Register criteria: as a grouping of properties representing a significant and distinguishable entity of Citywide importance; united historically by past events or aesthetically by plan or development; and representinf one or more of a defined historic, cultural, development and/or architectural context(s).

The historic district proposed by the Initiative contains features similar to those that the Attorney General objected to in Pasadena:
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 Only 50 percent of the properties are over 50 years old. No information has been provided indicating which of those properties are of historic significance or contribute to the Historic Neighborhoods District.
 The homes represent many different periods, ranging from the Mother Lode style of the 1800s to 20th Century designs through 1972.
 It does not appear that National Register criteria were used to designate the boundaries of the HND, except that an historic analysis is typically required for structures over 50 years old.

Additionally, the purpose of the Initiative is specifically to avoid the use of SB 9 within the HND boundaries.

Given the objections of the California Attorney General to the more rigorously documented historic districts in Pasadena, it is not clear that the exemption from SB 9 will apply to the proposed Historic Neighborhoods District.

2. Duty to Affirmatively Further Fair Housing
Government Code section 8899.50 imposes upon Nevada City the duty to affirmatively further fair housing, a duty which "extends to all of a public agency's activities and programs related to housing and community development." This includes taking "meaningful actions . . .to overcome patterns of segregation and foster inclusive communities"13 and administering its programs relating to housing and community development to affirmatively further fair housing. Housing elements due after January 1, 2021 are required to address this duty through specific programs.

Single family zoning has been identified as a barrier to racial and economic integration of residential neighborhoods.14 The legislative history for SB 9 reflects the concern that single family zoning hinders residential integration. One letter of support for SB 9 from the Terner Center for Housing Innovation stated, "single family-only zoning also prevents the creation of affordable housing in oftentimes high opportunity communities. It should also be noted that our structure of single family zoning has historically been used to reinforce segregation by effectively keeping BIPOC households out of affluent, White neighborhoods.”15 The Terner Center also asserted in a report that "[s]olving California's housing crisis—let alone tackling the challenges of climate change and residential 13 Government Code section 8899.50(a).
14 See “California’s Housing Future: Challenges and Opportunities, Final Statewide Housing Assessment 2025" 38 (2018). https://www.hcd.ca.gov/policy-research/plans-reports/docs/sha_final_combined.pdf. "In many cases the disparities experienced by neighborhoods are a result of historical social inequities." See also Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America, 183 (2017). "The Fair Housing Act of 1968 prohibited future discrimination, but it was not primarily discrimination (although this still contributed) that kept African Americans out of most white suburbs after the law was passed. It was primarily unaffordability. The right that was unconstitutionally denied to African Americans in the late 1940s cannot be restored by passing a Fair Housing law that tells their descendants they can now buy homes in the suburbs, if only they can afford it. The advantage that FHA and VA loans gave to the white lower-middle class in the 1940s and ‘50s has become permanent.” 15 Letter from Ben Metcalf on behalf of The Terner Center for Housing Innovation, to Honorable Senate Pro Tem Toni Atkins (April 8 2021).
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segregation—requires policies that intensify land use in these communities."16 One concern with urban sprawl, or developing undeveloped areas as opposed to infill development, is that such development patterns "reinforce income inequality and patterns of segregation."17 The Initiative is an "activit[y] or program[] related to housing and community development" and so is subject to the requirements of Government Code Section 8899.50. The General Plan recognizes that "Nevada City is basically a city of single-family homes"18 and recognizes the need to "accommodate a diversity of housing types and prices within each neighborhood, without creating an adverse effect on the historic and scenic quality of the town."19 By ministerially allowing up to four units that meet certain standards on a parcel zoned to allow a single-family residence, SB 9 modified the City's single-family zoning. The amendments to the General Plan and Municipal Code proposed under the Initiative are intended to reinstate single-family zoning. If the Initiative is adopted, and the historic designation is upheld, four primary units could not be constructed as would be possible under SB 9.

The amendments proposed by the Initiative would impose additional barriers to accommodating a diversity of housing types by reducing the intensity of use permitted on a single family zoned property and subjecting developments to discretionary review. Thus, the amendments proposed under the Initiative effectively reinstate barriers to overcoming patterns of segregation and fostering inclusive communities. To meet its obligations under Government Code section 8899.50 if the Initiative is adopted, the City will need to take other meaningful actions to foster inclusive, integrated communities and to demonstrate that it is meeting its obligations to administer its programs and activities relating to community development to affirmatively further fair housing.

HCD has authority to notify cities of potential violations of Section 8899.50 and to refer cities to the Attorney General if the violation is not corrected.

3. Housing Crisis Act of 2019
The Housing Crisis Act of 2019 prohibits an “affected city” from "enact[ing] a development policy, standard, or condition" that would reduce a site’s residential development capacity. (Government Code Section 66300(b).) If SB 9 cannot be used on a site, that would reduce the site’s residential development capacity.

However, Nevada City is not subject to the Housing Crisis Act because it is not an “affected city,” as determined by HCD,20 and the Initiative is not subject to the Act. 16 Ben Metcalf et al., “Will Allowing Duplexes and Lot Splits on Parcels Zoned for Single-Family Create New Homes?” 14 (The Terner Center for Housing Innovation 2021). https://ternercenter.berkeley.edu/research-and-policy/duplexeslot-split-sb-9/ 17 “California’s Housing Future: Challenges and Opportunities, Final Statewide Housing Assessment 2025" 3 (2018). 18 Housing Element 2019-2027, page 6-1, discussing the community housing goals adopted in the 1986 General Plan. 19 Housing Element 2019-2027, page 6-2.
20 The list of affected cities is available at: https://www.hcd.ca.gov/statutory-determinations. 16 1246\03\3357802.3
9/21/2022
G. Effect on the Use of Land and Vacant Land, Availability and Location of Housing, and the City's Ability to Meet Its Regional Housing Needs SB 9 may currently be used to develop sites within the proposed HND. It is possible for a property owner to develop a total of four units on one single-family lot.

The Initiative intends that SB 9 would no longer be applicable to single-family residential parcels in the HND because parcels within a historic district pursuant to a city ordinance are exempt from SB

9. If this provision is upheld, the Initiative would decrease the allowed density of single-family residential units by one unit, ensure the units on the site could not be sold separately from each other (unless owned by a qualified onon-profit), and prevent more than one primary unit from being developed on each lot. The maximum number of units on the lot would be three including the primary dwelling unit, one junior accessory dwelling unit contained within the primary dwelling unit, and one accessory dwelling unit, none of which could be sold separately (unless owned by a qualified non-profit). Under SB 9, four primary units could be developed with an urgan lot split, and the owner could request permission to sell each unit separately. Thus, in addition to reducing the number of units on each lot, the Initiative would reduce the potential number of ownership units on most single-family residential parcels by three units.

City’s Ability to Meet Its Regional Housing Needs. The HND does not change the density or use of any site designated for housing in the City’s adopted Housing Element. Forty-nine of the sites in the Housing Element inventory are single family properties designated for above-moderate income housing; of these, 25 parcels will be within the HND if the amendments proposed in the Initiative are adopted. Most of these parcels are vacant and the realistic development of these parcels ranges from 1-3 units (assuming non-SB 9 lot splits). The HND would not impose additional development constraints that were not already in place at the time the 2019-2027 Housing Element was adopted.

Thus, the Initiative would not impact the City's ability to meet its RHNA obligations as provided in the Housing Element.

Attachment A: Nevada City Historic Neighborhoods District Initiative

R Nevada County GIS
0 0.05 0.1 0.2 0.3 0.4 0.5
Miles
Every reasonable effort has been made to assure the accuracy of the maps and data provided; nevertheless, some information may not be accurate. The County of Nevada assumes no responsibility arising from use of this information. THE MAPS AND ASSOCIATED DATA ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, either expressed or implied, including but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Before making decisions using the information provided on this map, contact the Nevada County Public Counter staff to confirm the validity of the data provided.

Published 9/20/2022 by afriant
Historic Neighborhood District - 2022 - Nevada City, California Legend
Proposed Historic Neighborhood District
Single Family Residence Outside HND
Nevada City Boundary
Path: H:\IGS\GIS\PROJECTS\City of Grass Valley\SFR Proposal Maps (61970)\SFR Proposal Maps.aprx Copyright 2021 Terner Center for Housing Innovation
For more information on the Terner Center, see our website at www.ternercenter.berkeley.edu
A TERNER CENTER REPORT - JULY 2021
Will Allowing Duplexes and Lot
Splits on Parcels Zoned for
Single-Family Create New
Homes?
Assessing the Viability of New Housing Supply
Under California’s Senate Bill 9
AUTHORS:

BEN METCALF, MANAGING DIRECTOR, TERNER CENTER

DAVID GARCIA, POLICY DIRECTOR, TERNER CENTER

IAN CARLTON, CO-FOUNDER AND CEO, MAPCRAFT LABS

KATE MACFARLANE, PRODUCT MANAGER, MAPCRAFT LABS
A TERNER CENTER REPORT - JULY 2021
2 Introduction
In recent years, California lawmakers have
proposed a number of legislative changes
to address the state’s ongoing housing
shortage and affordability crisis. While the
most ambitious of these efforts have not
passed, momentum has increased around
one solution in particular: legislation to
allow modest increases in smaller-sized
units in existing single-family neighborhoods. In 2020, Senate Bill 1120—which would have allowed for up to four new
homes on existing single-family parcels—
passed both the California Assembly and
Senate, but fell short of becoming law as
time ran out at the end of the session. This
year, Senate President Pro Tempore Toni
Atkins has introduced Senate Bill 9 (SB
9), which proposes a similar policy shift.

SB 9 has now passed through the State
Senate and is under discussion in the State
Assembly; if approved by the Assembly, it
may be poised to be the most significant
housing bill coming out of California’s
current legislative session.

SB 9 has potential to expand the supply
of smaller-scaled housing, particularly in
higher-resourced, single-family neighborhoods. In this way, SB 9 builds on recent state legislation that opened up access to
accessory dwelling units (ADUs) for virtually all California single-family parcels.

What distinguishes SB 9 is that it allows
for the development of new, for-sale
homes, either on a newly subdivided lot or
through the conversion of existing singlefamily homes into multiple units. This ability to create duplexes and/or split the
lot and convey new units with a distinct
title would allow property owners to
pursue a wider range of financing options
than are available for ADU construction to
build these new homes.1 In so doing, SB 9
could open up new homeownership opportunities at more attainable price points for prospective purchasers, who would be
able to apply for a traditional mortgage to
buy the home.

Yet, the likelihood of creating new housing
and homeownership opportunities as
a result of SB 9 largely depends on local
context. While Senate Bill 9 does not
apply to single-family parcels in historic
districts, fire hazard zones, and rural
areas, local market prices and development costs play a large role in determining where there is financial viability for the
addition of new homes. Moreover, physical constraints, such as small lot sizes and other local regulations, can limit the
number of new homes built as a result of
this bill. To assess the potential impact
of SB 9 on new housing supply, this analysis assesses the market feasibility of new homes as allowed by the current version of
the Bill (as of July 2021).2
This analysis finds that SB 9’s primary
impact will be to unlock incrementally
more units on parcels that are already
financially feasible under existing law,
typically through the simple subdivision
of an existing structure. Relatively few
new single-family parcels are expected
to become financially feasible for added
units as a direct consequence of this bill.

While this analysis does not attempt to
measure the actual rate of uptake for
adding new units to single-family parcels,
it is reasonable to assume that SB 9 will
modestly accelerate the addition of new
units relative to the status quo by facilitating
access to conventional mortgage products
for multiple households able to purchase
homes on newly subdivided single-family
parcels.

A TERNER CENTER REPORT - JULY 2021
3 Background
California’s recent housing laws have
largely failed to unlock significant housing
production changes that would ease
the ongoing housing and homelessness
crisis. One of the state’s more effective
housing solutions has been recent laws
removing barriers to the construction and
financing of ADUs. In 2016, Senate Bill
1069 and Assembly Bill 2299 expanded
the ability of homeowners to build ADUs
and Junior ADUs (JADUs). Subsequent
legislation (Assembly Bill 68, Assembly
Bill 881, Senate Bill 13) removed other
barriers to ADU development, including
lowering impact fees and removing owner
occupancy requirements. The impacts
of this legislation are already apparent
throughout the state. Published state data
demonstrates that the initial 2017 ADU
law had immediate impacts: California
jurisdictions went from issuing 5,911
ADU permits in 2018 to 15,571 in 2019,
with ADU completions following a similar
upward trend, more than tripling over the
same period (from 1,984 to 6,668 units)
(Figure 1).3 The ADU laws that took effect in
2019 allowing two ADUs on single-family
parcels and more on multi-family parcels
are already having a significant impact
on gently adding density across the state
in single- and multi-family properties. In
early 2021, the City of Los Angeles reports
processing upwards of 20,000 ADUs
where ADUs make up nearly 40 percent of
all housing building permits, and the City
of San Jose reports that ADUs make up 38
percent of all housing building permits.4
This progress signals the significance of
easing approvals and barriers to smallerscale, infill development in low-density areas.

Figure 1. ADU Permits and Completions in California, 2018 and 2019 0 2,000
4,000
6,000
8,000
10,000
12,000
14,000
16,000
18,000
Permits Completions
2018 2019
Source: Chapple, K., et. al. (2020). “Reaching California’s ADU Potential: Progress to Date and the Need for ADU Finance.” Retrieved from: https:// ternercenter.berkeley.edu/wp-content/uploads/2020/12/ADU-Brief-2020.pdf.

A TERNER CENTER REPORT - JULY 2021
4 The early success of recent ADU legislation has prompted lawmakers to examine similar policies that would incrementally
unlock more homes in low-density urban
infill neighborhoods where the housing
crisis is particularly acute. Such policies would also align with state climate change policies encouraging additional
homes near jobs and services to reduce
vehicle miles travelled. Last year, SB 1120
proposed allowing up to four units in
single-family-zoned parcels throughout
the state. Analysis by the Terner Center
of SB 1120 found that nearly six million
single-family parcels statewide would
theoretically be eligible, a significant
expansion of buildable area in California.5
For example, if just 5 percent of those
parcels created new two-unit structures
as a result of SB 1120, that would have
resulted in 597,706 new homes. That’s
more than five times the number of new
homes that have been built in California
annually since 2015.6 However, in a
session marked by the disruptions related
to the COVID-19 pandemic, SB1120 ran
out of time to be sent to the governor’s
desk, despite passing both the Assembly
and the Senate.

SB 9 was introduced with nearly identical
language to its predecessor, SB 1120, but as
the bill has progressed through the legislative process, some important changes have been made. Most notably, properties that
have developed an ADU are not eligible for
the density or lot split provisions of SB 9,
and jurisdictions would have the option of
imposing owner-occupancy requirements
for lot split applicants, where the applicant
would have to make one of the units on
the site their primary residence for at least
one year. This owner-occupancy provision
has been added to address concerns that
current homeowners could be incentivized to sell to private entities interested in speculative investment on single-family
parcels and to encourage use of the law to
create more opportunities for California
families to buy a home. The provisions also
ensure the law cannot be used to divide
homes occupied by renters as a measure
to prevent displacement. Other new provisions have made the legislation potentially more impactful. For example, SB 9 allows
more flexibility in how the lot is split.

SB1120 required that both newly created
lots be of equal size, potentially limiting
the number of instances where new homes
would be feasible. New language in SB 9
requires that one of the newly created
parcels only needs to be more than 40
percent of the original parcel size. Table 1
summarizes the key provisions of SB 9 as
of July 2021.

A TERNER CENTER REPORT - JULY 2021
5 Location
• The parcel, lot, or development must be located in a single-family residential zone. • The parcel cannot not be located in a historic district or be a historic property itself (as defined by the state or local county or city).
• The parcel cannot be located in a high fire zone area. • The parcel must be in a city whose boundaries include some portion of an urbanized area or urban cluster as designated by the U.S. Census Bureau.
• If the parcel lies in an unincorporated area, then the parcel at stake must be a legal parcel wholly within the boundaries of an urbanized area/cluster.

Parcel Size
• The parcel must be a minimum of 2,400 square feet in size. • The newly created parcel as a result of a lot split may not be smaller than 40 percent of the lot area of the original parcel.
• A locality cannot impose any standards that would preclude the construction of up to two units or physically precluding either of the two units from being at least 800 square feet in floor area. • A side and rear setback of up to four feet is allowed.

Anti-Displacement
• The lot split cannot require the demolition or alteration of a housing unit currently serving moderate-, low- or very-low income household(s) or a rent-controlled unit. • The lot split cannot result in the demolition or alteration of housing that has been occupied by a tenant in the last three years or where an owner has used the Ellis Act to remove a rental unit from the market within the last 15 years.
• A jurisdiction may impose an owner-occupancy restriction for lot splits, where the applicant must intend to occupy one of the housing units as their principal residence for a minimum of one year from the date of the approval of the urban lot split.

Other
• The parcel cannot have been created from a previous lot split as provided by this policy. • The same person (or another party acting on their behalf) cannot perform a lot split on adjacent lots.

Table 1: Eligibility Criteria Proposed for Split Lots Under SB 9 A TERNER CENTER REPORT - JULY 2021
6 To inform our model, several assumptions were made about market conditions and trends. For example, all properties
with single-family detached land uses
were assumed to conform to zoning and
currently have exactly one existing unit
(e.g., no ADUs). In combination with tax
assessor data, we estimated the value of
each existing single-family property on
those parcels. MapCraft calculates standard development “pencil out” models to compute snapshots of market feasibility on every relevant parcel, both under current policies and as proposed in SB 9.

These models are based on the financial
evaluations conducted by developers to
assess an investment’s viability early in
the development process by balancing the
cost of developing the site with expected
rental or sale income.8 MapCraft’s models
of small-scale development look at financial feasibility from the perspectives of owner-occupants, owner-occupant landlords, small-scale investors, and commercial investors, with market-feasible unit potential based on a probabilistic blend of
all possible development options. Financial expectations of investors and lending terms are based on conversations with
industry professionals and are updated by
MapCraft regularly.

MapCraft’s calculations incorporate data
and assumptions about current rents, sales
prices, construction costs, and investors’
expected return on investment rates, and
are validated by ECONorthwest, a West
Coast economics consultancy. MapCraft’s
market demand information relies on
multiple sources, including CoStar, Zillow,
tax assessors, U.S. Census, and transaction
records. MapCraft’s construction cost
information is based on interviews and
RS Means. Finally, the modeling relies on
Methodology
It is unrealistic to assume that under SB
9, every single-family lot would be split,
or that every existing single-family home
would be demolished and replaced with
four new units. For example, some lots
may be too small, have other existing
structures or ADUs, have a history of
being rented, or other physical conditions
that prevent changes. Some owners may
have no interest in developing their property. And finally, even if a property owner is interested in pursuing new development
on their land, trying to recoup this investment with market-rate rental or sales will prove financially infeasible in many
instances. To develop a better estimate
of the potential impact of SB 9 on new
supply, we conducted an analysis of how
many new homes would be both physically
eligible and financially feasible as a result
of SB 9, as well as what types of development would be most likely, taking into account on-the-ground market dynamics.

We partnered with MapCraft Labs, which
developed a financial feasibility model to
assess market-feasible housing capacity
on existing parcels with detached singlefamily homes. The base layer for the analysis is a parcel dataset from UrbanFootprint which includes all counties in California with populations greater than
45,000 people, and covers homes built
prior to 2020.7 This dataset includes
roughly 7.5 million single-family parcels
across the state. We used MapCraft’s Lab
analysis tool to determine what types and
scales of housing development would be
feasible with an approach that considers
construction costs, market demand,
financing, land use policies, and individual
parcel characteristics.

A TERNER CENTER REPORT - JULY 2021
7 assumptions about parking requirements
based on previous Terner Center research,
typical unit sizes, and other factors that
inform development.9
The provisions of SB 9 would allow for a
variety of development options. For this
analysis we examined the most likely development scenarios as shown in Appendix B.

Our business-as-usual scenario evaluates
development feasibility for housing supply
changes currently permissible under
single-family zoning, while the alternative
policy scenario considers the additional
set of development options allowed under
SB 9. For example, under the business-asusual scenario, a homeowner may decide to build an ADU but would only be able
to split the parcel into two lots, each with
two homes, under the alternative policy
scenario allowed under SB 9.

Our estimates also account for the fact that
SB 9 includes anti-displacement language
that prohibits alteration or demolition of
renter-occupied homes. To approximate
this, we used the percentage of singlefamily home rentals in each census tract (as determined by ACS data) to discount
results for development outcomes that
alter or demolish the existing structure.

We also examined the potential impacts
of owner-occupancy requirements by
removing financial scenarios that assume
all the new units are rentals, as well as
development scenarios that require demolition of an existing structure. In addition, we assumed that owners received a 25
percent discount for the unit they occupied in split lot development scenarios.

Market-feasible capacity is not a
forecast of future production.

While this analysis identifies the number
of market-feasible units, in most cases
these market-feasible units will take years
to be developed, and some may never get
built. This analysis considers the market
feasibility of redevelopment on each
eligible single-family parcel in isolation,
and assumes that every property owner
is maximizing the economic potential of
their lot. However, that is not the case for
several reasons.

First, the most economically feasible use
does not consider the motivations and
preferences of individual property owners.

Any change in use requires the cooperation of the owner, either to sell the site or to redevelop it themselves. The economics
All Single-Family Parcels
Eligible Parcels
Market-Feasible
Parcels
Developed
Parcels
TBD
Figure 2: Production Funnel
A TERNER CENTER REPORT - JULY 2021
8 may suggest that the highest value of a
house may be to tear it down and rebuild
it into a much larger house, but if a homeowner prefers a small house or the existing architecture, they’re not going to rebuild.

Converting a house to a duplex and renting
out half may be most profitable for a homeowner, but that will not happen if that homeowner is uninterested in living more
closely with others in what was formerly
“their” space or in becoming a landlord or
homeseller. Even when a property owner
does wish to redevelop their site, they may
lack the upfront capital and sophistication to initiate the process; and then may be unable to access financing due to a low
credit score or other underwriting barrier.

In addition, redevelopment does not
happen instantaneously; it requires homeowner awareness and interest, available construction industry capacity, a suitable
financing ecosystem and viable routinized
business models for development in order
to proceed. State ADU laws, for example,
have taken several years to ramp up as
awareness, delivery models, industry and
local agency capacity have adapted to law
changes. It is reasonable to assume that
it may take years for that capacity to fully
emerge in California if SB 9 becomes law.

Findings
SB 9 could enable the creation of
over 700,000 new homes that would
otherwise not be market feasible.

Under our business-as-usual scenario, we
estimate 1,800,000 new ADUS/JADUS
are currently market-feasible and could be
built under today’s zoning laws across California’s 7,500,000 existing single-family housing parcels. With SB 9, we estimate
that approximately 700,000 additional
new units would become market-feasible,
representing a 40 percent percent increase
in existing development potential across
California’s single-family housing parcels.

All Single-Family Parcels

7.5 million
Eligible Parcels

6.1 million
Market-Feasible Parcels
~410,000
(including 110,000
newly feasible parcels)
Developed
Parcels
TBD
Figure 3: Parcel Development Funnel (Total Numbers)
A TERNER CENTER REPORT - JULY 2021
9 SB 9 would enable the development
of more units on 410,000 singlefamily parcels, of which only 110,000 parcels would become newly feasible.

Overall, SB 9 would change the
development feasibility of a relatively small
number of parcels. First, the conditions
stipulated by the legislation limit the
number of parcels that can utilize the bill’s
provisions, as illustrated in Figure 3. For
example, the bill’s current limitations
on new development in high fire hazard
areas, historic districts, non-urbanized
areas, and existing renter homes removes
approximately 1.4 million existing singlefamily homes from consideration.10 Of the 6.1 million remaining parcels, the
majority would not be affected because
of an absence of physical capacity or
financial feasibility. However, on 5.4
percent of current single-family parcels,
SB 9 would enable new development. For
110,000 single-family parcels (1.5 percent
of total single-family parcels), SB 9 would
enable new development where none was
financially feasible before, and for another
300,000 parcels, SB 9 would allow for
more units than under our business-asusual scenario.

For the majority of single-family properties, we find the most financially viable outcome is not to pursue any development whatsoever, both under our business-as-usual scenario and under our SB 9 scenario.

Under our assumptions about today’s
regulations, market conditions, and development alternatives, we found that doing nothing was the most likely option for
California’s single-family parcels: development is not feasible for 80 percent of parcels (Figure 4). If SB 9 passed,
110,000 parcels would be newly developable, causing the share of infeasible parcels to tick down slightly to 78 percent.

The primary benefit of SB 9 comes from
allowing slightly more units on parcels
where development already makes sense
and in opening up any added units to
homeownership opportunities through the
ability to legally subdivide those parcels.

Figure 4. Likely Parcel Feasibility By Number of Feasible Units 78%
80%
1%
1%
12%
16%
7%
4%
2%
0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%
Under SB 9
Business-As-Usual
No feasibility 1 New Unit 2 New Units 3 New Units 4 New Units A TERNER CENTER REPORT - JULY 2021
10 SB 9 is unlikely to lead to significant
demolition of the existing stock.

We found that nearly 97 percent of singlefamily homes would be retained under SB 9’s provisions, either without any modification or with less intensive development (e.g., subdividing the existing structure
to enable a duplex conversion). In many
places, existing zoning allows homes to
be demolished and replaced with larger
single-family homes, which we found was
the most financially attractive scenario on
1 percent of all single-family parcels under
our business-as-usual scenario. Under SB
9, the likelihood of tearing down a singlefamily home and replacing it with a larger single-family home falls by half to 0.5
percent due to other viable development
opportunities.

While SB 9 would provide a boost
in three- and four-unit feasibility,
duplexes would be the most dominant form of financially-feasible development.

The majority of viable development opportunities should SB 9 be enacted would result in two units per existing lot (Figure
5). Duplexes comprise an important block
of this new capacity, accounting for 35
percent of all new units, two thirds of
which would be in converted existing
single-family homes. SB 9 would also
enable a somewhat higher total number of
feasible units by allowing greater uptake
of three- and four-unit development.

Figure 5. Estimates of Parcels with Feasible Capacity Under SB 9 0 100,000
200,000
300,000
400,000
500,000
600,000
700,000
800,000
900,000
1,000,000
1 Unit (1 for 1
replacement of existing
home)
2 Units 3 Units 4 Units
A TERNER CENTER REPORT - JULY 2021
11 There is wide regional variation in
market-feasible units.

The amount of new market-feasible units
varies by region. Los Angeles County
resulted in the most new market-feasible
units under SB 9 with approximately
126,000 new homes. While significant,
Los Angeles County also comprises both
the most single-family parcels and SB 9
eligible parcels (Table 2). Analyzing new
market-feasible units per eligible singlefamily parcel finds that Yuba, El Dorado, Sutter, and Nevada counties would see
the most new market-feasible potential
per parcel, although the overall number
of new feasible units is relatively low
compared to larger counties. Many coastal
California counties exhibited higher than
average per parcel unit ratios, such as
Marin, Santa Cruz, San Luis Obispo, and
Santa Barbara counties, signaling that
rents and sales prices there could support
new homes resulting from SB 9. Meanwhile, most Central Valley counties, such as Fresno, Merced, Kern, and Stanislaus,
showed below average potential for new
homes per parcel, reflecting lower financial feasibility. For a list of all county results, see Appendix A. At the city level,
the state’s most populous jurisdictions
were all below average for market-feasible
units per parcel, as shown in Table 3.

Owner-occupancy requirements
would have a limited negative impact
on the market feasibility of development pursuant to SB 9, but they could have a much larger impact on
actual delivery of units under SB 9.

SB 9, as currently written, allows jurisdictions to impose owner-occupancy requirements for lot split applicants, but
not for duplex conversions. Our analysis
finds that, if every jurisdiction imposed
owner-occupancy requirements, the total
financially feasible units enabled by SB 9
would decrease by roughly 6 percent, or
approximately 40,000 units. This limited
impact reflects the fact that our model
indicates only 10 percent of new units
under SB 9 would be attributable to lot
splits.

While the owner-occupancy requirement
would have only a modest impact on the
financial viability of new units, it may have
a significant effect on the number of owners
willing to actually pursue new development on their properties. By preventing owners from splitting a lot unless they
plan to live there themselves for at least
a year, or from allowing a developer to
take on development involving a lot-split
pursuant to SB 9, the owner-occupancy
requirement may reduce the number of
homes that will result from SB 9.

Shifts in construction costs and
rental and sales prices could change
development feasibility.

In addition to assessing the potential
impact of SB 9 using current market
conditions, we also ran a sensitivity analysis to examine the potential impact of SB 9 under different market scenarios. Our
analysis found that a 10 percent decrease
in construction costs could increase the
amount of market-feasible units by 5
percent, or roughly 36,000 more units
than the 700,000 baseline impact of SB

9. Local and state policymakers should
therefore also consider policies that could
help reduce the costs of production to
enable policies such as SB 9 to work more
effectively in more places. In the opposite direction, we found that a 10 percent increase in construction costs lowers
development feasibility by 4.5 percent,
or by approximately 32,000 units. Our
A TERNER CENTER REPORT - JULY 2021
12 County
Total singlefamily
parcels
SB 9-eligible
parcels
Parcels
where SB
9 would
increase
the number
of marketfeasible
units
Parcels
where SB
9 changes
feasible
outcome
from no net
new units to
1+ net new
units*
Total
marketfeasible new
units if SB 9
is enacted**
Total
marketfeasible new
units divided
by SB 9
eligible lots
Los Angeles 1,441,000 1,210,500 79,500 18,000 127,000 0.10 San Diego 554,500 398,500 28,500 9,000 54,500 0.14
Orange 557,000 486,000 26,500 8,500 47,000 0.10
Riverside 563,000 483,000 36,500 10,000 62,500 0.13
San
Bernardino 493,000 385,000 32,000 8,000 56,500 0.15
Santa Clara 331,000 319,500 22,000 8,500 40,000 0.13
Alameda 306,500 277,000 16,000 3,500 25,000 0.09
Sacramento 369,500 360,500 25,000 5,000 40,500 0.11
Contra Costa 263,500 239,000 20,000 7,500 38,000 0.16
Fresno 203,500 186,000 5,500 500 10,500 0.06
Statewide
totals
(excluding
counties
with pop.
under
45,000)
7,470,500 6,182,500 410,000 111,500 714,000 0.12
Table 2. SB 9-Eligible Parcels and Market-Feasible New Units by Largest Counties *Note: This is a subset of the parcels where SB 9 would increase the number of market-feasible units. **Note: Market-feasible new units are rounded.

A TERNER CENTER REPORT - JULY 2021
13 City
Total singlefamily
parcels
SB 9-eligible
parcels
Parcels
where SB
9 would
increase
the number
of marketfeasible
units
Parcels
where SB
9 changes
feasible
outcome
from no net
new units to
1+ net new
units**
Total
marketfeasible new
units if SB 9
is enacted
Total market
feasible new
units divided
by SB 9
eligible lots
Los Angeles 447,500 355,000 23,000 6,000 37,500 0.11
San Diego 203,500 133,000 7,000 3,000 13,000 0.10
San Jose 168,500 168,000 10,500 2,500 16,000 0.10
San Francisco 94,500 93,500 6,500 500 8,500 0.09
Fresno 104,000 104,000 2,000 100 4,000 0.04
Sacramento 116,500 116,000 6,500 800 9,500 0.08
Long Beach 59,500 58,500 3,000 200 3,500 0.06
Oakland 66,500 51,000 3,000 100 3,500 0.07
Bakersfield 87,500 87,500 5,000 2,000 9,000 0.10
Anaheim 43,000 36,000 2,500 1,000 4,000 0.11
Table 3. SB 9-Eligible Parcels and Market-Feasible New Units by Most Populous California Cities*
*Note: This is a subset of the parcels where SB 9 would increase the number of market-feasible units. **Note: Market-feasible new units are rounded.

A TERNER CENTER REPORT - JULY 2021
14 model also analyzed sensitivity to changes
in rental and sales prices. We found that
a 10 percent increase in prices resulted in
an 8 percent increase in market-feasible
units, or roughly 57,000 more units.

Policy Implications
A significant amount of land in California
has historically been designated for singlefamily homes, limiting the development of a greater diversity of urban infill housing
options in jurisdictions across the state.

Solving California’s housing crisis—let
alone tackling the challenges of climate
change and residential segregation—
requires policies that intensify land use in
these communities. California’s statewide
ADU laws were a step in the direction of
gently adding more density to simultaneously address the housing, climate, and equity challenges faced by the state.

But, in other ways, California lags behind
other states in its land use regulations
and dogged resistance to changing singlefamily zoning. For example, the state of Oregon recently required jurisdictions to
allow multifamily housing—either two or
three units—on all single-family parcels.

Some cities have gone even further, such
as Portland and Minneapolis, both of
which have voted to loosen allowable
homebuilding on single-family parcels.

While many cities in California—including
Los Angeles, San Diego, San Jose, Sacramento, Berkeley, and Oakland—are exploring similar options, SB 9 could play
an important role in enabling the construction of a significant amount of new house options that are smaller-scale, more
cost-effective, more varied, and inclusive
across the urban areas of the state.

Our analysis shows that approximately
700,000 new, market-feasible homes
would be enabled under SB 9. But despite
the concerns of some of its detractors,
SB 9 will not lead to the overnight transformation of residential neighborhoods.

Differential owner preferences and limited
applicability means that only a share of
that potential is likely to be developed,
particularly in the near term as awareness and capacity expands. As such, while important, the new units unlocked by SB
9 would represent a fraction of the overall
supply needed to fully address the state’s
housing shortage.

Policymakers should consider complementary strategies to ensure that this legislation is effective. These strategies
could include outreach to make sure that
homeowners are aware of and understand
the opportunities allowed by recent policy
changes, either through SB 9 or existing
ADU laws, and the expansion of more
robust financing options to moderate- and
low-income owners who wish to add new
units to their parcels. Increasing housing
production in single-family zoned areas
is also not the only policy shift that is
needed. Policymakers should add additional tools to boost supply overall, including by expanding permissible
residential development on commercial
property and by further reducing local
barriers to new housing through expedited approval processes for conforming projects and reform of the local regulatory barriers and fees.

APPENDIX A
County Name Existing SFR
Lots
SFR Lots
Eligible for
SB 9
Additional Lots
with 1+ Unit
Capacity Under
SB 9
SB 9 Net
Change in
MarketFeasible Units*
SB 9 Net Units
Per Eligible Lot
Alameda 306,306 276,795 3,633 25,000 0.09
Butte 65,020 32,720 47 3,000 0.09
Contra Costa 263,303 238,957 7,438 38,000 0.16
El Dorado 57,386 19,133 583 4,500 0.24
Fresno 203,474 185,908 564 10,500 0.06
Humboldt 35,672 22,560 93 2,500 0.11
Imperial 33,036 27,002 76 1,500 0.06
Kern 216,321 174,219 2,226 14,500 0.08
Kings 29,045 26,784 87 1,500 0.06
Lake 27,095 10,257 60 1,000 0.10
Los Angeles 1,441,148 1,210,729 18,130 127,000 0.10
Madera 35,785 22,474 1,196 4,500 0.20
Marin 60,998 46,841 2,163 9,500 0.20
Mendocino 19,350 8,949 90 1,500 0.17
Merced 55,676 51,972 106 2,500 0.05
Monterey 75,348 55,097 845 6,000 0.11
Napa 31,248 25,890 1,108 5,000 0.19
Nevada 43,090 5,618 199 1,500 0.27
Orange 557,820 485,756 8,730 47,000 0.10
Placer 125,458 94,273 1,448 13,000 0.14
Riverside 562,935 482,821 10,149 62,500 0.13
Appendix Table 1. County-Level Results

APPENDIX A
County Name Existing SFR
Lots
SFR Lots
Eligible for
SB 9
Additional Lots
with 1+ Unit
Capacity Under
SB 9
SB 9 Net
Change in
MarketFeasible Units*
SB 9 Net Units
Per Eligible Lot
Sacramento 369,605 360,485 5,006 40,500 0.11
San Benito 12,747 9,940 740 2,500 0.25
San Bernardino 492,806 385,243 7,848 56,500 0.15
San Diego 554,502 398,386 9,015 54,500 0.14
San Francisco 94,400 93,514 486 8,500 0.09
San Joaquin 164,796 147,577 2,159 14,000 0.09
San Luis Obispo 75,016 53,068 1,229 8,500 0.16
San Mateo 151,508 134,531 3,112 17,000 0.13
Santa Barbara 91,540 75,399 1,506 10,000 0.13
Santa Clara 331,232 319,319 8,527 40,000 0.13
Santa Cruz 54,817 43,522 1,422 8,000 0.18
Shasta 55,366 25,997 402 3,500 0.13
Solano 110,592 105,962 684 8,500 0.08
Sonoma 124,610 103,452 2,688 16,500 0.16
Stanislaus 123,922 116,754 1,542 9,500 0.08
Sutter 24,707 19,357 1,111 4,000 0.21
Tehama 18,504 7,903 35 500 0.06
Tulare 104,235 86,679 1,096 6,000 0.07
Tuolumne 25,386 995 1 100 0.10
Ventura 184,033 135,836 1,604 14,500 0.11
Yolo 43,761 40,940 550 4,500 0.11
Yuba 16,743 13,064 2,016 4,500 0.34
Statewide Total 7,470,342 6,182,678 111,746 714,100 0.12 Appendix Table 1. County-Level Results (Continued)
+Note: Parcels that could have feasibly built ADUs or JADUs in a pre-SB 9 scenario are not included in the “New Market-Feasible Lots Under SB 9” category in this table, even if our analysis found that under SB 9, they could now feasibly build three or four units. As a result, per lot averages of new feasible units will yield results higher than four units per lot. *Note: Market-feasible new units are rounded

APPENDIX B
Specific Modeling Assumptions
The following assumptions were incorporated into MapCraft’s analysis of SB 9.

Allowed Prototypes
The prototypes in the following tables were evaluated on each site.

Keep Existing Structure Demo Existing Structure
Do nothing Build new single-family residence (SFR)
Add detached ADU (DADU) Build new SFR + detached ADU (DADU) JADU conversion + DADU Build new SFR + DADU + JADU
Convert to duplex Build duplex
Convert to duplex + DADU Build duplex + DADU
Convert to duplex + DADU + JADU Build duplex + DADU + JADU Appendix Table 2. Prototype Options When SB 9’s Lot Split Provision Is NOT Used Italicized indicates outcomes that are possible in the business-as-usual scenario under current single-family zoning, without SB 9.

Keep Existing Structure Demo Existing Structure and
Create Two Lots
Subdivided Lot with Existing
Structure New Lot Build two new SFR
Do nothing SFR Build two new SFR + ADU
Add detached ADU (DADU) SFR Build two new SFR + JADU + ADU JADU conversion SFR Build two new duplexes
JADU conversion + DADU SFR
Duplex conversion SFR
Do Nothing SFR + ADU
Add detached ADU (DADU) SFR + ADU
JADU conversion SFR + ADU
JADU conversion + DADU SFR + ADU
Duplex conversion SFR + ADU
Do nothing SFR + JADU + ADU
Add detached ADU (DADU) SFR + JADU + ADU
JADU conversion SFR + JADU + ADU
JADU conversion + DADU SFR + JADU + ADU
Duplex conversion SFR + JADU + ADU
Do nothing Duplex
Add detached ADU (DADU) Duplex
JADU conversion Duplex
JADU conversion + DADU Duplex
Duplex conversion Duplex
Appendix Table 3. Prototype Options When Using SB 9’s Lot Split Provision For new-built duplex prototypes, MapCraft evaluated both stacked and side-by-side variations at a variety of scales. Also, four scales of single-family prototypes were tested. In total, 652 pro formas were evaluated on each parcel.

Data Inputs
The parcel data for this analysis was provided by UrbanFootprint and includes approximately 7.5 million parcels: all parcels with single-family dwellings in California counties with populations greater than 45,000 people.

For the purposes of this work, all properties with single-family detached land use were assumed to currently have one existing unit (i.e., no ADUs) and single-family zoning that limited development of multiple primary units. To support the assumption, UrbanFootprint scanned zoning in a sample of cities, finding that the vast majority of parcels with single-family homes are zoned for single-family. UrbanFootprint’s parcel data included information on each lot and the single-family homes on those lots. In combination with tax assessor data, the value of each existing single-family property was estimated in the second quarter of 2020.

To be realistic about the policy constraints that limit development under current policies and SB9, MapCraft relied on coarse zoning-like limitations interpolated from homes built in each tract between 2005 and 2020. MapCraft assumed that developments on a parcel would need to conform to the 90th percentile of height, FAR, and lot coverage of other recently built homes in the same census tract. In other words, MapCraft assumed that plexes would be held to the same bulk restrictions as newer single-family homes.

MapCraft’s financial calculations incorporated data and assumptions about early 2020 rents, sales prices, construction costs, and investors’ expected return rates, which were validated by ECONorthwest and Economic & Planning Systems, two West Coast economics consultancies. Early 2020 data was used given the volatility of both the rental and for-sale prices during the COVID-19 pandemic. MapCraft’s market demand information relied on multiple sources, including CoStar, Zillow, tax assessors, U.S. Census, and transaction records. MapCraft’s construction cost information was based on interviews with cost observations localized based on RS Means. Financial expectations of investors and lending terms were based on MapCraft’s conversations with industry professionals.

Finally, the modeling relied on assumptions about parking requirements, typical unit sizes, development fees, and other factors that inform development. The Terner Center provided input on parking and fees that were incorporated into the analysis.

Tenancy-Based Eligibility Restrictions
SB 9 prohibits demolition or alteration of renter-occupied housing. To address this, Mapcraft used the percentage of single-family rentals in each tract (per the U.S. Census) to discount results for outcomes that require demolition of the existing structure.

SB 9 also allows jurisdictions to impose certain owner-occupancy requirements. Mapcraft tested the impact of this provision by running bookend scenarios at two extremes: 1) no jurisdictions impose owner-occupancy restrictions, and 2) all jurisdictions impose owner-occupancy restrictions. To model the owner-occupancy requirement, Mapcraft disallowed all-rental valuation options and prototype options that required demolition of the existing structure. Mapcraft also tested the imposition of a risk premium threshold that eliminates any second split lot prototypes that do not generate residual land values that exceed the reduced value of the original property by 25 percent.

Notably, the results do not estimate the number of owner-occupants that may pursue development given an owner-occupancy requirement.

Lot Splitting Limitations
MapCraft used the following assumptions in modeling the ability of a parcel to split into two lots:
• Lots smaller than 2,400 square feet cannot be split.
• In cases where the existing structure is retained, the lot must have at least 4,000 sq ft of unbuilt area (after deducting the footprint of the existing structure from the lot size).

Parking Provision
MapCraft used Terner Center’s California Residential Land Use Survey to help define parking delivery minimums. Even if a jurisdiction’s code or SB 9 eliminates parking requirements, demand for parking may still exist, and developers will still provide parking. MapCraft assumed that developers will provide at least the parking ratios shown in Appendix Table 4.

Within ½ Mile of High-Capacity
Transit Not Near High-Capacity Transit
Small Units (2 Bedrooms or
Fewer) 0.5 stalls/unit 1 stall/unit
Large Units (3+ Bedrooms) 1 stall/unit 2 stalls/unit
Appendix Table 4. Assumptions of Minimum Demanded Parking for New Construction In prototypes where a small unit is added without a lot split or demolition of the existing structure, MapCraft assumed that no new parking spaces will be added.

Relaxed Zoning Restrictions
SB 9 prohibits local jurisdictions from imposing zoning standards on two-unit developments or newly split lots that would physically preclude the construction of up to two units, or that would preclude units from being at least 800 square feet. To reflect this, MapCraft increased the existing zoning restrictions on FAR, lot coverage, and impervious coverage. FAR was relaxed by increasing the allowed FAR by one quarter, lot coverage was relaxed by one quarter up to 75 percent coverage, and impervious coverage was increased one quarter up to 90 percent coverage.

ENDNOTES

1. It is often difficult for a homeowner to finance an ADU. Few loan products exist to finance ADU construction, and those that are available often do not go far enough to cover the costs of development. See https://ternercenter.berkeley.edu/research-and-policy/ reaching-californias-adu-potential-progress-to-date-and-the-need-for-adu-finance/.

2. Senate Bill 9: Housing development approvals, April 27, 2021. https://leginfo.legislature.ca.gov/faces/billVersionsCompareClient.xhtml?bill_id=202120220SB9

3. Chapple, K., et. al. (2020). “Reaching California’s ADU Potential: Progress to Date and the Need for ADU Finance.” Retrieved from: https://ternercenter.berkeley.edu/wp-content/uploads/2020/12/ADU-Brief-2020.pdf.

4. 2021 Casita Coalition Best Practices Webinar Series. https://www.youtube.com/ playlist?list=PLRPPog7f6IzVUuadN9ED5HztZGU_tgY32

5. Garcia, D., Tucker, J. & Schmidt, I. (2020). “Single-Family Zoning Reform: An Analysis of SB 1120.” Terner Center for Housing Innovation, UC Berkeley. Retrieved from: https://ternercenter.berkeley.edu/wp-content/uploads/2020/12/Single-Family_ Zoning_Reform_An_Analysis_of_SB_1120.pdf.

6. On average, California added roughly 100,000 new homes each year between 2015 and 2019. California Industry Research Board, “Housing Production in California, 2005- 2019”.

7. The following counties are not included: Calaveras, Siskiyou, Amador, Lassen, Glenn Del Norte, Colusa, Plumas, Inyo, Mariposa, Mono, Trinity, Modoc, Sierra, and Alpine.

8. For more information on the financial dynamics of development decisions, see our 2019 brief “Making it Pencil: The Math Behind Housing Development”.

9. Mawhorter, S. & Reid, C. (2018). Terner California Residential Land Use Survey.

Berkeley, CA: University of California, Berkeley. Retrieved from: https://californialanduse.org/.

10. Historic areas were determined using National Park Service data, which does not include local or state historic designations.

ACKNOWLEDGMENTS
Thank you to the Terner Center team including Issi Romem, Carolina Reid, and Elizabeth Kneebone for their review and expertise as well as Paavo Monkkonen and Denise Pinkston for their input and feedback. Also, thank you to UrbanFootprint for the use of their statewide parcel dataset.

This research does not represent the institutional views of UC Berkeley or of Terner Center’s funders. Funders do not determine research findings or recommendations in Terner Center’s research and policy reports.

ABOUT THE TERNER CENTER
The Terner Center formulates bold strategies to house families from all walks of life in vibrant, sustainable, and affordable homes and communities. Our focus is on generating constructive, practical strategies for public policy makers and innovative tools for private sector partners to achieve better results for families and communities.

For more information visit: www.ternercenter.berkeley.edu

CITY OF NEVADA CITY

CITY COUNCIL STAFF REPORT
MEETING OF: September 28, 2022 Agenda Item No. 08
Subject: Consideration of Adoption of Resolution 2022-60 Approving the Map and Conditions of Approval for
Recordation of the Tentatively Approved Map at 400
Providence Mine Road; and Adoption of Resolution 2022-61 Making a Land Use Consistency Finding for Proposed
Activity on the Resulting Parcels
From: Amy Wolfson, City Planner
Bryan McAlister, City Engineer
Date: September 22, 2022
Reviewed & Approved:

Recommended Action:
• After reviewing and considering the approved Map and Conditions of Approval, adopt Resolution 2022-60 and authorize the Mayor to sign the map to be recorded at the Nevada County Recorder’s Office.
• After reviewing and considering the applicant’s proposed land use activity including a classic car show room and storage facility with ancillary activities and events, adopt Resolution 2022-61 and authorize the Mayor to sign.

MAP CHECK:

At their November 18 2021 Special Meeting, the Nevada City Planning Commission held a public hearing and approved a Tentative Parcel Map to subdivide APN 005-100-092 into four separate parcels.

The applicant submitted a Parcel Map for Checking and Recording to City staff on May 3, 2022. After satisfying several staff requests, staff has determined all applicable Conditions of Approval, attached, have been satisfied and that the applicant has fulfilled all obligations necessary to record with the Office of the County Recorder.

Subdivision Ordinance: Pursuant to Section 16.04.450 of the City Municipal Code, the council shall approve the map if it conforms with all of the requirements of the Subdivision Map Act, Chapter 16 of the City Municipal Code and any rulings made thereunder, and if not, the council shall disapprove the map.

PRPOSED LAND USE ACTIVITY:

Property owner, Chris Anderson is proposing a multi-use space in Building N-3 (located on resulting Parcel 2 of the map to be recorded) and surrounding grounds at the Tech Center Campuslocated at 400 Providence Mine Road. Upper level uses would be leased for professional office and service-type uses, including a floating desk/office lease program, all of which would be consistent with the updated land uses allowed under the amended Development Agreement approved by City Council at their regular meeting held January 12, 2022 with Ordinance 2022-11. Ground level uses would include a classic car showroom/museum and storage facility with ancillary uses that include vehicle sales and lease opportunities, as well as a restaurant and bar. Anderson is proposing to hold one to four events per week that would include outdoor activities in support of the classic car facility, whereby the public would be invited to view cars and would include an outdoor beer garden, family friendly activities, food trucks, and live music. A more detailed summary of the proposed land use activity is provided in Exhibit A of Resolution 2022-61.

Consistency Finding: Under the Development Agreement that overlays the Tech Center property, most recently amended by Council by Ordinance 2022-11, all uses allowed and conditionally allowed under the Employment Center (EC) zoning designation are considered allowed uses. The EC zoning code section provides Council the authority to make a finding of consistency with the overall purpose of the EC district under Section 17.44.020 (E) when a proposed use does not neatly fall within a stated land use category.

Section 17.44.010 outlines the purpose of the EC district as follows:

The purpose of the EC zone is to encourage the development of light assembly, manufacturing, and research and development uses, which are compatible with surrounding neighborhoods and environment. Permitted uses shall be primarily employment oriented, with incidental retail sales permitted with approved uses. This zone shall be consistent with the Employment Center designation of the General Plan.

The applicant is requesting that council make a finding that the proposed land use is a “similar use” as those allowed within the Employment Center (EC) zoning designation.

The applicant is also proposing to lease building N-4, located on resulting Parcel 1 of the map to be recorded. Proposed uses are anticipated to be consistent with uses expressly allowed per the Development Agreement and therefore no consistency finding is necessary for land uses proposed to occur at that building.

FINANCIAL AND/OR POLICY IMPLICATIONS:

The recorded map will result in an increase in taxes and utility fees to the City intended to address the potential increase in Fire, Police and other City service costs. The activities proposed by Mr. Anderson may result in sales tax to the City.

ENVIRONMENTAL CONSIDERATIONS:

At their November 18, 2021 special meeting the Planning Commission found the Tentative Map exempt from environmental review pursuant to §15315 of the California Environmental Quality Act (CEQA) guidelines.

If found to be a “similar use” and consistent with the purpose of the Employment Center (EC) zoning designation, approval of the proposed land use would be a ministerial action and not subject to the California Environmental Quality Act (CEQA).

ATTACHMENTS:
• Approval Letter and Conditions of Approval
• Resolution 2022-60 with attached Parcel Map Exhibit
• Ordinance 2021-11, Amended Development Agreement
• Chapter 17.44 of the City Municipal Code, Employment Center Zoning Designation • Resolution 2022-61 with attached Exhibit A, Nevada City Flex Space and CoWorking/Warehousing Campus City of Nevada City
December 22, 2021
Chris Anderson, project applicant
(property owner)
Via email: [email protected]
Subject: Approval of a Tentative Parcel Map of Parcel 1 of the Nevada City Tech Center Dear Mr. Anderson,
At their regular meeting held on November 18, 2021, the Planning Commission approved the attached Resolution 2021-24, approving the following project, subject to the attached Conditions of Approval:

Application by property owner, Chris Anderson for a Tentative Parcel Map to subdivide Parcel 1 (APN 005-100-092) into four separate parcels, comprising of 11.91 acres, 3.12 acres, Parcel 3 would be

13.14 acres and 36.77 acres. Each resulting parcel would have direct access from the existing Providence Mine Road, a privately-maintained roadway.

Pursuant to Section 16.04.480 of the Nevada City Municipal Code, the tentative map must be recorded within twenty-four (24) months of approval unless an Extension of Time is timely filed pursuant to Section 16.04.490 of the Municipal Code.

Sincerely,
Amy Wolfson
City Planner
(530) 265-2496 x130
CC: Marsha Burch, applicant’s attorney
Andrew Cassano, Nevada City Engineering
Enclosure: Project Conditions of Approval

NEVADA CITY TECH CENTER TENTATIVE PARCEL MAP
Approved Conditions of Approval
Recommended Conditions of Approval
A. PLANNING DEPARTMENT

1. The project at 400 Providence Mine Road includes a four-parcel Parcel Map resulting in four parcels of approximately 11.91 acres (Parcel 1), 3.12 acres (Parcel 2), 13.14 acres (Parcel 3) and 36.77 acres (Parcel 4). The map to be recorded shall be substantially consistent with the material submitted and approved by the Planning Commission.

2. Prior to recordation, submit to the Planning Department for approval two copies of the Parcel Map and the map check fee pursuant to the most current Fee Resolution of the City Council.

3. Prior to recordation of the Parcel Map, the applicant shall sign and file with the City of Nevada City Planner an indemnity agreement, approved by the City Attorney which shall be substantially in the following form:
“The applicant shall defend, indemnify, and hold harmless the City and its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul this approval or any prior or subsequent project-related approvals or any prior or subsequent project related approvals or conditions imposed by the City or any of its agencies, departments, commissions, agents, officers, or employees, concerning this project, or to impose personal liability against such agents, officers, or employees resulting from their involvement in the project, which claim, action, or proceeding is brought within the time provided by law, including any claim for private attorney general fees claimed by or awarded to any party from City. The City shall not be required to but may, within its unlimited discretion, participate in the defense of any such claim, action, or proceeding in good faith at its own expense. The applicant shall not be required to pay or perform any settlement of such claim, action, or proceeding unless the settlement is approved by the applicant. The applicant’s obligations under this condition shall apply regardless of whether any permits of entitlements are or have been issued under this project.”
Project approval does not become effective unless and until the applicant has complied with this condition.

4. Prior to any future development, the building permit applicant shall be required to pay all applicable impact fees as adopted by City Council Resolution in affect at the time payment.

5. Future development shall comply with the Mitigation Measures included in the EIR certified on August 13, 1984 for The Grass Valley Group’s Prezoning, Annexation, and Development Proposal addressing the proposed industrial development of the site.

6. All conditions of approval from the Planning Commission approval of the Site Plan on July 12, 1984 that have not been completed remain applicable to the proposed Tentative Parcel Map and future development.

B. ENGINEERING DEPARTMENT

1. The Parcel Map shall include a note stating, “All parcels are subject to the Declaration of Reciprocal Easements with Restrictions filed in Doc. No. 2001-0042549, Nevada County Records.

2. The Parcel Map shall include found or set monumentation at all new or existing property corners with reference to record and measured distances.

3. The Parcel Map shall include Surveyors statement and City Engineer statement as required by the Subdivision Map Act.

4. The Applicant shall provide Owners Acknowledgment signed/notarized, Tax Certificate and Parcel Map Guarantee from the title company.

C. CITY FINANCE DIRECTOR

1. The applicant is advised that the project as conditioned is subject to the provisions of the Municipal Code, including the following:
a. Prior to commencing work, all contractors, vendors, and consultants providing services within the City limits of Nevada City must have a city business license. b. Prior to issuance of grading permits, all applicable City fees for plan check and inspection shall be paid in full. Plan checking fees are determined at 1.5% of engineer’s estimate using prevailing unit prices or as updated by the UBC. Plan checking fees are determined at 4.5% of engineer’s estimate using prevailing unit prices or as updated by the UBC.
c. Prior to issuance of building permits or as shall be allowed by law, all applicable City fees, including but not limited to AB1600 mitigation fees, shall be paid in full. d. Prior to issuance of building permit, a regional transportation fee shall be paid to the City according to the fee schedule for western Nevada County jurisdictions, as adopted by the Nevada County Transportation Commission.

RESOLUTION NO. 2022-60

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEVADA CITY TO APPROVE FOR FILING PARCEL MAP 2022-02 (NCPM 2022-02) AND

AUTHORIZING THE MAYOR TO SIGN
WHEREAS, at a public hearing on November 18, 2021 the City of Nevada City Planning Commission approved a Tentative Parcel Map for a four parcel property split at 400 Providence Mine Road; and
WHEREAS, Parcel Map 2022-02 (File No. NCPM 2022-02) was submitted to the City Surveyor in pursuant to Section 16.04.560 of the City Municipal Code and was timely filed pursuant to the Subdivision Map Act Section 66452.6(d); and
WHEREAS, the Conditions of Approval for the Parcel Map have been satisfied; and
WHEREAS, the Parcel Map has been presented to Council and reviewed by City Staff and found to be consistent with the approved tentative map.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Nevada City to approve for filing Parcel Map 2022-02.

PASSED AND ADOPTED at the regular meeting of the City Council of the City of Nevada City on the 28th day of September, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
_________________________________
Doug Fleming, Mayor
ATTEST:

Niel Locke, City Clerk
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BISHOP OF

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. ALL PARCES ARE SUJECT TO THE DECLARATION OF RECIPROCAL EASEMENTS WITH RESTRCTIONS FILED IN DOC. NO. 200 042549.

EVADA COUNTY RECORDS. AND
. A DECARATON OF ECPROCL EASEMENTS AND RESTRCTIONS FOR
PARLES
. . .
+ 4 IS FILED AS DOC. NO. . AND
. TERMS AND PROVISONS AS CONTAINED IN THAT DEVELOPMENT AGREEMENT

BY AND BETWEEN TEKTRONI
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IN. AND ITY OF NEVADA IT. RECORDED
FEBRUARY 27
. 2001. IN TRUMENT NO. 2001 005473 AND AS AMENDED BY
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COUTY RECODE S STATEMENT
FILED IS __ DAY OF . 2022. AT ___ . .

IN BOOK __ OF PARCEL
MAPS AT PAG[ __ AT THE REQUEST OF ANDREW
. CASSANO.

DOCUMENT
• ______ _ GREGORY J. DIAZ
FEE AI
• ________ _
EVAD

A COUNTY RECORDER
B
•
E
PUTY
CIT

Y SURVEY S STATEMENT
TH

IS PARCEL MAP H
AS
BE
EN

EXAMINED Y ME AND THE PARCEL MAP AS SHON IS S
U

BSTANTIAL
Y THE

SAME AS IT APPEARED ON THE TENTATIVE MAP
.

IF REQUIRED. AND
ANY APPROVED ALTERATIONS THEEOF. ALL PROVISIONS OF THE SUBDISION MAP CT
ND O
F A
N

Y LOCAL ORD CES APPCA E A
T T

E IME OF APPROVAL OF
THE TENTATIVE MA.

IF REQUIRED. HAVE BEEN COMPLIE
D WITH.

I AM SATISFIED THAT THIS PARCEL AP IS TECHNCALY CORRECT THIS DAY OF . 2022.

BRYAN
. MCALITE R L.S. 9199

REGI ST RTION EXPI
RES 31
24 CITY SURVEYOR. CI

TY OF NEVADA CITY

SUVEYORS STATEMENT

IS MAP WAS PR

PARED Y ME OR DER MY RECON D
IS BAS
ED
N

A FI D SURVEY IN

CONFORMANCE WITH THE REQUIREMENTS OF

THE UBDIVI
SION

MAP ACT AND LOCA

L ORD NA N

CE AT THE REQUEST OF GA N

ESH GROUP
LP
IN
MA
RC.
2022. I HEREBY STATE THAT TH S PARCEL M
AP

SUBSTAN
TIAL
LY

CONFORM

S TO THE

APPROVED OR CON

DITONALLY PPROVED TENTAT VE
MAP. IF ANY.
a
4/28/22
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CASSA O

RE GISTR A TION EXP
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1231 23
A
L
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BEARINGS SHOWN ON THIS RECOD M A P A R E BASE

D UPON M
O

NUMENTS
FOUN

D AS ESTALIS
HED Y BOOK 1 9 O F ARCEL MAPS AT PAG E 7 . NEVADA
OUN
TY
.

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BEING A PORTION OF
PARCEL 1 Of BOK lct PARCEL MAP5 PAGE 74
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THIN H E I NCORPORATED TERRITORY OF

CITY OF ADA CITY

EVDA COUNTY , ALIFRNIA
SCALE• "
=
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VADA Y
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505 COYOTE STREET
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* CALIFORNIA 0
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Title 17 - ZONING
Chapter 17.44 EC EMPLOYMENT CENTER ZONE
Nevada City, California, Code of Ordinances Created: 2022-08-17 09:04:15 [EST] (Supp. No. 3)