PALM DESERT HOUSING AUTHORITY
STAFF REPORT
MEETING DATE: June 13, 2024
PREPARED BY: Celina Cabrera, Management Analyst
REQUEST: APPROVE AGREEMENT WITH SID’S CARPET BARN, INC., FOR FLOOR
COVERINGS AT PALM DESERT HOUSING AUTHORITY PROPERTIES
FOR FISCAL YEAR 2024/25
RECOMMENDATION:
1. Authorize the use of Engineered Floors, LLC, (dba J + J Flooring) (“Engineered Floors”), an Omnia Partners (“Omnia”) national government cooperative contract holder for flooring and outdoor surfaces solutions, Contract 02-146, by property management, at the Palm Desert Housing Authority (“Authority”) properties pursuant to Section 3.30.160(E) of the Palm Desert Municipal Code.
2. Approve the agreement with Sid’s Carpet Barn, Inc., (aka Curtis Allan Floorcovering, Inc.), (“Sid’s Carpet”), an authorized installer of Engineered Floors, for procurement and installation of floor coverings and related supplies and services at the Authority’s properties for a term of one (1) year with an option to renew the agreement for no more than four additional one-year terms in an annual amount not to exceed $175,000.
3. Authorize the Executive Director, or his designee, to execute the agreement, approve written contract amendments and change order requests for unanticipated conditions per Section
3.30.170 of the Palm Desert Municipal Code, and take any necessary actions to facilitate execution of agreement with Sid’s Carpet and any documents necessary to effectuate the actions taken herewith.
BACKGROUND/ANALYSIS:
On average, Authority replaces damaged, deteriorated, or inefficient flooring in approximately 20% of its total units annually. The types of flooring products replaced include vinyl, carpet, carpet tile, tile, underlayment, padding, adhesives, and more. Since 2019, the Authority’s property management has used Engineered Floors, a national government cooperative contract holder with Omnia, to procure floor coverings and related supplies at the government cooperative rate. Engineered Floors has confirmed that they will continue to extend the cooperative pricing and terms to the Authority. This satisfied procurement requirements pursuant to Palm Desert Municipal Code Section 3.30.160(E), permitted exception when competitive bids have been conducted by another public agency.
Since 2015, Sid’s Carpet, also known as Curtis Allan Floorcovering, Inc., has been responsible for procuring and installing government cooperative flooring products at the Authority’s properties. Sid’s Carpet has consistently demonstrated satisfactory performance in their responsiveness and efficiency in procuring and installing flooring materials. This service agreement supports the Authority’s property management company to continue to use Sid’s 663
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Carpet and in operating efficiently and effectively repairing units. Sid’s Carpet is in Riverside County and is certified by Engineered Floors as an official installer.
Legal Review:
This report has been reviewed by the City Attorney’s office.
Appointed Body Recommendation:
The Housing Commission will review this recommendation at its regular meeting on June 12, 2024. Upon request, a verbal report will be provided at the Authority’s regular meeting on June 13, 2024.
FINANCIAL IMPACT:
Funds have been included in Housing Authority FY 2024-25 Proposed Annual Budget in the appropriate Authority accounts for each of the properties. There is no financial impact to the General Fund from this action.
ATTACHMENTS:
1. Omnia Partners Participation Letter- Engineered Floors, LLC
2. Sid’s Carpet Certified Installer Letter and Cooperative Pricing Acknowledgement
3. Engineered Floors, LLC Letter Authorizing Sid’s Carpet to Install
4. Draft Agreement
5. Draft Bonds
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5001 Aspen Grove,
Franklin, TN 37067
February 1st, 2024
To Whom It May Concern:
Palm Desert Housing Authority submitted a participation form and was accepted as a member of OMNIA Partners on September 26th, 2012.
The OMNIA Partners Participation Number assigned to the Palm Desert Housing Authority is: 4001732.
Palm Desert Housing Authority is currently participating in OMNIA Partners Contracts with Lowes Home Centers, Inc., Home Depot U.S.A., Inc., HD Supply Facilities Maintenance, SherwinWilliams, The Garland Company, Inc., Waxie Sanitary Supply, Quill Corporation.
Palm Desert Housing Authority has requested access to utilize Engineered Floors, LLC. contract number 02-146 Engineered Floors Flooring and Outdoor Surfaces Solutions. Palm Desert Housing Authority has been granted access to utilize Engineered Floors, LLC. Contract 02-146, pending their board approval.
Your dedicated Member Development Manager is Caitlin Nee.
Caitlin may be reached at 615-639-1651, or at [email protected].
Thank you for your participation with OMNIA Partners.
Sincerely,
Bishop Theroff
Manager, Member Services
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PALM DESERT HOUSING AUTHORITY
SHORT FORM CONSTRUCTION CONTRACT
1. Parties and Date. This Agreement is made and entered into this 27th day of June, 2024, by and between the Palm Desert Housing Authority, a municipal corporation organized under the laws of the State of California with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260-2578, (“Authority”) and Sid’s Carpet Barn, Inc., a California Corporation, with its principal place of business at 132 W 8th Street, National City, CA 91950 ("Vendor"). The Authority and Vendor are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. Recitals.
2.1 Authority. Authority is a public agency organized under the laws of the State of California, with power to contract for services necessary to achieve its purpose.
2.2 Contractor. Contractor desires to perform and assume responsibility for the provision of certain construction services required by the Authority on the terms and conditions set forth in this Contract. Contractor represents that it is duly licensed and experienced in providing Procurement and Installation of Floor Coverings and Related Supplies related construction services to public clients, that it and its employees or subcontractors have all necessary licenses and permits to perform the services in the State of California, and that it is familiar with the plans of Authority.
2.3 Project.
The Authority is a public agency of the State of California and is in need of services for the following project:
Procurement and Installation of Floor Coverings and Related Supplies (hereinafter referred to as “the Project”).
2.4 Project Documents & Certifications. Contractor has obtained, and delivers concurrently herewith, Performance and Payment Bond as required by the Contract.
3. Terms.
3.1 Incorporation of Documents. This Contract includes and hereby incorporates in full by reference the following documents, including all exhibits, drawings, specifications, and documents therein, and attachments and addenda thereto:
• Services/Schedule (Exhibit “A”)
• Plans and Specifications (Exhibit “B”)
• Special Conditions (Exhibit “C”)
• Contractor’s Certificate Regarding Workers’ Compensation (Exhibit “D”) • Public Works Contractor Registration Certification (Exhibit “E”) • Payment and Performance Bonds (Exhibit “F”)
3.1.1 Precedence. To the extent there is a conflict between any portions of this Contract, the order of precedence shall be as follows: change orders, special conditions, technical specifications, plans/construction drawings, general contract terms, scope of work, standard plans, advertisements for bid/proposals, bids/proposals or other documents submitted by Contractor.
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3.2 Contractor’s Basic Obligation; Scope of Work. Contractor promises and agrees, at its own cost and expense, to furnish to the Authority all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project, including all structures and facilities necessary for the Project or described in the Contract (hereinafter sometimes referred to as the “Work”), for a Total Contract Price as specified pursuant to this Contract. All Work shall be subject to, and performed in accordance with the above referenced documents, as well as the exhibits attached hereto and incorporated herein by reference. The plans and specifications for the Work are further described in Exhibit “B” attached hereto and incorporated herein by this reference. Special Conditions, if any, relating to the Work are described in Exhibit “C” attached hereto and incorporated herein by this reference.
3.2.1 Change in Scope of Work. Any change in the scope of the Work, method of performance, nature of materials or price thereof, or any other matter materially affecting the performance or nature of the Work shall not be paid for or accepted unless such change, addition or deletion is approved in advance and in writing by a valid change order executed by the Authority (“Change Order”).
3.2.1.1 Change Orders. Changes to the Contract Time (as defined in Section 3.3) or Total Contract Price shall be in the form of a written Change Order, either signed by both parties or issued unilaterally by the Authority. No adjustment shall be made to the Contract Time unless the delay impacts the critical path to completion and the delay was not caused in whole or in part by the Contractor. Failure to timely request a Change Order shall constitute a waiver of any right to adjust the Contract Time or the Total Contract Price. All requests for Change Orders shall be accompanied by detailed supporting documentation, including but not limited to payroll records, invoices, schedules, and any other documentation requested by the Authority for the purpose of determining the additional costs or the impact of any delay. If the change involves Work bid at a unit price, then the Total Contract Price shall be increased at the unit price. If there is no unit price, then the Total Contract Price shall be adjusted to account for costs actually incurred plus an allowed mark-up of fifteen percent (15%), which shall constitute the entire amount of profit, mark-ups, field or home office overhead costs, including personnel, equipment or office space, any materials, or any costs of equipment idle time for such work. Nothing herein shall prevent the Parties from agreeing to a lump sum cost.
(A) Changes Ordered By Authority. Authority may at any
time issue a written directive ordering additions, deletions, or changes to the Work. Contractor shall proceed with the work in accordance with the directive. To the extent the directive results in extra work or requires additional Contract Time, Contractor shall request a Change Order within seven (7) days of receiving the Work Directive. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
(B) Changes Requested By Contractor. With respect to any matter that may involve or require an adjustment to the Contract Time or the Contract Price, Contractor shall provide written notice of the underlying facts and circumstances that gave rise to the potential change within seven (7) days or prior to the alteration of conditions, whichever is earlier. Failure to give notice shall constitute a waiver of Contractor’s right to a change order. If any costs are not capable of being determined within seven (7) days, then Contractor shall request a Change Order within seven (7) days of when the costs are capable of being determined.
3.2.2 Substitutions/”Or Equal”. Pursuant to Public Contract Code section 3400(b), the Authority may make a finding that designates certain products, things, or services by specific brand or trade name. Unless specifically designated in this Contract, whenever any material, process, or article is indicated or specified by grade, patent, or proprietary name or by 672
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name of manufacturer, such Specifications shall be deemed to be used for the purpose of facilitating the description of the material, process or article desired and shall be deemed to be followed by the words “or equal”.
Contractor may, unless otherwise stated, offer for substitution any material, process or article which shall be substantially equal or better in every respect to that so indicated or specified in this Contract. However, the Authority may have adopted certain uniform standards for certain materials, processes, and articles. Contractor shall submit requests, together with substantiating data, for substitution of any “or equal” material, process, or article no later than thirty-five (35) days after award of the Contract. To facilitate the construction schedule and sequencing, some requests may need to be submitted before thirty-five (35) days after award of Contract. Provisions regarding submission of “or equal” requests shall not in any way authorize an extension of time for performance of this Contract. If a proposed “or equal” substitution request is rejected, Contractor shall be responsible for providing the specified material, process, or article. The burden of proof as to the equality of any material, process or article shall rest with Contractor.
The Authority has the complete and sole discretion to determine if a material, process, or article is an “or equal” material, process or article that may be substituted. Data required to substantiate requests for substitutions of an “or equal” material, process or article data shall include a signed affidavit from Contractor stating that, and describing how, the substituted “or equal” material, process or article is equivalent to that specified in every way except as listed on the affidavit. Substantiating data shall include any and all illustrations, specifications, and other relevant data including catalog information which describes the requested substituted “or equal” material, process or article, and substantiates that it is an “or equal” to the material, process or article. The substantiating data must also include information regarding the durability and lifecycle cost of the requested substituted “or equal” material, process, or article. Failure to submit all the required substantiating data, including the signed affidavit, to the Authority in a timely fashion will result in the rejection of the proposed substitution.
Contractor shall bear all of the Authority’s costs associated with the review of substitution requests. Contractor shall be responsible for all costs related to a substituted “or equal” material, process, or article. Contractor is directed to the Special Conditions (if any) to review any findings made pursuant to Public Contract Code section 3400.
3.3 Period of Performance and Liquidated Damages. Contractor shall perform and complete all Work under this Contract within 30 days, beginning the effective date of the Notice to Proceed (“Contract Time”). Contractor shall perform its Work in strict accordance with any completion schedule, construction schedule or project milestones developed by the Authority.
Such schedules or milestones may be included as part of Exhibits “A” or “B” attached hereto or may be provided separately in writing to Contractor. Contractor agrees that if such Work is not completed within the aforementioned Contract Time and/or pursuant to any such completion schedule, construction schedule or project milestones developed pursuant to provisions of the Contract, it is understood, acknowledged and agreed that the Authority will suffer damage.
Pursuant to Government Code Section 53069.85, Contractor shall pay to the Authority as fixed and liquidated damages the sum of Five Hundred Dollars ($500.00) per day for each and every calendar day of delay beyond the Contract Time or beyond any completion schedule, construction schedule, or Project milestones established pursuant to the Contract.
3.4 Standard of Performance; Performance of Employees. Contractor shall perform all Work under this Contract in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Contractor represents and maintains that it is skilled in the professional calling necessary to perform the Work. Contractor warrants that all employees and subcontractors shall 673
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have sufficient skill and experience to perform the Work assigned to them. Finally, Contractor represents that it, its employees, and subcontractors have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Work, including a Authority Business License, and that such licenses and approvals shall be maintained throughout the term of this Contract. Contractor shall perform, at its own cost and expense and without reimbursement from the Authority, any work necessary to correct errors or omissions which are caused by Contractor’s failure to comply with the standard of care provided for herein. Any employee who is determined by the Authority to be uncooperative, incompetent, a threat to the safety of persons or the Work, or any employee who fails or refuses to perform the Work in a manner acceptable to the Authority, shall be promptly removed from the Project by Contractor and shall not be re-employed on the Work.
3.5 Control and Payment of Subordinates; Contractual Relationship. Authority retains Contractor on an independent contractor basis and Contractor is not an employee of Authority.
Any additional personnel performing the work governed by this Contract on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall pay all wages, salaries, and other amounts due such personnel in connection with their performance under this Contract and as required by law. Contractor shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, and workers’ compensation insurance.
3.6 Authority’s Basic Obligation. Authority agrees to engage and does hereby engage Contractor to furnish all materials and to perform all Work according to the terms and conditions herein contained for the sum set forth above. Except as otherwise provided in the Contract, the Authority shall pay to Contractor, as full consideration for the satisfactory performance by Contractor of the services and obligations required by this Contract, the below-referenced compensation in accordance with compensation provisions set forth in the Contract.
3.7 Compensation and Payment.
3.7.1 Amount of Compensation. As consideration for performance of the Work required herein, Authority agrees to pay Contractor the Total Contract Price One Hundred Seventy Five Thousand and 00/100 Dollars ($175,000) (“Total Contract Price”) provided that such amount shall be subject to adjustment pursuant to the applicable terms of this Contract or written Change Orders approved and signed in advance by the Authority.
3.7.2 Payment of Compensation. If the Work is scheduled for completion in thirty (30) or less calendar days, Authority will arrange for payment of the Total Contract Price upon completion and approval by Authority of the Work. If the Work is scheduled for completion in more than thirty (30) calendar days, Authority will pay Contractor on a monthly basis as provided for herein. On or before the fifth (5th) day of each month, Contractor shall submit to the Authority an itemized application for payment in the format supplied by the Authority indicating the amount of Work completed since commencement of the Work or since the last progress payment. These applications shall be supported by evidence which is required by this Contract and such other documentation as the Authority may require. The Contractor shall certify that the Work for which payment is requested has been done and that the materials listed are stored where indicated.
Contractor may be required to furnish a detailed schedule of values upon request of the Authority and in such detail and form as the Authority shall request, showing the quantities, unit prices, overhead, profit, and all other expenses involved in order to provide a basis for determining the amount of progress payments. Contractor shall submit its final invoice to Authority within thirty (30) days from the last date of the Work or termination in accordance with this Contract and failure by the Contractor to submit a timely invoice shall constitute a waiver of its right to final payment. 674
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3.7.3 Prompt Payment. Authority shall review and pay all progress payment requests in accordance with the provisions set forth in Section 20104.50 of the California Public Contract Code. No progress payments will be made for Work not completed in accordance with this Contract. Contractor shall comply with all applicable laws, rules and regulations relating to the proper payment of its employees, subcontractors, suppliers, or others.
3.7.4 Contract Retentions. From each approved progress estimate, 5% will be deducted and retained by the Authority, and the remainder will be paid to Contractor. All Contract retention shall be released and paid to Contractor and subcontractors pursuant to California Public Contract Code section 7107.
3.7.5 Other Retentions. In addition to Contract retentions, the Authority may deduct from each progress payment an amount necessary to protect Authority from loss because of: (1) liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the Authority in performing any of Contractor’s obligations under the Contract which Contractor has failed to perform or has performed inadequately; (3) defective Work not remedied; (4) stop notices as allowed by state law; (5) reasonable doubt that the Work can be completed for the unpaid balance of the Total Contract Price or within the Contract Time; (6) unsatisfactory prosecution of the Work by Contractor; (7) unauthorized deviations from the Contract; (8) failure of Contractor to maintain or submit on a timely basis proper and sufficient documentation as required by the Contract or by Authority during the prosecution of the Work; (9) erroneous or false estimates by Contractor of the value of the Work performed; (10) any sums representing expenses, losses, or damages as determined by the Authority, incurred by the Authority for which Contractor is liable under the Contract; and (11) any other sums which the Authority is entitled to recover from Contractor under the terms of the Contract or pursuant to state law, including Section 1727 of the California Labor Code. The failure by the Authority to deduct any of these sums from a progress payment shall not constitute a waiver of the Authority’s right to such sums.
3.7.6 Substitutions for Contract Retentions. In accordance with California Public Contract Code section 22300, the Authority will permit the substitution of securities for any monies withheld by the Authority to ensure performance under the Contract. At the request and expense of Contractor, securities equivalent to the amount withheld shall be deposited with the Authority, or with a state or federally chartered bank in California as the escrow agent, and thereafter the Authority shall then pay such monies to Contractor as they come due. Upon satisfactory completion of the Contract, the securities shall be returned to Contractor. For purposes of this Section and Section 22300 of the Public Contract Code, the term “satisfactory completion of the contract” shall mean the time the Authority has issued written final acceptance of the Work and filed a Notice of Completion as required by law and provisions of this Contract. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. The escrow agreement used for the purposes of this Section shall be in the form provided by the Authority.
3.7.7 Payment to Subcontractors. Contractor shall pay all subcontractors for and on account of work performed by such subcontractors in accordance with the terms of their respective subcontracts and as provided for in Section 7108.5 of the California Business and Professions Code. Such payments to subcontractors shall be based on the measurements and estimates made and progress payments provided to Contractor pursuant to this Contract.
3.7.8 Title to Work. As security for partial, progress, or other payments, title to Work for which such payments are made shall pass to the Authority at the time of payment. To the extent that title has not previously been vested in the Authority by reason of payments, full title shall pass to the Authority at delivery of the Work at the destination and time specified in this 675
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Contract. Such transferred title shall in each case be good, free, and clear from any and all security interests, liens, or other encumbrances. Contractor promises and agrees that it will not pledge, hypothecate, or otherwise encumber the items in any manner that would result in any lien, security interest, charge, or claim upon or against said items. Such transfer of title shall not imply acceptance by the Authority, nor relieve Contractor from the responsibility to strictly comply with the Contract and shall not relieve Contractor of responsibility for any loss of or damage to items.
3.7.9 Labor and Material Releases. Contractor shall furnish Authority with labor and material releases from all subcontractors performing work on, or furnishing materials for, the Work governed by this Contract prior to final payment by Authority.
3.8 Labor
3.8.1 Prevailing Wages. Contractor is aware of the requirements of California Labor Code Section 1720 et seq., and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on “public works” and “maintenance” projects.
Since the Work is being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, Contractor agrees to fully comply with such Prevailing Wage Laws. Authority shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Contract. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request and shall post copies at Contractor’s principal place of business and at the project site. Contractor shall defend, indemnify, and hold the Authority and their respective officers, agents, employees, volunteers, and representatives free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contractor and any subcontractor shall forfeit a penalty of up to $200 per calendar day or portion thereof for each worker paid less than the prevailing wage rates.
3.8.2 Apprenticeable Crafts. When Contractor employs workmen in an apprenticeable craft or trade, Contractor shall comply with the provisions of Section 1777.5 of the California Labor Code with respect to the employment of properly registered apprentices upon public works. The primary responsibility for compliance with said section for all apprenticeable occupations shall be with Contractor. The Contractor or any subcontractor that is determined by the Labor Commissioner to have knowingly violated Section 1777.5 shall forfeit as a civil penalty an amount not exceeding $100 for each full calendar day of noncompliance, or such greater amount as provided by law.
3.8.3 Hours of Work. Contractor is advised that eight (8) hours labor constitutes a legal day’s work. Pursuant to Section 1813 of the California Labor Code, Contractor shall forfeit a penalty of $25.00 per worker for each day that each worker is permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, except when payment for overtime is made at not less than one and one-half (1-1/2) times the basic rate for that worker.
3.8.4 Payroll Records. Contractor and each subcontractor shall keep an accurate payroll record, 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. The payroll records shall be certified and shall be available for inspection at all reasonable hours at the principal office of Contractor in the manner provided in Labor Code 676
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section 1776. In the event of noncompliance with the requirements of this section, Contractor shall have 10 days in which to comply subsequent to receipt of written notice specifying in what respects such Contractor must comply with this section. Should noncompliance still be evident after such 10-day period, Contractor shall, as a penalty to Authority, forfeit not more than $100.00 for each calendar day or portion thereof, for each worker, until strict compliance is effectuated.
The amount of the forfeiture is to be determined by the Labor Commissioner. A contractor who is found to have violated the provisions of law regarding wages on Public Works with the intent to defraud shall be ineligible to bid on Public Works contracts for a period of one to three years as determined by the Labor Commissioner. Upon the request of the Division of Apprenticeship Standards or the Division of Labor Standards Enforcement, such penalties shall be withheld from progress payments then due. The responsibility for compliance with this section is on Contractor.
In accordance with Labor Code section 1771.4, the Contractor and each subcontractor shall furnish the certified payroll records directly to the DIR on a weekly basis and in the format prescribed by the DIR, which may include electronic submission. The requirement to submit certified payroll records directly to the Labor Commissioner under Labor Code section 1771.4 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Section 1771.4.
3.8.5 Contractor and Subcontractor Registration. Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. No bid will be accepted, nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work. Contractor is directed to review, fill out and execute the Public Works Contractor Registration Certification attached hereto as Exhibit “E” prior to contract execution. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.
3.8.6 Labor Compliance; Stop Orders. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be the Contractor’s sole responsibility to evaluate and pay the cost of complying with all labor compliance requirements under this Contract and applicable law. Any stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor that affect Contractor’s performance of Work, including any delay, shall be Contractor’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Contractor caused delay subject to any applicable liquidated damages and shall not be compensable by the Authority.
Contractor shall defend, indemnify, and hold the Authority and their respective officers, agents, employees, volunteers, and representatives free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Contractor or any subcontractor.
3.9 Performance of Work; Jobsite Obligations.
3.9.1 Water Quality Management and Compliance.
3.9.1.1 Water Quality Management and Compliance. Contractor shall keep itself and all subcontractors, staff, and employees fully informed of and in compliance with all local, state and federal laws, rules and regulations that may impact, or be implicated by the performance of the Work including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); local ordinances regulating discharges of storm 677
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water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State.
3.9.1.2 Compliance with the Statewide Construction General Permit.
Contractor shall comply with all conditions of the most recent iteration of the National Pollutant Discharge Elimination System General Permit for Storm Water Discharges Associated with Construction Activity, issued by the California State Water Resources Control Board (“Permit”). It shall be Contractor’s sole responsibility to file a Notice of Intent and procure coverage under the Permit for all construction activity which results in the disturbance of more than one acre of total land area, or which is part of a larger common area of development or sale. Prior to initiating work, Contractor shall be solely responsible for preparing and implementing a Storm Water Pollution Prevention Plan (SWPPP) as required by the Permit. Contractor shall be responsible for procuring, implementing, and complying with the provisions of the Permit and the SWPPP, including the standard provisions, and monitoring and reporting requirements as required by the Permit. The Permit requires the SWPPP to be a “living document” that changes as necessary to meet the conditions and requirements of the job site as it progresses through difference phases of construction and is subject to different weather conditions. It shall be Contractor’s sole responsibility to update the SWPPP as necessary to address conditions at the project site.
3.9.1.3 Other Water Quality Rules Regulations and Policies. Contractor shall comply with the lawful requirements of any applicable municipality, drainage Authority, or local agency regarding discharges of storm water to separate storm drain systems or other watercourses under their jurisdiction, including applicable requirements in municipal storm water management programs.
3.9.1.4 Cost of Compliance. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, hereby acknowledges that it has investigated the risk arising from such waters and assumes any and all risks and liabilities arising therefrom.
3.9.1.5 Liability for Non-Compliance. Failure to comply with the Permit is a violation of federal and state law. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to defend, indemnify, and hold harmless the Authority and their respective directors, officers, agents, employees, volunteers, and representatives for any alleged violations. In addition, Authority may seek damages from Contractor for any delay in completing the Work in accordance with the Contract, if such delay is caused by or related to Contractor’s failure to comply with the Permit.
3.9.1.6 Reservation of Right to Defend. Authority reserves the right to defend any enforcement action brought against the Authority for Contractor’s failure to comply with the Permit or any other relevant water quality law, regulation, or policy. Pursuant to the indemnification provisions of this Contract, Contractor hereby agrees to be bound by, and to reimburse the Authority for the costs (including the Authority’s attorney’s fees) associated with, any settlement reached between the Authority and the relevant enforcement entity.
3.9.1.7 Training. Contractor warrants that all employees and subcontractors shall have sufficient skill and experience to perform the work assigned to them without impacting water quality in violation of the laws, regulations and policies described in paragraph 3.9.1. Contractor further warrants that it, its employees, and subcontractors will receive adequate training, as determined by Authority, regarding the requirements of the laws, regulations and policies described in paragraph 3.9.1 as they may relate to the Work provided under this 678
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Contract. Upon request, Authority will provide the Contractor with a list of training programs that meet the requirements of this paragraph.
3.9.2 Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. Contractor shall comply with the requirements of the specifications relating to safety measures applicable in particular operations or kinds of work. In carrying out its Work, Contractor shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the Work and the conditions under which the Work is to be performed. Safety precautions as applicable shall include, but shall not be limited to, adequate life protection and lifesaving equipment; adequate illumination for underground and night operations; instructions in accident prevention for all employees, such as machinery guards, safe walkways, scaffolds, ladders, bridges, gang planks, confined space procedures, trenching and shoring, fall protection and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and adequate facilities for the proper inspection and maintenance of all safety measures. Furthermore, Contractor shall prominently display the names and telephone numbers of at least two medical doctors practicing in the vicinity of the Project, as well as the telephone number of the local ambulance service, adjacent to all telephones at the Project site.
3.9.3 Laws and Regulations. Contractor shall keep itself fully informed of and in compliance with all local, state, and federal laws, rules and regulations in any manner affecting the performance of the Contract or the Work, including all Cal/OSHA requirements, and shall give all notices required by law. Contractor shall be liable for all violations of such laws and regulations in connection with the Work. If Contractor observes that the drawings or specifications are at variance with any law, rule, or regulation, it shall promptly notify the Authority in writing. Any necessary changes shall be made by written Change Order. If Contractor performs any work knowing it to be contrary to such laws, rules, and regulations and without giving written notice to the Authority, Contractor shall be solely responsible for all costs arising therefrom. Authority is a public entity of the State of California subject to certain provisions of the Health & Safety Code, Government Code, Public Contract Code, and Labor Code of the State. It is stipulated and agreed that all provisions of the law applicable to the public contracts of a municipality are a part of this Contract to the same extent as though set forth herein and will be complied with.
3.9.4 Permits and Licenses. Contractor shall be responsible for securing Authority permits and licenses necessary to perform the Work described herein, including, but not limited to, any required business license. While Contractor will not be charged a fee for any Authority permits, Contractor shall pay the Authority’s business license fee, if any. Any ineligible contractor or subcontractor pursuant to Labor Code Sections 1777.1 and 1777.7 may not perform work on this Project.
3.9.5 Trenching Work. If the Total Contract Price exceeds $25,000 and if the Work governed by this Contract entails excavation of any trench or trenches five (5) feet or more in depth, Contractor shall comply with all applicable provisions of the California Labor Code, including Section 6705. To this end, Contractor shall submit for Authority’s review and approval a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer.
3.9.6 Hazardous Materials and Differing Conditions. As required by California Public Contract Code section 7104, if this Contract involves digging trenches or other excavations that extend deeper than four (4) feet below the surface, Contractor shall promptly, and prior to 679
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disturbance of any conditions, notify Authority of: (1) any material discovered in excavation that Contractor believes to be a hazardous waste that is required to be removed to a Class I, Class II or Class III disposal site; (2) subsurface or latent physical conditions at the site differing from those indicated by Authority; and (3) unknown physical conditions of an unusual nature at the site, significantly different from those ordinarily encountered in such contract work. Upon notification, Authority shall promptly investigate the conditions to determine whether a Change Order is appropriate. In the event of a dispute, Contractor shall not be excused from any scheduled completion date and shall proceed with all Work to be performed under the Contract but shall retain all rights provided by the Contract or by law for making protests and resolving the dispute.
3.9.7 Underground Utility Facilities. To the extent required by Section 4215 of the California Government Code, Authority shall compensate Contractor for the costs of: (1) locating and repairing damage to underground utility facilities not caused by the failure of Contractor to exercise reasonable care; (2) removing or relocating underground utility facilities not indicated in the construction drawings; and (3) equipment necessarily idled during such work. Contractor shall not be assessed liquidated damages for delay caused by failure of Authority to provide for removal or relocation of such utility facilities.
3.9.8 Air Quality. Contractor must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the California Air Resources Board (CARB). Although CARB limits and requirements are broader, Contractor shall specifically be aware of their application to “portable equipment”, which definition is considered by CARB to include any item of equipment with a fuel-powered engine. Contractor shall indemnify Authority against any fines or penalties imposed by CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Contractor, its subcontractors, or others for whom Contractor is responsible under its indemnity obligations provided for in this Contract.
3.9.9 State Recycling Mandates. Contractor shall comply with State Recycling Mandates. Any recyclable materials/debris collected by the Contractor that can be feasibly diverted via reuse or recycling must be hauled by the appropriate handler for reuse or recycling.
3.9.10 Inspection Of Site. Contractor has visited sites where Work is to be performed and has become acquainted with all conditions affecting the Work. Contractor warrants that it has made such examinations as it deems necessary to determine the condition of the Work sites, its accessibility to materials, workmen and equipment, and to determine the Contractor’s ability to protect existing surface and subsurface improvements. No claim for allowances–time or money–will be allowed as to such matters.
3.9.11 Field Measurements. Contractor shall make field measurements, verify field conditions, and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing activities.
Errors, inconsistencies, or omissions discovered shall be reported to the Authority immediately and prior to performing any work or altering the condition.
3.9.12 Removal of Waste and Debris. Contractor shall remove at its own expense all rubbish and waste materials resulting from its operations, including any material that may fall in swimming pools, lagoons, or other water features. If on private property, Contractor must obtain permission from the property owner prior to removing debris. All debris must be removed before the end of the day unless otherwise directed by Authority or Authority’s agent. 680
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3.9.13 Notifications to Authority and Residents. The Contractor shall acknowledge that the Authority provides forty-eight (48) hours’ notice in advance of the start of any Work that is to occur at any residential unit. Contractor shall provide sufficient notice to the Authority before beginning any such Work so that the Authority may provide timely notice to residents.
3.9.14 Paths of Travel. Pedestrian paths of travel must be maintained free of obstructions and hazardous conditions, except where the condition is necessary for completion of the Work. To the extent any portion of the Work requires obstructing pedestrian paths of travel, the Work shall be performed so as to minimize the extent of the obstruction. Where Contractor’s operations may create hazardous conditions to pedestrian paths of travel, appropriate signing and barricades shall be installed to safely route pedestrians around the impacted area. The Authority shall be given at least 48-hours’ notice prior to the creation of any condition affecting pedestrian paths of travel.
3.10 Completion of Work. When Contractor determines that it has completed the Work required herein, Contractor shall so notify Authority in writing and shall furnish all labor and material releases required by this Contract. Authority shall thereupon inspect the Work. If the Work is not acceptable to the Authority, the Authority shall indicate to Contractor in writing the specific portions or items of Work which are unsatisfactory or incomplete. Once Contractor determines that it has completed the incomplete or unsatisfactory Work, Contractor may request a re-inspection by the Authority. Once the Work is acceptable to Authority, Authority shall pay to Contractor the Total Contract Price remaining to be paid, less any amount which Authority may be authorized or directed by law to retain.
3.11 Claims; Government Code Claim Compliance.
3.11.1 Except as otherwise provided in this Contract, if any dispute shall arise between the Authority and Contractor regarding performance of the Work, or any alleged change in the Work, Contractor shall timely perform the disputed work and shall give written notice of a claim for additional compensation for the work to the Authority within three (3) days after commencement of the disputed work. Contractor’s failure to give written notice within the three (3)-day period constitutes an agreement by Contractor that it will receive no extra compensation for the disputed work and shall constitute a waiver of the right to further pursue the claim under the Contract or at law.
3.11.1.1 Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims.
The intent of this Section is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Section shall be construed to be consistent with all applicable law, including but not limited to these statutes.
3.11.1.2 Claims. For purposes of this Section, “Claim” means a separate demand by the Contractor for:
(A) An adjustment to the time for completion including, without limitation, for relief from damages or penalties for delay assessed by the Authority; (B) Payment by the Authority of money or damages arising from Work done by or on behalf of the Contractor pursuant to the Contract, payment for which is not otherwise expressly provided or to which the Contractor is not otherwise entitled; or 681
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(C) An amount the payment of which is disputed by the
Authority.
A “Claim” does not include any demand for payment for which the Contractor has failed to provide notice, request a Change Order, or otherwise failed to follow any procedures contained in the Contract Documents.
3.11.1.3 Filing Claims. Claims governed by this Section may not be filed unless and until the Contractor completes any and all requirements of the Contract Documents pertaining to notices and requests for changes to the Contract Time or Contract Price, and Contractor’s request for a change has been denied in whole or in part. Claims governed by this Section must be filed no later than thirty (30) days after a request for change has been denied in whole or in part or after any other event giving rise to the Claim. The Claim shall be submitted in writing to the Authority and shall include on its first page the following words in 16-point capital font: “THIS IS A CLAIM.” The Claim shall include all the information and documents necessary to substantiate the Claim, including but not limited to those identified below. Nothing in this Section is intended to extend the time limit or supersede notice requirements otherwise provided by Contract Documents. Failure to follow such contractual requirements shall bar any Claims or subsequent proceedings for compensation or payment thereon.
3.11.1.4 Supporting Documentation. The Contractor shall submit all claims in the following format:
(A) Summary description of Claim including basis of
entitlement, merit and amount of time or money requested, with specific reference to the Contract Document provisions pursuant to which the Claim is made (B) List of documents relating to claim:
(1) Specifications
(2) Drawings
(3) Clarifications (Requests for Information)
(4) Schedules
(5) Other
(C) Chronology of events and correspondence
(D) Narrative analysis of claim merit
(E) Analysis of Claim cost, including calculations and
supporting documents
(F) Time impact analysis in CPM format
3.11.1.5 Authority’s Response. Upon receipt of a Claim pursuant to this Section, the Authority shall conduct a reasonable review of the Claim and, within a period not to exceed 45 days, shall provide the Contractor a written statement identifying what portion of the Claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of 682
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the Claim will be processed and made within 60 days after the Authority issues its written statement.
(A) If the Authority needs approval from its governing body to provide the Contractor a written statement identifying the disputed portion and the undisputed portion of the Claim, and the Authority’s governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a Claim sent by registered mail or certified mail, return receipt requested, the Authority shall have up to three (3) days following the next duly publicly noticed meeting of the Authority’s governing body after the 45-day period, or extension, expires to provide the Contractor a written statement identifying the disputed portion and the undisputed portion.
(B) Within 30 days of receipt of a Claim, the Authority may request in writing additional documentation supporting the Claim or relating to defenses or Claims the Authority may have against the Contractor. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of the Authority and the Contractor. The Authority’s written response to the Claim, as further documented, shall be submitted to the Contractor within 30 days (if the Claim is less than $50,000, within 15 days) after receipt of the further documentation, or within a period of time no greater than that taken by the Contractor in producing the additional information or requested documentation, whichever is greater.
3.11.1.6 Meet and Confer. If the Contractor disputes the Authority’s written response, or the Authority fails to respond within the time prescribed, the Contractor may so notify the Authority, in writing, either within 15 days of receipt of the Authority’s response or within 15 days of the Authority’s failure to respond within the time prescribed, respectively, and demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, the Authority shall schedule a meet and confer conference within 30 days for settlement of the dispute.
3.11.1.7 Mediation. Within 10 business days following the conclusion of the meet and confer conference, if the Claim or any portion of the Claim remains in dispute, the Authority shall provide the Contractor a written statement identifying the portion of the Claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the Claim shall be processed and made within 60 days after the Authority issues its written statement. Any disputed portion of the Claim, as identified by the Contractor in writing, shall be submitted to nonbinding mediation, with the Authority and the Contractor sharing the associated costs equally. The public entity and Contractor shall mutually agree to a mediator within 10 business days after the disputed portion of the Claim has been identified in writing, unless the parties agree to select a mediator at a later time.
(A) If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the Claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. (B) For purposes of this Section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this Section.
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(C) Unless otherwise agreed to by the Authority and the Contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced. (D) The mediation shall be held no earlier than the date the Contractor completes the Work or the date that the Contractor last performs Work, whichever is earlier. All unresolved Claims shall be considered jointly in a single mediation unless a new unrelated Claim arises after mediation is completed.
3.11.1.8 Procedures After Mediation. If following the mediation, the Claim or any portion remains in dispute, the Contractor must file a Claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation. For purposes of those provisions, the running of the period of time within which a Claim must be filed shall be tolled from the time the Contractor submits his or her written Claim pursuant to subdivision (a) until the time the Claim is denied, including any period of time utilized by the meet and confer conference.
3.11.1.9 Civil Actions. The following procedures are established for all civil actions filed to resolve Claims of $375,000 or less:
(A) Within 60 days, but no earlier than 30 days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of this Contract.
The mediation process shall provide for the selection within 15 days by both parties of a disinterested third person as mediator, shall be commenced within 30 days of the submittal, and shall be concluded within 15 days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court. (B) If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.
3.11.1.10 Government Code Claim Procedures.
(A) This Section does not apply to tort claims and nothing in this Section is intended nor shall be construed to change the time periods for filing tort claims or actions specified by Chapter 1 (commending with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.5 of Title 1 of the Government Code. (B) In addition to any and all requirements of the Contract Documents pertaining to notices of and requests for adjustment to the Contract Time, Contract Price, or compensation or payment for additional work, disputed Work, construction claims and/or changed conditions, the Contractor must comply with the claim procedures set forth in Government Code Section 900, et seq. prior to filing any lawsuit against the Authority. 684
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(C) Such Government Code claims and any subsequent
lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to adjustment of the Contract Time or Contract Price for additional work, disputed Work, construction claims, and/or changed conditions have been followed by Contractor. If Contractor does not comply with the Government Code claim procedure or the prerequisite contractual requirements, Contractor may not file any action against the Authority.
(D) A Government Code claim must be filed no earlier than the date the Work is completed or the date the Contractor last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved Claims known to Contractor or that should reasonably by known to Contractor excepting only new unrelated Claims that arise after the Government Code claim is submitted.
3.11.1.11 Non-Waiver. The Authority’s failure to respond to a Claim from the Contractor within the time periods described in this Section or to otherwise meet the time requirements of this Section shall result in the Claim being deemed rejected in its entirety and shall not constitute a waiver of any rights under this Section.
3.12 Loss and Damage. Except as may otherwise be limited by law, Contractor shall be responsible for all loss and damage which may arise out of the nature of the Work agreed to herein, or from the action of the elements, or from any unforeseen difficulties which may arise or be encountered in the prosecution of the Work until the same is fully completed and accepted by Authority. In the event of damage proximately caused by an Act of God, as defined by Section 7105 of the Public Contract Code, the Authority may terminate this Contract pursuant to the termination provisions provided herein; provided, however, that the Authority needs to provide Contractor with only one (1) day advanced written notice.
3.13 Indemnification.
3.13.1 Scope of Indemnity. To the fullest extent permitted by law, Contractor shall defend, indemnify and hold the Authority and their respective officers, agents, employees, volunteers and representatives free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, regardless of whether the allegations are false, fraudulent, or groundless, to property or persons, including wrongful death, (collectively, “Claims”) in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Contractor, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Contractor’s services, the Project or this Contract, including without limitation the payment of all expert witness fees, attorneys’ fees and other related costs and expenses except such Claims caused by the sole or active negligence or willful misconduct of the Authority. Notwithstanding the foregoing, to the extent required by Civil Code section 2782, Contractor’s indemnity obligation shall not apply to liability for damages for death or bodily injury to persons, injury to property, or any other loss, damage or expense arising from the sole or active negligence or willful misconduct of the Authority or the Authority’s agents, servants, or independent contractors who are directly responsible to the Authority, or for defects in design furnished by those persons.
3.13.2 Additional Indemnity Obligations. Contractor shall defend, with counsel of Authority’s choosing and at Contractor’s own cost, expense, and risk, any and all Claims covered by this section that may be brought or instituted against the Authority and their respective officers, agents, employees, volunteers and representatives. In addition, Contractor shall pay and satisfy any judgment, award or decree that may be rendered against the Authority and their 685
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respective officers, agents, employees, volunteers, and representatives as part of any such claim, suit, action, or other proceeding. Contractor shall also reimburse the Authority for the cost of any settlement paid by the Authority and their respective officers, agents, employees, volunteers, and representatives as part of any such claim, suit, action, or other proceeding. Such reimbursement shall include payment for Authority’s attorney’s fees and costs, including expert witness fees.
Contractor shall reimburse the Authority and their respective officers, agents, employees, volunteers, and representatives, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor’s obligation to indemnify shall survive expiration or termination of this Contract, and shall not be restricted to insurance proceeds, if any, received by the Contractor, the Authority and their respective officers, agents, employees, volunteers and representatives.
3.14 Insurance.
3.14.1 Minimum Requirements. Without limiting Contractor’s indemnification of the Authority, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Contract, policies of insurance of the type and amounts described below and in a form that is satisfactory to the Authority.
3.14.1.1 General Liability Insurance. Contractor shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, and a $2,000,000 completed operations aggregate. The policy must include contractual liability that has not been amended.
Any endorsement restricting standard ISO “insured contract” language will not be accepted.
3.14.1.2 Automobile Liability Insurance. Contractor shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Contractor arising out of or in connection with Work to be performed under this Contract, including coverage for any owned, hired, nonowned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
3.14.1.3 Umbrella or Excess Liability Insurance. Contractor may opt to utilize umbrella or excess liability insurance in meeting insurance requirements. In such circumstances, Contractor may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury, and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability and employer’s liability. Such policy or policies shall include the following terms and conditions:
(A) A drop-down feature requiring the policy to respond in the event that any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
(B) Pay on behalf of wording as opposed to reimbursement; (C) Concurrency of effective dates with primary policies; (D) Policies shall “follow form” to the underlying primary policies; and
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(E) Insureds under primary policies shall also be insureds under the umbrella or excess policies.
3.14.1.4 Workers’ Compensation Insurance. Contractor may maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000) for Contractor’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor shall require each subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor’s employees. Contractor shall submit to Authority, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the Authority and their respective officers, agents, employees, volunteers, and representatives.
3.14.1.5 Pollution Liability Insurance Environmental Impairment Liability Insurance shall be written on a Contractor’s Pollution Liability form or other form acceptable to the Authority providing coverage for liability arising out of sudden, accidental, and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 dollars per claim and in the aggregate. All activities contemplated in this Contract shall be specifically scheduled on the policy as “covered operations”. The policy shall provide coverage for the hauling of waste from the Project site to the final disposal location, including non-owned disposal sites.
3.14.1.6 Builder’s Risk Insurance. [RESERVED]
3.14.2 Other Provisions or Requirements
3.14.2.1 Proof of Insurance. Contractor shall provide certificates of insurance to Authority as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by Authority’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Authority at all times during the term of this contract. Authority reserves the right to require complete, certified copies of all required insurance policies, at any time.
3.14.2.2 Duration of Coverage. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Contractor, its agents, representatives, employees, or subcontractors. Contractor must maintain general liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. The Authority and their respective officers, agents, employees, volunteers, and representatives shall continue as additional insureds under such policies.
3.14.2.3 Primary/Non-Contributing. Coverage provided by Contractor shall be primary and any insurance or self-insurance procured or maintained by Authority shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of Authority before the Authority’s own insurance or selfinsurance shall be called upon to protect it as a named insured. 687
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3.14.2.4 Products/Completed Operations Coverage. Products/ completed operations coverage shall extend a minimum of three (3) years after project completion. Coverage shall be included on behalf of the insured for covered claims arising out of the actions of independent contractors. If the insured is using subcontractors, the Policy must include work performed “by or on behalf” of the insured. Policy shall contain no language that would invalidate or remove the insurer’s duty to defend or indemnify for claims or suits expressly excluded from coverage. Policy shall specifically provide for a duty to defend on the part of the insurer. The Authority and their respective officers, agents, employees, volunteers, and representatives shall be included as additional insureds under the Products and Completed Operations coverage.
3.14.2.5 Authority’s Rights of Enforcement. In the event any policy of insurance required under this Contract does not comply with these requirements, or is canceled and not replaced, Authority has the right, but not the duty, to obtain the insurance it deems necessary, and any premium paid by Authority will be promptly reimbursed by Contractor, or Authority will withhold amounts sufficient to pay premium from Contractor payments. In the alternative, Authority may cancel this Contract.
3.14.2.6 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the Authority’s Risk Manager.
3.14.2.7 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the Authority and their respective officers, agents, employees, volunteers, and representatives, or shall specifically allow Contractor or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against the Authority and their respective officers, agents, employees, volunteers, and representatives and shall require similar written express waivers and insurance clauses from each of its subcontractors.
3.14.2.8 Enforcement of Contract Provisions (non-estoppel). Contractor acknowledges and agrees that any actual or alleged failure on the part of the Authority to inform Contractor of non-compliance with any requirement imposes no additional obligations on the Authority nor does it waive any rights hereunder.
3.14.2.9 Requirements Not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the Authority requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the Authority.
3.14.2.10 Notice of Cancellation. Contractor agrees to oblige its insurance agent or broker and insurers to provide the Authority with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
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3.14.2.11 Additional Insured Status. General liability, automobile liability, and if applicable, pollution liability policies shall provide or be endorsed to provide that the Authority and their respective officers, agents, employees, volunteers, and representatives shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies. Coverage shall be at least as broad as coverage provided by ISO’s Owners, Lessees, or Contractors Additional Insured Endorsement for the ongoing (i.e. ISO Form CG 20 10 07 04) and completed operations (i.e. ISO Form CG 20 37 07 04) of Contractor.
3.14.2.12 Prohibition of Undisclosed Coverage Limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to Authority and approved of in writing.
3.14.2.13 Separation of Insureds. A severability of interests provision must apply for all additional insureds ensuring that Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
3.14.2.14 Pass Through Clause. Contractor agrees to ensure that its subconsultants, sub-contractors, and any other party involved with the Project who is brought onto or involved in the project by Contractor, provide the same minimum insurance coverage and endorsements required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the Project will be submitted to Authority for review.
3.14.2.15 Authority’s Right to Revise Requirements. The Authority or its Risk Manager reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Contractor ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contractor, the Authority and Contractor may renegotiate Contractor’s compensation. If the Authority reduces the insurance requirements, the change shall go into effect immediately and require no advanced written notice.
3.14.2.16 Self-Insured Retentions. Any self-insured retentions must be declared to and approved by Authority. Authority reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by Authority.
3.14.2.17 Timely Notice of Claims. Contractor shall give Authority prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor’s performance under this Contract, and that involve or may involve coverage under any of the required liability policies.
3.14.2.18 Additional Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work.
3.15Bond Requirements.
3.15.1 Payment Bond. If required by law or otherwise specifically requested by Authority in Exhibit “C” and Exhibit “F” attached hereto and incorporated herein by reference, 689
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Contractor shall execute and provide to Authority concurrently with this Contract a Payment Bond in an amount required by the Authority and in a form provided or approved by the Authority. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the Authority.
3.15.2 Performance Bond. If specifically requested by Authority in Exhibit “C” and Exhibit “F” attached hereto and incorporated herein by reference, Contractor shall execute and provide to Authority concurrently with this Contract a Performance Bond in an amount required by the Authority and in a form provided or approved by the Authority. If such bond is required, no payment will be made to Contractor until the bond has been received and approved by the Authority.
3.15.3 Bond Provisions. Should, in the Authority’s sole opinion, any bond become insufficient or any surety be found to be unsatisfactory, Contractor shall renew or replace the effected bond within (ten) 10 days of receiving notice from the Authority. In the event the surety or Contractor intends to reduce or cancel any required bond, at least thirty (30) days prior written notice shall be given to the Authority, and Contractor shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Section are accepted by the Authority. To the extent, if any, that the Total Contract Price is increased in accordance with the Contract, Contractor shall, upon request of the Authority, cause the amount of the bond to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to the Authority. If Contractor fails to furnish any required bond, the Authority may terminate the Contract for cause.
3.15.4 Surety Qualifications. Only bonds executed by an admitted surety insurer, as defined in California Code of Civil Procedure Section 995.120, shall be accepted. If a California-admitted surety insurer issuing bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the California Code of Civil Procedure, and proof of such is provided to the Authority.
3.16 Warranty. Contractor warrants all Work under the Contract (which for purposes of this Section shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the Work) to be of good quality and free from any defective or faulty material and workmanship. Contractor agrees that for a period of one year (or the period of time specified elsewhere in the Contract or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the Work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by the Authority of any defect in the Work or non-conformance of the Work to the Contract, commence and prosecute with due diligence all Work necessary to fulfill the terms of the warranty at its sole cost and expense. Contractor shall act sooner as requested by the Authority in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the Work (or work of other contractors) damaged by its defective Work or which becomes damaged in the course of repairing or replacing defective Work. For any Work so corrected, Contractor’s obligation hereunder to correct defective Work shall be reinstated for an additional one-year period, commencing with the date of acceptance of such corrected Work. Contractor shall perform such tests as the Authority may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of the Contract. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers and manufacturers with respect to any portion of the Work, whether express or implied, are deemed to be obtained by Contractor for the benefit of the Authority, 690
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regardless of whether or not such warranties and guarantees have been transferred or assigned to the Authority by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of the Authority. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Contract, to the reasonable satisfaction of the Authority, the Authority shall have the right to correct and replace any defective or non-conforming Work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense. Contractor shall be obligated to fully reimburse the Authority for any expenses incurred hereunder upon demand.
3.17 Employee/Labor Certifications.
3.17.1 Contractor’s Labor Certification. By its signature hereunder, Contractor certifies that he is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Work. A certification form for this purpose, which is attached to this Contract as Exhibit “D” and incorporated herein by reference, shall be executed simultaneously with this Contract.
3.17.2 Equal Opportunity Employment. Contractor represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex, age or other interests protected by the State or Federal Constitutions. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination.
3.17.3 Verification of Employment Eligibility. By executing this Contract, Contractor verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subcontractors and sub-subcontractors to comply with the same.
3.18 General Provisions.
3.18.1 Authority’s Representative. The Authority hereby designates the Jessica Gonzales, Housing Manager, or his or her designee, to act as its representative for the performance of this Contract (“Authority’s Representative”). Authority’s Representative shall have the power to act on behalf of the Authority for all purposes under this Contract except for increasing the Total Contract Price. Contractor shall not accept direction or orders from any person other than the Authority’s Representative or his or her designee.
3.18.2 Contractor’s Representative. Before starting the Work, Contractor shall submit in writing the name, qualifications, and experience of its proposed representative who shall be subject to the review and approval of the Authority (“′Contractor’s Representative”). Following approval by the Authority, Contractor’s Representative shall have full authority to represent and act on behalf of Contractor for all purposes under this Contract. Contractor’s Representative shall supervise and direct the Work, using his best skill and attention, and shall be responsible for all construction means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Work under this Contract. Contractor’s Representative shall devote full time to the Project and either he or his designee, who shall be acceptable to the Authority, shall be present at the Work site at all times that any Work is in progress and at any time that any employee or subcontractor of Contractor is present at the Work site. Arrangements for responsible supervision, acceptable to the Authority, shall be made for emergency Work which 691
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may be required. Should Contractor desire to change its Contractor’s Representative, Contractor shall provide the information specified above and obtain the Authority’s written approval.
3.18.3 Termination. This Contract may be terminated by the Authority at any time, either with or without cause, by giving Contractor three (3) days advance written notice. In the event of termination by the Authority for any reason other than the fault of Contractor, the Authority shall pay Contractor for all Work performed up to that time as provided herein. In the event of breach of the Contract by Contractor, the Authority may terminate the Contract immediately without notice, may reduce payment to Contractor in the amount necessary to offset the Authority’s resulting damages, and may pursue any other available recourse against Contractor. Contractor may not terminate this Contract except for cause. In the event this Contract is terminated in whole or in part as provided, the Authority may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. If this Contract is terminated as provided, the Authority may require Contractor to provide all finished or unfinished documents, data, diagrams, drawings, materials, or other matter prepared or built by Contractor in connection with its performance of this Contract. Contractor shall be required to provide such document and other information within fifteen (15) days of the request.
3.18.4 Contract Interpretation. Should any question arise regarding the meaning or import of any of the provisions of this Contract or written or oral instructions from the Authority, the matter shall be referred to the Authority’s Representative, whose decision shall be binding upon Contractor.
3.18.5 Anti-Trust Claims. This provision shall be operative if this Contract is applicable to California Public Contract Code Section 7103.5. In entering into this Contract to supply goods, services or materials, Contractor hereby offers and agrees to assign to the Authority all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time the Authority tender final payment to Contractor, without further acknowledgment by the Parties.
3.18.6 Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows:
Contractor: Sid’s Carpet Barn, Inc.
132 W 8th Street
National City, CA 91950
ATTN: Robert C. Wood, Vice President
Authority: Palm Desert Housing Authority
73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
ATTN: Jessica Gonzales, Housing Manager
Any notice so given shall be considered received by the other Party three (3) days after deposit in the U.S. Mail as stated above and addressed to the Party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
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3.18.7 Time of Essence. Time is of the essence in the performance of this Contract.
3.18.8 Assignment Forbidden. Contractor shall not, either voluntarily or by action of law, assign or transfer this Contract or any obligation, right, title or interest assumed by Contractor herein without the prior written consent of the Authority. If Contractor attempts an assignment or transfer of this Contract or any obligation, right, title or interest herein, Authority may, at its option, terminate and revoke the Contract and shall thereupon be relieved from any and all obligations to Contractor or its assignee or transferee.
3.18.9 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.
3.18.10 Laws; Venue. This Contract shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Contract, the action shall be brought in a state or federal court situated in the County of Riverside, State of California.
3.18.11 Counterparts. This Contract may be executed in counterparts, each of which shall constitute an original.
3.18.12 Successors. The Parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the full performance of all of the provisions contained in this Contract.
3.18.13 Solicitation. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid, nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, the Authority shall have the right to terminate this Contract without liability.
3.18.14 Conflict of Interest. Contractor maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Contractor, to solicit or secure this Contract. Further, Contractor warrants that it has not paid, nor has it agreed to pay any company or person, other than a bona fide employee working solely for Contractor, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Contract. For breach or violation of this warranty, the Authority shall have the right to rescind this Contract without liability. For the term of this Contract, no director, official, officer or employee of the Authority, during the term of his or her service with the Authority, shall have any direct interest in this Contract, or obtain any present or anticipated material benefit arising therefrom.
3.18.15 Certification of License.
3.18.15.1 Contractor certifies that as of the date of execution of this Contract, Contractor has a current contractor’s license of the classification indicated below under Contractor’s signature.
3.18.15.2 Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the 693
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date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O.
Box 26000, Sacramento, California 95826.
3.18.16 Authority to Enter Contract. Each Party warrants that the individuals who have signed this Contract have the legal power, right and authority to make this Contract and bind each respective Party.
3.18.17 Entire Contract; Modification. This Contract contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Contract may only be modified by a writing signed by both Parties.
3.18.18 Non-Waiver. None of the provisions of this Contract shall be considered waived by either party unless such waiver is specifically specified in writing.
3.18.19 Authority’s Right to Employ Other Contractors. The Authority reserves right to employ other contractors in connection with this Project or other projects.
3.18.20 Federal Provisions. Reserved.
[Signatures on Next Page]
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Contract No. ___________
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BBK 72500.00001\32375220.1
Robert C. Wood
Vice President
Treasurer
Jared B. Ziman
SIGNATURE PAGE TO SHORT FORM CONSTRUCTION AGREEMENT
BY AND BETWEEN THE PALM DESERT HOUSING AUTHORITY
AND SID’S CARPET BARN, INC.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
PALM DESERT HOUSING AUTHORITY
By:
L. Todd Hileman
Executive Director
Attest:
By:
Anthony J. Mejia
Secretary
Approved as to form:
By:
Isra Shah
Best Best & Krieger LLP
Special Counsel
SID’S CARPET BARN, INC.
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Contractor’s License Number and
Classification
DIR Registration Number (if applicable)
QC: _____
Insurance:
_____
Initial Review
_____
Final Approval
Bonds: _____
695
Contract No. ___________
Exhibit “A”
Revised 07-2023
BBK 72500.00001\32375220.1
EXHIBIT “A”
SERVICES / SCHEDULE
This agreement includes and hereby incorporates in full by reference the Scope of Services as provided in the OMNIA Partners Purchasing Alliance Agreement for Flooring & Outdoor Surfacing Solutions Contract No. 02-60, with Engineered Floors, LLC, (“the Piggyback Contract”), and the respective Request for Proposal issued June 12, 2018, and any amendments thereof.
696
Contract No. ___________
Exhibit “B”
Revised 07-2023
BBK 72500.00001\32375220.1
EXHIBIT “B”
PLANS AND SPECIFICATIONS
This agreement includes and hereby incorporates in full by reference the Scope of Services as provided in the OMNIA Partners Purchasing Alliance Agreement for Flooring & Outdoor Surfacing Solutions Contract No. 02-60, with Engineered Floors, LLC, (“the Piggyback Contract”), and the respective Request for Proposal issued June 12, 2018, and any amendments thereof.
697
Contract No. ______________
Exhibit “C”
Revised 07-2023
BBK 72500.00001\32375220.1
EXHIBIT “C”
SPECIAL CONDITIONS
ARTICLE 1. BONDS
Concurrently with this Contract, the Contractor shall deliver to the Authority four identical counterparts of the Performance Bond and Payment Bond on the forms supplied by the Authority.
The surety supplying the bond must be an admitted surety insurer, as defined in Code of Civil Procedure Section 995.120, authorized to do business as such in the State of California and satisfactory to the Authority. The Performance Bond and the Payment Bond shall be for one hundred percent (100%) of the Total Contract Price.
698
Contract No. ______________
Exhibit “D”
Revised 07-2023
BBK 72500.00001\32375220.1
Robert C. Wood
Vice President
EXHIBIT “D”
CONTRACTOR’S CERTIFICATE REGARDING WORKERS’ COMPENSATION LABOR CODE - SECTION 1861
I, the undersigned Contractor, am aware of the provisions of Section 3700, et seq., of the California Labor Code which require every employer to be insured against liability for Worker’s Compensation or to undertake self-insurance in accordance with the provisions of the Code, and I, the undersigned Contractor, agree to and will comply with such provisions before commencing the performance of the Work on this Contract.
Sid’s Carpet Barn, Inc.
By: _________________________
Signature
_________________________
Name (Print)
_________________________
Title (Print)
699
Contract No. ______________
Exhibit “E”
Revised 07-2023
BBK 72500.00001\32375220.1
X
Sid’s Carpet Barn, Inc.
Sid’s Carpet Barn, Inc.
Robert C. Wood, Vice President
EXHIBIT “E”
PUBLIC WORKS CONTRACTOR REGISTRATION CERTIFICATION
Pursuant to Labor Code sections 1725.5 and 1771.1, all contractors and subcontractors that wish to bid on, be listed in a bid proposal, or enter into a contract to perform public work must be registered with the Department of Industrial Relations. See http://www.dir.ca.gov/PublicWorks/PublicWorks.html for additional information.
No bid will be accepted, nor any contract entered into without proof of the contractor’s and subcontractors’ current registration with the Department of Industrial Relations to perform public work.
Contractor hereby certifies that it is aware of the registration requirements set forth in Labor Code sections 1725.5 and 1771.1 and is currently registered as a contractor with the Department of Industrial Relations.1
Name of Contractor:
DIR Registration Number:
DIR Registration Expiration: _________________________
Small Project Exemption: _____ Yes or _____ No
Unless Contractor is exempt pursuant to the small project exemption, Contractor further acknowledges:
1. Contractor shall maintain a current DIR registration for the duration of the project.
2. Contractor shall include the requirements of Labor Code sections 1725.5 and 1771.1 in its contract with subcontractors and ensure that all subcontractors are registered at the time of bid opening and maintain registration status for the duration of the project.
3. Failure to submit this form or comply with any of the above requirements may result in a finding that the bid is non-responsive.
Name of Contractor: ___________________
Signature:
Name and Title:
Dated:
1 If the Project is exempt from the contractor registration requirements pursuant to the small project exemption under Labor Code Sections 1725.5 and 1771.1, please mark “Yes” in response to “Small Project Exemption.” 700
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS That
WHEREAS, the Palm Desert Housing Authority (hereinafter designated as the “Authority”), by action taken or a resolution passed June 27, 2024 has awarded to Sid’s Carpet Barn, Inc., hereinafter designated as the “Principal,” a contract for the work described as follows:
Procurement and Installation of Floor Coverings and Related Supplies (the “Project”); and WHEREAS, the work to be performed by the Principal is more particularly set forth in the Contract Documents for the Project dated June 27, 2024 (“Contract Documents”), the terms and conditions of which are expressly incorporated by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said contract; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor the Surety on this bond will pay for the same to the extent hereinafter set forth.
NOW THEREFORE, we, the Principal and __________________________ as Surety, are held and firmly bound unto the Authority in the penal sum of One Hundred Seventy Five Thousand and 00/100 Dollars ($175,000.00) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by Authority in such suit, including reasonable attorneys’ fees, court costs, expert witness fees and investigation expenses.
This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond.
It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or 701
relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or Authority and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned and the provisions of sections 2819 and 2845 of the California Civil Code. [SIGNATURES ON FOLLOWING PAGE]
702
IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
703
NOTE: This acknowledgment is to be completed for Contractor/Principal.
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
704
NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-ofAttorney to local representatives of the bonding company must also be attached.
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
705
PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
THAT WHEREAS, the Palm Desert Housing Authority (hereinafter referred to as “Authority”) has awarded to Sid’s Carpet Barn, Inc., (hereinafter referred to as the “Contractor”) an agreement for Procurement and Installation of Floor Coverings and Related Supplies (hereinafter referred to as the “Project”).
WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated June 27, 2024, (hereinafter referred to as “Contract Documents”), the terms and conditions of which are expressly incorporated herein by reference; and
WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents.
NOW, THEREFORE, we, Sid’s Carpet Barn, Inc. the undersigned Contractor and _____________________________________________ as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the Authority in the sum of One Hundred Seventy Five Thousand and 00/100 Dollars ($175,000.00), said sum being not less than one hundred percent (100%) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including the one-year guarantee of all materials and workmanship; and shall indemnify and save harmless the Authority, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above obligation shall hold good for a period of one (1) year after the acceptance of the work by Authority, during which time if Contractor shall fail to make full, complete, and satisfactory repair and replacements and totally protect the Authority from loss or damage resulting from or caused by defective materials or faulty workmanship, Surety shall undertake and faithfully fulfill all such obligations. The obligations of Surety hereunder shall continue so long as any obligation of Contractor remains. Nothing herein shall limit the Authority’s rights or the Contractor or Surety’s obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15.
Whenever Contractor shall be, and is declared by the Authority to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the Authority’s option:
(1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or
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(2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a Contract between such bidder, the Surety and the Authority, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable.
The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the Authority under the Contract and any modification thereto, less any amount previously paid by the Authority to the Contractor and any other set offs pursuant to the Contract Documents. (3) Permit the Authority to complete the Project in any manner consistent with local, California and federal law and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term “balance of the contract price” as used in this paragraph shall mean the total amount payable to Contractor by the Authority under the Contract and any modification thereto, less any amount previously paid by the Authority to the Contractor and any other set offs pursuant to the Contract Documents.
Surety expressly agrees that the Authority may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor.
Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the Authority, when declaring the Contractor in default, notifies Surety of the Authority’s objection to Contractor’s further participation in the completion of the Project.
The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project, including but not limited to the provisions of sections 2819 and 2845 of the California Civil Code.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, we have hereunto set our hands and seals this _______ day of ______________, 20__).
(Corporate Seal)
Contractor/ Principal
By
Title
(Corporate Seal)
Surety
By
Attorney-in-Fact
Signatures of those signing for the Contractor and Surety must be notarized and evidence of corporate authority attached.
(Attach Attorney-in-Fact Certificate) Title
The rate of premium on this bond is ____________ per thousand. The total amount of premium charges, $_______________________________.
(The above must be filled in by corporate attorney.)
THIS IS A REQUIRED FORM
Any claims under this bond may be addressed to:
(Name and Address of Surety)
(Name and Address of Agent or
Representative for service of
process in California, if different
from above)
(Telephone number of Surety
and Agent or Representative for
service of process in California)
NOTE: A copy of the Power-of-Attorney authorizing the person signing on behalf of the Surety to do so must be attached hereto.
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NOTE: This acknowledgment is to be completed for Contractor/Principal.
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
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NOTE: This acknowledgment is to be completed for the Attorney-in-Fact. The Power-ofAttorney to local representatives of the bonding company must also be attached.
Notary Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF ______________
On , 20___, before me, _______________________________, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
Title(s) Title or Type of Document
Partner(s) Limited
General Number of Pages
Attorney-In-Fact
Trustee(s)
Guardian/Conservator Date of Document
Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Signer(s) Other Than Named Above
710
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 13, 2024
PREPARED BY: Anthony J. Mejia, City Clerk
REQUEST: 2024 BIENNIAL NOTICE FOR CITY STAFF TO REVIEW THE CONFLICT
OF INTEREST CODE PURSUANT TO THE POLITICAL REFORM ACT
RECOMMENDATION:
Adopt a Resolution entitled “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, DIRECTING CITY STAFF TO REVIEW THE CONFLICT OF INTEREST CODE AND SUBMIT THE 2024 BIENNIAL NOTICE AS REQUIRED UNDER THE POLITICAL REFORM ACT.”
BACKGROUND/ANALYSIS:
The Political Reform Act requires every local government agency to review its Conflict of Interest Code every two years and make amendments when circumstances change. No later than July 1st, the Code Reviewing Body (City Council) must notify each agency (department) within its jurisdiction to review the Conflict of Interest Code. Adopting the proposed resolution is the first step in the review process, which requires staff to submit the requisite notice indicating whether an amendment is necessary to the City Council by the last meeting in September.
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
There is no fiscal impact associated with the adoption of this resolution.
ATTACHMENT:
1. Resolution
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RESOLUTION NO. 2024- ___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, DIRECTING CITY STAFF TO
REVIEW THE CONFLICT OF INTEREST CODE AND
SUBMIT THE 2024 BIENNIAL NOTICE AS REQUIRED
UNDER THE POLITICAL REFORM ACT
WHEREAS, the Political Reform Act requires cities to adopt a Conflict of Interest Code; and
WHEREAS, the Conflict of Interest Code must be reviewed every two years and amended when circumstances change; and
WHEREAS, no later than July 1st of each even-numbered year, code reviewing bodies must notify each agency (department) within their jurisdiction to review its Conflict of Interest Code; and
WHEREAS, the City Council is the code reviewing body for the City of Palm Desert; and
WHEREAS, no later than October 1st of each even-numbered year City staff shall submit to the code reviewing body a notice indicating whether an amendment is necessary.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:
Section 1. That the foregoing Recitals are true and correct and are incorporated herein by this reference.
Section 2. The City Council directs City staff to review the Conflict of Interest Code, and if a change is necessitated by changed circumstances to submit a 2024 Local Agency Biennial Notice, or to submit a report stating that no amendment is necessary.
Section 3. The City Clerk shall transmit the Biennial Notice and recommendations to the City Council by no later than the Regular City Council meeting of September 26, 2024.
Section 4. The City Clerk shall certify the adoption of this resolution. 713
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ADOPTED ON ________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.
ANTHONY J. MEJIA
CITY CLERK
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CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 13, 2024
PREPARED BY: Anthony J. Mejia, City Clerk
REQUEST: LETTERS OF SUPPORT FOR SENATE BILL 1053 AND ASSEMBLY BILL 2236 RELATED TO REUSABLE GROCERY BAGS
RECOMMENDATION:
Ratify letters of support for Senate Bill 1053 and Assembly Bill 2236 related to reusable grocery bags.
BACKGROUND/ANALYSIS:
At the request of the California Public Interest Research Group (CALPIRG), the City Council Ad Hoc Committee on Legislative Affairs authorized the immediate issuance of letters of support for Senate Bill 1053 and Assembly Bill 2236.
In 2014, the Governor signed Senate Bill 270 (Padilla), Solid Waste: Single-Use Carryout Bags, initiating a statewide phase-out of single-use plastic carryout bags at most food and beverage stores. This legislation included an exemption for thicker plastic bags made of high-density polyethylene, or HDPE.
SB 1053 and AB 2236 are identical bills which would eliminate the use of “thicker” plastic film bags by establishing requirements for reusable bags sold by stores to customers at the point of sale. It would also revise the definition of “recycled paper bag” to require it to be from 50% postconsumer recycled content.
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
There is no fiscal impact associated with issuance of these letters.
ATTACHMENTS:
1. Letters of Support for SB 1053 and AB 2236
2. Legislative Analysis
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SENATE RULES COMMITTEE
Office of Senate Floor Analyses
(916) 651-1520 Fax: (916) 327-4478
SB 1053
THIRD READING
Bill No: SB 1053
Author: Blakespear (D) and Allen (D), et al.
Amended: 5/16/24
Vote: 21
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-2, 4/17/24
AYES: Allen, Archuleta, Gonzalez, Menjivar, Skinner
NOES: Dahle, Nguyen
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/24
AYES: Caballero, Ashby, Becker, Bradford, Wahab
NOES: Jones, Seyarto
SUBJECT: Solid waste: reusable grocery bags: standards: plastic film prohibition
SOURCE: Author
DIGEST: This bill eliminates the exemption of thicker plastic film bags from the state’s single-use bag ban. Specifies the requirements for reusable bags and paper bags to be eligible for distribution and sale at stores.
ANALYSIS:
Existing law:
1) Prohibits stores from distributing of single-use carryout bags to customers at the point of sale. (Public Resources Code (PRC) §42280 et seq.) 2) Allows stores to sell or distribute a reusable grocery bag, if it meets the requirements as defined. (PRC §42280, PRC §42281)
3) Allows stores to make a recycled paper bag, as defined, available for purchase. (PRC §42283)
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4) Beginning January 1, 2025, prohibits a store from providing a precheckout bag to a customer if the bag is not compostable or recycled paper, as specified. (PRC §42281.2)
5) Establishes the Integrated Waste Management Act of 1989 (IWMA), administered by the Department of Resources Recycling and Recovery (CalRecycle). The IWMA establishes a state recycling goal that 75% of solid waste should be diverted from landfill disposal through source reduction, recycling, and composting by 2020. (Public Resources Code (PRC) §40000 et seq.)
6) Establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which establishes a goal that single-use packaging and plastic food serviceware be 100% compostable or recyclable by Jan 1, 2032, and imposes minimum recycled content and source reduction requirements for these covered materials to be achieved through an extended producer responsibility (EPR) program. (PRC §42070 et seq.)
This bill:
1) Requires that recycled paper bags distributed by stores to customers must be accepted for recycling in curbside programs in a majority of households that have access to curbside recycling programs in the state; must have printed on the bag the name of the manufacturer, the country where the bag was manufactured, and the percentage of postconsumer content; and must, by January 1, 2028, contain a minimum of 50% postconsumer recycled materials. 2) Specifies that a store may sell or distribute a reusable grocery bag to a customer only if the reusable bag meets all of the following requirements:
a) Is made of cloth, woven textile, or other washable textile, or has a minimum fabric weight of 80 grams per square meter and is not made from plastic film; and
b) Has at least one strap with all straps and seams sewn with thread; and c) Is capable of carrying 22 pounds over a distance of 175 feet for a minimum of 300 uses; and
d) Has the name of the manufacturer, the country where the bag was manufactured; a statement that the bag is reusable and designed for at least 300 uses; a statement that the bag does not contain lead, cadmium, flame726 SB 1053
retardant chemicals, or any other toxic material; and a statement indicating the plastic content of the bag expressed as a percentage; and e) Does not contain lead, cadmium, flame-retardant chemicals, or any other toxic material that may pose a threat to public health. 3) Repeals the requirement that stores may only sell or distribute reusable bags made from plastic film that are certified to meet the requirements of the plastic bag law.
4) Specifies that a store that sells reusable grocery bags or recycled paper bags shall not sell them for less than ten cents ($0.10).
5) Requires a store to provide a recycled paper bag at no cost at the point of sale to a customer using California’s Special Supplemental Food Program for Women, Infants, and Children benefits, CalFresh benefits, California Food Assistance Program benefits, or cash aid benefits.
6) Specifies that the provisions of this bill go into effect on January 1, 2026.
Background
1) Meet the plastics. Plastics pose a threat to the environment from origin to endof-life. Plastic production is responsible for three and a half percent of all greenhouse gas emissions—more than the entire aviation sector. In 2023, global plastics production was estimated at 400.3 million metric tons. The United Nations Environment Program reports that only 9% of all plastic ever made has been recycled. A further 12% has been incinerated, and the remaining 79% has accumulated in landfills or natural environments. Plastic consumption overall has quadrupled over the past 30 years and plastic waste generation has more than doubled in the past 20 years.
2) Plastic bags. According to the United Nations Environmental Programme, up to five trillion (5,000,000,000,000) plastic bags are used worldwide every year.
According to the report Advancing Sustainable Materials Management: Facts and Figures 2018, the United States Environmental Protection Agency found that the United States generated 4.2 million tons of plastic bags, sacks, and wraps in 2018. Of that amount, 3.04 million tons were landfilled; only 10% was recycled. This is in large part due to how difficult film plastic, the type of plastic used to make plastic bags, is to recycle. According to CalRecycle’s 2021 Waste Characterization Report, plastic trash bags and plastic grocery/other 727
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merchandise bags made up approximately 2.1% (or over 800,000 tons) of California’s statewide disposal.
In curbside recycling systems, film plastic contaminates the plastic recycling stream and clogs up the machinery used to sort recyclables. In compost systems, plastic bags act as a contaminant that must be screened out or is ground into the finished compost, contributing to microplastic pollution. The state’s dedicated film plastic collection program, which required stores to collect film plastic bags for recycling, expired in 2020. Efforts to extend the atstore recycling program have failed in the Legislature. 3) California’s bag ban. In the wake of a patchwork of nearly 100 local ordinances, SB 270 (Padilla, Chapter 850, Statutes of 2014) was adopted to initiate a statewide phase-out of single-use plastic carryout bags at most food and beverage stores. However, the law was almost immediately suspended until 2016, when California voters approved Proposition 67. As a result, most grocery stores, retail stores with a pharmacy, convenience stores, food marts, and liquor stores no longer provide single-use, light-weight carry-out bags to their customers at the point of sale. The ban does not apply to the bags consumers use prior to the point of sale, such as produce bags and bags used for bulk items. Stores instead must apply a minimum 10 cent charge for reusable grocery bags, recycled paper bags, or compostable bags in order to distribute to customers. This 10 cent charge per bag was intended to cover the store’s cost for switching to these alternative bags and/or to incentivize customers to bring their own reusable bags. Though stores do not have a reporting requirement under the bag ban, they are held accountable for purchasing compostable or recycled bags. Pursuant to the passage of the law, CalRecycle began accepting third-party certifications of reusable grocery bags through the Reusable Grocery Bag Reporting System (RGBRS). Additionally, CalRecycle promulgated regulations to establish an administrative certification fee schedule sufficient to cover the ongoing costs of implementing its statutory responsibilities. In accordance with the statute and regulations, reusable grocery bag producers must pay a fee when they submit proof of certification documents to CalRecycle, and they must re-certify reusable grocery bags sold in the state on a biennial basis.
4) Are “recyclable” plastic bags actually recycled? The bag ban required film plastic bags to contain specified percentages of postconsumer recycled content and be recyclable in the state. However, the state law requiring stores to accept plastic bags back for recycling sunset in 2020. Few stores continue to accept 728
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them back for recycling and curbside collection programs generally cannot accommodate film plastics for recycling. In December 2023, CalRecycle determined that all plastic film, including the plastic for the “reusable” thicker plastic bags, was “Not Recyclable.”
Comments
1) Purpose of Bill. According to the author, “We are choking our planet with plastic waste. A plastic bag has an average lifespan of 12 minutes and then it is discarded, often clogging sewage drains, contaminating our drinking water and degenerating into toxic microplastics that fester in our oceans and landfills for up to 1,000 years. It’s time to improve on California’s original plastic bags ban and do it right this time by completely eliminating plastic bags from being distributed by stores to carry food home.
“According to a report by CALPIRG – 157,385 tons of plastic bag waste was discarded in California the year the law was passed. By 2022, that number skyrocketed to 231,072 tons – a 47% increase! Even if we account for population growth, the number rose from 4.08 tons per 1,000 people in 2014 to
5.89 tons per 1,000 people in 2022, which is still a 44% increase. “What this data illustrates is that the original plastic bag ban passed in 2014 did not accomplish what it set out to do, which was to reduce the overall use of plastic, and it actually resulted in a substantial increase. People do not want more landfills, more incineration or more plastic in the environment. We want to create a sustainable and thriving environment that is not littered with plastic waste and that is why we must eliminate plastic from our waste streams by passing SB 1053.”
2) Initial success Data from state and local agencies in California demonstrated that the bag ban initially resulted in significant reductions in the number of plastic bags, including a 13% reduction in plastic grocery and merchandise bag disposal from 2014-2018. In a one-time voluntary survey sent to stores six months after the bag ban went into effect, CalRecycle found that customers at over 1,500 stores across the state brought their own bag and did not purchase a paper or reusable bag 86% of the time.
3) … but a pretty thick loophole. When SB 270 was upheld by voters in 2016, the system of selling thicker high-density polyethylene (plastic) bags, which technically met the definition for “reusable bag,” went into effect the next day.
This technical loophole was flagged in the Senate Environmental Quality 729
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analysis, which asked the questions, “It is questionable whether most people would consider such bags as “reusable” in the same, general sense as a cloth bag. Will consumers actually reuse these slightly thicker bags at least 125 times or will these bags be treated more like single-use bags? Will these types of bags change consumer habits and result in litter reduction? Will these slightly thicker plastic bags satisfy the goal of the bill, which is to reduce plastic bag litter and marine debris?”
This bill seeks to close this and other potential loopholes on “reusable” plastic bags by specifying that a store may only sell or distribute a reusable grocery bag to a customer if it:
a) Is made of cloth, woven textile, washable textile, or has a fabric weight of 80 grams per square meter and is not made from plastic film; b) Has at least one strap and all straps and seams are sewn with a thread; c) It is capable of carrying 22 pounds over a distance of 175 feet for a minimum of 300 uses; and
d) Has a statement indicating the percentage of plastic content of the bag and a statement that the bag does not contain toxic materials 4) “Reduce,” “reuse,” “recycle”? When SB 270 was passed in 2014 and upheld by voters in 2016, Californians sent a clear message that the pollution and waste associated with plastic grocery bags exceeded any utility. Unfortunately, the allowance of thicker plastic film bags have made the California bag ban the poster child for unintended consequences. The thicker “reusable” bags have in fact, not been reused, and contribute even more to plastic waste. According to information provided by the author, the average time shoppers use a plastic bag is 12 minutes, certainly less than the 125 uses they were claimed to be designed for. And because the “reusable” plastic bags are at least four times thicker than typical single-use plastic bags, the overall weight of plastic bag disposal has actually increased in recent years. According to CalRecycle’s Waste Characterization study, in 2018, there were 3.54 tons of plastic bags discarded per 1,000 people, but by 2021, this increased to 5.89 tons per 1,000 people.
Furthermore, plastic film carryout bags were deemed exempt from the prohibition if they were “recyclable” in the state, but this has been proven to be untrue. Pursuant to requirements established by SB 343 (Allen, Chapter 507, 730
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Statutes of 2021), CalRecycle classified high-density polyethylene (HDPE) bags ‘not recyclable’ in the covered material categories list because not enough recycling facilities accepted them. The initial bag ban, rather than encouraging reducing, reusing, or recycling of plastic film bags in fact had the opposite effect. This bill seeks to rectify those unintended consequences by banning them altogether.
5) What have other jurisdictions done? There are currently 12 states with some form of a single-use plastic bag ban. Currently, New York, New Jersey, and Colorado prohibit retailers from distributing any plastic film carryout bags. As of 2021, more than 500 cities and towns across 28 states had a plastic bag ordinance in effect. In 2020, environmental advocates in New York successfully pushed back against a proposed provision that would have allowed thicker plastic bags. According to a January 2024 report by nonprofits Environment America, U.S. Public Interest Research Group Education Fund, and Frontier Group, bans in five states and cities that cover more than 12 million people combined – New Jersey; Vermont; Philadelphia; Portland, OR; and Santa Barbara, CA – have cut single-use plastic bag consumption by about 6 billion bags per year. It is worth noting that other jurisdictions, including towns and cities in California, specify that reusable bags must be machine washable, a requirement that is not found in this bill (which only requires reusable bags to be washable).
6) Paper bags, too! Though colloquially called the “plastic bag ban,” SB 270 also set requirements for paper bags by requiring that stores shall only sell recycled paper bags for a minimum of ten cents that meet the following criteria:
a) It contains a minimum of 40% postconsumer recycled material (unless eight pounds or smaller, which must contain a minimum of 20% postconsumer recycled material);
b) It must be accepted for recycling in a majority of curbside programs; and c) It must have the name of the manufacturer, the country where the bag was manufactured, and the minimum percentage of postconsumer content printed on the bag.
This bill uses largely the same requirements for paper bags but requires all paper bags to be made of 50% postconsumer recycled material starting January 1, 2028.
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Related/Prior Legislation
AB 2236 (Bauer-Kahan) is identical to this bill. It is currently pending in the Assembly Appropriations Committee.
SB 270 (Padilla, Chapter 850, Statutes of 2014) established the state-wide singleuse bag ban.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No According to the Senate Appropriations Committee:
Annual revenue loss of an unknown amount, likely in the low hundreds of thousands of dollars (Reusable Grocery Bag Fund), to the Department of Resources, Recycling, and Recovery (CalRecycle) once it stops collecting certification fees from reusable grocery bag producers on January 1, 2026.
CalRecycle reports it has collected approximately $1.3 million in certification fees to date. The statute requires fee revenue to cover, but not exceed, the department’s reasonable costs for program administration and implementation.
SUPPORT: (Verified 5/16/24)
350 Bay Area Action
350 Sacramento
5 Gyres Institute
5 Gyres Institute, the
7th Generation Advisors
A Voice for Choice Advocacy
Acterra: Action for A Healthy Planet
Active San Gabriel Valley
Algalita Marine Research and Education
American Sustainable Business Council
Aveson Schools
Azul
Ban Single Use Plastic (SUP)
Ban Sup (single Use Plastic)
Bay Area Youth Lobbying Initiative
Breast Cancer Prevention Partners
CA Rethink Disposables
California Climate Action
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SB 1053
California Coastkeeper Alliance
California Grocers Association
California Interfaith Power & Light
California Product Stewardship Council
California Public Interest Research Group (CALPIRG) Students Californians Against Waste
Calpirg
Calpirg, California Public Interest Research Group
Center for Biological Diversity
Center for Environmental Health
City and County of San Francisco
City of Alameda
Clean Earth 4 Kids
Clean Water Action
Cleanearth4kids.org
Climate Action California
Climate Reality Project San Fernando Valley Chapter
Community Environmental Council
Courage California
Culver City Democratic Club
Ecology Center
Ecology Center, Berkeley
Environmental Working Group
Every Neighborhood Partnership
Every Neighborhood Project
Facts Families Advocating for Chemical and Toxics Safety Friends Committee on Legislation of California
Friends of The Los Angeles River
Gaia
Glendale Environmental Coalition
Green America
Green Behind the Scenes
Green Science Policy Institute
Heal the Bay
Indivisible Alta Pasadena
Indivisible CA Statestrong
Indivisible Ca: Statestrong
Kings River Land Trust
Kroger Company; the
LA Waterkeeper
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Laguna Beach; City of
Last Plastic Straw
Los Angeles Waterkeeper
Mothers Out Front
Mothers Out Front California
National Stewardship Action Council
Natural Resources Defense Council
Naturepedic
Northern California Recycling Association
Occidental Arts and Ecology Center
Ocean Conservancy
Oceana
Office of Lieutenant Governor Eleni Kounalakis
Pacific Environment
Plastic Free Future
Plastic Pollution Coalition
R.world
Race to Zero Waste
Regeneración - Pajaro Valley Climate Action
Regeneration Pajaro Valley Climate Action
Republic Services - Western Region
Resource Recovery Coalition of California
Rethink Disposable
San Fernando Valley Chapter of The Climate Reality Project San Francisco Bay Area Physicians for Social Responsibility San Francisco Baykeeper
Sandiego350
Santa Monica Democratic Club
Save Our Shores
Save the Albatross Coalition
Save the Bay
Sd-sequel
Sea Hugger
Sierra Club California
So Cal 350 Climate Action
Solana Center for Environmental Innovation
Surfrider Foundation
Surfrider San Francisco
Sustainable Rossmoor
The Keep a Breast Foundation
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The Story of Stuff Project
Upstream
Valley Improvement Projects
Valley Improvement Projects
Voices for Progress
Wholly H2o
Wildcoast
Wishtoyo Foundation
Zero Waste San Diego
Zero Waste USA
OPPOSITION: (Verified 5/16/24)
American Recyclable Plastic Bag Alliance
American Forest & Paper Association
Association of Plastic Recyclers
Durabag Co. INC.
Prezero Us, INC.
Recycling Partnership; the
Western Plastics Association
ARGUMENTS IN SUPPORT: According to a coalition of 75 organizations, “From production to disposal, plastic waste is detrimental to the environment and human health. Plastics are primarily made from fossil fuels, and the extraction and refinement of fossil feedstocks for plastics release an array of toxic substances into the air and water, including known carcinogens and neurotoxins. Upon disposal, plastic does not biodegrade, and toxic chemicals released from plastics damage soil quality and leeches into groundwater. Plastic bags are one of the most found pollutants in our seas, and marine life ingests microplastics that are detrimental to their health. Therefore it is necessary to curb California’s plastic production as much as possible to preserve our environment and health.” ARGUMENTS IN OPPOSITION: According to the American Recyclable Plastic Bag Alliance: “If SB 1053 passes, the thick, recyclable plastic bags currently mandated by the state under SB 270 would cease to exist. Passing this bill would likely trigger increased plastic use through the implementation of NWPP bags (as happened in New Jersey), eliminate the use of 183 million pounds of recycled content in California each year, exacerbate our carbon footprint, and significantly raise costs for working families.”
735
SB 1053
Prepared by: Holly Rudel / E.Q. / (916) 651-4108
5/20/24 18:52:30
**** END ****
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AB 2236
ASSEMBLY THIRD READING
AB 2236 (Bauer-Kahan)
As Amended May 16, 2024
Majority vote
SUMMARY
Eliminates film plastic bags from the state's single-use bag ban.
Major Provisions
1) Repeals various requirements relating to reusable bags made from plastic film, including that stores sell or distribute only reusable bags made from plastic film that are certified by a thirdparty entity to meet the requirements of the plastic bag law. 2) Repeals various other requirements relating to the certification of reusable grocery bags, including that the Department of Resources Recycling and Recovery (CalRecycle) collect certification fees from producers and publish a list on its website of the reusable grocery bags of producers that have provided the required certification. 3) Specifies that except as provided, a store shall not provide a single-use carryout bag or a reusable grocery bag to a consumer at the point of sale; authorizes a store to make reusable bags available for purchase if the bags meet the requirements of this bill; and, authorizes a store to make recycled paper bags available for purchase, as specified. 4) Requires that recycled paper bags distributed by stores to customers contain 50% postconsumer recycled materials on and after January 1, 2028. 5) Specifies that the provisions of this bill go into effect on January 1, 2026.
COMMENTS
Plastic pollution. Plastics pose a threat to the environment from origin to end-of-life. Plastic production is responsible for three and a half percent of all greenhouse gas emissions—more than the entire aviation sector. In 2021, global plastics production was estimated at 390.7 million metric tons, a 4% increase from the previous year. The United Nations Environment Programme reports that only 9%of all plastic ever made has been recycled, 12% has been incinerated, and the remaining 79% has accumulated in landfills or the environment.
Once plastics enter the environment, they remain there for hundreds to thousands of years.
Plastics do not break down into their constituent parts, but instead break down into smaller and smaller particles, or microplastics. Because they are so small, microplastics can travel in the air and water, and can be easily absorbed by living things and accumulate up the food chain.
Microplastics have been found in the most pristine natural environments on earth, including in the deep ocean, Antarctic sea ice, and in the sand of remote deserts. Micoplastics are found in household dust and drinking water (bottled and tap), and humans are inhaling and consuming them. A March, 2024, study published in Science of the Total Environment identified microplastics in all human tissues sampled, with the polyvinyl chloride being the dominant polymer. The highest abundance of microplastics were found in human lung tissue, followed by the small intestine, large intestine, and tonsils. A February, 2024 study published in Toxicological Sciences analyzed samples of 62 human placentas and found microplastics present 737
AB 2236
in every sample. Shockingly little information exists about the potential health impacts of microplastics exposure. Laboratory studies have found that microplastics increase the risk of cancer and disrupt hormone pathways in lab rats.
Plastic pollution and the impacts of microplastics on human health fall disproportionately on marginalized communities. Both due to plastics and to the environmental impacts of plastic production. Nearly all plastic is produced from fossil fuels and generates greenhouse gas emissions and toxic chemicals that impact air and water quality. About 14% of oil is used in petrochemical manufacturing, a precursor to producing plastic. By 2050, plastic production is predicted to account for 50% of oil and fracked gas demand growth. According to Feeding the Plastics Industrial Complex: Taking Public Subsidies, Breaking Pollution Limits, a report released on March, 14, 2024, by the Environmental Integrity Project, "more than 66% of people within three miles of factories that manufacture the main ingredients in plastic products are people of color living in communities that are over-exposed to air pollution while schools and other public services are chronically underfunded." The report notes that these facilities receive billions in subsidies while repeatedly violating environmental laws and regulations. For example, Indorama, the world's largest producer of polyethylene terephthalate (PET) resins used in beverage containers and other single-use packaging, cited a facility in Louisiana that cracks natural gas or oil into ethylene. The facility received both a $1.5 million grant from the state and an exemption from local taxes – a subsidy estimated to be worth at least $73 million over 10 years. In return, Indorama violated its permitted air pollution control limits. In one example, over five months in 2019, the facility released more than 90 times the permitted level of volatile organic compounds. Instead of coming into compliance after multiple violations, the state revised the facility's pollution control permit to allow higher levels of emissions.
Recycling plastic into new products is one way to reduce plastic pollution, as it keeps the recycled plastic out of the environment and reduces our dependence on virgin resin. However, recycling is currently only feasible for some of the more common, and least toxic, forms of plastic. The most effective way to tackle the plastic pollution crisis is to use less of it.
Plastic bags. According to United Nations Environmental Programme, up to five trillion (5,000,000,000,000) plastic bags are used worldwide every year. While cigarette butts are the most common type of plastic waste, food wrappers, plastic bottles, plastic bottle caps, plastic grocery bags, plastic straws, and stirrers are the next most common items. According to the report Advancing Sustainable Materials Management: Facts and Figures 2018, the United States Environmental Protection Agency found that the United States generated 4.2 million tons of plastic bags, sacks, and wraps in 2018. Of that amount, 3.04 million tons were landfilled; only 10% was recycled. This is in a large part due to how difficult film plastic, the type of plastic used to make plastic bags, is to recycle. In curbside recycling systems, film plastic contaminates the plastic recycling stream and clogs up the machinery used to sort recyclables. In compost systems, plastic bags act as a contaminant that must be screened out, or is ground into the finished compost, contributing to microplastic pollution. The state's dedicated film plastic collection program, which required stores to collect film plastic bags for recycling, expired in 2020. Efforts to extend the at-store recycling program have failed in the Legislature.
The Bag Ban. In 2016, California voters approved Proposition 67, the statewide referendum to approve the Single-Use Carryout Bag Ban (SB 270, Padilla, Chapter 850, Statutes of 2014). As a result, most grocery stores, retail stores with a pharmacy, convenience stores, food marts, and liquor stores no longer provide single-use, light-weight carry-out bags to their customers at the 738
AB 2236
point of sale. The ban does not apply to the bags consumers use prior to the point of sale, such as produce bags and bags used for bulk items. The bag ban resulted in significant reductions in the number of plastic bags collected at beach cleanup days in the state. However, the definition used for "reusable bag" in SB 270 allowed the use of thicker film plastic bags that meet the requirements for reuse, but are not typically reused by consumers.
While the use of plastic bags did appear to go down after the passage of the bag ban, more recent waste characterization studies show a reversal in that trend. The bag ban required film plastic bags to contain specified percentages of postconsumer recycled content and be recyclable in the state. However, the state law requiring stores to accept plastic bags back for recycling sunset in 2020. Few stores continue to accept them back for recycling and curbside collection programs generally cannot accommodate film plastics for recycling. Even when film plastic bags are collected for recycling, they may not be recycled. In December, 2022, ABC News placed 46 tracking devices in plastic bag collection systems throughout the country. By May, 2023, half of the trackers were pinging at landfills or trash incinerators. Three made their way to Asia, where much of the plastic collected for recycling in the United States ends up, because the country has not developed significant markets for recyclable content materials, including plastic. Much of the plastic generated here pollutes oceans across the globe, as bales of plastic exported for recycling are processed, the plastic with value is collected and recycled, and the rest is discarded or incinerated. In countries with inadequate waste management systems, this plastic enters waterways and flows to the ocean.
In December of 2021, the California Commission on Recycling Markets and Curbside Recycling, comprised of public agencies, private solid waste enterprises, and environmental organizations, asked the Attorney General (AG) to look investigate film plastic bag manufacturers' use of labels indicating that the bags are recyclable. In November of 2022, the AG sent letters to Novolex, Revolution, Interplast, Advance Polybag, Metro Polybag, and Papier-Mettler asking them to substantiate their claims regarding the recyclability of plastic bags sold in California.
This bill. This bill is intended to eliminate the existing provision of law that allows film plastic bags to be distributed as reusable bags under the state's bag ban. This bill also intends to improve standards for other reusable bags. This bill makes other, related changes to the bag ban, including requiring that paper bags contain 50% postconsumer recycled content.
According to the Author
A decade ago, we made a promise to eliminate plastic bags in California. SB 270 was an incredible step forward at the time, but the exempted thicker plastic bags are not reused or recycled as anticipated. Instead, they are suffocating our wildlife, and polluting drinking sources with microplastics. Eliminating plastics is about fighting big oil. As our grid moves to renewable sources, oil companies are not ending their drilling. By 2050, plastics will drive half of global oil demand, more than shipping or airlines. To save the planet, our energy transition must go hand in hand with a plastics transition. Eliminating these unrecyclable plastic grocery bags is a long-overdue step to free our state from plastic dependence.
Arguments in Support
A coalition of supporters state:
After a decade under SB 270, it has become clear that California has not eliminated plastic grocery bags. The standards for reusable bags have resulted in exempt bags that are still 739
AB 2236
made of thicker plastic, high-density polyethylene, or HDPE. However, relatively few consumers re-use these exempt plastic bags for shopping. Investigative reports found that even when the bags were returned to the store for recycling, many still found their way to landfills. CalRecycle's statewide residential disposal reports suggest that over 5 billion bags in this category may have been landfilled in 2021, marking a significant reversal from several years of declining disposal. CalRecycle's 2018 and 2021Waste Characterization studies correlate with Alameda County's findings; the agency reported a 50-65% growth in the volume of "Plastic Grocery and Other Merchandise Bags" since 2018, exceeding 140,000 tons annually—a level not seen since 2003. According to Alameda County data sampled from a subset of stores, there was about an 800% increase in stores' compliant thick plastic bag purchases from 2015 to 2023.
AB 2236 would eliminate the existing exemption of plastic film bags and require grocery and certain retail stores to no longer provide these bags to their customers. Further, AB 2236 increases standards for reusable bags to ensure they are not replaced by a new version of an HDPE bag with plastic film material, or a non-plastic bag that can be easily damaged and is not durable. Lastly, AB 2236 increases the recyclability standard of paper bags to be made from 100% postconsumer recycled materials.
Arguments in Opposition
The American Recyclable Plastic Bag Alliance states:
Current law requires film bags to contain 40% certified post-consumer recycled content.
According to CalRecycle data, these bags divert 183 million pounds of plastic from landfills yearly to support their creation. In contrast, NWPP bags rarely contain recycled content and are not recyclable in California… The vast majority are discarded after one or two uses.
If AB 2236 passes, the thick, recyclable plastic bags currently mandated by the state under SB 270 would cease to exist. Passing this bill would likely trigger increased plastic use through the implementation of [non-woven polypropylene bags] bags (as happened in New Jersey), eliminate the use of 183 million pounds of recycled content in California each year, exacerbate our carbon footprint, and significantly raise costs for working families.
As structured, AB 2236 will not reduce plastic use but merely substitute one form of plastic for another.
FISCAL COMMENTS
According to the Assembly Appropriations Committee, starting January 1, 2026, annual revenue loss of an unknown amount, likely in the low hundreds of thousands of dollars, to CalRecycle once it stops collecting certification fees from reusable grocery bag producers (Reusable Grocery Bag Fund). CalRecycle reports it has collected approximately $1.3 million in certification fees to date. Statute requires fee revenue to cover, but not exceed, the department's reasonable costs for program administration and implementation.
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AB 2236
VOTES
ASM NATURAL RESOURCES: 7-2-2
YES: Bryan, Bauer-Kahan, Friedman, Kalra, Muratsuchi, Pellerin, Wicks NO: Flora, Hoover
ABS, ABST OR NV: Mathis, Wood
ASM APPROPRIATIONS: 11-4-0
YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua
NO: Sanchez, Dixon, Jim Patterson, Ta
UPDATED
VERSION: May 16, 2024
CONSULTANT: Elizabeth MacMillan / NAT. RES. / (916) 319-2092 FN: 0003344 741
742
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 13, 2024
PREPARED BY: Anthony J. Mejia, City Clerk
REQUEST: LETTER OF OPPOSITION TO PROPOSED BUDGET CUTS TO SMALL
BUSINESS TECHNICAL ASSISTANCE PROGRAM AT GO-BIZ
RECOMMENDATION:
Ratify letters of opposition to the Governor’s proposed 50% budget cut to the Small Business Technical Assistance Program (TAP) at GO-Biz.
BACKGROUND/ANALYSIS:
At the request of the Coachella Valley Woman’s Business Center at the Palm Desert iHub and Association of Women’s Business Centers, the City Council Ad Hoc Committee on Legislative Affairs authorized the immediate issuance of letters of opposition to the California State Senate and Assembly Budget Committees regarding the Governor’s proposed 50% budget cut to the Small Business Technical Assistance Program at Go-Biz (Governor’s Office of Business and Economic Development).
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
There is no fiscal impact associated with issuance of these letters.
ATTACHMENTS:
1. Letters of Opposition
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745
746
C I l Y 0 f P R l M
73-5 IO FRED WARING DRIVE
PALM DE ERT, ALIFOR IA 92260-2 578
TEL: 760 346-061 I
FAX: 760 340-0574
cityhall@ciryofpalm<le crt.org
OFFICE oF THE MAYOR AND CITY Co N 1L
May 16, 2024
The Honorable Jesse Gabriel
Chair, California State Assembly Committee on Budget
1021 0 Street, Suite 8230
Sacramento, CA 95814
RE: OPPOSITION TO PROPOSED 50% BUDGET CUT TO SMALL BUSINESS
TECHNICAL ASSISTANCE PROGRAM (TAP) AT GO-BIZ
Dear Chair Gabriel:
On behalf of the City of Palm Desert, I am writing to express our strong opposition to the Governor's proposed 50% budget cut to the core business support services of the Small Business Technical Assistance Program (TAP) at GO-Biz.
Small businesses are integral to the fabric of our community, driving economic growth, creating jobs, and fostering innovation. Programs like TAP play a crucial role in supporting these businesses, especially those owned by minorities, women, and in rural areas. The proposed $13 million cut to TAP would undermine the vital assistance provided to over 100,000 businesses across California.
The impact of this budget cut would be felt acutely in Palm Desert and throughout the state. By gutting the ecosystem of small business assistance centers, we risk stunting the growth of our local economy and diminishing opportunities for entrepreneurs.
Furthermore, the most marginalized businesses in our community would be disproportionately affected, widening existing economic disparities.
We call on the respective California Budget Committees to stand in solidarity with small businesses and reject the proposed budget cut to TAP. It is imperative to prioritize the support and resilience of our small business community, particularly in the face of ongoing economic challenges.
I urge you to consider the far-reaching consequences of this decision and the importance of preserving the infrastructure that enables small businesses to thrive. By maintaining current funding for TAP, we can ensure that our local businesses receive the necessary resources and assistance to navigate these uncertain times and emerge stronger than ever.
0 l'IIUlDG!tllCY(UD,A,U
747
Thank you for your attention to this matter. Your support in opposing this budget cut is crucial to safeguarding the prosperity and vitality of small businesses in Palm Desert and across California. If you have any questions regarding our position, please do not hesitate to contact the City Manager, Todd Hileman, at (760) 346-0611 or email [email protected].
Mayor, City of Palm Desert
CITY Of PRlM OfHRl
0 rtltlTftOllll<'KUtH.ttl 748
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 13, 2024
PREPARED BY: Anthony J. Mejia, City Clerk
REQUEST: RESOLUTIONS CALLING THE NOVEMBER 5, 2024, GENERAL
MUNICIPAL ELECTION, ORDERING SERVICES, AND ADOPTING
REGULATIONS FOR CANDIDATE STATEMENTS
RECOMMENDATION:
1. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, CALLING FOR A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 5, 2024, FOR THE ELECTION OF CERTAIN OFFICERS
AS REQUIRED BY THE PROVISIONS OF THE LAWS OF THE STATE OF CALIFORNIA AND CITY CHARTER.”
2. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, REQUESTING THE BOARD OF SUPERVISORS OF THE
COUNTY OF RIVERSIDE TO CONSOLIDATE A GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 5, 2024, WITH THE STATEWIDE GENERAL ELECTION TO BE HELD ON THAT DATE PURSUANT TO ELECTIONS CODE SECTION 10403.”
3. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, ADOPTING REGULATIONS FOR CANDIDATES FOR
ELECTIVE OFFICE PERTAINING TO CANDIDATE STATEMENTS SUBMITTED TO THE
VOTERS AT THE GENERAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 5, 2024.”
BACKGROUND/ANALYSIS:
Pursuant to Palm Desert Municipal Code Section 2.38, the City shall hold its General Municipal Election on November 5, 2024, to elect Members of the City Council for Districts 1, 2, and 3, for full terms of four years.
Calling the Election
Three resolutions are necessary to facilitate the General Municipal Election:
1. Calling the Election: This resolution calls for the holding of the election; directs the City Clerk to give further notice as provided for in the California Elections Code and provides for the City Clerk to coordinate with the Registrar of Voters to procure and furnish all supplies and equipment necessary to conduct the election.
2. Requesting Consolidation with the Statewide General Election: This resolution requests that the Riverside County Board of Supervisors to consolidate the General Municipal Election with the Statewide General Election held on the same date and authorizes the Registrar of Voters to canvass the returns.
3. Candidate Statement: This resolution adopts rules and regulations for the submission of 749
City of Palm Desert
November 5, 2024, General Municipal Election
Candidate Statements as authorized by Section 13307 of the California Elections Code.
In accordance with the California Elections Code, the official period for a candidate to pull and file nomination papers is July 15 to August 9, 2024, and each candidate shall be proposed by not less than twenty (20) nor more than thirty (30) voters of the district. Additionally, if an incumbent eligible to run for that office does not file by the end of the nomination period, an extended nomination period will be effectuated, pursuant to the Elections Code Section 10225, and candidates other than the person who was the incumbent may file nomination papers for that office until Wednesday, August 14, 2024 (the extended nomination period would only apply to District 1).
Candidate Statement Formatting
The proposed resolution adopting regulations pertaining to candidate statements (Attachment 3) differs from previously adopted resolutions to allow for the use of italics, underlining, and bullet points but not allowing the use of bold font or ALL CAPS in candidate statements. Election Code Section 13307(b)(1) states that: “The statement of each candidate shall be printed in type of uniform size and darkness, and with uniform spacing.” The City Attorney and City’s Election Official recommend allowing the use of italics, underlining, and bullet points but we believe the use of bold font and ALL CAPS may violate the uniform size requirement.
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
The cost of the election will be influenced by the number of candidates filing for elected office. The Registrar of Voters provided a base cost of $3.50 per voter and additional ballot measures incur an additional $1 per voter. There is sufficient money set aside in the City Clerk’s budget to pay these costs.
Below is a breakdown the election costs estimates provided by the Registrar of Voters:
District 1 $17,000
District 2 $23,000
District 3 $25,000
Ballot Measure (Citywide) $33,000
Total Estimated Cost $98,000
ATTACHMENTS:
1. Resolution: Call the Election
2. Resolution: Consolidation Request
3. Resolution: Candidate Statement Regulations
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RESOLUTION NO. 2024- ___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, CALLING FOR A GENERAL
MUNICIPAL ELECTION TO BE HELD ON TUESDAY,
NOVEMBER 5, 2024, FOR THE ELECTION OF CERTAIN
OFFICERS AS REQUIRED BY THE PROVISIONS OF THE
LAWS OF THE STATE OF CALIFORNIA AND CITY CHARTER
WHEREAS, pursuant to the provisions of the Charter of the City of Palm Desert and Chapter 2.38 of the Palm Desert Municipal Code, a General Municipal Election shall be held on November 5, 2024, for the election of members of the City Council for Districts 1, 2, and 3 for the full term of four (4) years.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:
SECTION 1. That the foregoing Recitals are true and correct and are incorporated herein by this reference.
SECTION 2. That pursuant to the requirements of the Charter of the City of Palm Desert, Palm Desert Municipal Code, and the laws of the State of California relating to elections; there is called and ordered to be held in the City of Palm Desert, California, on Tuesday, November 5, 2024, a General Municipal Election for the purpose of electing members of the City Council for Districts 1, 2, and 3 for the full terms of four (4) years.
SECTION 3. That the City Clerk is authorized, instructed, and directed to coordinate with the County of Riverside Registrar of Voters to procure and furnish any and all official ballots, notices, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election.
SECTION 4. That the ballots to be used at the election shall be in form and content as required by law.
SECTION 5. That the vote center locations and hours of operations, ballot drop box locations and hours of operations, vote-by-mail procedures and timing, the election officers, and all other persons and procedures for the General Municipal Election shall be the same as those utilized by the County of Riverside and in compliance with the Elections Code of the State of California.
SECTION 6. That in all particulars not recited in this resolution, the election shall be held and conducted as provided by law for holding municipal elections.
SECTION 7. That notice of the time and place of holding the election is given and the City Clerk is authorized, instructed, and directed to give further or additional notice of the election, in time, form, and manner as required by law. 751
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SECTION 8. That in the event of a tie vote (if any two or more persons receive an equal and the highest number of votes for an office) as certified by the Election Official, the City Council, in accordance with California Elections Code Section 15651(a), shall set a date and time and place and summon the candidates who have received the tie votes to appear and will determine the tie by a method of chance.
SECTION 9. Pursuant to Section 10263 of the California Elections Code, the canvass of the General Municipal Election is ordered to be made by the City Clerk. The City Clerk may designate the Registrar of Voters of County of Riverside to conduct and complete the canvass.
SECTION 10. The City Council authorizes the City Clerk to administer said election and all reasonable and actual election expenses shall be paid by the City upon presentation of a properly submitted bill.
SECTION 11. The City Clerk is hereby directed to file a certified copy of this resolution with the County of Riverside Board of Supervisors and the County of Riverside Registrar of Voters.
ADOPTED ON ________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.
ANTHONY J. MEJIA
CITY CLERK
752
RESOLUTION NO. 2024- ___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, REQUESTING THE BOARD
OF SUPERVISORS OF THE COUNTY OF RIVERSIDE TO
CONSOLIDATE A GENERAL MUNICIPAL ELECTION TO BE
HELD ON TUESDAY, NOVEMBER 5, 2024, WITH THE
STATEWIDE GENERAL ELECTION TO BE HELD ON THAT
DATE PURSUANT TO ELECTIONS CODE SECTION 10403
WHEREAS, the City Council of the City of Palm Desert called a General Municipal Election to be held on Tuesday, November 5, 2024, for the purpose of the election of members of the City Council for Districts 1, 2, and 3 for full terms of four (4) years; and WHEREAS, it is desirable that the General Municipal Election be consolidated with the Statewide General Election to be held on the same date and that within the City of Palm Desert the precincts, polling places, and election officers of the two elections be the same, and that the County of Riverside Registrar of Voters canvass the returns of the General Municipal Election and that the election be held in all respects as if there were only one election.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1. That the foregoing Recitals are true and correct and are incorporated herein by this reference.
SECTION 2. Pursuant to the requirements of California Elections Code Section 10403, the County of Riverside Board of Supervisors is hereby requested to consent and agree to the consolidation of a General Municipal Election with the Statewide General Election on Tuesday, November 5, 2024, for the purpose of the election of members of the City Council for Districts 1, 2, and 3 for full terms of four (4) years.
SECTION 3. That the County of Riverside Registrar of Voters is authorized to canvass the returns and perform all other proceedings incidental to and connected with the General Municipal Election. The Election shall be held in all respects as if there were only one election, and only one form of the ballot shall be used. Pursuant to Elections Code sections 10403 and 10418, the election will be held and conducted in accordance with the provisions of law regulating the Statewide Election.
SECTION 4. The Board of Supervisors is requested to issue instructions to the Registrar of Voters to take any and all steps necessary for the holding of the consolidated election.
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2 SECTION 5. The City Council determines and declares that the City will pay to the County the reasonable and actual expenses incurred by the County by the consolidation of the General Municipal Election with the Statewide General Election.
The City shall reimburse the County for services performed when the work is completed and upon presentation to the City of a properly approved bill. The City Manager of the City of Palm Desert is authorized and directed to pay for the expenses incurred after receiving a statement from the County of Riverside.
SECTION 6. The City Clerk is hereby directed to file a certified copy of this resolution with the County of Riverside Board of Supervisors and the County of Riverside Registrar of Voters.
ADOPTED ON ________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.
ANTHONY J. MEJIA
CITY CLERK
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RESOLUTION NO. 2024- ____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, ADOPTING REGULATIONS
FOR CANDIDATES FOR ELECTIVE OFFICE PERTAINING
TO CANDIDATE STATEMENTS SUBMITTED TO THE
VOTERS AT THE GENERAL MUNICIPAL ELECTION TO
BE HELD ON TUESDAY, NOVEMBER 5, 2024
WHEREAS, pursuant to the provisions of the Charter of the City of Palm Desert and Chapter 2.38 of the Palm Desert Municipal Code, a General Municipal Election shall be held on November 5, 2024, for the election of member of the City Council for Districts 1, 2, and 3 for full terms of four (4) years; and WHEREAS, Section 13307 of the Elections Code of the State of California provides that the governing body of the local agency may adopt regulations pertaining to materials prepared by any candidate for a municipal election, including costs of the candidate statement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1. That the foregoing Recitals are true and correct and are incorporated herein by this reference.
SECTION 2. GENERAL PROVISIONS.
Pursuant to Sections 13307 and 13308 of the California Elections Code, each candidate for elective office to be voted for at the City of Palm Desert General Municipal Election to be held on Tuesday, November 5, 2024, may prepare a candidate’s statement on an appropriate form provided by the City Clerk. The statement may include the name, age, and occupation of the candidate and a brief description of no more than 200 words of the candidate’s education and qualifications expressed by the candidate himself or herself. The statement shall not include the party affiliation of the candidate, nor membership or activity in partisan political organizations. In addition, the statement shall be limited to a recitation of the candidate’s own personal background and qualifications and shall not in any way make reference to other candidates for that office or to another candidate’s qualifications, character, or activities. The statement shall be filed in typewritten form in the Office of the City Clerk at the time the candidate’s nomination papers are filed. The statement may be withdrawn, but not changed, during the period for filing nomination papers and until 5:00 p.m. of the next working day after the close of the nomination period.
The City Clerk is NOT permitted to edit any material contained in candidate statements. Candidates are responsible for proofreading spelling, punctuation, and grammar. Since the statement cannot be changed after it is submitted, it is important for candidates to carefully prepare and proofread their statements. 755
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SECTION 3. FOREIGN LANGUAGE POLICY.
Pursuant to the Federal Voting Rights Act, candidate statements will be translated into all languages required by the County of Riverside. The County is required to translate candidate statements into the following language(s): Spanish.
The County will print and mail voter information guides and candidate statements to all voters in English and Spanish or the County will send voter information guides and candidate statements in Spanish to only those voters who are on the county voter file as having requested a voter information guide in a particular language. The County will make the voter information guide and candidate statements in the required languages available at all polling places, on the County’s website, and in the Election Official’s office.
SECTION 4. PAYMENT.
The candidate shall be required to pay for the cost of translating the candidate statements into any required foreign language pursuant to federal and/or state law.
The candidate shall be required to pay for the cost of printing the candidate statement in English and any foreign language as required in the voter information guide.
The City Clerk shall estimate the total cost of printing, handling, translating, and mailing the candidate’s statements filed pursuant to this section, including costs incurred as a result of complying with the Voting Rights Act of 1965 (as amended), and require each candidate filing a statement to pay in advance to the City, his or her estimated prorata share as a condition of having the candidate statement included in the voter information guide.
The estimate is just an approximation of the actual costs that varies from one election to another election and may be significantly more or less than the estimate, depending on the actual number of candidates filing statements. Accordingly, the City Clerk is not bound by the estimate and may, on a pro-rata basis, bill the candidate for additional actual expenses or refund any excess paid depending on the final actual cost.
SECTION 5. MISCELLANEOUS.
A) The City Clerk shall allow italics, underlining, and bullet points but shall not allow bold font or ALL CAPS.
B) The City Clerk shall comply with all recommendations and standards set forth by the California Secretary of State regarding occupational designations and other matters relating to elections.
C) All translations shall be provided by professionally certified translators. 756
-3-
SECTION 6. ADDITIONAL MATERIALS.
No candidate will be permitted to include additional materials in the voter information guide.
SECTION 7. The City Clerk is directed to provide each candidate or the candidate’s representative with a copy of this Resolution at the time nomination papers are issued.
SECTION 8. All previous resolutions adopting regulations for candidate statements are repealed.
SECTION 9. The City Clerk shall certify the adoption of this resolution.
ADOPTED ON ________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.
ANTHONY J. MEJIA
CITY CLERK
757
758
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 13, 2024
PREPARED BY: Shawn Muir, Community Services Manager
REQUEST: REJECT ALL BIDS FOR AQUATIC CENTER RENOVATION DESIGN RECOMMENDATION:
1. Reject all bids submitted under Request for Proposals for the “Palm Desert Aquatic Center Renovation Design.”
2. Authorize staff to re-bid the project with revisions to the scope of work.
BACKGROUND/ANALYSIS:
On March 1, 2024, the City issued a Request for Proposals through OpenGov for design services for renovations to the Palm Desert Aquatic Center (PDAC). New technology for filtration and heating systems have become available that would increase energy efficiency and reduce the space needed for pool operations. Staff also identified potential upgrades to the splash pool that included new play equipment and splash pad area, as well as outdoor showers.
A mandatory pre-proposal meeting was held on March 6, 2024, and five consultants attended.
On March 22, 2024, staff received 2 proposals via OpenGov. Two Public Works staff and one Development Services staff reviewed the proposals. Both proposals received doubled the budget for the design. Furthermore, a feasibility study on the addition of new play attractions at the PDAC has not yet been completed. These factors contribute to the staff’s recommendation to reject both proposals and reduce the scope of work to include only the necessary pump room improvements. This will allow staff to move forward with work that is commensurate with the budget, and time to conduct a feasibility study for potential new attractions.
If authorized, staff will develop and advertise an updated scope of work that includes only the equipment renovations necessary to continue vital operations of the facility. In addition, staff will initiate a feasibility study on the proposed new attractions.
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
The Fiscal Year 2023-24 Capital Improvement Project (CIP) List for the Palm Desert Aquatic Center includes $100,000 for the design of this project under Account No. 2424549-4400100.
With the rejection of the referenced proposals, the funds will be carried over to Fiscal Year 2024- 25 for the design of the pump room improvements only. There is no additional financial impact to the general fund with this action.
759
760
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 13, 2024
PREPARED BY: Daniel Hurtado, Public Safety Analyst
REQUEST: RESOLUTION DESIGNATING CERTAIN CITY OFFICIALS TO BE
AUTHORIZED AGENTS FOR THE PURPOSE OF OBTAINING FEDERAL
FINANCIAL ASSISTANCE PROVIDED BY THE FEDERAL DEPARTMENT
OF HOMELAND SECURITY
RECOMMENDATION:
Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, DESIGNATING THE CITY MANAGER, ASSISTANT CITY MANAGER,
AND CITY TREASURER TO BE THE AUTHORIZED AGENTS TO PROVIDE REQUIRED
ASSURANCES AND EXECUTE AGREEMENTS FOR THE PURPOSES OF OBTAINING
FEDERAL FINANCIAL ASSISTANCE PROVIDED BY THE FEDERAL DEPARTMENT OF
HOMELAND SECURITY AND SUB-GRANTED THROUGH THE STATE OF CALIFORNIA AND THE COUNTY OF RIVERSIDE.”
BACKGROUND/ANALYSIS:
The Emergency Management Performance Grant (EMPG) program provides financial support to State and local governments to continue the development of their comprehensive, all-hazards planning, training, and exercise programs. EMPG funds are used to support activities that contribute to the Operational Area’s (OA) capability to prevent, prepare for, mitigate against, respond to, and recover from emergencies and disasters. Riverside County applies for EMPG funding each year and then provides these funds in sub-grant options to cities throughout Riverside County. These grant funds are implemented by cities to enhance their emergency management capabilities and engage community members in preparedness efforts. The City of Palm Desert applies for the EMPG each year. The California Office of Emergency Services (CalOES) determines the amount applied for through a funding formula.
The period of performance for the 2023 EMPG is April 9, 2024 – May 31, 2025. The total amount of Palm Desert’s 2023 EMPG award is anticipated to be $13,683. The City must match this amount to receive full grant funding.
These grant funds will be utilized to enhance emergency management and community preparedness. A new Signature Authorized Resolution requires authorized agents to be delegated via the Governing Body Resolution with each year’s application. Approving this will enable the City to request and accept grant funding efficiently.
Legal Review:
This report has been reviewed by the City Attorney’s office.
Strategic Plan:
761
City of Palm Desert
(Resolution Designating and Authorizing City Officials to Obtain Funding)
This item is related to the Public Safety and Emergency Services section of the Palm Desert Strategic Plan, specifically under Priority 3: Help the community become more prepared for disasters and public safety emergencies. These funds will defray the costs on Community Emergency Response Team classes and disaster preparedness outreach.
FINANCIAL IMPACT:
This grant is a federally funded dollar-for-dollar local cash or in-kind match. It is anticipated that the 2023 EMPG will reimburse the City $13,683 in matching funds. No appropriation is required as the matching fund's components is fulfilled by the Emergency Services Coordinator salary that is included in the FY2023/24 City Budget.
ATTACHMENTS:
1. Resolution
2. 2023 Award Letter
762
RESOLUTION NO. 2024-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, DESIGNATING THE CITY MANAGER,
ASSISTANT CITY MANAGER, AND CITY TREASURER TO BE THE
AUTHORIZED AGENTS TO PROVIDE REQUIRED ASSURANCES AND
EXECUTE AGREEMENTS FOR THE PURPOSES OF OBTAINING
FEDERAL FINANCIAL ASSISTANCE PROVIDED BY THE FEDERAL
DEPARTMENT OF HOMELAND SECURITY AND SUB-GRANTED
THROUGH THE STATE OF CALIFORNIA AND THE COUNTY OF
RIVERSIDE.
WHEREAS, by the City Council of the City of Palm Desert, a public entity established under the laws of the State of California, that the Emergency Management Performance Grant (EMPG) application be submitted to the County of Riverside for consideration;
WHEREAS, the California Governor’s Office of Emergency Services requires that the Palm Desert City Council authorized agents are delegated via the Governing Body Resolution, in order to be eligible to apply for and receive federal financial assistance provided by the federal Department of Homeland Security and sub-granted through the State of California and the County of Riverside Emergency Management Department; and
WHEREAS the City of Palm Desert desires to continue to accept the Emergency Management Program Grant (EMPG) grants for grant years 2023, 2024, and 2025.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, that it:
1. Hereby designates the City Manager, Assistant City Manager, and City Treasurer as the City’s agents to provide required assurances and execute agreements for the purposes of obtaining federal financial assistance provided by the federal Department of Homeland Security and sub-granted through the State of California.
2. That this authorization shall be in effect for the duration of the FY 2024, FY 2025, and FY 2026 grant periods of the EMPG.
IT IS HEREBY FURTHER RESOLVED AND ORDERED that this Resolution shall become effective immediately upon passage and adoption.
ADOPTED ON ________________, 20__.
763
Resolution No. 2024-____ Page 2
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
764
Resolution No. 2024-____ Page 3
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ______________, 20__.
ANTHONY J. MEJIA
CITY CLERK
765
766
450 E. ALESSANDRO BLVD
RIVERSIDE, CALIFORNIA 92508
T: 951.358.7100 ♦ F: 951.358.7105 ♦ WEB: WWW.RIVCOREADY.ORG ♦ TDD: 951.358.5124 Bruce Barton, Director
Emergency Management Department
April 9, 2024
City of Palm Desert
Todd Hileman, City Manager
RE: FY23 Emergency Management Performance Grant Program (EMPG) Award - $13,683 Grant # 2023-0006 CFDA#: 97.042
The California Office of Emergency Services (CalOES) has approved Riverside County’s FY23 State Homeland Security Program Grant (SHSP) application and has authorized the commencement of reimbursement requests.
The performance period of this grant is April 9, 2024 – May 31, 2025. Final reimbursement requests are due within twenty (20) calendar days after the end of the grant period of performance.
This subaward is subject to requirements in 2 CFR, Part 200, including the Notice of Funding Opportunity (NOFO), Preparedness Grants Manual, California Supplement to the NOFO, Riverside County Supplement to the NOFO, Grant Assurances, and all applicable federal, state, and local requirements. All activities funded with this subaward must be completed within the period of performance.
The Riverside County Operational Area (OA) may reduce, suspend, or terminate grant funding, in whole or in part, or other measures may be imposed for any of the following reasons:
• Failure to submit required performance reports.
• Failure to expend a minimum of 90% of awarded funding. • Failure to expend funds in a timely manner consistent with the grant milestones, guidance, and assurances.
• Failure to comply with the requirements or statutory progress toward the goals or objectives of federal or state law.
• Failure to make satisfactory progress toward the goals or objectives set forth in the Subrecipient application.
• Failure to follow Grant Subaward requirements or special conditions. • Proposing or implementing substantial plan changes to the extent that, if originally submitted, the application would not have been selected for funding.
• False certification in the application or document.
• Failure to adequately manage, monitor, or direct the grant funding activities of the organization.
Subrecipients must obtain additional written approval prior to incurring costs for activities such as aviation, watercraft, noncompetitive procurement, and projects requiring Environmental Planning and Historic Preservation review. Any changes to the Financial Management Forms Workbook requires approval from the OA prior to conducting activities and incurring costs.
Your organization’s Financial Management Forms Workbook is being provided to you via email along with a copy of this letter. The Facesheet, Governing Body Resolution, Grants Management Assessments form, Standard Assurances, EHP Screening Form (if applicable) must be read, signed, and dated by your authorized agent in blue ink and returned to [email protected] by July 9, 2024. Requests will not be processed without the acceptance documents on file.
767
450 E. ALESSANDRO BLVD
RIVERSIDE, CALIFORNIA 92508
T: 951.358.7100 ♦ F: 951.358.7105 ♦ WEB: WWW.RIVCOREADY.ORG ♦ TDD: 951.358.5124 This subaward is subject to all provisions of 2 CFR Part 200, Subpart F – Audit Requirements. Any funds received in excess of current needs, approved amounts, or those found owed as a result of a final review or audit, must be refunded to the OA within 30 days upon receipt of an invoice from the County of Riverside Emergency Management Department.
For further assistance, please contact [email protected]. We look forward to working with you and appreciate your cooperation and support.
Sincerely,
Louis Le
Senior Administrative Services Analyst
County of Riverside Emergency Management Department
768
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 13, 2024
PREPARED BY: Chris Escobedo, Assistant City Manager
REQUEST: PROVIDE DIRECTION ON JUNE 2024 GAY PRIDE MONTH
RECOGNITION
RECOMMENDATION:
Provide direction on commemorating Gay Pride Month.
BACKGROUND/ANALYSIS:
The City of Palm Desert utilizes its social media channels to convey a variety of information, including City news, meeting reminders, and event updates. In the spirit of Unite Palm Desert, staff also actively seeks ways to bring the community together by creating social media posts affirming the City's commitment to diversity and inclusion. These posts may commemorate Federal and State holidays, religious holidays, special national and international days or months, and related observances throughout the year. On January 11, 2024, the City Council approved the 2024 list of social media commemorations including LGBTQ Pride Month and Greater Palm Springs Pride (Attachment 1).
On April 14, 2022, the City Council adopted Resolution No. 2022-25 setting a policy for ceremonial proclamations and recognitions (Attachment 2). In that policy, city staff first reviews all requests for proclamations and certificates from individuals, groups, and organizations and forwards them to the Mayor and Mayor Pro Tem with a finding as to whether the request complies with the terms of this resolution. The Mayor and Mayor Pro Tem are charged with the administration of requests and may approve or deny such requests at their discretion consistent with this resolution. No commission or committee, individual council member, or other City official shall issue a proclamation or certificate on behalf of the City without prior approval of the Mayor and Mayor Pro Tem. The link for the public to request a proclamation is: https://www.palmdesert.gov/connect/citycouncil/proclamation.
In 2023, the City issued a proclamation in recognition of Gay Pride Month (Attachment 3). At this time, no requests have been received by staff to issue a proclamation in recognition of Gay Pride for June (Nationally recognized month), nor for November (locally celebrated- in deference to the weather).
769
City of Palm Desert
(Gay Pride Month Recognition)
On May 23, 2024, the City Council asked staff to look into this after a public comment by a resident. Staff surveyed all other Coachella Valley cities to find out what they do recognize Gay Pride Month. City staff asked the following questions:
1. Does your city commemorate Pride Month?
2. If yes, how?
a. Does your City issue a Proclamation?
b. Does your City commemorate Pride Month on its social media channels? c. Does your City host any events?
d. Does your City Sponsor another organization hosting a pride event? e. Does your City commemorate Pride Month in any other way? The information supplied was varied and City’s recognize Pride Month in a range of ways or do not recognize it. Two of the surveyed display a flag on the city flagpole. Should the Council want to consider display of a Pride Flag on the city flagpole, staff can bring back a policy.
Alternatively, the Council can direct staff to display a banner on City Hall. The following is a summary of the response by City.
Coachella
Coachella commemorates Pride Month in the following ways. Issues a proclamation,
Commemorates Pride Month on its social media channels, Host events,
Sponsors another organization to host an event, and
Displays a Pride flag on the city’s flagpole
Cathedral City
Cathedral City does not do anything for Pride Month but does hold LGBT days once a year which includes several events/activities over a weekend. Held in March 2024.
Desert Hot Springs
Desert Hot Springs does not do anything for Pride Month, but a local organization organizes events.
Indian Wells
Indian Wells does not commemorate Pride Month.
Indio
Indio does not commemorate Pride Month, unless requested by the community.
La Quinta
La Quinta does not commemorate Pride Month but has issued certificates/proclamations for Pride/Transgender Week in November and for Harvey Milk Day in 2024.
Palm Desert
Palm Desert commemorates Pride Month in the following ways. 770
City of Palm Desert
(Gay Pride Month Recognition)
Including it in its social media commemorations, and
Issued a proclamation in 2023.
Palm Springs
Palm Springs commemorates Pride Month in the following ways. Issues a proclamation in November when the city officially commemorates Pride, Commemorates Pride Month on its social media during June, Sponsors events put on by other organizations in June and November, and Displays Pride flags at city facilities.
Rancho Mirage
Rancho Mirage commemorates Pride Month in the following ways. Issuing a proclamation upon request, and
Recognizing Pride Month in R/M Weekly.
Additionally, the individual who spoke on this at the May 23, 2024, City Council meeting included an item in writing for City Council consideration (Attachment 4).
Staff is requesting direction on how to approach Gay Pride Month in 2024. Nationally it is recognized in June, but due to weather local events are held in November. Recognition of Pride Month is included in the City’s social media commemorations.
Staff would like the City Council’s direction on whether to:
1. Commemorate Gay Pride Month in 2024.
a. If yes, then either in June or in November, or both. b. No.
2. Display Pride Flag on City flagpole
a. If yes, then bring back a policy for Council consideration. b. No.
3. Display banner on City Hall as the space is used for events and commemorations.
4. Participate in the Palm Springs Pride Parade for interested Council Members and staff.
5. Host an event in commemoration of Pride Month.
6. Sponsor organization (s) who are hosting events in commemoration of Pride Month.
7. Have Council’s direction apply to future years.
8. Do not commemorate Gay Pride Month in 2024.
Legal Review:
This report has been reviewed by the City Attorney’s office.
FINANCIAL IMPACT:
None.
ATTACHMENTS:
1. Palm Desert’s 2024 List of Social Media Commemorations
2. Resolution No. 2022-25
771
City of Palm Desert
(Gay Pride Month Recognition)
3. Palm Desert’s 2023 Proclamation recognizing June as Gay Pride Month
4. Submitted written request
772
City of Palm Desert 2024 Social Media Annual Holidays and Commemorations New Year’s Day
Law Enforcement Appreciation Day
Martin Luther King Jr. Day
National Plan for Vacation Day
Black History Month
International Holocaust
Remembrance Day
Groundhog Day
Lunar New Year
Valentine’s Day
Presidents’ Day
Zero Discrimination Day
International Women’s Day
St. Patrick’s Day
First Day of Spring
César Chávez Day
Passover
Easter
Ramadan
Eid al-Fitr
Holocaust Remembrance Day
Administrative Professionals Day
Earth Day
Bike Month
Cinco de Mayo
Mother’s Day
Memorial Day
Armed Forces Day
LGBTQ Pride Month
National Trails Day
Flag Day
Father’s Day
Juneteenth
First Day of Summer
National Indigenous Peoples Day
/Columbus Day
Canada Day
Independence Day (Fourth of July)
Eid al-Adha
Emergency Preparedness Month
Hunger Action Month
Patriot Day
Rosh Hashanah
Yom Kippur
Hispanic Heritage Month
Mexican Independence Day
First Day of Fall
World Tourism Day
Earthquake Preparedness Month
Great California ShakeOut Day
Halloween
National Native American Heritage
Month
Greater Palm Springs Pride
Veterans Day
Thanksgiving
World AIDS Day
Hanukkah
Human Rights Day
First Day of Winter
Christmas
New Year’s Eve
773
774
RESOLUTION NO. 2022- 25
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, ADOPTING A POLICY FOR
CEREMONIAL PROCLAMATIONS AND RECOGNITIONS
WHEREAS, the City Council occasionally wishes to recognize events, accomplishments, or public service of individuals or organizations that significantly benefit the community of Palm Desert, and
WHEREAS, for the purposes of consistency and fairness, the City Council has determined that it is appropriate to establish protocols for ceremonial proclamations and recognitions .
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert as follows :
SECTION 1. Purpose and Intent. The purpose of this Resolution is to establish a policy regarding the processing of requests by individuals , groups, and organizations for City proclamations and certificates .
SECTION 2 . Authority- General. It is the intent of the City Council that City staff first review all requests for proclamations and certificates from individuals, groups , and organizations and forward them to the Mayor and Mayor Pro Tern with a finding as to whether the request complies with the terms of this resolution . The Mayor and Mayor Pro Tern are charged with the administration of requests and may approve or deny such requests at their discretion consistent with this resolution . No commission or committee, individual council member , or other City official shall issue a proclamation or certificate on behalf of the City of Palm Desert without prior approval of the Mayor and Mayor Pro Tern .
SECTION 3. Eligibility Criteria. The Mayor and Mayor Pro Tern may consider requests for proclamations and certificates on the following subjects:
A. Significant Matters of Interest: Raise public awareness about matters of significance that impact the residents and businesses in the City.
B. Observances/ Celebrations : To highlight a special period of observance, celebration , or recognition for community, regional, state, or national occasions .
C. Local Businesses, Services, or Organizations : Requests to honor businesses , services, or philanthropic organizations that are located or operate in the City, that provide a significant level of services to residents and businesses in the City.
D . Individuals : Recognition of individuals for extraordinary achievement or outstanding community service .
775
RESOLUTION NO. 2022- 25
E. Local Sports Teams: Recognition of sports teams based in the City , upon the accomplishment of noteworthy achievements , programs , or milestones .
F. In Memoriam : Requests to honor the life of long-time or prominent Palm Desert residents upon their death .
G . City Officials/ Staff: Requests to honor city officials and employees for their achievements or milestones of service .
H. Partner Public Officials : Requests to honor public officials from other public entities who served on boards , committees, or commissions on which the Palm Desert City Council also serves , upon the completion of their term of office or chairpersonship .
SECTION 4. Impermissible Subjects. City staff shall not process requests for proclamations or certificates on the following subjects :
A. Candidates: Requests to support candidates for elected public office .
B. Religion/ Politics: Requests of a religious or political nature.
C . Contrary Policies: Campaigns or events contrary to City policies .
SECTION 5. Submission of Requests on Other Subjects. If it is not clear whether a request for a proclamation or certificate falls inside or outside of a permissible category as provided in this Resolution , staff should submit the matter to the Mayor and Mayor Pro Tern for the ir consideration and determination .
SECTION 6. Signatures. All proclamations are intended to be signed by the full City Council. In the event that an individual Council Member declines to sign a particular proclamation , the Mayor may determine whether to proceed with only the Mayor' s signature or the balance of the City Council.
SECTION 7. Presentation at City Council Meetings. Presentation of proclamations and recognitions should occur outside the City Council meeting , such as a specified event , via mail, or personal delivery . When necessary , individual proclamations and recognitions may be presented at City Council meetings and staff should endeavor to schedule proclamations and recognitions so that the total time for those items is no more than ten ( 10) minutes per meeting.
Section 8. Certification. The City Clerk shall certify the adoption of this Resolution .
776
RESOLUTION NO. 2022- 25
PASSED, APPROVED AND ADOPTED this 14th day of April , 2022, by the following votes :
AYES : KELLY , NESTANDE, QUINTANILLA and HARNIK
NOES : NONE
ABSENT : JONATHAN
ABSTAIN: NONE
ATTEST :
L1/JhA 1[£ /2 ¼
Ne~ HARNIK , MAYOR
I
777
This page has intentionally been left blank.]
778
WHEREAS, the month of June is celebrated throughout the United States and many other countries as “Gay Pride Month,”recognizing the dignity and rights of Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ+) people; and
WHEREAS, although local Pride celebrations occur in November in deference to the weather, June is an appropriate time to join with others in celebrating the immeasurable impact to the cultural, civic, and economic successes of our community that LGBTQ+ individuals have had; and WHEREAS, the City of Palm Desert is committed to honoring the equal rights and dignity of all as outlined in its Resolution No. 2018-09 on February 8, 2018; and
WHEREAS, education and awareness remain vital to end discrimination and prejudice and enhance society’s growing appreciation for LGBTQ+ rights; NOW, THEREFORE BE IT RESOLVED that the City of Palm Desert herby proclaims the month of June as Gay Pride Month in support of the LGBTQ+ community.
City of Palm Desert
Gay Pride Month
In Witness Whereof, I have hereunto set my hand
and have caused the Official Seal of the City of Palm
Desert, California, to be affixed this 22nd day of June 2023.
779
780
From: Chris Escobedo
To: Marie de Vera
Subject: FW: Pride Month - Expectations and General Guidelines for Municipalities in 2024 Date: Wednesday, June 5, 2024 4:34:12 PM
Attachments: wh_social-share.png
onebook-onepalmdesertemailsignature_6e9e89a1-b160-4192-b077-e8f755c0c2e1.png Attachment 4.
Chris Escobedo
Assistant City Manager
City of Palm Desert
73510 Fred Waring Drive, Palm Desert, CA 92260
[email protected] | 760.776.6319 | www.palmdesert.gov From: Stephen Nelson <[email protected]>
Date: Wednesday, June 5, 2024 at 1:09 PM
To: Chris Escobedo <[email protected]>
Subject: Pride Month - Expectations and General Guidelines for Municipalities in 2024 Chris-Per our earlier discussions you will find my rough outline as it relates to Palm Desert as the center of the valley and a city of influence, others look to us to set the example in many ways. Because the city has a diversity charter we all hold dear and celebrate, we should ChrisPer our earlier discussions you will find my rough outline as it relates to Palm Desert as the center of the valley and a city of influence, others look to us to set the example in many ways. Because the city has a diversity charter we all hold dear and celebrate, we should also be equally prepared each year to be in the forefront of acknowledging June as Pride Month. Due to the short deadline, these items do not represent in totality my full throated plan on this subject.
First, I recommend you review the presidential proclamation to get background and items we could highlight on a local level
781
A Proclamation on Lesbian, Gay, Bisexual,
Transgender, Queer, and Intersex Pride Month,
2024
whitehouse.gov
I then would review The City of Palm Desert ranking from Human Rights Campaign Municipal Index as a barometer if we in the city are doing what we can to further support our diversity charter.
Identify areas of improvement we can discuss with the public:
Human Rights Campaign
hrc.org
Municipality as Employer
By offering equivalent benefits and protections to LGBTQ+ employees, awarding contracts to fairminded businesses, and taking steps to ensure an inclusive workplace, municipalities commit themselves to treating LGBTQ+ employees equally.
1. Do we have city contractor Non-Discrimination Ordinance? Municipal Services
This section assesses the efforts of the city to ensure LGBTQ+ constituents are included in city services and programs.
2. Palm Desert does not have a Human Rights Commission. Why not? 782
3. Enforcement Mechanism in Human Rights Commission.
Flexible Issued
4. Youth Bullying Prevention Policy for City Services
5. City Services to support LGBTQ+ Seniors needs.
6. Youth Bullying Prevention Policy for City Services
7. Review PD and El Paseo advertising and marketing plan to ensure diverse models are selected and during pride month (June/November) LGBTQ+ models are represented and depicted. One or both months should have a campaign for pride.
There are some items to be addressed and discussed in June and will improve our overall ranking and join the other cities who have a higher ranking.
Tangible signs of support- VERY IMPORTANT
1. Fly the pride flag (under US, State, City) for the month at the City of Palm Desert Flagpole(s).
2. On a significant evening have the landscape lights display the colors of the pride flag. Usually done on the last weekend of the month (or all month).
Events- Call Palm Springs Life or one of Marketing firms on the city payroll for additional guidance in this area.
Library can have a exhibit on Pride Month, featuring significant works by LBGTQ+ authors, poets, world leaders
Have an event in Palm Desert (picnic, luncheon, etc.) for the public Incorporate El Paseo in decor and business community.
Participate in the PSPRIDE Parade - November
Participate in the PSPRIDE Fair - November
This is what I can put together in short order, but I will refine it later this week to a more comprehensive document for you and the council to be a working and living document as we get additional input from other professionals.
SN
783
Stephen Nelson (He/Him/His)
M: 310-500-0150
[email protected]
784
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 23, 2022
PREPARED BY: Veronica Chavez, Director of Finance
REQUEST: RESOLUTIONS TO PLACE A MEASURE ON THE NOVEMBER 5, 2024,
GENERAL MUNICIPAL ELECTION BALLOT TO ESTABLISH A ONE
CENT (1¢) CITY TRANSACTIONS AND USE TAX, CONSOLIDATE WITH
THE STATEWIDE GENERAL ELECTION, SET THE DEADLINES AND
RULES FOR ARGUMENTS, AND PRIORITIZE USE OF RELATED TAX
REVENUES
RECOMMENDATION:
1. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, CALLING FOR THE PLACEMENT OF A GENERAL TAX MEASURE ON THE BALLOT FOR THE NOVEMBER 5, 2024, GENERAL MUNICIPAL
ELECTION FOR THE SUBMISSION TO THE QUALIFIED VOTERS OF AN ORDINANCE
TO ENACT A GENERAL TRANSACTIONS AND USE TAX (SALES TAX) AT THE RATE OF ONE CENT (1¢).”
2. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, REQUESTING THE BOARD OF SUPERVISORS OF THE
COUNTY OF RIVERSIDE TO CONSOLIDATE A GENERAL MUNICIPAL ELECTION TO BE HELD ON NOVEMBER 5, 2024, WITH THE STATEWIDE GENERAL ELECTION TO BE HELD ON THAT DATE PURSUANT TO SECTION 10403 OF THE ELECTIONS CODE.”
3. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA, PROVIDING FOR THE FILING OF PRIMARY AND
REBUTTAL ARGUMENTS AND SETTING RULES FOR THE FILING OF WRITTEN
ARGUMENTS REGARDING A CITY MEASURE TO BE SUBMITTED AT THE NOVEMBER 5, 2024, GENERAL MUNICIPAL ELECTION.”
4. Adopt a Resolution entitled, “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM DESERT, CALIFORNIA EXPRESSING ITS INTENT TO PRIORITIZE SPENDING OF
TRANSACTIONS AND USE (SALES) TAX REVENUE FOR FIRE PREVENTION, PUBLIC SAFETY, PARKS, LIBRARY AND INFRASTRUCTURE PURPOSES.
5. Determine whether the City Council desires to designate any of its members to file Primary Argument(s) for or against the ballot measure.
BACKGROUND:
The City of Palm Desert provides a variety of general municipal services, including fire, police, and emergency 911 medical response; after-school programming for youth; senior and library services; parks maintenance; homelessness response, and other general maintenance and services. In recent years, the City’s ability to maintain these services has become more 785
City of Palm Desert
November 5, 2024, General Municipal Election
challenging due to operating costs rising at a faster pace than revenues. Based on current projections, unless a new revenue source is identified, the City faces significant budget deficits and potentially substantial service reductions.
The City’s infrastructure - things like traffic signals, community centers, fire stations, and streets - require larger investments in order to maintain them at current standards. The City of Palm Desert contracts with the County of Riverside for public safety services. According to financial projections, in order to maintain current service levels and call response times, additional investments in capital and to pay increasing ongoing costs will be required.
Adding to these general increases in costs are post-pandemic economic factors including minimum wage requirements and supply chain issues.
In recent years, the City has made several service and operations reductions to remedy shortfalls and has been diligent about financial planning to maintain City finances and continuity in service to the community. These measures included freezing positions, concession bargaining with employee groups, seeking grant funding for capital replacement and projects, deferring and extending capital replacement and maintenance, and bundling work to achieve economies of scale. However, these strategies alone are not sufficient to maintain our community’s current level of service.
ISSUES/ANALYSIS
Five-year financial projections for the City’s General Fund have been presented to the City Council during the annual budget and mid-year budget processes. The financial model forecasts revenue and expenditures based on several known factors. For expenditures, the model assumes a status quo staffing and service model and factors in contractual obligations, existing obligations, approved salaries and benefits increases, actuarially-determined contributions to CalPERS for the City’s Unfunded Accrued Liability (UAL), and a marginal and steady rise in maintenance and operational costs to account for customary inflation. The financial model assumes a smoothed, standard growth trend in revenues, factoring in new revenues from entitled development and other reasonable assumptions. As shown below, expenditure growth is expected to outpace revenue increases in the forecast model, given the assumptions discussed.
786
City of Palm Desert
November 5, 2024, General Municipal Election
As soon as the Fiscal Year (FY) 2024-25 budget adoption, the financial forecast model shows that the City’s estimated expenditures for annual operational costs will outpace estimated revenues almost immediately, and by FY 2027-28, the City’s unassigned fund balance will be in a deficit position. Absent additional revenues or a reduction in services to the community, or a combination of both, the General Fund deficit will continue to grow each year.
The financial forecast below indicates that the addition of revenues from a one-cent sales tax can maintain the current service levels and, following completion of all CIP plans, will continue to meet its reserve requirement the year after the five-year forecast model. $0
$20,000,000
$40,000,000
$60,000,000
$80,000,000
$100,000,000
$120,000,000
FY 2023-24 FY 2024-25 FY 2025-26 FY 2026-27 FY 2027-28
Estimated Revenue
Estimated Expenditures
FY 2023-24 FY 2024-25 FY 2025-26 FY 2026-27 FY 2027-28
Beginning Fund Balance 120,916,512 102,251,178 76,047,863 49,313,480 14,028,320 Revenues (including Library) 83,446,318 83,222,877 86,468,569 90,791,998 95,331,598 Expenditures 83,245,839 83,792,012 98,202,952 105,077,158 112,432,560 Surplus (Deficit) 200,479 (569,135) (11,734,383) (14,285,161) (17,100,962) Ending Fund Balance 121,116,991 101,682,043 64,313,480 35,028,320 (3,072,642) Addtl Anticipated Appropriations
CIP (Park, Library, Storm Drains, Fire Station) 15,537,911 24,050,000 15,000,000 21,000,000 15,000,000 Operations (Library, LMS, ERP, Public Safety, Public Works) 3,327,902 1,584,180 Total Required Appropriation 18,865,813 25,634,180 15,000,000 21,000,000 15,000,000 Remaining Fund Balance 102,251,178 76,047,863 49,313,480 14,028,320 (18,072,642) Reserve
Non-Spendable 3,045,978 2,709,978 2,525,978 2,333,978 2,403,997 Assigned (Operating) 18,254,560 17,362,016 18,682,701 20,098,995 21,617,684 Committed (Emergency) 16,689,264 16,644,575 17,293,714 18,158,400 19,066,320 Committed (Fac/CIP/Other/Equip) 36,497,224 21,639,471 25,046,209 20,272,844 23,533,639 Committed (Emplmt Benefits) 10,434,732 10,747,773 11,070,207 11,402,313 11,744,382 Required Reserve 84,921,757 69,103,813 74,618,808 72,266,529 78,366,022 Unassigned Fund Balance 17,329,421 6,944,050 (25,305,328) (58,238,210) (96,438,664) 787
City of Palm Desert
November 5, 2024, General Municipal Election
Transactions (Sales) and Use Tax
Revenues from the current 7.75% sales tax in Palm Desert is currently divided between the State, County and City. All revenues from a 1% City sales tax measure will not be shared with the State or County and will remain in Palm Desert to benefit our community directly. Another feature of a sales tax in the City is that visitors pay the tax as well as residents to pay the cost of providing services to the community. Current purchasing data reflects that 70% of all purchases made in Palm Desert are made by non-residents.
To address the financial constraints now facing Palm Desert, it is Staff’s recommendation that the City Council take action to adopt a resolution to place a general sales tax measure on the ballot for the November 5, 2024 General Election. A five-year spending plan has be developed by staff based on the priorities expressed by City Council and Palm Desert Residents during the 2024 Budget Outreach Sessions. The list is grouped by category type, and in no particular order.
FY 2023-24 FY 2024-25 FY 2025-26 FY 2026-27 FY 2027-28
Beginning Fund Balance 120,916,512 102,251,178 76,047,863 74,477,990 65,061,946 Revenues (including Library) 83,446,318 83,222,877 86,468,569 90,791,998 95,331,598 1 cent sales tax 25,164,510 25,869,116 26,515,844
Expenditures 83,245,839 83,792,012 98,202,952 105,077,158 112,432,560 Surplus (Deficit) 200,479 (569,135) 13,430,127 11,583,955 9,414,882 Ending Fund Balance 121,116,991 101,682,043 89,477,990 86,061,946 74,476,828 Addtl Anticipated Appropriations
CIP (Park, Library, Storm Drains, Fire Station) 15,537,911 24,050,000 15,000,000 21,000,000 15,000,000 Operations (Library, LMS, ERP, Public Safety, Public Works) 3,327,902 1,584,180 Total Required Appropriation 18,865,813 25,634,180 15,000,000 21,000,000 15,000,000 Remaining Fund Balance 102,251,178 76,047,863 74,477,990 65,061,946 59,476,828 Reserve
Non-Spendable 3,045,978 2,709,978 2,525,978 2,333,978 2,403,997 Assigned (Operating) 18,254,560 17,362,016 18,682,701 20,098,995 21,617,684 Committed (Emergency) 16,689,264 16,644,575 17,293,714 18,158,400 19,066,320 Committed (Fac/CIP/Other/Equip) 36,497,224 21,639,471 25,046,209 20,272,844 23,533,639 Committed (Emplmt Benefits) 10,434,732 10,747,773 11,070,207 11,402,313 11,744,382 Required Reserve 84,921,757 69,103,813 74,618,808 72,266,529 78,366,022 Unassigned Fund Balance 17,329,421 6,944,050 (140,818) (7,204,584) (18,889,194) Category FY 2024-25 FY 2025-26 FY 2026-27 FY 2027-28 FY 2028-29 Total 5-Yr Plan 1 cent sales tax 25,164,510 25,869,116 26,515,844 27,311,320 104,860,790 Current Planned Costs
New Fire Services Staffing Public Safety 900,000 10,657,440 10,971,472 11,232,818 11,496,338 45,258,067 Fire Station 33 Renovation/Temp Site Public Safety 1,200,000 1,200,000 Fire Station 71 Renovation/Temp Site Public Safety 1,200,000 1,200,000 New Police Services Staffing Public Safety 1,300,000 1,352,000 1,406,080 2,812,160 2,924,646 9,794,886 Storm Channel and Retention Basin Imps Infrastructure/H&S 5,508,000 8,000,000 5,000,000 18,508,000 City-Wide Facility and Equipment Replacement Infrastructure/H&S 8,397,001 9,944,665 7,798,734 12,865,305 9,264,802 48,270,506 New Public Works Staffing Public Works 360,000 370,800 381,924 786,763 810,366 2,709,854 Library Construction ($20M Pd from Bonds) Community Amenity 10,000,000 10,000,000 North Sphere Regional Park Community Amenity 15,000,000 15,000,000 30,000,000 Spending Contingency/Reserve Replenishment Fiscal Discipline/Responsibility 2,815,167 2,815,167 Total Planned Costs 16,465,001 32,724,905 40,558,210 52,697,046 27,311,319 169,756,480 Additional Amount needed from Reserve or Other Source (16,465,001) (7,560,395) (14,689,094) (26,181,202) 0 (64,895,690) *Annual allocations are subject to City Council approval through the annual budget process.
PALM DESERT TRANSACTION AND USE TAX - 5 YEAR SPENDING PLAN AND PRIORITIES 788
City of Palm Desert
November 5, 2024, General Municipal Election
The measure would ask voters the following ballot question regarding a one-cent sales tax.
Placing the measure on the ballot will give the City’s voters the opportunity to decide the level of service the City provides.
“CITY OF PALM DESERT SALES TAX MEASURE.
To maintain Palm Desert’s long-term finances; maintain City services such as 911 emergency response, parks, trails, youth/afterschool programs; respond to property crimes/thefts/burglaries; retain/attract local businesses; and for general government use; shall the measure establishing a 1¢ sales tax providing approximately $25,000,000 annually until ended by voters; requiring audits, public spending disclosures, funds locally controlled, be adopted?”
YES
NO
Tax Measure Process
The City Council does not have the authority to establish or raise taxes, only to put a measure on the ballot for voter consideration. In order to place a tax measure on the November 5, 2024 ballot, the City Council must approve the submission of the measure to the voters by a 2/3 vote of the City Council (at least four affirmative votes). The Resolution also includes the specific language for the ballot question that will be presented to voters as required by the Elections Code. If approved by the City Council and adopted by a majority of the electorate, the tax would be effective no sooner than the first day of the first calendar quarter, commencing more than 110 days after the adoption of the ordinance by the voters. Therefore, the tax would be effective no sooner than April 1, 2025.
Ballot Measure Deadlines
Below are the major deadlines associated with submitting a ballot measure for the November 2024 Election:
July 11: Last regular meeting to submit ballot measures. August 9: Last day to submit ballot measures to the Registrar of Voters. August 19: Deadline to receive the City Attorney’s impartial analysis and arguments for or against the measure.
August 29: Deadline to receive rebuttal arguments for or against the measure. November 5: Election Day
Calling the Election
Three resolutions are necessary to facilitate the addition of a ballot measure to the General Municipal Election:
1. Calling the Election: This resolution calls for the holding of the election; directs the City Clerk to give further notice as provided for in the California Elections Code and provides for the City Clerk to coordinate with the Registrar of Voters to procure and furnish all supplies and equipment necessary to conduct the election.
2. Requesting County Services: This resolution requests that the Riverside County Board of Supervisors consolidate the General Municipal Election with the Statewide General Election 789
City of Palm Desert
November 5, 2024, General Municipal Election
held on the same date and authorizes the Registrar of Voters to canvass the returns.
3. Primary and Rebuttal Arguments: This resolution establishes a process for which the City Clerk will select primary and rebuttal arguments. The City Council may designate the City Council, or any of its members, to prepare, submit, or sign the primary argument. If the City Council elects to author the primary argument itself, it may select a City Council Ad Hoc Committee to write the primary argument and provide for each member to be a signatory. The author, or a majority of authors, of the primary argument may authorize in writing any other person or persons to prepare, submit, or sign the rebuttal argument.
FINANCIAL IMPACT:
If approved by voters in November 2024, a one-cent sales tax would take effect on taxable transactions in the City as early as April 1, 2025. While a precise estimate of the revenue generation cannot be made, the City’s sales tax consultant estimates that a one-cent sales tax would generate approximately $25,000,000 annually. These funds would be locally generated and therefore could not be taken by the State or County. In addition, they would enable the City to invest in services and infrastructure for the community. A five-year spending plan has been developed by staff with the immediate priorities identified and is included in the Resolution Establishing the Intent to Prioritize Spending.
The Registrar of Voters provided an estimated costs of $33,000 per ballot measure added to the November 2024 General Municipal Election. There is sufficient money set aside in the City Clerk’s budget to pay these costs. In addition, under the Revenue and Taxation Code section 7272, the California Department of Tax and Fee Administration (CDTFA) will assess the City for preparatory charges to administer the new local sales tax based on actual costs. The statutory maximum amount of these costs shall not exceed $175,000. Additionally, CDTFA will assess an annual fee (typically less than 1%) for collection of the tax.
ATTACHMENTS:
1. Resolution: Call for Sales Tax Measure to be Placed on the November 2024 Ballot
2. Resolution: Consolidation Request
3. Resolution: Primary and Rebuttal Arguments
4. Resolution: Establishing Priorities and Spending Plan 790
RESOLUTION NO. 2024-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, CALLING FOR THE PLACEMENT OF A GENERAL TAX
MEASURE ON THE BALLOT FOR THE NOVEMBER 5, 2024, GENERAL
MUNICIPAL ELECTION FOR THE SUBMISSION TO THE QUALIFIED
VOTERS OF AN ORDINANCE TO ENACT A GENERAL TRANSACTIONS
AND USE TAX (SALES TAX) AT THE RATE OF ONE CENT (1¢)
WHEREAS, the City of Palm Desert (“City”) is authorized to levy a Transactions and Use Tax (“TUT”) for general purposes pursuant to California Revenue and Taxation Code section 7285.9, subject to approval by a majority vote of the electorate pursuant to Article XIIIC, section 2 of the California Constitution (“Proposition 218”); and WHEREAS, pursuant to California Elections Code section 9222, the City Council has authority to place local measures on the ballot to be considered at a Municipal Election; and
WHEREAS, the City Council would like to submit to the voters at the November 5, 2024, General Municipal Election a measure establishing the rate of the TUT of one cent (1¢) on the sale and/or use of all tangible personal property sold at retail in the City until it is repealed by voters, as more specifically set forth in the attached proposed ordinance adding Chapter 3.26 to the City’s Municipal Code; and
WHEREAS, the one cent (1¢) TUT is a general tax, the revenue of which will be placed in the City’s general fund and will be used to pay for general City services; and WHEREAS, on November 6, 1996, the voters of the State of California approved Proposition 218, an amendment to the State Constitution which requires that all general taxes which are imposed, extended or increased must be submitted to the electorate and approved by a majority vote of the qualified electors voting in the election; and WHEREAS, pursuant to Proposition 218 (California Constitution, Article XIIIC, section 2(b)), the general rule is that any local election for the approval of an increase to a general tax must be consolidated with a regularly scheduled general election for members of the governing body of the local government; and
WHEREAS, the next regularly scheduled general election at which City Council members will be elected is November 5, 2024; and
WHEREAS, pursuant to Revenue and Taxation Code section 7285.9, a two-thirds (2/3) vote of all members of the City Council is required to place the Measure on the November 5, 2024 ballot; and
WHEREAS, the ordinance to be considered by the qualified voters and the terms of approval, collection and use of the general TUT are described and provided for in the ordinance/measure attached hereto as Exhibit “A” (the “Measure”) and by this reference made an operative part hereof, in accordance with all applicable laws. 791
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PALM DESERT:
SECTION 1. Incorporation of Recitals. The foregoing recitals are true and correct and are hereby incorporated and made an operative part of this Resolution.
SECTION 2. Submission of Ballot Measure. Pursuant to California Elections Code section 9222, Government Code section 53724, Revenue and Taxation Code section 7285.9 and any other applicable requirements of the laws of the State of California relating to the City, the City Council, by a two-thirds (2/3) vote of all members, hereby orders the Measure to be submitted to the voters of the City at the General Municipal Election to be held on Tuesday, November 5, 2024.
SECTION 3. The City Council, pursuant to California Elections Code section 9222, hereby orders that the ballot question for the Measure shall be presented and printed upon the ballot submitted to the qualified voters in the manner and form set forth in this Section 3. On the ballot to be submitted to the qualified voters at the General Municipal Election to be held on Tuesday, November 5, 2024, in addition to any other matters required by law, there shall be printed substantially the following ballot question:
“PALM DESERT SAFETY, ROADS, CITY SERVICES MEASURE.
To maintain Palm Desert’s long-term finances, City services such as 9-1-1 emergency medical/police/fire response, fire protection, response to property crime/thefts, keeping public areas safe/clean, maintaining streets, roads parks, youth/senior programs; retain/attract local businesses; and for general government use, shall the measure establishing a 1¢ sales tax generating approximately $25,000,000 annually until ended by voters, requiring public spending disclosure, funds controlled locally, be adopted?” YES
NO
SECTION 4. Conduct of Election. The City Clerk is authorized, instructed, and directed to procure and furnish any and all official ballots, printed matter and all supplies, equipment and paraphernalia that may be necessary in order to properly and lawfully conduct the election. In all particulars not recited in this Resolution, the election shall be held and conducted as provided by law for holding municipal elections.
SECTION 5. Impartial Analysis. Pursuant to Elections Code section 9280, the City Council hereby directs the City Clerk to transmit a copy of the Measure to the City Attorney. The City Attorney shall prepare an impartial analysis of the Measure, not to exceed 500 words in length, showing the effect of the Measure on the existing law and the operation of the Measure, and transmit such impartial analysis to the City Clerk not later than the deadline for submittal of primary arguments for or against the Measure.
The impartial analysis shall include a statement indicating whether the Measure was placed on the ballot by a petition signed by the requisite number of voters or by the City Council. In the event the entire text of the Measure is not printed on the ballot, nor in the voter information guide, there shall be printed immediately below the impartial 792
analysis, in no less than 10-font bold type, the following: “The above statement is an impartial analysis of Ordinance or Measure ___. If you desire a copy of the ordinance or measure, please call the Office of the City Clerk at (760) 346-0611 and a copy will be mailed at no cost to you.”
SECTION 6. Notice of the election is hereby given and the City Clerk is authorized, instructed and directed to give further or additional notice of the election, in time, form and manner as required by law.
SECTION 7. Placement on the Ballot. The full text of the Measure shall not be printed in the voter information guide, and a statement shall be printed on the ballot pursuant to Elections Code section 9223 advising voters that they may obtain a copy of this Resolution and the Measure, at no cost, upon request made to the City Clerk.
SECTION 8. Filing with County. The City Clerk shall, not later than the 88th day prior to the General Municipal Election to be held on Tuesday, November 5, 2024, file with the Board of Supervisors and the Registrar of Voters of the County of Riverside, State of California, a certified copy of this Resolution.
SECTION 9. Public Examination. Pursuant to Elections Code section 9295, this Measure will be available for public examination for no fewer than ten (10) calendar days prior to being submitted for printing in the voter information guide. The City Clerk shall post notice in the Clerk’s office of the specific dates that the examination period will run.
SECTION 10. The City Council hereby finds and determines that the Measure relates to organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment, and therefore is not a project within the meaning of the California Environmental Quality Act (“CEQA”) and the State CEQA Guidelines, section 15378(b)(5).
SECTION 11. Severability. The provisions of this Resolution are severable and if any provision of this Resolution is held invalid, that provision shall be severed from the Resolution and the remainder of this Resolution shall continue in full force and effect, and not be affected by such invalidity.
SECTION 12. This Resolution shall become effective upon its adoption.
SECTION 13. The City Clerk shall certify to the adoption of this Resolution. 793
ADOPTED ON ________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
APPROVED AS TO FORM:
ISRA SHAH
CITY ATTORNEY
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.
ANTHONY J. MEJIA
CITY CLERK
794
Exhibit “A”
Transactions and Use Tax Ordinance
[attached behind this page]
795
ORDINANCE NO. _____
AN ORDINANCE OF THE PEOPLE OF THE CITY OF PALM
DESERT, CALIFORNIA, ADDING CHAPTER 3.26 TO TITLE 3
OF THE PALM DESERT MUNICIPAL CODE TO ENACT A ONE
PERCENT (1%) GENERAL TRANSACTIONS AND USE TAX
(SALES TAX) TO BE ADMINISTERED BY THE CALIFORNIA
DEPARTMENT OF TAX AND FEE ADMINISTRATION
WHEREAS, pursuant to California Revenue and Taxation Code section 7285.9 the City of Palm Desert (“City”) is authorized to levy a Transactions and Use Tax for general purposes, subject to majority voter approval; and
WHEREAS, the People of the City desire add Chapter 3.26 to Title 3 of the Palm Desert Municipal Code establishing a general Transactions and Use Tax (“TUT”) until ended by voters, on the sale and/or use of all tangible personal property sold at retail in the City, at a rate of one percent (1%).
NOW, THEREFORE, THE PEOPLE OF THE CITY OF PALM DESERT DO HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Title and Text. This Ordinance shall be known as the “Palm Desert General Transactions and Use Tax”, the full text of which is set forth in Attachment “1”, attached hereto and incorporated herein by reference.
SECTION 2. Approval by the City Council. Pursuant to California Government Code section 53724 and Revenue and Taxation Code section 7285.9, this Ordinance was duly approved for placement on the ballot by a minimum two-thirds (2/3) supermajority of all members of the City Council on June 13, 2024.
SECTION 3. Approval by the Voters. Pursuant to California Elections Code section 9217, this Ordinance shall be deemed adopted and take effect only if approved by a majority of the eligible voters of the City of Palm Desert voting at the General Municipal Election of November 5, 2024. It shall be deemed adopted when the City Council has certified the results of that election by resolution and shall take effect ten (10) days thereafter.
SECTION 4. Operative Date. “Operative Date” for the Transactions and Use Tax means the first day of the first calendar quarter commencing more than 110 days after the date this Ordinance is adopted, as set forth in Section 3 above.
SECTION 5. Severability. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the Ordinance and the application of such provision to other persons or circumstances shall not be affected thereby.
796
I hereby certify that the Palm Desert General Transactions and Use Tax Ordinance was PASSED, APPROVED, AND ADOPTED by the People of the City of Palm Desert on the 5th day of November, 2024.
CITY OF PALM DESERT
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
APPROVED AS TO FORM:
_________________________________
ISRA SHAH, CITY ATTORNE
797
Chapter 3.26 – GENERAL TRANSACTIONS AND USE TAX
Sections:
3.26.010 - Title.
3.26.020 - Purpose.
3.26.030 - Contract With State.
3.26.040 - Transactions Tax Rate.
3.26.050 - Place of Sale.
3.26.060 - Use Tax Rate.
3.26.070 - Adoption of Provisions of State Law.
3.26.080 - Limitations on Adoption of State Law and Collection of Use Taxes.
3.26.090 - Permit Not Required.
3.26.100 - Exemptions and Exclusions.
3.26.110 - Amendments.
3.26.120 - Enjoining Collection Forbidden.
3.26.130 - Duration of Tax
Sections:
3.26.010 – Title.
This ordinance shall be known as the “City of Palm Desert General Transactions and Use Tax Ordinance”. The City of Palm Desert hereinafter shall be called “City.” This ordinance shall be applicable in the incorporated territory of the City.
3.26.020 – Purpose.
This ordinance is adopted to achieve the following, among other purposes, and directs that the provisions hereof be interpreted in order to accomplish those purposes:
A. To impose a retail transactions and use tax in accordance with the provisions of Part
1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code and Section 7285.9 of Part 1.7 of Division 2 which authorizes the City to adopt this tax ordinance which shall be operative if a majority of the electors voting on the measure vote to approve the imposition of the tax at an election called for that purpose.
B. To adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Revenue and Taxation Code.
C. To adopt a retail transactions and use tax ordinance that imposes a tax and provides a measure therefore that can be administered and collected by the California Department of Tax and Fee Administration in a manner that adapts itself as fully as practicable to, and requires the least possible deviation from, the existing statutory and administrative procedures followed by the California Department of Tax and Fee Administration in administering and collecting the California State Sales and Use Taxes.
798
D. To adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, minimize the cost of collecting the transactions and use taxes, and at the same time, minimize the burden of record-keeping upon persons subject to taxation under the provisions of this ordinance.
3.26.030 - Contract With State.
Prior to the operative date, the City shall contract with the California Department of Tax and Fee Administration to perform all functions incident to the administration and operation of this transactions and use tax ordinance; provided, that if the City shall not have contracted with the California Department of Tax and Fee Administration prior to the operative date, it shall nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract.
3.26.040 - Transactions Tax Rate.
For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the City at the rate of one percent (1%) of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of this ordinance.
3.26.050 - Place of Sale.
For the purposes of this ordinance, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the State or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the California Department of Tax and Fee Administration.
3.26.060 - Use Tax Rate.
An excise tax is hereby imposed on the storage, use or other consumption in the City of tangible personal property purchased from any retailer on and after the operative date of this ordinance for storage, use or other consumption in said territory at the rate of one percent (1%) of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made.
799
3.26.070 - Adoption of Provisions of State Law.
Except as otherwise provided in this ordinance and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, all of the provisions of Part 1 (commencing with Section 6001) of Division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this ordinance as though fully set forth herein.
3.26.080 - Limitations on Adoption of State Law and Collection of Use Taxes.
In adopting the provisions of Part 1 of Division 2 of the Revenue and Taxation Code:
A. Wherever the State of California is named or referred to as the taxing agency, the name of this City shall be substituted therefor. However, the substitution shall not be made when:
1. The word “State” is used as a part of the title of the State Controller, State Treasurer, California Victim Compensation Board, California Department of Tax and Fee Administration, State Treasury, or the Constitution of the State of California;
2. The result of that substitution would require action to be taken by or against this City or any agency, officer, or employee thereof rather than by or against the California Department of Tax and Fee Administration, in performing the functions incident to the administration or operation of this Ordinance.
3. In those sections, including, but not necessarily limited to sections referring to the exterior boundaries of the State of California, where the result of the substitution would be to:
a. Provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remain subject to tax by the State under the provisions of Part 1 of Division 2 of the Revenue and Taxation Code, or; b. Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provision of that code.
4. In reference to Sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code.
B. The word “city” shall be substituted for the word “state” in the phrase “retailer engaged in business in this state” in Section 6203 of the Revenue and Taxation Code and in the definition of that phrase in Section 6203.
1. “A retailer engaged in business in the District” shall also include any retailer that, in the preceding calendar year or the current calendar year, has total combined 800
sales of tangible personal property in this state or for delivery in the State by the retailer and all persons related to the retailer that exceeds five hundred thousand dollars ($500,000). For purposes of this section, a person is related to another person if both persons are related to each other pursuant to Section 267(b) of Title 26 of the United States Code and the regulations thereunder.
3.26.090 - Permit not Required.
If a seller’s permit has been issued to a retailer under Section 6067 of the Revenue and Taxation Code, an additional transactor’s permit shall not be required by this Ordinance.
3.26.100 - Exemptions and Exclusions.
A. There shall be excluded from the measure of the transactions tax and the use tax the amount of any sales tax or use tax imposed by the State of California or by any city, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any state-administered transactions or use tax.
B. There are exempted from the computation of the amount of transactions tax the gross receipts from:
1. Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this State, the United States, or any foreign government.
2. Sales of property to be used outside the City which is shipped to a point outside the City, pursuant to the contract of sale, by delivery to such point by the retailer or his agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this paragraph, delivery to a point outside the City shall be satisfied:
a. With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, and undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code by registration to an out-of-City address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and
b. With respect to commercial vehicles, by registration to a place of business out-of-City and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address.
3. The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of this ordinance.
801
4. A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of this ordinance.
5. For the purposes of subparagraphs (3) and (4) of this subsection, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.
C. There are exempted from the use tax imposed by this ordinance, the storage, use or other consumption in this City of tangible personal property:
1. The gross receipts from the sale of which have been subject to a transactions tax under any state-administered transactions and use tax ordinance.
2. Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this State, the United States, or any foreign government. This exemption is in addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code of the State of California.
3. If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of this Ordinance.
4. If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of this Ordinance.
5. For the purposes of subparagraphs (3) and (4) of this subsection, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised.
6. Except as provided in subparagraph (7), a retailer engaged in business in the City shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the City or participates within the City in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the City or through any representative, agent, canvasser, solicitor, subsidiary, or person in the City under the authority of the retailer.
802
7. “A retailer engaged in business in the City” shall also include any retailer of any of the following: vehicles subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, or undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City.
D. Any person subject to use tax under this ordinance may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for, a transactions tax pursuant to Part 1.6 of Division 2 of the Revenue and Taxation Code with respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax.
3.26.110 - Amendments.
All amendments subsequent to the effective date of this ordinance to Part 1 of Division 2 of the Revenue and Taxation Code relating to sales and use taxes and which are not inconsistent with Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, shall automatically become a part of this Ordinance, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this Ordinance.
3.26.120 - Enjoining Collection Forbidden.
No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the State or the City, or against any officer of the State or the City, to prevent or enjoin the collection under this ordinance, or Part 1.6 of Division 2 of the Revenue and Taxation Code, of any tax or any amount of tax required to be collected.
3.26.130 – Duration of Tax.
The tax imposed by this chapter shall continue until this ordinance is repealed. 803
804
RESOLUTION 2024-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, REQUESTING THE BOARD OF SUPERVISORS
OF THE COUNTY OF RIVERSIDE TO CONSOLIDATE A GENERAL
MUNICIPAL ELECTION TO BE HELD ON NOVEMBER 5, 2024, WITH
THE STATEWIDE GENERAL ELECTION TO BE HELD ON THAT DATE
PURSUANT TO §10403 OF THE ELECTIONS CODE
WHEREAS, on June 13, 2024, the City Council of the City of Palm Desert adopted Resolution No. 2024-____, calling a General Municipal Election to be held on November 5, 2024; for the purpose of submitting to the voters the question relating to the General Transactions and Use Tax; and
WHEREAS, it is therefore desirable that the General Municipal Election be consolidated with the Statewide General Election to be held on the same date and that within the City the precincts, polling places and election officers of the two elections be the same, and that the election department of the County of Riverside canvass the returns of the General Municipal Election and that the election be held in all respects as if there were only one election.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1. Request for Consolidation. Pursuant to the requirements of §10403 of the Elections Code, the Board of Supervisors of the County of Riverside is hereby requested to consent and agree to the consolidation of a General Municipal Election with the Statewide General Election on Tuesday, November 5, 2024, for the purpose of submitting to the voters the following question relating to the Transactions and Use Tax.
SECTION 2. Measure Language. A measure is to appear on the ballot as follows:
“PALM DESERT PUBLIC SAFETY, ROADS, CITY
SERVICES MEASURE.
To maintain Palm Desert’s long-term finances, City services such as 9-1-1 emergency medical/police/fire response, fire protection, response to property crime/thefts, keeping public areas safe/clean, maintaining streets, roads, parks,
youth/senior programs; retain/attract local businesses; and for general government use, shall the measure establishing a 1¢ sales tax generating approximately $25,000,000 annually until ended by voters, requiring public spending disclosure, funds controlled locally, be adopted?”
Yes
No
805
2 SECTION 3. Canvass of Returns. The County of Riverside Registrar of Voters is authorized to canvass the returns and perform all other proceedings incidental to and connected with the General Municipal Election. The Election shall be held in all respects as if there were only one election, and only one form of ballot shall be used. Pursuant to California Elections Code Sections 10403 and 10418, the election will be held and conducted in accordance with the provisions of law regulating the Statewide General Election.
SECTION 4. Necessary Steps. The Board of Supervisors is requested to issue instructions to the Registrar of Voters to take any and all steps necessary for the holding of the consolidated election.
SECTION 5. Costs. The City Council determines and declares that the City will pay to the County the reasonable and actual expenses incurred by the County by the consolidation of the General Municipal Election with the Statewide General Election.
The City shall reimburse the County for services performed when the work is completed and upon presentation to the City of a properly approved bill. The City Manager of the City of Palm Desert is authorized and directed to pay for the expenses incurred after receiving a statement from the County of Riverside.
SECTION 6. Filing of Resolution. The City Clerk is hereby directed to file a certified copy of this resolution with the Board of Supervisors and the County of Riverside Registrar of Voters.
SECTION 7. Certification. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions.
ADOPTED ON ________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
APPROVED AS TO FORM:
ISRA SHAH
CITY ATTORNEY
806
3 I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.
ANTHONY J. MEJIA
CITY CLERK
807
808
RESOLUTION NO. 2024-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, PROVIDING FOR THE FILING OF PRIMARY
AND REBUTTAL ARGUMENTS AND SETTING RULES FOR THE
FILING OF WRITTEN ARGUMENTS REGARDING A CITY MEASURE
TO BE SUBMITTED AT THE NOVEMBER 5, 2024, GENERAL
MUNICIPAL ELECTION
WHEREAS, a General Municipal Election is to be held in the City of Palm Desert, California, on November 5, 2024, at which there will be submitted to the voters the following measure:
“PALM DESERT PUBLIC SAFETY, ROADS, CITY
SERVICES MEASURE.
To maintain Palm Desert’s long-term finances, City services such as 9-1-1 emergency medical/police/fire response, fire protection, response to property crime/thefts, keeping public areas safe/clean, maintaining streets, roads, parks,
youth/senior programs; retain/attract local businesses; and for general government use, shall the measure establishing a 1¢ sales tax generating approximately $25,000,000 annually until ended by voters, requiring public spending disclosure, funds controlled locally, be adopted?”
Yes
No
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
SECTION 1. Primary Arguments. That the City Council authorizes (i) the City Council or any member(s) of the City Council, (ii) any individual voter eligible to vote on the above measure, (iii) a bona fide association of such citizens, or (iv) any combination of voters and associations, to file a written argument in favor of or against the City measure, accompanied by the printed name(s) and signature(s) of the author(s) submitting it, in accordance with Article 4, Chapter 3, Division 9 of the Elections Code of the State of California, and to change the argument until and including the date fixed below by the City Clerk, after which no arguments for or against the City measure may be submitted to the City Clerk.
The deadline to submit arguments for or against the City Measure pursuant to this Resolution is declared by the City Clerk to be August 19, 2024, at 5 p.m. Each argument shall not exceed 300 words and shall be filed with the City Clerk, signed, and include the printed name(s) and signature(s) of the author(s) submitting it, or if submitted on behalf of an organization, the name of the organization, and the printed name and signature of at least one of its principal officers who is the author of the argument.
809
2 SECTION 2. Rebuttal Arguments. Pursuant to Section 9285 of the Elections Code of the State of California, when the City Clerk has selected the primary arguments for and against the City Measure which will be printed and distributed to the voters, the Clerk shall send copies of the primary argument in favor of the Measure to the authors of the primary argument against, and copies of the primary argument against to the authors of the primary argument in favor. The authors or persons designated by them may prepare and submit rebuttal arguments not exceeding 250 words. The rebuttal arguments shall be filed with the City Clerk not later than August 29, 2024, at 5 p.m. Rebuttal arguments shall be printed in the same manner as the primary arguments. Each rebuttal argument shall immediately follow the primary argument which it seeks to rebut.
SECTION 3. Prior Resolutions. That all previous resolutions providing for the filing of primary and rebuttal arguments related to City measures are repealed.
SECTION 4. November 5, 2024 Election. That the provisions of Sections 1 and 2 shall apply only to the election to be held on November 5, 2024, and shall then be repealed.
SECTION 5. Certification. The City Clerk shall certify to the passage and adoption of this resolution and enter it into the book of original Resolutions.
ADOPTED ON ________________, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
APPROVED AS TO FORM:
ISRA SHAH
CITY ATTORNEY
810
3 I, Anthony J. Mejia, City Clerk of the City of Palm Desert, hereby certify that Resolution No. 2024-__ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Desert on _______________________, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ___________________.
ANTHONY J. MEJIA
CITY CLERK
811
812
RESOLUTION NO. _______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA EXPRESSING ITS INTENT TO PRIORITIZE
SPENDING OF TRANSACTIONS AND USE (SALES) TAX (TUT)
REVENUE FOR FIRE PREVENTION, PUBLIC SAFETY, PARKS,
LIBRARY, AND INFRASTRUCTURE PURPOSES.
WHEREAS, the City Council of the City of Palm Desert (“City”) is authorized to levy a Transactions and Use (Sales) Tax (TUT) for general purposes pursuant to California Revenue and Taxation Code section 7285.9, subject to approval by a majority vote of the electorate pursuant to Article XIIIC, Section 2 of the California Constitution (“Proposition 218”); and
WHEREAS, pursuant to California Elections Code Section 9222, the City Council has authority to place local measures on the ballot to be considered at a Municipal Election; and
WHEREAS, based upon the above, on June 13, 2024, the City Council of the City of Palm Desert called a General Municipal Election to be held on November 5, 2024, for the purpose of submitting to the voters the question of whether to adopt an ordinance adding Chapter 3.26 to the Palm Desert Municipal Code, which would enact a one percent (1%) TUT until it is ended by voters; and
WHEREAS, pursuant to the proposed measure/ordinance, the TUT is a general tax enacted solely to raise revenue for the general governmental use of the City and all of the proceeds from the tax shall be placed in the City's general fund and used for the usual current expenses of the City; and
WHEREAS, the general fund pays for important City services such as police and public safety services, street and public right-of-way operations, maintenance and improvement, community center and recreation services, and other general municipal services to the public; and
WHEREAS, the City Council desires to adopt this resolution expressing this City Council’s intent, if the TUT measure is enacted by the voters, to commit to spend future TUT revenue for various purposes, with certain priorities for fire prevention, public safety, parks, library, and infrastructure purposes as outlined in the 5-Year Spending Plan and Priorities.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. Findings. The City Council finds that all of the preceding recitals are true and correct.
Section 2. Priorities for Spending TUT Revenue. The City Council hereby expresses its intent, if the TUT measure is enacted by the voters, to prioritize spending of future TUT revenue as outlined in the “5 Year Spending Plan and Priorities”, attached 813
2 hereto as Exhibit “A” and incorporated herein by reference.
Section 3. TUT Not Deemed a Special Tax. The adoption of this Resolution shall not be construed, and it is not the City Council’s intent, to convert the proposed TUT into a “special tax”, as that term is defined Article XIIIC §1(d) of the California Constitution, or California Government Code sections 53721 and 53724, or any combination thereof.
Although this Resolution expresses the intent of the current City Council to prioritize spending future TUT revenues for certain purposes, the TUT shall remain a “general tax” as that term is defined in Article XIIIC §1(a) of the California Constitution and as set forth in the proposed TUT ordinance. In the event this Resolution is determined to convert the proposed TUT into a special tax, it shall be deemed void for all purposes.
Section 4. Certification. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions.
PASSED, APPROVED AND ADOPTED this _____ day of ____________, 2024. _____________________________
KARINA QUINTANILLA, MAYOR
ATTEST:
_______________________
Anthony Mejia, City Clerk
APPROVED AS TO FORM:
_____________________________
Best Best & Krieger LLP
City Attorney
814
3 I, Anthony Mejia, City Clerk of the City of Palm Desert, do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City Council at a regular meeting on the ____ day of ___________, 2024, by the following vote to wit:
AYES:
NOES:
ABSTAIN:
ABSENT:
_____________________________
City Clerk
815
4 EXHIBIT “A”
5 Year Spending Plan and Priorities
[attached behind this page]
816
PRIORITY - FIRE PREVENTION/EMERGENCY RESPONSE
Project #1: Fire Station 102 Construction and Staffing
The City has reallocated bond proceeds intended for lower priority projects to build Fire Station 102. Upon its opening, the Fire Services costs are estimated to increase $7.5M in the first year to operate the new staion and ladder truck. Additionally, Cal-Fire who provides the staffing for fire services in Palm Desert through the contract with the County of Riverside, has implemented new requirements that require additional staffing to accommodate the various changes including limiting the max number of hours each fire person is permitted to work. The associated costs immediately increase costs by an additional $3M annually beginning in 2025-26. Revenues associated with the growth in the North Sphere grow at a much slower pace and will not be able to support the increased staffing needs to maintain current emergency service levels. Funding from the could be used for these costs.
Project #2: Fire Station 33 Rehabilitation
Over a period of years, the City has transferred funds from the General Fund to reserve funds necessary to rehabilitate the 30+ year old Fire Station 33. Current estimates are at $6M. Costs to house the staff during rehabilitation have not been included in the budget. Funding from the Tax could be used to pay these costs, while not limiting service to the community or risking the safety of the staff during that time.
Project #3: Fire Station 71 Reconstruction
Over a period of years, the City has transferred funds from the General Fund to reserve funds necessary to rehabilitate the 30+ year old Fire Station 71. Current estimates are at $7M. Costs to house the staff during rehabilitation have not been included in the budget. Funding from the Tax could be used to pay these costs, while not limiting service to the community or risking the safety of the staff during that time.
PRIORITY - PUBLIC SAFETY
Project #1: Increase Public Safety Patrol Staffing (3)
The Public Safety Committee has identified additional patrols in the City as a priority to address traffic issues and rising crime rates. The cost for 3 additional police officers is $1.3M in FY 2024-25. Overall public safety costs typically increase at approximately 3-5% annually. As the City continues to grow, we anticipate the need for an additional 3 police officers inYear 4 of the plan.
PRIORITY - INFRASTRUCTURE REPAIR AND EQUIPMENT REPLACEMENT Project #1: North Sphere Flood Control Infrastructure and Emergency Plan As a result of Tropical Storm Hilary, City staff has analyzed ways to address those areas of the City that were adversely impacted. The North Sphere was impacted by flooding, silt, and debris that moved eastward from the Morongo basin. The $6M in cleanup costs were covered by City emergency reserve funds. Staff hopes to recover approximately $3-4M of those costs through insurance and FEMA claims. However, maintaining and improving infrastructure, expanding retention basin areas, and ensuring the cities storm water infrastructure network is properly maintained and improved will be paramount to managing long-term impacts for residents.
Project #2: North Sphere Public Works Staffing (3)
As the City continues to grow, additional public works crews are required to maintain the city's infrastructure network . Staff estimates the cost for 3 additional crew members to be roughly $360,000 in 2024-25 dollars. The growth in north PD including new roadways, sidewalk, drainage and park infrastructure and additional staffing or contracts will be required to maintain new assets.
PALM DESERT TRANSACTION AND USE TAX - 5 YEAR SPENDING PLAN AND PRIORITIES 817
PRIORITY - PARKS, RECREATION, AND LIBRARY EXPANSION
Project #1: Palm Desert Library Construction and Staffing The City has reallocated bond proceeds intended for lower priority projects to help build the Palm Desert Municipal Library. Costs are currently estimated at $30M for construction. There currently is approximately $20M in proceeds available, with the remaining $10M requiring the use of reserves and/or funding from another source such as the sales tax.
Project #2: North Sphere Regional Park and Staffing
A small portion of the costs for the construction of the North Palm Desert Regional Park is currently covered by bond proceeds. However, the majority of the $20M estimated costs would be paid through the use of reserve funds, or funding from another source, such as the sales tax to complete construction. Depending on the ultimate design and use of the park facilities, additional staffing will be required, which could be paid from the sales tax funding.
PRIORITY - FINANCIAL RESERVES
Project #1: Replenishment of Emergency and Operation Reserves The City may be required to use reserve funds to pay for numerous facility maintenance and capital improvement costs over the next 5 years. Additionally, planning and preparing for natural disasters, by reserving for emergencies is important, as evidenced by the swift response to Tropical Storm Hilary. Palm Desert's ability to recover from such events is necessary to support community resilliency. Sales tax revenue would be allocated to replenish the reductions to reserve in accordance with the reserve policy. This standard supports the City's conintued effort to maintain fiscal responsibility and not having to rely on debt financing. 818
Category FY 2024-25 FY 2025-26 FY 2026-27 FY 2027-28 FY 2028-29 Total 5-Yr Plan 1 cent sales tax 25,164,510 25,869,116 26,515,844 27,311,320 104,860,790 Current Planned Costs
New Fire Services Staffing Public Safety 900,000 10,657,440 10,971,472 11,232,818 11,496,338 45,258,067 Fire Station 33 Renovation/Temp Site Public Safety 1,200,000 1,200,000 Fire Station 71 Renovation/Temp Site Public Safety 1,200,000 1,200,000 New Police Services Staffing Public Safety 1,300,000 1,352,000 1,406,080 2,812,160 2,924,646 9,794,886 Storm Channel and Retention Basin Imps Infrastructure/H&S 5,508,000 8,000,000 5,000,000 18,508,000 City-Wide Facility and Equipment Replacement Infrastructure/H&S 8,397,001 9,944,665 7,798,734 12,865,305 9,264,802 48,270,506 New Public Works Staffing Public Works 360,000 370,800 381,924 786,763 810,366 2,709,854 Library Construction ($20M Pd from Bonds) Community Amenity 10,000,000 10,000,000 North Sphere Regional Park Community Amenity 15,000,000 15,000,000 30,000,000 Spending Contingency/Reserve Replenishment Fiscal Discipline/Responsibility 2,815,167 2,815,167 Total Planned Costs 16,465,001 32,724,905 40,558,210 52,697,046 27,311,319 169,756,480 Additional Amount needed from Reserve or Other Source (16,465,001) (7,560,395) (14,689,094) (26,181,202) 0 (64,895,690) PALM DESERT TRANSACTION AND USE TAX - 5 YEAR SPENDING PLAN AND PRIORITIES ***Annual allocations subject to City Council approval of Annual Budget 819 820
CITY OF PALM DESERT
STAFF REPORT
MEETING DATE: June 13, 2024
PREPARED BY: Nick Melloni, AICP, Principal Planner
REQUEST: RESOLUTION TO AMEND AND ADOPT LOCAL GUIDELINES FOR
IMPLEMENTING THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
(PUBLIC RESOURCES CODE §§ 21000 ET SEQ.)
RECOMMENDATION:
Adopt a Resolution entitled “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM
DESERT, CALIFORNIA, AMENDING AND ADOPTING LOCAL GUIDELINES FOR IMPLEMENTING THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (PUB. RESOURCES CODE §§ 21000 ET SEQ.).
PLANNING COMMISSION RECOMMENDATION:
The Planning Commission for the City of Palm Desert did hold a duly noticed public hearing to consider the aforementioned Project on May 7, 2024, and adopted Resolution 2866 in a 5-0 vote recommending approval of the action to the City Council.
BACKGROUND/ANALYSIS:
The California Environmental Quality Act (“CEQA”), codified at Public Resources Code section 21000, et seq., is California’s most comprehensive environmental law. It generally requires public agencies to evaluate the environmental effects of their actions before they are taken.
CEQA also aims to prevent significant environmental effects from occurring as a result of agency actions by requiring agencies to avoid or reduce, when feasible, the significant environmental impacts of their decisions.
To this end, CEQA requires public agencies to adopt specific objectives, criteria and procedures for evaluating public and private projects that are undertaken or approved by such agencies.
The City of Palm Desert has prepared a proposed updated set of Local CEQA Guidelines for 2024 in compliance with CEQA’s requirements. These Guidelines reflect recent changes to CEQA. These Local CEQA Guidelines also provide instructions and forms for preparing all environmental documents required under CEQA.
Legal Review:
This report has been reviewed by the City Attorney’s office.
Environment Review:
No environmental impact is anticipated from amending the Local CEQA Guidelines. City of Palm Desert’s adoption of the attached Resolution is not a project under State CEQA Guidelines section 15378(b)(5) because it involves an administrative activity and would not result in any environmental impacts.
821
City of Palm Desert
2024 Local CEQA Guidelines
Public Input:
Public Notification
Public noticing was conducted for the June 13, 2024, Planning Commission meeting per the requirements of PDMC Section 25.60.060 and Government Code Sections 65090 to 65094. A public hearing notice was published on Friday, May 31, 2024, in The Desert Sun newspaper. No comments by the public were received as of June 6, 2024.
ATTACHMENTS:
1. Draft City Council Resolution
2. Public Hearing Notice
3. Planning Commission Resolution No. 2866
4. Draft City of Palm Desert 2024 CEQA Guidelines
822
RESOLUTION NO. 2024-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, AMENDING AND ADOPTING LOCAL GUIDELINES FOR
IMPLEMENTING THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (PUB.
RESOURCES CODE §§ 21000 ET SEQ.)
WHEREAS, the California Legislature has amended the California Environmental Quality Act (“CEQA”) (Pub. Resources Code §§ 21000 et seq.), the Natural Resources Agency has amended the State CEQA Guidelines (Cal. Code Regs, tit. 14, §§ 15000 et seq.), and the California courts have interpreted specific provisions of CEQA; and WHEREAS, Public Resources Code section 21082 requires all public agencies to adopt objectives, criteria and procedures for (1) the evaluation of public and private projects undertaken or approved by such public agencies, and (2) the preparation, if required, of environmental impact reports and negative declarations in connection with that evaluation; and
WHEREAS, the City of Palm Desert must revise its local guidelines for implementing CEQA to make them consistent with the current provisions and interpretations of CEQA and the State CEQA Guidelines.
WHEREAS, on May 7th, 2024, the Planning Commission of the City of Palm Desert conducted a duly noticed public meeting on this action and, upon hearing all public comment, unanimously voted to adopted Planning Commission Resolution No. 2866 recommending the City Council approve the action; and
WHEREAS, on June 13th, 2024, the City Council of the City of Palm Desert (“City Council”) conducted a duly noticed public meeting on this Resolution, at which time all persons wishing to testify were heard and the Action was fully considered; and WHEREAS, at the said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, the Planning Commission did find the following facts and reasons, which are outlined in the staff report, exist to justify approval of said action:
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Palm Desert, California, as follows:
SECTION 1. Recitals. The City Council hereby finds that the foregoing recitals are true and correct and are incorporated herein as substantive findings of this Resolution.
SECTION 2. Approval. The City Council hereby adopts a Resolution approving the following:
1. The City adopts the “2024 Local Guidelines for Implementing the California Environmental Quality Act for the City of Palm Desert,” a copy of which is on file at the offices of the City and is available for inspection by the public. 823
2. All prior actions of the City enacting earlier guidelines are hereby repealed.
SECTION 3. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at the City’s office at 73510 Fred Waring Drive, Palm Desert, CA 92260. Anthony J. Mejia, MMC, the City Clerk of the City of Palm Desert is the custodian of the record of proceedings.
SECTION 4. Execution of Resolution. The Mayor signs this Resolution and the City Clerk shall attest and certify the passage and adoption thereof.
ADOPTED ON June 13, 2024.
KARINA QUINTANILLA
MAYOR
ATTEST:
ANTHONY J. MEJIA
CITY CLERK
I, Anthony J. Mejia, City Clerk of the City of Palm Desert, California, DO HEREBY CERTIFY that the foregoing Resolution No. 2024-__ was duly adopted by the City Council of the City of Palm Desert at a regular meeting held on the ___ day of June, 2024 by the following vote of the Council:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSED:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on ____________________________. 824
ANTHONY J. MEJIA
CITY CLERK
825
826
C I T Y O F P A L M
D E S E R T 73-510 FRED WARING DRIVE
PALM DESERT, CALIFORNIA 92260-2578
TEL: 760-346-0611
[email protected]
CITY OF PALM DESERT
PUBLIC HEARING NOTICE
NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BEFORE THE CITY
COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, TO CONSIDER THE ADOPTION OF UPDATED 2024 LOCAL GUIDELINES FOR IMPLEMENTING THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (PUBLIC RESOURCES CODE §§ 21000 ET SEQ.) AND
FINDING THE ACTION IS EXEMPT FROM FURTHER ENVIRONMENTAL REVIEW IN
ACCORDANCE WITH CEQA
The City of Palm Desert (City), in its capacity as the Lead Agency for this project and pursuant to the California Environmental Quality Act (CEQA), has determined the project to be exempt from further environmental review pursuant to CEQA Guidelines Section §15378(b)(5) because it involves an administrative activity and would not result in any environmental impacts.
PROJECT LOCATION: Citywide
PROJECT DESCRIPTION: The City of Palm Desert has prepared a proposed updated set of Local CEQA Guidelines for 2024 in compliance with CEQA’s requirements. These Guidelines reflect recent changes to CEQA. These Local CEQA Guidelines also provide instructions and forms for preparing all environmental documents required under CEQA.
PLANNING COMMISSION RECOMMENDATION: The Planning Commission for the City of Palm Desert did hold a duly noticed public hearing to consider the aforementioned Project on May 7, 2024, and adopted Resolution 2866 recommending approval of the action to the City Council.
PUBLIC HEARING: NOTICE IS HEREBY GIVEN that the City Council of the City of Palm Desert, California, will hold a Public Hearing on Thursday, June 13, 2024. The City Council meeting begins at 4:00 p.m. in the Council Chamber at 73510 Fred Waring Drive, Palm Desert, California.
Pursuant to Assembly Bill 2449, this meeting may be conducted as a hybrid meeting, allowing public access via teleconference or in person. Options for remote participation will be listed on the Posted Agenda for the meeting at: https://www.palmdesert.gov/connect/city-council REVIEW OF PROJECT INFORMATION: Information concerning the proposed Change of Zone is available for review in the Office of the City Clerk at 73510 Fred Waring Drive, Palm Desert, California during regular business hours and on the City’s website at https://www.palmdesert.gov/connect/city-council
COMMENT ON THIS APPLICATION: Response to this notice may be made as follows:
Written comments may be submitted to the City Council by letter to the address below or email at [email protected]. Transmittal prior to the start of the meeting is required. Any correspondence received during or after the meeting will be distributed to the City Council as soon as practicable and retained for the official record.
Any challenge of the proposed project in court may be limited to raising only those issues raised at the public hearing described in this notice, or in written correspondence delivered to the City Clerk at, or prior, to the public hearing. (Government Code Section 65009[b][2]).
Si necesita ayuda con esta notificación, por favor llame a la Ciudad de Palm Desert y comuníquese con Gloria Sanchez (760) 346-0611 ext. 354
PUBLISH: THE DESERT SUN ANTHONY J. MEJIA, MMC, CITY CLERK May 31, 2024 CITY OF PALM DESERT, CALIFORNIA
827
828
RESOLUTION NO. 2866
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM
DESERT RECOMMENDING THAT THE CITY COUNCIL AMEND AND
ADOPT LOCAL GUIDELINES FOR IMPLEMENTING THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT (PUB. RESOURCES CODE §§ 21000 ET SEQ.)
WHEREAS, the California Legislature has amended the California Environmental Quality Act (“CEQA”) (Pub. Resources Code §§ 21000 et seq.), the Natural Resources Agency has amended the State CEQA Guidelines (Cal. Code Regs, tit. 14, §§ 15000 et seq.), and the California courts have interpreted specific provisions of CEQA; and WHEREAS, Public Resources Code section 21082 requires all public agencies to adopt objectives, criteria and procedures for (1) the evaluation of public and private projects undertaken or approved by such public agencies, and (2) the preparation, if required, of environmental impact reports and negative declarations in connection with that evaluation; and
WHEREAS, the City of Palm Desert must revise its local guidelines for implementing CEQA to make them consistent with the current provisions and interpretations of CEQA and the State CEQA Guidelines.
WHEREAS, on May 7th, 2024, the Planning Commission conducted a duly noticed public meeting on this Resolution, at which time all persons wishing to testify were heard and the Action was fully considered; and
WHEREAS, at the said public hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons desiring to be heard, the Planning Commission did find the following facts and reasons, which are outlined in the staff report, exist to justify approval of said action:
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Palm Desert, California, as follows:
SECTION 1. Recitals. The Planning Commission hereby finds that the foregoing recitals are true and correct and are incorporated herein as substantive findings of this Resolution.
SECTION 2. Recommendation. The Planning Commission hereby recommends the City Council adopt a Resolution approving the following:
1. The City adopts the “2024 Local Guidelines for Implementing the California Environmental Quality Act for the City of Palm Desert,” attached hereto as Exhibit A. A copy of said document is on file at the offices of the City and is available for inspection by the public.
2. All prior actions of the City enacting earlier guidelines are hereby repealed. 829
SECTION 3. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings are based are located at the City’s office at 73510 Fred Waring Drive, Palm Desert, CA 92260. Richard D. Cannone, AICP, the Secretary to the Palm Desert Planning Commission, is the custodian of the record of proceedings.
SECTION 4. Execution of Resolution. The Chairperson of the Planning Commission signs this Resolution, and the Secretary to the Commission shall attest and certify to the passage and adoption thereof.
ADOPTED ON May 7, 2024.
JOSEPH PRADETTO
CHAIRPERSON
ATTEST:
RICHARD D. CANNONE, AICP
SECRETARY
I, Richard D. Cannone, AICP, Secretary of the City of Palm Desert Planning Commission, hereby certify that Resolution No. 2866 is a full, true, and correct copy, and was duly adopted at a regular meeting of the Planning Commission of the City of Palm Desert on May 7, 2024, by the following vote:
AYES: DELUNA, GREENWOOD, GREGORY, HOLT, PRADETTO
NOES: NONE
ABSENT: NONE
ABSTAIN: NONE
RECUSED: NONE
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Desert, California, on May _ _, 2024.
RICHARD D. CANNONE, AICP
SECRETARY
830
2024
LOCAL GUIDELINES
FOR IMPLEMENTING THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
FOR
CITY OF PALM DESERT
831
TABLE OF CONTENTS
Page
-i1. GENERAL PROVISIONS, PURPOSE AND POLICY. ................................................ 1-1
1.01 General Provisions. ............................................................................................. 1-1
1.02 Purpose. ............................................................................................................... 1-1
1.03 Applicability. ...................................................................................................... 1-1
1.04 Reducing Delay and Paperwork. ......................................................................... 1-2
1.05 Compliance With State Law. .............................................................................. 1-2
1.06 Terminology. ....................................................................................................... 1-3
1.07 Partial Invalidity.................................................................................................. 1-3
1.08 Electronic Delivery of Comments and Notices. ................................................. 1-3
1.09 The City May Charge Reasonable Fees For Reproducing Environmental Documents. ......................................................................................................... 1-3
1.10 Time of Preparation ............................................................................................ 1-4
1.11 State Agency Furloughs. ..................................................................................... 1-5
2. LEAD AND RESPONSIBLE AGENCIES .................................................................... 2-1
2.01 Lead Agency Principle. ....................................................................................... 2-1
2.02 Selection of Lead Agency. .................................................................................. 2-1
2.03 Duties of a Lead Agency..................................................................................... 2-1
2.04 CEQA Determinations Made by Non-Elected Body; Procedure to Appeal Such Determinations. .......................................................................................... 2-3
2.05 Projects Relating to Development of Hazardous Waste and Other Sites. .......... 2-3
2.06 Responsible Agency Principle. ........................................................................... 2-4
2.07 Duties of a Responsible Agency. ........................................................................ 2-4
2.08 Response to Notice of Preparation by Responsible Agencies. ........................... 2-4
2.09 Use of Final EIR or Negative Declaration by Responsible Agencies. ............... 2-5
2.10 Shift in Lead Agency Responsibilities. ............................................................... 2-5
3. ACTIVITIES EXEMPT FROM CEQA ......................................................................... 3-1
3.01 Actions Subject to CEQA. .................................................................................. 3-1
3.02 Ministerial Actions.............................................................................................. 3-1
3.03 Exemptions in General. ....................................................................................... 3-2
3.04 Notice of Exemption. .......................................................................................... 3-2
3.05 Disapproved Projects. ......................................................................................... 3-3 832
TABLE OF CONTENTS
(continued)
Page
-ii3.06 Projects with No Possibility of Significant Effect. ............................................. 3-4
3.07 Emergency Projects. ........................................................................................... 3-4
3.08 Feasibility and Planning Studies. ........................................................................ 3-4
3.09 Rates, Tolls, Fares, and Charges. ........................................................................ 3-5
3.10 Pipelines within a Public Right-of-Way and Less Than One Mile in Length. ................................................................................................................ 3-5
3.11 Pipelines of Less Than Eight Miles in Length. ................................................... 3-5
3.12 Certain Residential Housing Projects. ................................................................ 3-7
3.13 Minor Alterations to Fluoridate Water Utilities................................................ 3-14
3.14 Ballot Measures. ............................................................................................... 3-14
3.15 Transit Priority Project. ..................................................................................... 3-14
3.16 Certain Infill Projects ........................................................................................ 3-15
3.17 Exemption for Infill Projects In Transit Priority Areas .................................... 3-17
3.18 Exemption for Residential Projects Undertaken Pursuant to a Specific Plan ... 3-17
3.19 Transfer of Land for The Preservation of Natural Conditions .......................... 3-18
3.20 Transit Prioritization Projects. .......................................................................... 3-18
3.21 Transportation Plans, Pedestrian Plans, and Bicycle Transportation Plans. ..... 3-20
3.22 Water System Wells and Domestic Well Projects ............................................ 3-21
3.23 Small Disadvantaged Community Water System and State Small Water System. .............................................................................................................. 3-23
3.24 Conservation and Restoration of California Native Fish and Wildlife. ............ 3-23
3.25 Linear Broadband Deployment in a Right-of-Way. ......................................... 3-24
3.26 Needle and Syringe Exchange Services. ........................................................... 3-25
3.27 Other Specific Exemptions. .............................................................................. 3-26
3.28 Categorical Exemptions. ................................................................................... 3-26
4. TIME LIMITATIONS .................................................................................................... 4-1
4.01 Review of Private Project Applications. ............................................................. 4-1
4.02 Determination of Type of Environmental Document. ........................................ 4-1
4.03 Completion and Adoption of Negative Declaration. .......................................... 4-1
4.04 Completion and Certification of Final EIR. ........................................................ 4-1
4.05 Projects Subject to the Permit Streamlining Act................................................. 4-2 833
TABLE OF CONTENTS
(continued)
Page
-iii4.06 Projects, Other Than Those Subject to the Permit Streamlining Act, with Short Time Periods for Approval. ....................................................................... 4-2
4.07 Waiver or Suspension of Time Periods. ............................................................. 4-3
5. INITIAL STUDY............................................................................................................ 5-1
5.01 Preparation of Initial Study. ................................................................................ 5-1
5.02 Informal Consultation with Other Agencies. ...................................................... 5-1
5.03 Consultation with Private Project Applicant....................................................... 5-2
5.04 Projects Subject to NEPA. .................................................................................. 5-2
5.05 An Initial Study. .................................................................................................. 5-3
5.06 Contents of Initial Study. .................................................................................... 5-4
5.07 Use of a Checklist Initial Study. ......................................................................... 5-4
5.08 Evaluating Significant Environmental Effects. ................................................... 5-5
5.09 Determining the Significance of Transportation Impacts ................................... 5-6
5.10 Mandatory Findings of Significant Effect. ......................................................... 5-7
5.11 Mandatory Preparation of an EIR for Waste-Burning Projects. ......................... 5-8
5.12 Development Pursuant To An Existing Community Plan And EIR. .................. 5-9
5.13 Land Use Policies. ............................................................................................ 5-10
5.14 Evaluating Impacts on Historical Resources. ................................................... 5-10
5.15 Evaluating Impacts on Archaeological Sites. ................................................... 5-11
5.16 Consultation with Water Agencies Regarding Large Development Projects. ............................................................................................................. 5-12
5.17 Subdivisions with More Than 500 Dwelling Units. ......................................... 5-14
5.18 Impacts to Oak Woodlands. .............................................................................. 5-15
5.19 Climate Change And Greenhouse Gas Emissions. ........................................... 5-15
5.20 Energy Conservation. ........................................................................................ 5-19
5.21 Environmental Impact Assessment. .................................................................. 5-20
5.22 Final Determination. ......................................................................................... 5-20
6. NEGATIVE DECLARATION ....................................................................................... 6-1
6.01 Decision to Prepare a Negative Declaration. ...................................................... 6-1
6.02 Decision to Prepare a Mitigated Negative Declaration....................................... 6-1
6.03 Contracting for Preparation of Negative Declaration or Mitigated Negative Declaration. ......................................................................................................... 6-1 834
TABLE OF CONTENTS
(continued)
Page
-iv6.04 Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration. ......................................................................................................... 6-1
6.05 Projects Affecting Military Services; Department of Defense Notification. ...... 6-4
6.06 Special Findings Required for Facilities That May Emit Hazardous Air Emissions Near Schools. ..................................................................................... 6-4
6.07 Consultation with California Native American Tribes. ...................................... 6-5
6.08 Identification of Tribal Cultural Resources and Processing of Information after Consultation with the California native American tribe ............................. 6-7
6.09 Significant Adverse Impacts to Tribal Cultural Resources ................................. 6-8
6.10 Posting and Publication of Negative Declaration or Mitigated Negative Declaration. ......................................................................................................... 6-9
6.11 Submission of Negative Declaration or Mitigated Negative Declaration to State Clearinghouse. ......................................................................................... 6-10
6.12 Special Notice Requirements for Waste- and Fuel-Burning Projects. .............. 6-12
6.13 Consultation with Water Agencies Regarding Large Development Projects. ............................................................................................................. 6-13
6.14 Content of Negative Declaration or Mitigated Negative Declaration. ............. 6-13
6.15 Types of Mitigation........................................................................................... 6-13
6.16 Adoption of Negative Declaration or Mitigated Negative Declaration. ........... 6-14
6.17 Mitigation Reporting or Monitoring Program for Mitigated Negative Declaration. ....................................................................................................... 6-14
6.18 Approval or Disapproval of Project. ................................................................. 6-15
6.19 Recirculation of a Negative Declaration or Mitigated Negative Declaration. ....................................................................................................... 6-16
6.20 Notice of Determination on a Project for Which a Proposed Negative or Mitigated Negative Declaration Has Been Approved. ..................................... 6-16
6.21 Addendum to Negative Declaration or Mitigated Negative Declaration. ......... 6-18
6.22 Subsequent Negative Declaration or Mitigated Negative Declaration. ............ 6-18
6.23 Private Project Costs. ........................................................................................ 6-19
6.24 Filing Fees for Projects That Affect Wildlife Resources. ................................. 6-19
7. ENVIRONMENTAL IMPACT REPORT ..................................................................... 7-1
7.01 Decision to Prepare an EIR. ................................................................................ 7-1
7.02 Contracting for Preparation of EIRs. .................................................................. 7-1
7.03 Notice of Preparation of Draft EIR. .................................................................... 7-1 835
TABLE OF CONTENTS
(continued)
Page
-v7.04 Special Notice Requirements for Affected Military Agencies ........................... 7-3
7.05 Environmental Leadership Development Project. .............................................. 7-3
7.06 Preparation of Draft EIR. .................................................................................... 7-6
7.07 Consultation with California Native American Tribes. ...................................... 7-6
7.08 Identification of Tribal Cultural Resources and Processing of Information after Consultation with the California native American tribe ............................. 7-7
7.09 Significant Adverse Impacts to Tribal Cultural Resources ................................. 7-9
7.10 Consultation with Other Agencies and Persons. ................................................. 7-9
7.11 Early Consultation on Projects Involving Permit Issuance............................... 7-11
7.12 Consultation with Water Agencies Regarding Large Development Projects. ............................................................................................................. 7-11
7.13 Airport Land Use Plan. ..................................................................................... 7-12
7.14 General Aspects of an EIR. ............................................................................... 7-12
7.15 Use of Registered Consultants in Preparing EIRs. ........................................... 7-12
7.16 Incorporation by Reference............................................................................... 7-13
7.17 Standards for Adequacy of an EIR. .................................................................. 7-13
7.18 Form and Content of EIR. ................................................................................. 7-14
7.19 Consideration and Discussion of Significant Environmental Impacts. ............ 7-15
7.20 Environmental Setting ...................................................................................... 7-16
7.21 Analysis of Cumulative Impacts. ...................................................................... 7-17
7.22 Analysis of Mitigation Measures. ..................................................................... 7-19
7.23 Analysis of Alternatives in an EIR. .................................................................. 7-21
7.24 Analysis of Future Expansion. .......................................................................... 7-23
7.25 Notice of Completion of Draft EIR; Notice of Availability of Draft EIR. ....... 7-23
7.26 Submission of Draft EIR to State Clearinghouse. ............................................ 7-26
7.27 Special Notice Requirements for Waste- And Fuel-Burning Projects. ............. 7-27
7.28 Time For Review of Draft EIR; Failure to Comment. ...................................... 7-28
7.29 Public Hearing on Draft EIR............................................................................. 7-29
7.30 Response to Comments on Draft EIR. .............................................................. 7-29
7.31 Preparation and Contents of Final EIR. ............................................................ 7-30
7.32 Recirculation When New Information Is Added to EIR. .................................. 7-30 836
TABLE OF CONTENTS
(continued)
Page
-vi7.33 Certification of Final EIR. ................................................................................ 7-32
7.34 Consideration of EIR Before Approval or Disapproval of Project. .................. 7-32
7.35 Findings............................................................................................................. 7-32
7.36 Special Findings Required for Facilities That May Emit Hazardous Air Emissions Near Schools. ................................................................................... 7-33
7.37 Statement of Overriding Considerations. .......................................................... 7-34
7.38 Mitigation Monitoring or Reporting Program for EIR. .................................... 7-35
7.39 Notice of Determination. .................................................................................. 7-37
7.40 Disposition of a Final EIR. ............................................................................... 7-38
7.41 Private Project Costs. ........................................................................................ 7-38
7.42 Filing Fees for Projects That Affect Wildlife Resources. ................................. 7-38
8. TYPES OF EIRS............................................................................................................. 8-1
8.01 EIRs Generally. ................................................................................................... 8-1
8.02 Tiering. ................................................................................................................ 8-1
8.03 Project EIR. ......................................................................................................... 8-2
8.04 Subsequent EIR. .................................................................................................. 8-3
8.05 Supplemental EIR. .............................................................................................. 8-4
8.06 Addendum to an EIR. ......................................................................................... 8-4
8.07 Staged EIR. ......................................................................................................... 8-4
8.08 Program EIR. ...................................................................................................... 8-5
8.09 Use of a Program EIR with Subsequent EIRs and Negative Declarations. ........ 8-5
8.10 Use of an EIR from an Earlier Project. ............................................................... 8-6
8.11 Master EIR. ......................................................................................................... 8-6
8.12 Focused EIR. ....................................................................................................... 8-8
8.13 Special Requirements for Redevelopment Projects. ........................................... 8-9
9. AFFORDABLE HOUSING ........................................................................................... 9-1
9.01 Streamlined, ministerial approval process for affordable housing projects ........ 9-1
9.02 Ministerial approval process for urban lot splits and housing developments with no more than two residential units within a single-family residential zone (SB 9) ....................................................................................................... 9-22
9.03 Approval of ordinance to zone any parcel for up to 10 units of residential density per parcel in certain circumstances (SB 10) ......................................... 9-26 837
TABLE OF CONTENTS
(continued)
Page
-vii9.04 Housing Sustainability Districts. ...................................................................... 9-27
9.05 Interim Motel Housing Projects. ....................................................................... 9-28
9.06 Supportive Housing And “No Place Like Home” Projects. ............................. 9-28
9.07 Shelter Crisis and Emergency Housing. ........................................................... 9-29
9.08 Affordable Housing Developments in Commercial Zones. .............................. 9-29
9.09 Mixed-Income Housing Developments Along Commercial Corridors. ........... 9-31
10. CEQA LITIGATION .................................................................................................... 10-1
10.01 Timelines........................................................................................................... 10-1
10.02 Mediation and Settlement. ................................................................................ 10-1
10.03 Administrative Record. ..................................................................................... 11-1
11. DEFINITIONS .............................................................................................................. 11-1
11.01 “Agricultural Employee” .................................................................................. 11-1
11.02 “Applicant” ....................................................................................................... 11-1
11.03 “Approval” ........................................................................................................ 11-1
11.04 “Baseline” ......................................................................................................... 11-2
11.05 “California Native American Tribe” ................................................................. 11-2
11.06 “Categorical Exemption” .................................................................................. 11-2
11.07 “Census-Defined Place”.................................................................................... 11-2
11.08 “CEQA” ............................................................................................................ 11-2
11.09 “City” ................................................................................................................ 11-2
11.10 “Clerk” .............................................................................................................. 11-2
11.11 “Community-Level Environmental Review” ................................................... 11-2
11.12 “Consultation”................................................................................................... 11-3
11.13 “Cumulative Impacts” ....................................................................................... 11-3
11.14 “Cumulatively Considerable” ........................................................................... 11-3
11.15 “Decision-Making Body” ................................................................................. 11-3
11.16 “Developed Open Space” ................................................................................. 11-3
11.17 “Development Project” ..................................................................................... 11-3
11.18 “Discretionary Project” ..................................................................................... 11-4
11.19 “EIR”................................................................................................................. 11-4
11.20 “Emergency” .................................................................................................... 11-4 838
TABLE OF CONTENTS
(continued)
Page
-viii11.21 “Endangered, Rare or Threatened Species” ...................................................... 11-4
11.22 “Environment” .................................................................................................. 11-4
11.23 “Feasible” .......................................................................................................... 11-5
11.24 “Final EIR” ....................................................................................................... 11-5
11.25 “Greenhouse Gases” ......................................................................................... 11-5
11.26 “Guidelines” or “Local Guidelines” ................................................................. 11-5
11.27 “Highway” ........................................................................................................ 11-5
11.28 “Historical Resources” ...................................................................................... 11-5
11.29 “Infill Site” ........................................................................................................ 11-6
11.30 “Initial Study” ................................................................................................... 11-6
11.31 “Jurisdiction by Law” ....................................................................................... 11-7
11.32 “Land Disposal Facility”................................................................................... 11-7
11.33 “Large Treatment Facility” ............................................................................... 11-7
11.34 “Lead Agency”.................................................................................................. 11-7
11.35 “Low- and Moderate-Income Households” ...................................................... 11-7
11.36 “Low-Income Households” .............................................................................. 11-7
11.37 “Low-Level Flight Path”................................................................................... 11-7
11.38 “Lower Income Households” ............................................................................ 11-8
11.39 “Major Transit Stop”......................................................................................... 11-8
11.40 “Metropolitan Planning Organization” or “MPO”. .......................................... 11-8
11.41 “Military Impact Zone”..................................................................................... 11-8
11.42 “Military Service” ............................................................................................. 11-8
11.43 “Ministerial” ..................................................................................................... 11-8
11.44 “Mitigated Negative Declaration” or “MND” .................................................. 11-9
11.45 “Mitigation” ...................................................................................................... 11-9
11.46 “Negative Declaration” or “ND” ...................................................................... 11-9
11.47 “Notice of Completion” .................................................................................... 11-9
11.48 “Notice of Determination” ................................................................................ 11-9
11.49 “Notice of Exemption” ..................................................................................... 11-9
11.50 “Notice of Preparation”..................................................................................... 11-9
11.51 “Oak” .............................................................................................................. 11-10 839
TABLE OF CONTENTS
(continued)
Page
-ix11.52 “Oak Woodlands” ........................................................................................... 11-10
11.53 “Offsite Facility” ............................................................................................. 11-10
11.54 “Person” .......................................................................................................... 11-10
11.55 “Pipeline” ........................................................................................................ 11-10
11.56 “Private Project” ............................................................................................. 11-10
11.57 “Project” .......................................................................................................... 11-10
11.58 “Project-Specific Effects” ............................................................................... 11-11
11.59 “Public Water System” ................................................................................... 11-11
11.60 “Qualified Urban Use” .................................................................................... 11-11
11.61 “Residential” ................................................................................................... 11-11
11.62 “Responsible Agency” .................................................................................... 11-11
11.63 “Riparian areas” .............................................................................................. 11-11
11.64 “Roadway” ...................................................................................................... 11-12
11.65 “Significant Effect” ......................................................................................... 11-12
11.66 “Significant Value as a Wildlife Habitat” ....................................................... 11-12
11.67 “Special Use Airspace” ................................................................................... 11-12
11.68 “Staff” ............................................................................................................. 11-12
11.69 “Standard” ....................................................................................................... 11-12
11.70 “State CEQA Guidelines” ............................................................................... 11-13
11.71 “Substantial Evidence” ................................................................................... 11-13
11.72 “Sustainable Communities Strategy” .............................................................. 11-13
11.73 “Tiering” ......................................................................................................... 11-13
11.74 “Transit Priority Area” .................................................................................... 11-14
11.75 “Transit Priority Project” ................................................................................ 11-14
11.76 “Transportation Facilities” .............................................................................. 11-14
11.77 “Tribal Cultural Resources” ............................................................................ 11-14
11.78 “Trustee Agency”............................................................................................ 11-15
11.79 “Urban Growth Boundary” ............................................................................. 11-15
11.80 “Urbanized Area”............................................................................................ 11-15
11.81 “Water Acquisition Plans” .............................................................................. 11-16
11.82 “Water Assessment” or “Water Supply Assessment” .................................... 11-16 840
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Page
-x11.83 “Water Demand Project” ................................................................................ 11-16
11.84 “Waterway”..................................................................................................... 11-17
11.85 “Wetlands” ...................................................................................................... 11-17
11.86 “Wildlife Habitat” ........................................................................................... 11-17
11.87 “Zoning Approval” ........................................................................................ 11-18
12. FORMS ......................................................................................................................... 12-1
13. COMMON ACRONYMS ............................................................................................ 13-1 841
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LOCAL GUIDELINES
FOR IMPLEMENTING THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
(2024)
1. GENERAL PROVISIONS, PURPOSE AND POLICY.
1.01 GENERAL PROVISIONS.
These Local Guidelines (“Local Guidelines”) are to assist the City of Palm Desert (“City”) in implementing the provisions of the California Environmental Quality Act (“CEQA”).
These Local Guidelines are consistent with the Guidelines for the Implementation of CEQA (“State CEQA Guidelines”), which have been promulgated by the California Natural Resources Agency for the guidance of state and local agencies in California. These Local Guidelines have been adopted pursuant to California Public Resources Code section 21082.
1.02 PURPOSE.
The purpose of these Local Guidelines is to help the City accomplish the following basic objectives of CEQA:
(a) To enhance and provide long-term protection for the environment, while providing a decent home and satisfying living environment for every Californian; (b) To provide information to governmental decision-makers and the public regarding the potential significant environmental effects of the proposed project; (c) To provide an analysis of the environmental effects of future actions associated with the project to adequately apprise all interested parties of the true scope of the project for intelligent weighing of the environmental consequences of the project; (d) To identify ways that environmental damage can be avoided or significantly reduced; (e) To prevent significant avoidable environmental damage through utilization of feasible project alternatives or mitigation measures; and
(f) To disclose and demonstrate to the public the reasons why a governmental agency approved the project in the manner chosen. Public participation is an essential part of the CEQA process. Each public agency should encourage wide public involvement, formal and informal, in order to receive and evaluate public reactions to environmental issues related to a public agency’s activities. Such involvement should include, whenever possible, making environmental information available in electronic format on the Internet, on a web site maintained or utilized by the public agency.
1.03 APPLICABILITY.
These Local Guidelines apply to any activity that constitutes a “project,” as defined in Local Guidelines Section 11.57, for which the City is the Lead Agency or a Responsible Agency.
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1.04 REDUCING DELAY AND PAPERWORK.
The State CEQA Guidelines encourage local governmental agencies to reduce delay and paperwork by, among other things:
(a) Integrating the CEQA process into early planning review; to this end, the project approval process and these procedures, to the maximum extent feasible, are to run concurrently, not consecutively;
(b) Identifying projects which fit within categorical or other exemptions and are therefore exempt from CEQA processing;
(c) Using initial studies to identify significant environmental issues and to narrow the scope of Environmental Impact Reports (EIRs);
(d) Using a Negative Declaration when a project, not otherwise exempt, will not have a significant effect on the environment;
(e) Consulting with state and local responsible agencies before and during the preparation of an EIR so that the document will meet the needs of all the agencies which will use it; (f) Allowing applicants to revise projects to eliminate possible significant effects on the environment, thereby enabling the project to qualify for a Negative Declaration rather than an EIR;
(g) Integrating CEQA requirements with other environmental review and consultation requirements;
(h) Emphasizing consultation before an EIR is prepared, rather than submitting adverse comments on a completed document;
(i) Combining environmental documents with other documents, such as general plans; (j) Eliminating repetitive discussions of the same issues by using EIRs on programs, policies or plans and tiering from statements of broad scope to those of narrower scope; (k) Reducing the length of EIRs by means such as setting appropriate page limits; (l) Preparing analytic, rather than encyclopedic, EIRs; (m) Mentioning insignificant issues only briefly;
(n) Writing EIRs in plain language;
(o) Following a clear format for EIRs;
(p) Emphasizing the portions of the EIR that are useful to decision-makers and the public and reducing emphasis on background material;
(q) Incorporating information by reference; and
(r) Making comments on EIRs as specific as possible.
1.05 COMPLIANCE WITH STATE LAW.
These Local Guidelines are intended to implement the provisions of CEQA and the State CEQA Guidelines, and the provisions of CEQA and the State CEQA Guidelines shall be fully complied with even though they may not be set forth or referred to herein. 843
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1.06 TERMINOLOGY.
The terms “must” or “shall” identify mandatory requirements. The terms “may” and “should” are permissive, with the particular decision being left to the discretion of the City.
1.07 PARTIAL INVALIDITY.
In the event any part or provision of these Local Guidelines shall be determined to be invalid, the remaining portions that can be separated from the invalid unenforceable provisions shall continue in full force and effect.
1.08 ELECTRONIC DELIVERY OF COMMENTS AND NOTICES.
Individuals may file a written request to receive copies of public notices provided for under these Local Guidelines or the State CEQA Guidelines. The requestor may elect to receive these notices via email rather than regular mail. Notices sent by email are deemed delivered when the staff person sending the email sends it to the last email address provided by the requestor to the City. Any request to receive public notices shall be in writing and shall be renewed annually.
Individuals may also submit comments on the CEQA documentation for a project via email. Comments submitted via email shall be treated as written comments for all purposes.
Comments sent to the City via email are deemed received when they actually arrive in an email account of a staff person who has been designated or identified as the point of contact for a particular project.
The City must also post certain environmental documents (such as Draft and Final Environmental Impact Reports, Draft Negative Declarations and Draft Mitigated Negative Declarations) and CEQA notices (such as Notices of Preparation, Notices of Availability, Notices of Intent to Adopt a Negative Declaration, Notices of Exemption, and Notices of Determination) on its website, if any.
(Reference: Pub. Resources Code, §§ 21082.1, 21091(d)(3), 21092.2.)
1.09 THE CITY MAY CHARGE REASONABLE FEES FOR REPRODUCING ENVIRONMENTAL DOCUMENTS.
A public agency may charge and collect a reasonable fee from members of the public that request a copy of an environmental document, so long as the fee does not exceed the cost of reproduction. The kinds of “environmental documents” that CEQA specifically allows public agencies to seek reimbursement for include: initial studies, negative declarations, mitigated negative declarations, draft and final EIRs, and documents prepared as a substitute for an EIR, negative declaration, or mitigated negative declaration.
The City shall make CEQA-related documents (e.g., Negative Declarations, Mitigated Negative Declarations, Draft EIRs, Final EIRs, and notices relating to these documents) available to the public-at-large on its website. Requests for documents made pursuant to the California Public Records Act must comply with the Government Code. (See, for example, 844
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1.10 TIME OF PREPARATION
Before granting any approval of a non-exempt project subject to CEQA, the Lead Agency or Responsible Agency shall consider either (1) a Final EIR, (2) a Negative Declaration, (3) a Mitigated Negative Declaration, or (4) another document authorized by the State CEQA Guidelines to be used in the place of an EIR or Negative Declaration (e.g., an Addendum, a Supplemental EIR, a Subsequent EIR, etc.).
Choosing the precise time for CEQA compliance involves a balancing of competing factors. EIRs, Negative Declarations, and Mitigated Negative Declarations should be prepared as early as feasible in the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful information for environmental assessment.
With public projects, at the earliest feasible time, project sponsors shall incorporate environmental considerations into project conceptualization, design, and planning. CEQA compliance should be completed prior to acquisition of a site for a public project.
To implement the above principles, the City shall not undertake actions concerning the proposed public project that would have a significant adverse effect or limit the choice of alternatives or mitigation measures, before completion of CEQA compliance. For example, the City shall not:
(A) Formally make a decision to proceed with the use of a site for facilities which would require CEQA review, regardless of whether the City has made any final purchase of the site for these facilities, except that the City may designate a preferred site for CEQA review and may enter into land acquisition agreements when the City has conditioned its future use of the site on CEQA compliance. (B) Otherwise take any action that gives impetus to a planned or foreseeable project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.
With private projects, the City shall encourage the project proponent to incorporate environmental considerations into project conceptualization, design, and planning at the earliest feasible time.
While mere interest in, or inclination to support, a project does not constitute approval, a public agency entering into preliminary agreements regarding a project prior to approval shall not, as a practical matter, commit the agency to the project. For example, the City shall not grant any vested development entitlements prior to compliance with CEQA. Further, any such preapproval agreement should, for example:
(A) Condition the agreement on compliance with CEQA;
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(C) Not restrict the Lead Agency from considering any feasible mitigation measures and alternatives, including the “no project” alternative; and (D) Not restrict the Lead Agency from denying the project.
The City’s environmental document preparation and review should be coordinated in a timely fashion with the City’s existing planning, review, and project approval processes. These procedures, to the maximum extent feasible, are to run concurrently, not consecutively. (See State CEQA Guidelines, § 15004; Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116.)
1.11 STATE AGENCY FURLOUGHS.
Due to budget concerns, the State may institute mandatory furlough days for state government agencies. Local agencies may also change their operating hours.
Because state and local agencies may enact furloughs that limit their operating hours, if the City has time-sensitive materials or needs to consult with a state agency, the City should check with the applicable state agency office or with the City’s attorney to ensure compliance with all applicable deadlines.
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2. LEAD AND RESPONSIBLE AGENCIES
2.01 LEAD AGENCY PRINCIPLE.
The City will be the Lead Agency if it will have principal responsibility for carrying out or approving a project. Where a project is to be carried out or approved by more than one public agency, only one agency shall be responsible for the preparation of environmental documents.
This agency shall be called the Lead Agency.
(Reference: State CEQA Guidelines, §§ 15050, 15367.)
2.02 SELECTION OF LEAD AGENCY.
Where two or more public agencies will be involved with a project, the Lead Agency shall be designated according to the following criteria:
(a) If the project will be carried out by a public agency, that agency shall be the Lead Agency even if the project will be located within the jurisdiction of another public agency; or (b) If the project will be carried out by a nongovernmental person or entity, the Lead Agency shall be the public agency with the greatest responsibility for supervising and approving the project as a whole.
The Lead Agency will normally be the agency with general governmental powers, rather than an agency with a single or limited purpose. (For example, a city that will provide a public service or utility to the project serves a limited purpose.) If two or more agencies meet this criteria equally, the agency that acts first on the project will normally be the Lead Agency.
If two or more public agencies have a substantial claim to be the Lead Agency under either (a) or (b), they may designate one agency as the Lead Agency by agreement. An agreement may also provide for cooperative efforts by contract, joint exercise of powers, or similar devices. If the agencies cannot agree which agency should be the Lead Agency for preparing the environmental document, any of the disputing public agencies or the project applicant may submit the dispute to the Office of Planning and Research. Within 21 days of receiving the request, the Office of Planning and Research will designate the Lead Agency. The Office of Planning and Research shall not designate a Lead Agency in the absence of a dispute.
A “dispute” means a contested, active difference of opinion between two or more public agencies as to which of those agencies shall prepare any necessary environmental document. A dispute exists when each of those agencies claims that it either has or does not have the obligation to prepare that environmental document.
(Reference: State CEQA Guidelines, § 15051.)
2.03 DUTIES OF A LEAD AGENCY.
As a Lead Agency, the City shall decide whether a Negative Declaration, Mitigated Negative Declaration or an EIR will be required for a project and shall prepare, or cause to be prepared, and consider the document before making its decision on whether and how to approve 847
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During the process of preparing an EIR, the City, as Lead Agency, shall have the following duties:
(a) If a California Native American tribe has requested consultation, within 14 days after determining that an application for a project is complete or a decision to undertake a project, the City shall begin consultation with the California Native American tribes (see Local Guidelines Section 7.07);
(b) Immediately after deciding that an EIR is required for a project, the City shall send to the Office of Planning and Research and each Responsible Agency a Notice of Preparation (Form “G”) stating that an EIR will be prepared (see Local Guidelines Section 7.03); (c) Prior to release of an EIR, if the California Native American tribe that is culturally affiliated with the geographic area of a project requests in writing to be informed of any proposed project, the City shall begin consultation with the tribe consistent with California law and Local Guidelines Section 7.07;
(d) The City shall prepare or cause to be prepared the Draft EIR for the project (see Local Guidelines Sections 7.06 and 7.18);
(e) Once the Draft EIR is completed, the City shall file a Notice of Completion (Form “H”) with the Office of Planning and Research (see Local Guidelines Section 7.25); (f) The City shall consult with state, federal and local agencies that exercise authority over resources that may be affected by the project for their comments on the completed Draft EIR (see, e.g., Local Guidelines Sections 5.02, 5.16, Section 7.26); (g) The City shall provide public notice of the availability of a Draft EIR (Form “K”) at the same time that it sends a Notice of Completion to the Office of Planning and Research (see Local Guidelines Section 7.25);
(h) The City shall evaluate comments on environmental issues received from persons who reviewed the Draft EIR and shall prepare or cause to be prepared a written response to all comments that raise significant environmental issues and that were timely received during the public comment period. A written response must be provided to all public agencies who commented on the project during the public review period at least ten (10) days prior to certifying an EIR (see Local Guidelines Section 7.30); (i) The City shall prepare or cause to be prepared a Final EIR before approving the project (see Local Guidelines Section 7.31);
(j) The City shall certify that the Final EIR has been completed in compliance with CEQA and has been reviewed by the City Council (see Local Guidelines Section 7.33); and (k) The City shall include in the Final EIR any comments received from a Responsible Agency on the Notice of Preparation or the Draft EIR (see Local Guidelines Sections
2.07, 7.30 and 7.31).
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2.04 CEQA DETERMINATIONS MADE BY NON-ELECTED BODY; PROCEDURE TO APPEAL SUCH DETERMINATIONS.
As Lead Agency, the City may charge a non-elected decisionmaking body with the responsibility of making a finding of exemption or adopting, certifying or authorizing environmental documents. Any such determination, however, shall be subject to the City's procedures allowing for the appeal of the CEQA determination of any non-elected body to the City Council. In the absence of a procedure governing such appeal, any CEQA determination made by a non-elected decisionmaker shall be appealable to the City Council within ten (10) days of the non-elected decisionmaker’s determination. If the non-elected decisionmaker’s CEQA determination is not timely appealed as set forth herein, the non-elected decisionmaker’s determination shall be final.
In the event the City Council has delegated authority to a subsidiary board or official to approve a project, the City hereby delegates to that subsidiary board or official the authority to make all necessary CEQA determinations, including whether an EIR, Negative Declaration, Mitigated Negative Declaration or exemption shall be required for any project. A subsidiary board or official’s CEQA determination shall be subject to appeal as set forth above. (Reference: State CEQA Guidelines, §§ 15061(e), 15074(f), 15090(b).)
2.05 PROJECTS RELATING TO DEVELOPMENT OF HAZARDOUS WASTE AND OTHER SITES.
An applicant for a development project must submit a signed statement to the City, as Lead Agency, stating whether the project and any alternatives are located on a site that is included in any list compiled by the Secretary for Environmental Protection of the California Environmental Protection Agency (“California EPA”) listing hazardous waste sites and other specified sites located in the City’s boundaries. The applicant’s statement must contain the following information:
(a) The applicant’s name, address, and phone number;
(b) Address of site, and local agency (city/county);
(c) Assessor’s book, page, and parcel number; and
(d) The list which includes the site, identification number, and date of list.
Before accepting as complete an application for any development project as defined in Local Guidelines Section 11.16, the City, as Lead Agency, shall consult lists compiled by the Secretary for Environmental Protection of the California EPA pursuant to Government Code section 65962.5 listing hazardous waste sites and other specified sites located in the City’s boundaries. When acting as Lead Agency, the City shall notify an applicant for a development project if the project site is located on such a list and not already identified. In the Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration (see Local Guidelines Section 6.04) or the Notice of Preparation of Draft EIR (see Local Guidelines Section 7.03), the City shall specify the California EPA list, if any, that includes the project site, and shall provide the information contained in the applicant’s statement. (Reference: Gov. Code, § 65962.5.)
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2.06 RESPONSIBLE AGENCY PRINCIPLE.
When a project is to be carried out or approved by more than one public agency, all public agencies other than the Lead Agency that have discretionary approval power over the project shall be identified as Responsible Agencies.
2.07 DUTIES OF A RESPONSIBLE AGENCY.
When it is identified as a Responsible Agency, the City shall consider the environmental documents prepared or caused to be prepared by the Lead Agency and reach its own conclusions on whether and how to approve the project involved. The City shall also both respond to consultation and attend meetings as requested by the Lead Agency to assist the Lead Agency in preparing adequate environmental documents. The City should also review and comment on Draft EIRs, Negative Declarations, and Mitigated Negative Declarations. Comments shall be limited to those project activities that are within the City’s area of expertise or are required to be carried out or approved by the City or are subject to the City’s powers.
As a Responsible Agency, the City may identify significant environmental effects of a project for which mitigation is necessary. As a Responsible Agency, the City may submit to the Lead Agency proposed mitigation measures that would address those significant environmental effects. If mitigation measures are required, the City should submit to the Lead Agency complete and detailed performance objectives for such mitigation measures that would address the significant environmental effects identified, or refer the Lead Agency to appropriate, readily available guidelines or reference documents. Any mitigation measures submitted to the Lead Agency by the City, when acting as a Responsible Agency, shall be limited to measures that mitigate impacts to resources that are within the City’s authority. For private projects, the City, as a Responsible Agency, may require the project proponent to provide such information as may be required and to reimburse the City for all costs incurred by it in reporting to the Lead Agency. (Reference: State CEQA Guidelines, § 15096.)
2.08 RESPONSE TO NOTICE OF PREPARATION BY RESPONSIBLE AGENCIES.
Within thirty (30) days of receipt of a Notice of Preparation of an EIR, the City, as a Responsible Agency, shall specify to the Lead Agency the scope and content of the environmental information related to the City’s area of statutory responsibility in connection with the proposed project. At a minimum, the response shall identify the significant environmental issues and possible alternatives and mitigation that the City, as a Responsible Agency, will need to have explored in the Draft EIR. Such information shall be specified in writing, shall be as specific as possible, and shall be communicated to the Lead Agency, by certified mail, email, or any other method of transmittal that provides it with a record that the response was received. The Lead Agency shall incorporate this information into the EIR. (Reference: Pub. Resources Code, § 21080.4; State CEQA Guidelines, § 15103.) 850
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2.09 USE OF FINAL EIR OR NEGATIVE DECLARATION BY RESPONSIBLE AGENCIES.
The City, as a Responsible Agency, shall consider the Lead Agency’s Final EIR or Negative Declaration before acting upon or approving a proposed project. As a Responsible Agency, the City must independently review and consider the adequacy of the Lead Agency’s environmental documents prior to approving any portion of the proposed project. In certain instances, the City, in its role as a Responsible Agency, may require that a Subsequent EIR or a Supplemental EIR be prepared to fully address those aspects of the project over which the City has approval authority. Mitigation measures and alternatives deemed feasible and relevant to the City’s role in carrying out the project shall be adopted. Findings that are relevant to the City’s role as a Responsible Agency shall be made. After the City decides to approve or carry out part of a project for which an EIR or negative declaration has previously been prepared by the Lead Agency, the City, as Responsible Agency, should file a Notice of Determination with the County Clerk within five (5) days of approval, but need not state that the Lead Agency’s EIR or Negative Declaration complies with CEQA. The City, as Responsible Agency, should state that it considered the EIR or Negative Declaration as prepared by a Lead Agency. (Reference: State CEQA Guidelines, § 15096.)
2.10 SHIFT IN LEAD AGENCY RESPONSIBILITIES.
The City, as a Responsible Agency, shall assume the role of the Lead Agency if any one of the following three conditions is met:
(a) The Lead Agency did not prepare any environmental documents for the project, and the statute of limitations has expired for a challenge to the action of the appropriate Lead Agency;
(b) The Lead Agency prepared environmental documents for the project, and all of the following conditions apply:
(1) A Subsequent or Supplemental EIR is required;
(2) The Lead Agency has granted a final approval for the project; and (3) The statute of limitations has expired for a challenge to the action of the appropriate Lead Agency; or
(c) The Lead Agency prepared inadequate environmental documents without providing public notice of a Negative Declaration or sending Notice of Preparation of an EIR to Responsible Agencies and the statute of limitations has expired for a challenge to the action of the appropriate Lead Agency.
(Reference: State CEQA Guidelines, § 15052.)
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3. ACTIVITIES EXEMPT FROM CEQA
3.01 ACTIONS SUBJECT TO CEQA.
CEQA applies to discretionary projects proposed to be carried out or approved by public agencies such as the City. If the proposed activity does not come within the definition of “project” contained in Local Guidelines Section 11.57, it is not subject to environmental review under CEQA.
The term “project,” as defined by CEQA, does not include:
(a) Proposals for legislation to be enacted by the State Legislature; (b) Continuing administrative or maintenance activities, such as purchases for supplies, personnel-related actions, and general policy and procedure making (except as provided in Local Guidelines Section 11.57);
(c) The submittal of proposals to a vote of the people in response to a petition drive initiated by voters, or the enactment of a qualified voter-sponsored initiative under California Constitution Art. II, Section 11(a) and Election Code section 9214; (d) The creation of government funding mechanisms or other government fiscal activities that do not involve any commitment to any specific project that may have a potentially significant physical impact on the environment. Government funding mechanisms may include, but are not limited to, assessment districts and community facilities districts; (e) Organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment; and
(f) Activities that do not result in a direct or reasonably foreseeable indirect physical change in the environment.
(Reference: State CEQA Guidelines, §§ 15060(c), 15378.)
3.02 MINISTERIAL ACTIONS.
Ministerial actions are not subject to CEQA review. A ministerial action is one that is approved or denied by a decision that a public official or a public agency makes that involves only the use of fixed standards or objective measurements without personal judgment or discretion.
When a project involves an approval that contains elements of both a ministerial and discretionary nature, the project will be deemed to be discretionary and subject to the requirements of CEQA. The decision whether the approval of a proposed project or activity is ministerial in nature may involve or require, to some extent, interpretation of the language of the legal mandate, and should be made on a case-by-case basis. The following is a non-exclusive list of examples of ministerial activities:
(a) Issuance of business licenses;
(b) Approval of final subdivision maps and final parcel maps; (c) Approval of individual utility service connections and disconnections; (d) Issuance of licenses;
(e) Issuance of a permit to do street work;
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(Reference: State CEQA Guidelines, § 15268.)
3.03 EXEMPTIONS IN GENERAL.
CEQA and the State CEQA Guidelines exempt certain activities and provide that local agencies should further identify and describe certain exemptions. The requirements of CEQA and the obligation to prepare an EIR, Negative Declaration, or Mitigated Negative Declaration generally do not apply to the exempt activities that are set forth in CEQA, the State CEQA Guidelines, and Chapter 3 of these Local Guidelines.
(Reference: State CEQA Guidelines, §§ 15260 – 15332.)
3.04 NOTICE OF EXEMPTION.
After approval of an exempt project, a “Notice of Exemption” (Form “A”) may be filed by the City or its representatives with the County Clerk of each county in which the activity will be located. A Notice of Exemption must be filed electronically with the County Clerk if that option is offered by the County Clerk. After filing, the City must additionally post the Notice of Exemption on the City’s website, if any.
If the Lead Agency exempts an agricultural housing, affordable housing, or residential infill project under State CEQA Guidelines sections 15193, 15194 or 15195 and approves or determines to carry out that project, it must also file a notice with the Office of Planning and Research (“OPR”) identifying the exemption.
The County Clerk must post the Notice of Exemption within twenty-four (24) hours of receipt, and the Notice must remain posted for thirty (30) days. The thirty day (30) posting requirement excludes the first day of posting and includes the last day of posting. On the 30th day, the Notice of Exemption must be posted for the entire day. Although no California Department of Fish and Wildlife (“DFW”) filing fee is applicable to exempt projects, most counties customarily charge a documentary handling fee to pay for record keeping on behalf of the DFW. Refer to the Index in the County Clerk Memo to determine if such a fee will be required for the project.
The Notice of Exemption must, among other things, identify the person undertaking the project, including any person undertaking an activity that receives financial assistance from the City as part of the project or the person receiving a lease, permit, license, certificate, or other entitlement for use from the City as part of the project. Certain counties require the name and address of an applicant to be included in the “Project Applicant” box of the Notice of Exemption, even when the only project proponent is the City; in these counties, if the City is the only project proponent, the City’s name and address should be provided in the “Project Applicant” box of the 853
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The Notice of Exemption may be filed by the project applicant, rather than the Lead Agency, in certain circumstances. Specifically, the Lead Agency may direct the project applicant to file the Notice of Exemption where the activity that the Lead Agency has determined is exempt from CEQA either:
(a) is undertaken by a person (not a public agency) and is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies; or
(b) involves the issuance to a person (not a public agency) of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. (See Public Resources Code, §§ 21065(b)-(c), 21152). Where the Notice of Exemption is filed by a project applicant rather than the Lead Agency, the applicant must attach a Certificate of Determination to the Notice of Exemption to be filed. The Certificate of Determination may be in the form of a certified copy of an existing document or record of the Lead Agency.
Alternatively, the Lead Agency may prepare a Certificate of Determination (see Form “B”) stating that the activity is exempt from CEQA, and the Lead Agency may provide the Certificate of Determination to the applicant. The applicant must attach the Certificate of Determination to the Notice of Exemption to be filed.
The filing of a Notice of Exemption, when appropriate, is recommended for City actions because it starts a 35-day statute of limitations on legal challenges to the City’s determination that the activity is exempt from CEQA. If a Notice of Exemption is not filed, a 180-day statute of limitations will apply. Please see Local Guidelines Section 3.12 for certain circumstances in which the Lead Agency is required to file a Notice of Exemption.
When a request is made for a copy of the Notice prior to the date on which the City determines the project is exempt, the Notice must be mailed, first class postage prepaid, within five (5) days after the City’s determination. If such a request is made following the City’s determination, then the copy should be mailed in the same manner as soon as possible. (Reference: Pub. Resources Code, § 21152; State CEQA Guidelines, § 15062.)
3.05 DISAPPROVED PROJECTS.
CEQA does not apply to projects that the Lead Agency rejects or disapproves.
Even if a project for which an EIR, Negative Declaration, or Mitigated Negative Declaration has been prepared is ultimately disapproved, the project applicant shall not be relieved of its obligation to pay the costs incurred to prepare the EIR, Negative Declaration, or Mitigated Negative Declaration for the project.
(Reference: State CEQA Guidelines, §§ 15061(b)(4), 15270.) 854
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3.06 PROJECTS WITH NO POSSIBILITY OF SIGNIFICANT EFFECT.
Where it can be seen with absolute certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is exempt from CEQA.
3.07 EMERGENCY PROJECTS.
The following types of emergency projects are exempt from CEQA (the term “emergency” is defined in Local Guidelines Section 11.20):
(a) Work in a disaster-stricken area in which a state of emergency has been proclaimed by the Governor pursuant to Section 8550 of the Government Code. This includes projects that will remove, destroy, or significantly alter a historical resource when that resource represents an imminent threat to the public of bodily harm or of damage to adjacent property or when the project has received a determination by the State Office of Historic Preservation pursuant to Section 5028(b) of the Public Resources Code. (b) Emergency repairs to publicly or privately owned service facilities necessary to maintain service essential to the public health, safety, or welfare. Emergency repairs include those that require a reasonable amount of planning to address an anticipated emergency. (c) Projects necessary to prevent or mitigate an emergency. This does not include long-term projects undertaken for the purpose of preventing or mitigating a situation that has a low probability of occurrence in the short-term, but this exclusion does not apply (i) if the anticipated period of time to conduct an environmental review of such a long-term project would create a risk to public health, safety, or welfare, or (ii) if activities (such as fire or catastrophic risk mitigation or modifications to improve facility integrity) are proposed for existing facilities in response to an emergency at a similar existing facility. (d) Projects undertaken, carried out, or approved by a public agency to maintain, repair, or restore an existing highway damaged by fire, flood, storm, earthquake, land subsidence, gradual earth movement, or landslide, provided that the project is within the existing right of way of that highway and is initiated within one year of the damage occurring.
Highway shall have the same meaning as defined in Section 360 of the Vehicle Code.
This exemption does not apply to highways designated as official state scenic highways, nor to any project undertaken, carried out, or approved by a public agency to expand or widen a highway damaged by fire, flood, storm, earthquake, land subsidence, gradual earth movement, or landslide.
(e) Seismic work on highways and bridges pursuant to Streets and Highways Code section 180.2.
(Reference: State CEQA Guidelines, § 15269.)
3.08 FEASIBILITY AND PLANNING STUDIES.
A project that involves only feasibility or planning studies for possible future actions which the City has not yet approved, adopted or funded is exempt from CEQA. (Reference: State CEQA Guidelines, § 15262.)
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3.09 RATES, TOLLS, FARES, AND CHARGES.
The establishment, modification, structuring, restructuring or approval of rates, tolls, fares, or other charges by the City that the City finds are for one or more of the purposes listed below are exempt from CEQA.
(a) Meeting operating expenses, including employee wage rates and fringe benefits; (b) Purchasing or leasing supplies, equipment or materials; (c) Meeting financial reserve needs and requirements; or (d) Obtaining funds for capital projects necessary to maintain service within existing service areas.
When the City determines that one of the aforementioned activities pertaining to rates, tolls, fares, or charges is exempt from the requirements of CEQA, it shall incorporate written findings setting forth the specific basis for the claim of exemption in the record of any proceeding in which such an exemption is claimed.
(Reference: State CEQA Guidelines, § 15273.)
3.10 PIPELINES WITHIN A PUBLIC RIGHT-OF-WAY AND LESS THAN ONE MILE IN LENGTH.
Projects that are for the installation of a new pipeline or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, or demolition of an existing pipeline and that are:
(a) in a public street or highway or any other public right-of-way; and (b) less than one mile in length
shall be exempt from CEQA requirements.
“Pipeline” includes subsurface facilities but does not include any surface facility related to the operation of the underground facility.
(Reference: Public Resources Code, § 21080.21.)
3.11 PIPELINES OF LESS THAN EIGHT MILES IN LENGTH.
Projects that are for the inspection, maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of an existing pipeline, or any valve, flange, meter, or other piece of equipment that is directly attached to the pipeline shall be exempt from CEQA requirements if all of the following conditions are met:
(a) The project is less than eight miles in length.
(b) Notwithstanding the project length, actual construction and excavation activities undertaken to achieve the maintenance, repair, restoration, reconditioning, relocation, replacement, or removal of an existing pipeline are not undertaken over a length of more than one-half mile at any one time.
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(d) The project is not solely for the purpose of excavating soil that is contaminated by hazardous materials, and, to the extent not otherwise expressly required by law, the party undertaking the project immediately informs the lead agency of the discovery of contaminated soil.
(e) To the extent not otherwise expressly required by law, the person undertaking the project has, in advance of undertaking the project, prepared a plan that will result in notification of the appropriate agencies so that they may take action, if determined to be necessary, to provide for the emergency evacuation of members of the public who may be located in close proximity to the project.
(f) Project activities are undertaken within an existing right-of-way and the right-of-way is restored to its condition prior to the project.
(g) The project applicant agrees to comply with all conditions otherwise authorized by law, imposed by the city or county planning department as part of any local agency permit process, that are required to mitigate potential impacts of the proposed project, and to otherwise comply with the Keene-Nejedly California Wetlands Preservation Act (Chapter 7 (commencing with Section 5810) of Division 5), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), and other applicable state laws, and with all applicable federal laws.
If a project meets all of the requirements for this exemption, the person undertaking the project shall do all of the following:
(a) Notify, in writing, any affected public agency, including, but not limited to, any public agency having permit, land use, environmental, public health protection, or emergency response authority of this exemption.
(b) Provide notice to the public in the affected area in a manner consistent with paragraph (3) of Public Resources Code section 21092(b).
(c) In the case of private rights-of-way over private property, receive from the underlying property owner permission for access to the property.
(d) Comply with all conditions otherwise authorized by law, imposed by the city or county planning department as part of any local agency permit process, that are required to mitigate potential impacts of the proposed project, and otherwise comply with the KeeneNejedly California Wetlands Preservation Act (Chapter 7 (commencing with Section 5810) of Division 5), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), and other applicable state laws, and with all applicable federal laws.
This exemption does not apply to a project in which the diameter of the pipeline is increased or to a project undertaken within the boundaries of an oil refinery.
For purposes of this exemption, the following definitions apply:
(a) “Pipeline” includes every intrastate pipeline used for the transportation of hazardous liquid substances or highly volatile liquid substances, including a common carrier 857
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(1) An interstate pipeline subject to Part 195 of Title 49 of the Code of Federal Regulations.
(2) A pipeline for the transportation of a hazardous liquid substance in a gaseous state.
(3) A pipeline for the transportation of crude oil that operates by gravity or at a stress level of 20 percent or less of the specified minimum yield strength of the pipe.
(4) Transportation of petroleum in onshore gathering lines located in rural areas.
(5) A pipeline for the transportation of a hazardous liquid substance offshore located upstream from the outlet flange of each facility on the Outer Continental Shelf where hydrocarbons are produced or where produced hydrocarbons are first separated, dehydrated, or otherwise processed, whichever facility is farther downstream.
(6) Transportation of a hazardous liquid by a flow line. (7) A pipeline for the transportation of a hazardous liquid substance through an onshore production, refining, or manufacturing facility, including a storage or in plant piping system associated with that facility. (8) Transportation of a hazardous liquid substance by vessel, aircraft, tank truck, tank car, or other vehicle or terminal facilities used exclusively to transfer hazardous liquids between those modes of transportation.
3.12 CERTAIN RESIDENTIAL HOUSING PROJECTS.
CEQA does not apply to the construction, conversion, or use of residential housing if the project meets all of the general requirements described in Section A below and satisfies the specific requirements for any one of the following three categories: (1) agricultural housing (Section B below), (2) affordable housing projects in urbanized areas (Section C below), or (3) affordable housing projects near major transit stops (Section D below).
A. General Requirements. The construction, conversion, or use of residential housing units affordable to low-income households (as defined in Local Guidelines Section 11.36) located on an infill site in an urbanized area is exempt from CEQA if all of the following general requirements are satisfied:
(1) The project is consistent with:
(a) Any applicable general plan, specific plan, or local coastal program, including any mitigation measures required by such plan or program, as that plan or program existed on the date that the application was deemed complete; and
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However, the project may be inconsistent with zoning if the zoning is inconsistent with the general plan and the project site has not been rezoned to conform to the general plan;
(2) Community level environmental review has been adopted or certified; (3) The project and other projects approved prior to the approval of the project can be adequately served by existing utilities, and the project applicant has paid, or has committed to pay, all applicable in-lieu or development fees;
(4) The project site meets all of the following four criteria relating to biological resources:
(a) The project site does not contain wetlands;
(b) The project site does not have any value as a wildlife habitat; (c) The project does not harm any species protected by the federal Endangered Species Act of 1973, the Native Plant Protection Act, or the California Endangered Species Act; and
(d) The project does not cause the destruction or removal of any species protected by a local ordinance in effect at the time the application for the project was deemed complete;
(5) The site is not included on any list of facilities and sites compiled pursuant to Government Code section 65962.5;
(6) The project site is subject to a preliminary endangerment assessment prepared by a registered environmental assessor to determine the existence of any release of a hazardous substance on the site and to determine the potential for exposure of future occupants to significant health hazards from any nearby property or activity. In addition, the following steps must have been taken in response to the results of this assessment:
(a) If a release of a hazardous substance is found to exist on the site, the release shall be removed or any significant effects of the release shall be mitigated to a level of insignificance in compliance with state and federal requirements; or
(b) If a potential for exposure to significant hazards from surrounding properties or activities is found to exist, the effects of the potential exposure shall be mitigated to a level of insignificance in compliance with state and federal
requirements;
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(8) The project site is not subject to wildland fire hazard, as determined by the Department of Forestry and Fire Protection; unless the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a wildland fire hazard;
(9) The project site does not have an unusually high risk of fire or explosion from materials stored or used on nearby properties;
(10) The project site does not present a risk of a public health exposure at a level that would exceed the standards established by any state or federal agency;
(11) Either the project site is not within a delineated earthquake fault zone, or a seismic hazard zone, as determined pursuant to Section 2622 and 2696 of the Public Resources Code respectively, or the applicable general plan or zoning ordinance contains provisions to mitigate the risk of an earthquake or seismic hazard;
(12) Either the project site does not present a landslide hazard, flood plain, flood way, or restriction zone, or the applicable general plan or zoning ordinance contains provisions to mitigate the risk of a landslide or flood; (13) The project site is not located on developed open space; (14) The project site is not located within the boundaries of a state conservancy;
(15) The project site has not been divided into smaller projects to qualify for one or more of the exemptions for affordable housing, agricultural housing, or residential infill housing projects found in the subsequent sections; and
(16) The project meets the requirements set forth in either Public Resources Code sections 21159.22, 21159.23 or 21159.24.
(Reference: State CEQA Guidelines, § 15192.)
B. Specific Requirements for Agricultural Housing. CEQA does not apply to the construction, conversion, or use of residential housing for agricultural employees that meets all of the general requirements described above in Section A and meets the following additional criteria:
(1) The project either:
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(b) If public financial assistance exists for the project, then the project must be housing for very low-, low-, or moderateincome households and the developer of the project has provided sufficient legal commitments to the appropriate local agency to ensure the continued availability and use of the housing units for low- and moderate-income households for a period of at least fifteen (15) years;
(2) The project site is adjacent on at least two sides to land that has been developed and the project consists of not more than forty-five (45) units or provides dormitories, barracks, or other group-living facilities for a total of forty-five (45) or fewer agricultural employees, and either:
(a) The project site is within incorporated city limits or within a census-defined place with a minimum population density of at least five thousand (5,000) persons per square mile; or (b) The project site is within incorporated city limits or within a census-defined place and the minimum population density of the census-defined place is at least one thousand (1,000) persons per square mile, unless the Lead Agency determines that there is a reasonable possibility that the project, if completed, would have a significant effect on the environment due to unusual circumstances or that the cumulative effects of successive projects of the same type in the same area would, over time, be significant;
(3) If the project is located on a site zoned for general agricultural use, it must consist of twenty (20) or fewer units, or, if the housing consists of dormitories, barracks, or other group-living facilities, the project must not provide housing for more than twenty (20) agricultural employees; and
(4) The project is not more than two (2) acres in area if the project site is located in an area with a population density of at least one thousand (1,000) persons per square mile, and is not more than five (5) acres in area for all other project sites.
(Reference: Pub. Resources Code, §§ 21084, 21159.22; State CEQA Guidelines, §§ 15192, 15193.)
C. Specific Requirements for Affordable Housing Projects in Urbanized Areas.
CEQA does not apply to any development project that consists of the 861
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(1) The developer of the project provides sufficient legal commitments to the local agency to ensure the continued availability and use of the housing units for lower income households for a period of at least thirty (30) years, at monthly housing costs deemed to be “affordable rent” for lower income, very low income, and extremely low income households, as determined pursuant to Section 50053 of the Health and Safety Code; (2) The project site meets one of the following conditions:
(a) Has been previously developed for qualified urban uses; (b) Is immediately adjacent to parcels that are developed with qualified urban uses; or
(c) At least 75% of the perimeter of the site adjoins parcels that are developed with qualified urban uses and the remaining 25% of the perimeter of the site adjoins parcels that have previously been developed for qualified urban uses, the site has not been developed for urban uses and no parcel within the site has been created within ten (10) years prior to the proposed development of the site;
(3) The project site is not more than five (5) acres in area; and (4) The project site meets one of the following requirements regarding population density:
(a) The project site is within an urbanized area or within a censusdefined place with a population density of at least five thousand (5,000) persons per square mile;
(b) If the project consists of fifty (50) or fewer units, the project site is within an incorporated city with a population density of at least twenty-five hundred (2,500) persons per square mile and a total population of at least twenty-five thousand (25,000) persons; or
(c) The project site is within either an incorporated city or a censusdefined place with a population density of one thousand (1,000) persons per square mile, unless there is a reasonable possibility that the project would have a significant effect on the environment due to unusual circumstances or due to the related or cumulative impacts of reasonably foreseeable projects in the vicinity of the project.
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D. Specific Requirements for Affordable Housing Projects Near Major Transit Stops.
(a) Except as provided in subdivision (b), CEQA does not apply to a project if all of the following criteria are met:
1. The project is a residential project on an infill site.
2. The project is located within an urbanized area.
3. The project satisfies the criteria of Public Resources Code section 21159.21, described in Section A above.
4. Within five years of the date that the application for the project is deemed complete pursuant to Section 65943 of the Government Code, community-level environmental review was certified or adopted.
5. The site of the project is not more than four acres in total area.
6. The project does not contain more than 100 residential units.
7. Either of the following criteria (subdivision (a) or subdivision (b)) are met:
a. (1) At least 10 percent of the housing is sold to families of moderate income, or not less than 10 percent of the
housing is rented to families of low income, or not less than 5 percent of the housing is rented to families of very low income; and
(2) The project developer provides sufficient legal
commitments to the appropriate local agency to ensure the continued availability and use of the housing units for very low-, low-, and moderate-income households at monthly
housing costs determined pursuant to paragraph (3) of the subdivision (h) of Section 65589.5 of the Government
Code.
b. The project developer has paid or will pay in-lieu fees pursuant to a local ordinance in an amount sufficient to result in the development of an equivalent number of units that would otherwise be required pursuant to subparagraph 7.a above.
8. The project is within one-half mile of a major transit stop. 863
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9. The project does not include any single level building that exceeds 100,000 square feet.
10. The project promotes higher density infill housing. A project with a density of at least 20 units per acre shall be conclusively presumed to promote higher density infill housing. A project with a density of at least 10 units per acre and a density greater than the average density of the residential properties within 1,500 feet shall be presumed to promote higher density housing unless the preponderance of the evidence demonstrates otherwise.
(b) Notwithstanding subdivision (a) above, the Exemption for Affordable Housing Projects near Major Transit Stops does not apply if any one of the following criteria is met:
1. There is a reasonable possibility that the project will have a projectspecific, significant effect on the environment due to unusual circumstances;
2. Substantial changes have occurred since community-level environmental review was adopted or certified with respect to the circumstances under which the project is being undertaken, and those changes are related to the project; or
3. New information regarding the circumstances under which the project is being undertaken has become available, and that new information is related to the project and was not known and could not have been known at the time of the community-level environmental review. (c) If a project satisfies the criteria described above in Section 3.12D(a), but is not exempt from CEQA as a result of satisfying the criteria described in Section 3.12D(b), the analysis of the environmental effects of the project in the EIR or the negative declaration for the project shall be limited to an analysis of the project-specific effects of the project and any effects identified pursuant to Paragraph 2 or 3 of Section 3.12D(b), above. (Reference: Pub. Resources Code, §§ 21083, 21159.24; State CEQA Guidelines, § 15195.)
E. Whenever the Lead Agency determines that a project is exempt from environmental review based on Public Resources Code sections 21159.22 [Section 3.12B of these Local Guidelines], 21159.23 [Section 3.12C of these Local Guidelines], or 21159.24 [Section 3.13D of these Local Guidelines], Staff and/or the proponent of the project shall file a Notice of Exemption with the Office of Planning and Research within five (5) working days after the approval of the project.
(Reference: State CEQA Guidelines, § 15196.)
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3.13 MINOR ALTERATIONS TO FLUORIDATE WATER UTILITIES.
Minor alterations to water utilities made for the purpose of complying with the fluoridation requirements of Health and Safety Code sections 116410 and 116415 or regulations adopted thereunder are exempt from CEQA.
(Reference: State CEQA Guidelines, § 15282(m).)
3.14 BALLOT MEASURES.
The definition of project in the State CEQA Guidelines specifically excludes the submittal of proposals to a vote of the people of the state or of a particular community. This exemption does not apply to the public agency that sponsors the initiative. When a governing body makes a decision to put a measure on the ballot, that decision may be discretionary and therefore subject to CEQA. In contrast, the enactment of a qualified voter-sponsored initiative under California Constitution Art. II, Section 11(a) and Election Code section 9214 is not a project and therefore is not subject to CEQA review.
(Reference: Local Guidelines Section 3.01; State CEQA Guidelines, § 15378(b)(3).)
3.15 TRANSIT PRIORITY PROJECT.
Exemption: Transit Priority Projects (see Local Guidelines Section 11.75) that are consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in either a Sustainable Community Strategy or an alternative planning strategy may be exempt from CEQA. To qualify for the exemption, the decisionmaking body must hold a hearing and make findings that the project meets all of Public Resources Code section 21155.1’s environmental, housing, and public safety conditions and requirements.
Streamlined Review: A Transit Priority Project that has incorporated all feasible mitigation measures, performance standards or criteria set forth in a prior environmental impact report, may be eligible for streamlined environmental review. For a complete description of the requirements for this streamlined review see Public Resources Code section 21155.2. Similarly, the environmental review for a residential or mixed use residential project may limit, or entirely omit, its discussion of growth-inducing impacts or impacts from traffic on global warming under certain limited circumstances. Note, however, that impacts from other sources of greenhouse gas emissions would still need to be analyzed. For complete requirements see Public Resources Code section 21159.28.
Note that neither the exemption nor the streamlined review will apply until: (1) the applicable Metropolitan Planning Organization prepares and adopts a Sustainable Communities Strategy or alternative planning strategy for the region; and (2) the California Air Resources Board has accepted the Metropolitan Planning Organization’s determination that the Sustainable Communities Strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emission reduction targets adopted for the region. (Reference: Pub. Resources Code, §§ 21155.1, 21151.2, 21159.28.) 865
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3.16 CERTAIN INFILL PROJECTS
(a) (1) If an environmental impact report was certified for a planning level decision of the city or county, the application of CEQA to the approval of an infill project shall be limited to the effects on the environment that (A) are specific to the project or to the project site and were not addressed as significant effects in the prior environmental impact report or (B) substantial new information shows the effects will be more significant than described in the prior environmental impact report. The attached Form “S” shall be used for this determination. A lead agency's determination pursuant to this section shall be supported by substantial evidence. (2) An effect of a project upon the environment shall not be considered a specific effect of the project or a significant effect that was not considered significant in a prior environmental impact report, or an effect that is more significant than was described in the prior environmental impact report if uniformly applicable development policies or standards adopted by the city, county, or the lead agency, would apply to the project and the lead agency makes a finding, based upon substantial evidence, that the development policies or standards will substantially mitigate that effect.
(b) If an infill project would result in significant effects that are specific to the project or the project site, or if the significant effects of the infill project were not addressed in the prior environmental impact report, or are more significant than the effects addressed in the prior environmental impact report, and if a mitigated negative declaration or a sustainable communities environmental assessment could not be otherwise adopted, an environmental impact report prepared for the project analyzing those effects shall be limited as follows:
(1) Alternative locations, densities, and building intensities to the project need not be considered.
(2) Growth inducing impacts of the project need not be considered. (c) This section applies to an infill project that satisfies both of the following:
(1) The project satisfies any of the following:
A) Is consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy for which the State Air Resources Board, pursuant to subparagraph (H) of paragraph (2) of subdivision (b) of Section 65080 of the Government Code, has accepted a metropolitan planning organization's determination that the sustainable communities strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emission reduction targets. (B) Consists of a small walkable community project located in an area designated by a city for that purpose.
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(2) Satisfies all applicable statewide performance standards contained in the guidelines adopted pursuant to Public Resources Code section 21094.5.5 (Form “R”). (d) This section applies after the Secretary of the Natural Resources Agency adopts and certifies the guidelines establishing statewide standards pursuant to Public Resources Code section 21094.5.5.
(e) For the purposes of this section, the following terms mean the following:
(1) “Infill project” means a project that meets the following conditions:
(A) Consists of any one, or combination, of the following uses:
(i) Residential.
(ii) Retail or commercial, where no more than one-half of the project area is used for parking.
(iii) A transit station.
(iv) A school.
(v) A public office building.
(B) Is located within an urban area on a site that has been previously developed, or on a vacant site where at least 75 percent of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses.
(2) “Planning level decision” means the enactment or amendment of a general plan, community plan, specific plan, or zoning code.
(3) “Prior environmental impact report” means the environmental impact report certified for a planning level decision, as supplemented by any subsequent or supplemental environmental impact reports, negative declarations, or addenda to those documents. (4) “Small walkable community project” means a project that is in an incorporated city, which is not within the boundary of a metropolitan planning organization and that satisfies the following requirements:
(A) Has a project area of approximately one-quarter mile diameter of contiguous land completely within the existing incorporated boundaries of the city. (B) Has a project area that includes a residential area adjacent to a retail downtown area.
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(A) The population of the unincorporated area and the population of the surrounding incorporated cities equal a population of 100,000 or more. (B) The population density of the unincorporated area is equal to, or greater than, the population density of the surrounding cities.
(Reference: Pub. Resources Code, § 21094.5.)
3.17 EXEMPTION FOR INFILL PROJECTS IN TRANSIT PRIORITY AREAS A residential or mixed-use project, or a project with a floor area ratio of at least 0.75 on commercially-zoned property, including any required subdivision or zoning approvals, is exempt from CEQA if the project satisfies the following criteria:
The project is located within a transit priority area as defined in Section 11.74 below; The project is consistent with an applicable specific plan for which an environmental impact report was certified; and
The project is consistent with the general use designation, density, building intensity, and applicable policies specified for the project area in either a sustainable communities strategy or an alternative planning strategy for which the State Air Resources Board has accepted the determination that the sustainable communities strategy or the alternative planning strategy would achieve the applicable greenhouse gas emissions reduction targets.
Further environmental review shall be required for a project meeting the above criteria only if one of the events specified in Section 8.04 below occurs. (Reference: State CEQA Guidelines, § 15182(b).)
3.18 EXEMPTION FOR RESIDENTIAL PROJECTS UNDERTAKEN PURSUANT TO A SPECIFIC PLAN
Where a public agency has prepared an EIR for a specific plan after January 1, 1980, a residential project undertaken pursuant to and in conformity with that specific plan is generally exempt from CEQA. Residential projects covered by this section include, but are not limited to, land subdivisions, zoning changes, and residential planned unit developments.
Further environmental review shall be required for a project meeting the above criteria only if, after the adoption of the specific plan, one of the events specified in Section 8.04 below occurs. 868
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(Reference: State CEQA Guidelines, § 15182(c).)
3.19 TRANSFER OF LAND FOR THE PRESERVATION OF NATURAL CONDITIONS CEQA does not apply to the acquisition, sale, or other transfer of interest in land by the City for the purpose of fulfilling any of the following purposes: (1) preservation of natural conditions existing at the time of transfer, including plant and animal habitats, (2) restoration of natural conditions, including plant and animal habitats, (3) continuing agricultural use of the land; (4) prevention of encroachment of development into flood plains; (5) preservation of historical resources; or (6) preservation of open space or lands for park purposes. CEQA similarly does not apply to the granting or acceptance of funding by the City for the foregoing purposes.
The foregoing applies even if physical changes to the environment or changes in the use of the land are a reasonably foreseeable consequence of the acquisition, sale, or other transfer of the interests in land, or of the granting or acceptance of funding, provided that environmental review otherwise required by CEQA occurs before any project approval that would authorize physical changes being made to that land.
The City must file a Notice of Exemption with the State Clearinghouse and the County Clerk should it find a project exempt under this provision. (Reference: Pub. Resources Code, § 21080.28.)
3.20 TRANSIT PRIORITIZATION PROJECTS.
CEQA exempts the following projects when (i) the project is carried out by a local agency that is the lead agency for the project; (ii) the project does not induce single-occupancy vehicle trips, add additional highway lanes, widen highways, or add physical infrastructure or striping to highways except for minor modifications needed for efficient and safe movement of transit vehicles, bicycles, or high-occupancy vehicles, such as extended merging lanes, shoulder improvements, or improvements to the roadway within the existing right of way; (iii) the project does not include the addition of any auxiliary lanes; and (iv) the construction of the project shall not require the demolition of affordable housing units:
(1) Pedestrian and bicycle facilities—including bicycle parking, bicycle sharing facilities, and bikeways as defined in Section 890.4 of the Streets and Highways Code—that improve safety, access, or mobility, including new facilities, within the public right-of-way;
(2) Projects that improve customer information and wayfinding for transit riders, bicyclists, or pedestrians within the public right-of-way; 869
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California Environmental Quality Act (2024) ACTIVITIES EXEMPT FROM CEQA 2024 City of Palm Desert Local Guidelines 3-19 ©Best Best & Krieger LLP (3) Transit prioritization projects, which are defined to mean any of the following transit project types on highways or in the public right-of-way:
(a) Signal and sign changes, such as signal coordination, signal timing modifications, signal modifications or the installation of traffic signs or new signals;
(b) The installation of wayside technology and onboard technology; (c) The installation of ramp meters;
(d) The conversion to dedicated transit lanes, including transit queue jump or bypass lanes, shared turning lanes and turn restrictions, the narrowing of lanes to allow for dedicated transit lanes or transit reliability improvements, or the widening of existing transit travel lanes by removing or restricting street parking; and
(e) Transit stop access and safety improvements, including, but not limited to, the installation of transit bulbs and the installation of transit boarding islands. (4) A project for the designation and conversion of general purpose lanes to highoccupancy vehicle lanes or bus-only lanes, or highway shoulders to part-time transit lanes, for use either during peak congestion hours or all day on highways with existing public transit service or where a public transit agency will be implementing public transit service as identified in a short range transit plan. (5) A project for the institution or increase of bus rapid transit, bus, or light rail service, including the construction or rehabilitation of stations, terminals, or existing operations facilities, which will be exclusively used by zero-emission, near-zero emission, low oxide of nitrogen engine, compressed natural gas fuel, fuel cell, or hybrid powertrain buses or light rail vehicles, on existing public rights-of-way or existing highway rights-of-way, whether or not the right-of-way is in use for public mass transit. The project shall be located on a site that is wholly within the boundaries of an urbanized area or urban cluster, as designated by the United State Census Bureau.
(6) A project to construct or maintain infrastructure to charge or refuel zero-emission transit buses, provided the project is carried out by a public transit agency that is subject to, and in compliance with, the State Air Resources Board's Innovative Clean Transit regulations (Article 4.3 (commencing with Section 2023) of Chapter 1 of Division 3 of Title 13 of the California Code of Regulations) and the project is located on property owned by the transit agency or within an existing public right-of-way.
A lead agency applying an exemption pursuant to this paragraph for hydrogen refueling infrastructure or facilities necessary to refuel or maintain zero-emission public transit buses, trains, or ferries shall hold a noticed public hearing and give 870
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(7) The maintenance, repair, relocation, replacement, or removal of any utility infrastructure associated with a project identified in paragraphs (1) to (6), inclusive.
(8) A project that consists exclusively of a combination of any of the components of a project identified in paragraphs (1) to (7), inclusive. (9) A planning decision carried out by a local agency to reduce or eliminate minimum parking requirements or institute parking maximums, remove or restrict parking, or implement transportation demand management requirements or programs.
Additional conditions apply to a project otherwise exempt under this section if the project exceeds fifty million dollars ($50,000,000), as set forth in Public Resources Code section 21080.25(d)-(e).
Moreover, a project exempt under this section may be subject to certain labor requirements, including that the project be completed by a skilled and trained workforce, as set forth in Public Resources Code section 21080.25(f).
If the City determines that a project is not subject to CEQA pursuant to this section and approves that project, the City must file a Notice of Exemption with both the Office of Planning and Research and the County Clerk of the county in which the project is located.
This exemption shall remain in effect only until January 1, 2030, and as of that date it will be repealed. (Reference: Pub. Resources Code, § 21080.25.)
3.21 TRANSPORTATION PLANS, PEDESTRIAN PLANS, AND BICYCLE TRANSPORTATION PLANS.
CEQA does not apply to an active transportation plan, a pedestrian plan, or a bicycle transportation plan for restriping of streets and highways, bicycle parking and storage, signal timing to improve street and highway intersection operations, and the related signage for bicycles, pedestrians, and vehicles. An active transportation plan or pedestrian plan is encouraged to include the consideration of environmental factors, but that consideration does not inhibit or preclude the application of this section.
An individual project that is part of an active transportation plan or pedestrian plan remains subject to CEQA unless another exemption applies to that project.
Before determining that a project is exempt pursuant to this section, the Lead Agency must hold noticed public hearings in areas affected by the project to hear and respond to public comments. Publication of the notice must comply with Government Code section 6061 and be in a newspaper of general circulation in the area affected by the proposed project. 871
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For purposes of this section, the following definitions apply:
(1) “Active transportation plan” means a plan developed by a local jurisdiction that promotes and encourages people to choose walking, bicycling, or rolling through the creation of safe, comfortable, connected, and accessible walking, bicycling, or rolling networks, and encourages alternatives to single-occupancy vehicle trips. (2) “Pedestrian plan” means a plan developed by a local jurisdiction that establishes a comprehensive, coordinated approach to improving pedestrian infrastructure and safety.
This exemption shall remain in effect only until January 1, 2030, and as of that date it will be repealed. (Reference: Pub. Resources Code, § 21080.20.)
3.22 WATER SYSTEM WELLS AND DOMESTIC WELL PROJECTS
CEQA does not apply to the construction, maintenance, repair, or replacement of a well or a domestic well that meets all of the following conditions:
(1) The domestic well or water system to which the well is connected has been designated by the State Water Resources Control Board (“State Board”) as high risk or medium risk in the State Board’s drinking water needs assessment; (2) The well project is designed to mitigate or prevent a failure of the well or the domestic well that would leave residents that rely on the well, the water system to which the well is connected, or the domestic well without an adequate supply of safe drinking water;
(3) The lead agency determines all of the following:
(a) The well project is not designed primarily to serve irrigation or future growth.
(b) The well project does not affect wetlands or sensitive habitats. (c) Unusual circumstances do not exist that would cause the well project to have a significant effect on the environment.
(d) The well project is not located on a site that is included on any list compiled pursuant to Section 65962.5 of the Government Code. (e) The well project does not have the potential to cause a substantial adverse change in the significance of a historical resource.
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(g) The cumulative impact of successive reasonably anticipated projects of the same type as the well project, in the same place, over time, is not significant.
Before determining that a well project is exempt pursuant to this section, a lead agency must contact the State Board to determine whether claiming the exemption under this section will affect the ability of the well project to receive federal financial assistance or federally capitalized financial assistance.
A lead agency that determines that a well project is exempt under this section must file a notice of exemption with both OPR and the County Clerk. The notice of exemption must explain whether the project is additionally exempt from CEQA under Public Resources Code section 21080 (e.g., whether it is a ministerial project, an emergency repair necessary to maintain service, or an action necessary to prevent or mitigate an emergency), Public Resources Code section 21080.47 (see Section 3.23 of these Local Guidelines, below), or under the Class 1 (Existing Facilities) or Class 2 (Replacement or Reconstruction) categorical exemptions (see Section 3.28 of these Local Guidelines, below). If none of the exemptions referenced in this paragraph apply to a project that is otherwise exempt under this section, the notice of exemption must explain why the exemptions referenced in this paragraph do not apply to the project.
For purposes of this section, the following definitions apply:
A “well” is defined as a wellhead that provides drinking water to a “water system.” A “domestic well” is defined as a groundwater well used to supply water for the domestic needs of an individual residence or a water system that is not a public water system and that has no more than four service connections.
A “water system” is defined to mean a “public water system” as that term is defined in Health and Safety Code section 116275(h) (i.e., a system for the provision of water for human consumption through pipes or other constructed conveyances that has 15 or more service connections or regularly serves at least 25 individuals daily at least 60 days out of the year), a “state small water system” as that term is defined in Health and Safety Code section 116275(n) (i.e., a system for the provision of piped water to the public for human consumption that serves at least five, but not more than 14, service connections and does not regularly serve drinking water to more than an average of 25 individuals daily for more than 60 days out of the year), or a tribal water system.
(Pub. Resources Code, § 21080.31 [in effect until January 1, 2028].) 873
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3.23 SMALL DISADVANTAGED COMMUNITY WATER SYSTEM AND STATE SMALL WATER SYSTEM.
CEQA does not apply to certain water infrastructure projects that primarily benefit a “small disadvantaged community water system” or a “state small water system,” as these terms are defined in Public Resources Code section 21080.47. If certain labor requirements and other conditions are met as set forth in Public Resources Code section 21080.47, the installation, repair, or construction of the following for the benefit of a small disadvantaged community water system or state small water system is exempt from CEQA:
(1) Drinking water groundwater wells with a maximum flow rate of up to 250 gallons per minute;
(2) Drinking water treatment facilities with a footprint of less than 2,500 square feet that are not located in an environmentally sensitive area; (3) Drinking water storage tanks with a capacity of up to 250,000 gallons; (4) Booster pumps and hydropneumatic tanks;
(5) Pipelines of less than one mile in length in a road right-of-way or up to seven miles in length in a road right-of-way when the project is required to address threatened or current drinking water violations;
(6) Water services lines; and
(7) Minor drinking water system appurtenances, including, but not limited to, system and service meters, fire hydrants, water quality sampling stations, valves, air releases and vacuum break valves, emergency generators, backflow prevention devices, and appurtenance enclosures.
(Reference: Pub. Resources Code, § 21080.47.)
3.24 CONSERVATION AND RESTORATION OF CALIFORNIA NATIVE FISH AND WILDLIFE. (a) CEQA does not apply to a project that is exclusively one of the following (though a project may exclusively be one of the following even if it has incidental public benefits, such as public access or recreation) and meets the criteria set forth in subdivision (b) of this section:
(1) A project to conserve, restore, protect, or enhance, and assist in the recovery of California native fish and wildlife, and the habitat upon which they depend.
(2) A project to restore or provide habitat for California native fish and wildlife.
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California Environmental Quality Act (2024) ACTIVITIES EXEMPT FROM CEQA 2024 City of Palm Desert Local Guidelines 3-24 ©Best Best & Krieger LLP (b) This section does not apply to a project unless the project does both of the following:
(1) Results in long-term net benefits to climate resiliency, biodiversity, and sensitive species recovery; and
(2) Includes procedures and ongoing management for the protection of the environment.
(c) This section does not apply to a project that includes construction activities, except for construction activities solely related to habitat restoration. (d) The lead agency shall obtain the concurrence of the Director of Fish and Wildlife for the determinations required pursuant to subdivisions (a) through (c) above. (e) Within 48 hours of making a determination that a project is exempt pursuant to this section, the lead agency shall file a Notice of Exemption with the Office of Planning and Research, and the Department of Fish and Wildlife must post the concurrence of the Director of Fish and Wildlife on the department’s website.
This exemption is in effect until January 1, 2025. (Pub. Resources Code, § 21080.56.)
3.25 LINEAR BROADBAND DEPLOYMENT IN A RIGHT-OF-WAY.
(a) CEQA does not apply to a project that consists of linear broadband deployment in a right-of-way if the project meets all of the following conditions:
(1) The project is located in an area identified by the Public Utilities Commission as a component of the statewide open-access middle-mile broadband network pursuant to Section 11549.54 of the Government Code.
(2) The project is constructed along, or within 30 feet of, the right-of-way of any public road or highway.
(3) The project is either deployed underground where the surface area is restored to a condition existing before the project or placed aerially along an existing utility pole right-of-way.
(4) The project incorporates, as a condition of project approval, measures developed by the Public Utilities Commission or the Department of Transportation to address potential environmental impacts. At a minimum, the project shall be required to include monitors during construction activities and measures to avoid or address impacts to cultural and biological resources.
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California Environmental Quality Act (2024) ACTIVITIES EXEMPT FROM CEQA 2024 City of Palm Desert Local Guidelines 3-25 ©Best Best & Krieger LLP (5) The project applicant agrees to comply with all conditions otherwise authorized by law, imposed by the planning department of a city or county as part of a local agency permit process, that are required to mitigate potential impacts of the proposed project, and to comply with the KeeneNejedly California Wetlands Preservation Act (Chapter 7 (commencing with Section 5810) of Division 5), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), as applicable, other applicable state laws, and all applicable federal laws.
(b) If a project meets all of the requirements of subdivision (a), the project applicant shall do all of the following:
(1) Notify, in writing, any affected public agency, including, but not limited to, any public agency having permit, land use, environmental, public health protection, or emergency response authority, of the exemption of the project pursuant to this section.
(2) File a Notice of Exemption.
(3) In the case of private rights-of-way over private property, receive from the underlying property owner permission for access to the property. (4) Comply with all conditions authorized by law imposed by the planning department of a city or county as part of any local agency permit process, that are required to mitigate potential impacts of the proposed project, and otherwise comply with the Keene-Nejedly California Wetlands Preservation Act (Chapter 7 (commencing with Section 5810) of Division 5), the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code), as applicable, other applicable state laws, and all applicable federal laws. (Pub. Resources Code, § 21080.51.)
3.26 NEEDLE AND SYRINGE EXCHANGE SERVICES.
The Legislature has authorized cities and counties meeting certain requirements to apply to the State Department of Public Health for authorization to provide hypodermic needle and syringe exchange services consistent with state standards in any location where the State Department of Public Health determines that the conditions exist for the rapid spread of human immunodeficiency virus (HIV), viral hepatitis, or any other potentially deadly or disabling infections that are spread through the sharing of used hypodermic needles and syringes. (Health and Safety Code, § 121349.) Needle and syringe exchange services application submissions, authorizations, and operations performed pursuant to Health and Safety Code section 121349 are exempt from review under CEQA. (Health and Safety Code, § 121349(h).) 876
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3.27 OTHER SPECIFIC EXEMPTIONS.
CEQA and the State CEQA Guidelines exempt many other specific activities, including early activities related to thermal power plants, ongoing projects, transportation improvement programs, family day care homes, congestion management programs, railroad grade separation projects, restriping of streets or highways to relieve traffic congestion, hazardous or volatile liquid pipelines, and the installation of solar energy systems, including, but not limited to solar panels. Specific statutory exemptions are listed in the Public Resources Code, including Sections 21080 through 21080.35, and in the State CEQA Guidelines, including Sections 15260 through 15285. In addition, other titles of the California Codes provide statutory exemptions from CEQA, including, for example, Government Code section 12012.70.
3.28 CATEGORICAL EXEMPTIONS.
The State CEQA Guidelines establish certain classes of categorical exemptions. These apply to classes of projects which have been determined not to have a significant effect on the environment and which, therefore, are generally exempt from CEQA. For any project that falls within one of these classes of categorical exemptions, the preparation of environmental documents under CEQA is not required. The classes of projects are briefly summarized below. (Reference to the State CEQA Guidelines for the full description of each exemption is recommended.)
The exemptions for Classes 3, 4, 5, 6, and 11 below are qualified in that such projects must be considered in light of the location of the project. A project that is ordinarily insignificant in its impact on the environment may, in a particularly sensitive environment, be significant. Therefore, these classes are considered to apply in all instances except when the project may impact an environmental resource of hazardous or critical concern that has been designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.
All classes of categorical exemptions are qualified. None of the categorical exemptions are applicable if any of the following circumstances exist:
(1) The cumulative impact of successive projects of the same type in the same place over time is significant;
(2) There is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances;
(3) The project may result in damage to a scenic resource or may result in a substantial adverse change to a historical resource; or (4) The project is located on a site which is included on any hazardous waste site or list compiled pursuant to Government Code section 65962.5.
However, a project’s greenhouse gas emissions do not, in and of themselves, cause an exemption to be inapplicable if the project otherwise complies with all applicable regulations or 877
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With the foregoing limitations in mind, the following classes of activity are generally exempt from CEQA:
Class 1: Existing Facilities. Activities involving the operation, repair, maintenance, permitting, leasing, licensing, minor alteration of—or legislative activities to regulate—existing public or private structures, facilities, mechanical equipment or other property, or topographical features, provided the activity involves negligible or no expansion of existing or former use. The types of “existing facilities” itemized in State CEQA Guidelines section 15301 are not intended to be all-inclusive of the types of projects which might fall within the Class 1 categorical exemption. The key consideration is whether the project involves negligible or no expansion of use. (State CEQA Guidelines, § 15301.)
Class 2: Replacement or Reconstruction. Replacement or reconstruction of existing facilities, structures, or other property where the new facility or structure will be located on the same site as the replaced or reconstructed facility or structure and will have substantially the same purpose and capacity as the replaced or reconstructed facility or structure. (State CEQA Guidelines, § 15302.)
Class 3: New Construction or Conversion of Small Structures. Construction of limited numbers of small new facilities or structures; installation of small new equipment or facilities in small structures; and the conversion of existing small structures from one use to another, when only minor modifications are made in the exterior of the structure. This exemption includes structures built for both residential and commercial uses. (State CEQA Guidelines, § 15303 outlines, among other things, the maximum number of structures allowable under this exemption.)
Class 4: Minor Alterations to Land. Minor alterations in the condition of land, water, and/or vegetation which do not involve removal of healthy, mature, scenic trees, except for forestry or agricultural purposes. (State CEQA Guidelines, § 15304.) Class 5: Minor Alterations in Land Use Limitations. Minor alterations in land use limitations in areas with an average slope of less than 20% which do not result in any changes in land use or density. (State CEQA Guidelines, § 15305.)
Class 6: Information Collection. Basic data collection, research, experimental management, and resource evaluation activities which do not result in a serious or major disturbance to an environmental resource. (State CEQA Guidelines, § 15306.) Class 7: Actions by Regulatory Agencies for Protection of Natural Resources. Actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment. (State CEQA Guidelines, § 15307.) Class 8: Actions By Regulatory Agencies for Protection of the Environment. Actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the 878
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Class 9: Inspection. Inspection activities, including, but not limited to, inquiries into the performance of an operation and examinations of the quality, health or safety of a project. (State CEQA Guidelines, § 15309.)
Class 10: Loans. Loans made by the Department of Veterans Affairs under the Veterans Farm and Home Purchase Act of 1943, mortgages for the purchase of existing structures where the loan will not be used for new construction and the purchase of such mortgages by financial institutions. (State CEQA Guidelines, § 15310.)
Class 11: Accessory Structures. Construction or replacement of minor structures accessory or appurtenant to existing commercial, industrial, or institutional facilities, including, but not limited to, on-premise signs; small parking lots; and placement of seasonal or temporary use items, such as lifeguard towers, mobile food units, portable restrooms or similar items in generally the same locations from time to time in publicly owned parks, stadiums or other facilities designed for public use. (State CEQA Guidelines, § 15311.) Class 12: Surplus Government Property Sales. Sales of surplus government property, except for certain parcels of land located in an area of statewide, regional or area-wide concern identified in State CEQA Guidelines section 15206(b)(4). However, even if the surplus property to be sold is located in any of those areas, its sale is exempt if:
(a) The property does not have significant values for wildlife or other environmental purposes; and
(b) Any one of the following three conditions is met:
1. The property is of such size, shape, or inaccessibility that it is incapable of independent development or use;
2. The property to be sold would qualify for an exemption under any other class of categorical exemption in the State CEQA Guidelines; or
3. The use of the property and adjacent property has not changed since the time of purchase by the public agency.
(State CEQA Guidelines, § 15312.)
Class 13: Acquisition of Lands for Wildlife Conservation Purposes. Acquisition of lands for fish and wildlife conservation purposes, including preservation of fish and wildlife habitat, establishment of ecological preserves under Fish and Game Code section 1580, and preservation of access to public lands and waters where the purpose of the acquisition is to preserve the land in its natural condition. (State CEQA Guidelines, § 15313.) Class 14: Minor Additions to Schools. Minor additions to existing schools within existing school grounds where the addition does not increase original student capacity by more than 25% or ten (10) classrooms, whichever is less. The addition of portable classrooms is included in this exemption. (State CEQA Guidelines, § 15314.) 879
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California Environmental Quality Act (2024) ACTIVITIES EXEMPT FROM CEQA 2024 City of Palm Desert Local Guidelines 3-29 ©Best Best & Krieger LLP Class 15: Minor Land Divisions. Division(s) of property in urbanized areas zoned for residential, commercial or industrial use into four or fewer parcels when the division is in conformance with the General Plan and zoning, no variances or exceptions are required, all services and access to the proposed parcels to local standards are available, the parcel was not involved in a division of a larger parcel within the previous two (2) years, and the parcel does not have an average slope greater than 20%. (State CEQA Guidelines, § 15315.) Class 16: Transfer of Ownership of Land in Order to Create Parks. Acquisition, sale, or other transfer of land in order to establish a park where the land is in a natural condition or contains historical or archaeological resources and either:
(a) The management plan for the park has not been prepared, or (b) The management plan proposes to keep the area in a natural condition or preserve the historic or archaeological resources.
CEQA will apply when a management plan is proposed that will change the area from its natural condition or cause substantial adverse change in the significance of the historic or archaeological resource. (State CEQA Guidelines, § 15316.) Class 17: Open Space Contracts or Easements. Establishment of agricultural preserves, making and renewing of open space contracts under the Williamson Act, or acceptance of easements or fee interests in order to maintain the open space character of the area. (The cancellation of such preserves, contracts, interests or easements is not included in this exemption.) (State CEQA Guidelines, § 15317.)
Class 18: Designation of Wilderness Areas. Designation of wilderness areas under the California Wilderness System. (State CEQA Guidelines, § 15318.) Class 19: Annexations of Existing Facilities and Lots for Exempt Facilities. This exemption applies only to the following annexations:
(a) Annexations to a city or special district of areas containing existing public or private structures developed to the density allowed by the current zoning or prezoning of either the gaining or losing governmental agency, whichever is more restrictive; provided, however, that the extension of utility services to the existing facilities would have a capacity to serve only the existing facilities; and (b) Annexations of individual small parcels of the minimum size for facilities exempted by Class 3, New Construction or Conversion of Small Structures. (State CEQA Guidelines, § 15319.)
Class 20: Changes in Organization of Local Agencies. Changes in the organization of local governmental agencies where the changes do not change the geographical area in which previously existing powers are exercised. Examples include but are not limited to:
(a) Establishment of a subsidiary district;
(b) Consolidation of two or more districts having identical powers; and (c) Merger with a city of a district lying entirely within the boundaries of the city. 880
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Class 21: Enforcement Actions by Regulatory Agencies. Actions by regulatory agencies to enforce or revoke a lease, permit, license, certificate or other entitlement for use issued, adopted or prescribed by the regulatory agency or enforcement of a law, general rule, standard or objective administered or adopted by the regulatory agency; or law enforcement activities by peace officers acting under any law that provides a criminal sanction. The direct referral of a violation of lease, permit, license, certificate, or entitlement to the City Attorney for judicial enforcement is exempt under this Class. (Construction activities undertaken by the public agency taking the enforcement or revocation action are not included in this exemption.) (State CEQA Guidelines, § 15321.)
Class 22: Educational or Training Programs Involving No Physical Changes. The adoption, alteration or termination of educational or training programs which involve no physical alteration in the area affected or which involve physical changes only in the interior of existing school or training structures. Examples include but are not limited to:
(a) Development of or changes in curriculum or training methods; or (b) Changes in the trade structure in a school which do not result in changes in student transportation. (State CEQA Guidelines, § 15322.) Class 23: Normal Operations of Facilities for Public Gatherings. Continued or repeated normal operations of existing facilities for public gatherings for which the facilities were designed, where there is past history, of at least three years, of the facility being used for the same or similar purposes. Facilities included within this exemption include, but are not limited to, race tracks, stadiums, convention centers, auditoriums, amphitheaters, planetariums, swimming pools and amusement parks. (State CEQA Guidelines, § 15323.) Class 24: Regulation of Working Conditions. Actions taken by the City to regulate employee wages, hours of work or working conditions where there will be no demonstrable physical changes outside the place of work. (State CEQA Guidelines, § 15324.) Class 25: Transfers of Ownership of Interest in Land to Preserve Existing Natural Conditions and Historical Resources. Transfers of ownership of interest in land in order to preserve open space, habitat, or historical resources. Examples include, but are not limited to, acquisition, sale, or other transfer of areas to: preserve existing natural conditions, including plant or animal habitats; allow continued agricultural use of the areas; allow restoration of natural conditions; preserve open space or lands for natural park purposes; or prevent encroachment of development into floodplains. This exemption does not apply to the development of parks or park uses. (State CEQA Guidelines § 15325.) Class 26: Acquisition of Housing for Housing Assistance Programs. Actions by a redevelopment agency, housing authority or other public agency to implement an adopted Housing Assistance Plan by acquiring an interest in housing units, provided the housing units are either in existence or possessing all required permits for construction when the agency makes its final decision to acquire the units. (State CEQA Guidelines, § 15326.) 881
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(a) Conforms with existing state plans and policies and with general, community, and specific plans for which an EIR or Negative Declaration has been prepared; (b) Is substantially the same as that originally proposed at the time the building permit was issued;
(c) Does not result in a traffic increase of greater than 10% of front access road capacity; and
(d) Includes the provision of adequate employee and visitor parking facilities. (State CEQA Guidelines, § 15327.)
Class 28: Small Hydroelectric Projects as Existing Facilities. Installation of certain small hydroelectric-generating facilities in connection with existing dams, canals and pipelines, subject to the conditions in State CEQA Guidelines section 15328. (State CEQA Guidelines, § 15328.)
Class 29: Cogeneration Projects at Existing Facilities. Installation of cogeneration equipment with a capacity of 50 megawatts or less at existing facilities meeting certain conditions listed in State CEQA Guidelines, § 15329. (State CEQA Guidelines section 15329.) Class 30: Minor Actions to Prevent, Minimize, Stabilize, Mitigate or Eliminate the Release or Threat of Release of Hazardous Waste or Hazardous Substances. Any minor cleanup actions taken to prevent, minimize, stabilize, mitigate, or eliminate the release or threat of release of a hazardous waste or substance which are small or medium removal actions costing $1 million or less.
(a) No cleanup action shall be subject to this Class 30 exemption if the action requires the onsite use of a hazardous waste incinerator or thermal treatment unit or the relocation of residences or businesses, or the action involves the potential release into the air of volatile organic compounds as defined in Health and Safety Code section 25123.6, except for small scale in situ soil vapor extraction and treatment systems which have been permitted by the local Air Pollution Control District or Air Quality Management District. All actions must be consistent with applicable state and local environmental permitting requirements including, but not limited to, off-site disposal, air quality rules such as those governing volatile organic compounds and water quality standards, and approved by the regulatory body with jurisdiction over the site;
(b) Examples of such minor cleanup actions include but are not limited to:
1. Removal of sealed, non-leaking drums of hazardous waste or substances that have been stabilized, containerized and are designated for a lawfully permitted destination;
2. Maintenance or stabilization of berms, dikes, or surface impoundments;
3. Construction or maintenance or interim of temporary surface caps; 882
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4. Onsite treatment of contaminated soils or sludge provided treatment system meets Title 22 requirements and local air district requirements;
5. Excavation and/or offsite disposal of contaminated soils or sludge in regulated units;
6. Application of dust suppressants or dust binders to surface soils;
7. Controls for surface water run-on and run-off that meets seismic safety standards;
8. Pumping of leaking ponds into an enclosed container;
9. Construction of interim or emergency ground water treatment systems; or
10. Posting of warning signs and fencing for a hazardous waste or substance site that meets legal requirements for protection of wildlife. (State CEQA Guidelines, § 15330.)
Class 31: Historical Resource Restoration/Rehabilitation. Maintenance, repairs, stabilization, rehabilitation, restoration, preservation, conservation, or reconstruction of historical resources in a manner consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring, and Reconstructing Historic Buildings (1995), Weeks and Grimmer. (State CEQA Guidelines, § 15331.)
Class 32: Infill Development Projects. Infill development meeting the following conditions:
(a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations;
(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses; (c) The project site has no value as habitat for endangered, rare or threatened species; (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality; and
(e) The site can be adequately served by all required utilities and public services. (State CEQA Guidelines, § 15332.)
Class 33: Small Habitat Restoration Projects.
This exemption applies to projects to assure the maintenance, restoration, enhancement, or protection of habitat for fish, plants, or wildlife, provided that such projects meet the following criteria:
(a) The project does not exceed five acres in size;
(b) There would be no significant adverse impact on endangered, rare or threatened species or their habitat pursuant to Section 15065 of the State CEQA Guidelines; 883
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(d) The project will not result in impacts that are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.
Examples of small habitat restoration projects include, but are not limited to:
revegetation of disturbed areas with native plant species; wetland restoration, the primary purpose of which is to improve conditions for waterfowl or other species that rely on wetland habitat; stream or river bank revegetation, the primary purpose of which is to improve habitat for amphibians or native fish; projects to restore or enhance habitat that are carried out principally with hand labor and not mechanized equipment; stream or river bank stabilization with native vegetation or other bioengineering techniques, the primary purpose of which is to reduce or eliminate erosion and sedimentation; and culvert replacement conducted in accordance with published guidelines of DFW or NOAA Fisheries, the primary purpose of which is to improve habitat or reduce sedimentation.
(State CEQA Guidelines, § 15333.)
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4. TIME LIMITATIONS
4.01 REVIEW OF PRIVATE PROJECT APPLICATIONS.
Staff shall determine whether the application for a private project is complete within thirty (30) days of receipt of the application. No application may be deemed incomplete based on an applicant’s refusal to waive the time limitations set forth in Local Guidelines Sections 4.03 and 4.04.
Accepting an application as complete does not limit the authority of the City, acting as Lead Agency or Responsible Agency, to require the applicant to submit additional information needed for environmental evaluation of the project. Requiring such additional information after the application is complete does not change the status of the application. (Reference: State CEQA Guidelines, § 15101.)
4.02 DETERMINATION OF TYPE OF ENVIRONMENTAL DOCUMENT.
Except as provided in Local Guidelines Sections 4.05 and 4.06, Staff’s initial determination as to whether a Negative Declaration, Mitigated Negative Declaration or an EIR should be prepared shall be made within thirty (30) days from the date on which an application for a project is accepted as complete by the City. This period may be extended fifteen (15) days with consent of the applicant and the City.
(Reference: State CEQA Guidelines, § 15102.)
4.03 COMPLETION AND ADOPTION OF NEGATIVE DECLARATION.
For private projects involving the issuance of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies, the Negative Declaration/Mitigated Negative Declaration shall be completed and approved within one hundred eighty (180) days from the date when the City accepted the application as complete. In the event that compelling circumstances justify additional time and the project applicant and Lead Agency consent thereto, Staff may provide that the 180-day time limit may be extended once for a period of not more than 90 days. (Reference: State CEQA Guidelines, § 15107.)
4.04 COMPLETION AND CERTIFICATION OF FINAL EIR.
For private projects, the Final EIR shall be completed and certified by the City within one (1) year after the date the City accepted the application as complete. In the event that compelling circumstances justify additional time and the project applicant consents thereto, the City may provide a one-time extension up to ninety (90) days for completing and certifying the EIR. (Reference: State CEQA Guidelines, § 15108.)
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4.05 PROJECTS SUBJECT TO THE PERMIT STREAMLINING ACT.
The Permit Streamlining Act requires agencies to make decisions on certain development project approvals within specified time limits. If a project is subject to the Permit Streamlining Act, the City cannot require the project applicant to submit the informational equivalent of an EIR or prove compliance with CEQA as a prerequisite to determining whether the project application is complete. In addition, if requested by the project applicant, the City must begin processing the project application prior to final CEQA action, provided the information necessary to begin the process is available.
(Reference: Gov. Code §§ 65941, 65944.)
Under the Permit Streamlining Act, the Lead Agency must approve or disapprove the development project application within one hundred eighty (180) days from the date on which it certifies the EIR, or within ninety (90) days of certification if an extension for completing and certifying the EIR was granted. If the Lead Agency adopts a Negative Declaration/Mitigated Negative Declaration or determines the development project is exempt from CEQA, it shall approve or disapprove the project application within sixty (60) days from the date on which it adopts the Negative Declaration/Mitigated Negative Declaration or determines that the project is exempt from CEQA.
(Reference: Gov. Code §§ 65950, 65950.1; see also State CEQA Guidelines, § 15107.) Except for waivers of the time periods for preparing a joint Environmental Impact Report/Environmental Impact Statement (as outlined in Government Code sections 65951 and 65957), the City cannot require a waiver of the time limits specified in the Permit Streamlining Act as a condition of accepting or processing a development project application. In addition, the City cannot disapprove a development project application in order to comply with the time limits specified in the Permit Streamlining Act.
(Reference: Gov. Code §§ 65940.5, 65952.2.)
4.06 PROJECTS, OTHER THAN THOSE SUBJECT TO THE PERMIT STREAMLINING ACT, WITH SHORT TIME PERIODS FOR APPROVAL.
A few statutes require agencies to make decisions on project applications within time limits that are so short that review of the project under CEQA would be difficult. To enable the City as Lead Agency to comply with both the enabling statute and CEQA, the City shall deem a project application as not received for filing under the enabling statute until such time as the environmental documentation required by CEQA is complete. This section applies where all of the following conditions are met:
(a) The enabling statute for a program, other than development projects under Chapter 4.5 (commencing with Section 65920) of Division 1 of Title 7 of the Government Code, requires the City to take action on an application within a specified period of time of six (6) months or less;
(b) The enabling statute provides that the project is approved by operation of law if the City fails to take any action within the specified time period; and 886
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In any case, the environmental document shall be completed or certified and the decision on the application shall be made within the period established by the Permit Streamlining Act (Government Code sections 65920, et seq.).
(Reference: State CEQA Guidelines, § 15111.)
4.07 WAIVER OR SUSPENSION OF TIME PERIODS.
These deadlines may be waived by the applicant if the project is subject to both CEQA and the National Environmental Policy Act (“NEPA”).
An unreasonable delay by an applicant in meeting the City’s requests necessary for the preparation of a Negative Declaration, Mitigated Negative Declaration, or an EIR shall suspend the running of the time periods described in Local Guidelines Sections 4.03 and 4.04 for the period of the unreasonable delay. Alternatively, the City may disapprove a project application where there is unreasonable delay in meeting requests. The City may also allow a renewed application to start at the same point in the process where the prior application was when it was disapproved.
(Reference: State CEQA Guidelines, §§ 15109, 15110, and 15224; see Section 5.04 of these Local Guidelines for information about projects that are subject to both CEQA and NEPA.) 887
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5. INITIAL STUDY
5.01 PREPARATION OF INITIAL STUDY.
If the City determines that it is the Lead Agency for a project which is not exempt, the City will normally prepare an Initial Study to ascertain whether the project may have a substantial adverse effect on the environment, regardless of whether the overall effect of the project is adverse or beneficial. All phases of project planning, implementation and operation must be considered in the Initial Study. An Initial Study may rely on expert opinion supported by facts, technical studies or other substantial evidence. However, an Initial Study is neither intended nor required to include the level of detail included in an EIR.
The City, as Lead Agency, may use any of the following arrangements or combination of arrangements to prepare an Initial Study:
(1) Preparing the Initial Study directly with the City’s own staff. (2) Contracting with another entity, public or private, to prepare the Initial Study. (3) Accepting a draft Initial Study prepared by the applicant, a consultant retained by the applicant, or any other third person.
(4) Executing a third party contract or memorandum of understanding with the applicant to govern the preparation of an Initial Study by an independent contractor. (5) Using a previously prepared Initial Study.
The Initial Study sent out for public review, however, must reflect the independent judgment of the Lead Agency.
For private projects, the person or entity proposing to carry out the project shall complete Form “I” of these Local CEQA Guidelines, submit the completed Form “I” to the City, and submit all other data and information as may be required by the City to determine whether the proposed project may have a significant effect on the environment. All costs incurred by the City in reviewing the data and information submitted, or in conducting its own investigation based upon such data and information, or in preparing an Initial Study for the project shall be borne by the person or entity proposing to carry out the project. (Reference: State CEQA Guidelines, §§ 15063, 15084.)
5.02 INFORMAL CONSULTATION WITH OTHER AGENCIES.
When more than one public agency will be involved in undertaking or approving a project, the Lead Agency shall consult with all Responsible and any Trustee Agencies. Such consultation shall be undertaken in compliance with the notice procedures applicable to the type of CEQA document being prepared. See Section 6.04, Negative Declarations, and Sections 7.03 and 7.25, EIRs.
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California Environmental Quality Act (2024) INITIAL STUDY 2024 City of Palm Desert Local Guidelines 5-2 ©Best Best & Krieger LLP When the City is acting as Lead Agency, the City may choose to engage in early consultation with Responsible and Trustee Agencies before the City begins to prepare the Initial Study. This early consultation may be done quickly and informally and is intended to ensure that the EIR, Negative Declaration or Mitigated Negative Declaration reflects the concerns of all Responsible Agencies that will issue approvals for the project and all Trustee Agencies responsible for natural resources affected by the project. The City’s early consultation process may include consultation with other individuals or organizations with an interest in the project, if the City so desires. The OPR, upon request of the City or a private project applicant, shall assist in identifying the various Responsible Agencies for a proposed project and ensure that the Responsible Agencies are notified regarding any early consultation. In the case of a project undertaken by a public agency, the OPR, upon request of the City, shall ensure that any Responsible Agency or public agency that has jurisdiction by law with respect to the project is notified regarding any early consultation.
If, during the early consultation process it is determined that the project will clearly have a significant effect on the environment, the City, as Lead Agency, may immediately dispense with the Initial Study and determine that an EIR is required. (Reference: State CEQA Guidelines, § 15063.)
5.03 CONSULTATION WITH PRIVATE PROJECT APPLICANT.
During or immediately after preparation of an Initial Study for a private project, the City may consult with the applicant to determine if the applicant is willing to modify the project to reduce or avoid the significant effects identified in the Initial Study. If the project can be revised to avoid or mitigate effects to a level of insignificance and there is no substantial evidence before the City that the project, as revised, may have a significant effect on the environment, the City may prepare and adopt a Negative Declaration or Mitigated Negative Declaration. If any significant effect may still occur despite alterations of the project, an EIR must be prepared. (Reference: State CEQA Guidelines, § 15063(g).)
5.04 PROJECTS SUBJECT TO NEPA.
Projects that are carried out, financed, or approved in whole or in part by a federal agency are subject to the provisions of NEPA in addition to CEQA. To the extent possible, the State CEQA Guidelines encourage the City, when it is a Lead Agency under CEQA, to use the federally-prepared Environmental Impact Statement (“EIS”) or Finding of No Significant Impact (“FONSI”) or to prepare a joint CEQA/NEPA document instead of preparing separate NEPA and CEQA documents for a project that is subject to both NEPA and CEQA. (State CEQA Guidelines, § 15220.)
For example, the City should attempt to work in conjunction with the federal agency involved in the project to prepare a combined EIR-EIS or Negative Declaration-FONSI. (State CEQA Guidelines, § 15222.) To avoid the need for the federal agency to prepare a separate document for the same project, the Lead Agency must involve the federal agency in the preparation of the joint document. The Lead Agency may also enter into a Memorandum of Understanding with the federal agency to ensure that both federal and state requirements are met. 889
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California Environmental Quality Act (2024) INITIAL STUDY 2024 City of Palm Desert Local Guidelines 5-3 ©Best Best & Krieger LLP The City is required to cooperate with the federal agency and to utilize joint planning processes, environmental research and studies, public hearings, and environmental documents to the fullest extent possible. (State CEQA Guidelines, § 15226.) However, since NEPA does not require an examination of mitigation measures or growth-inducing impacts, analysis of mitigation measures and growth-inducing impacts will need to be added before NEPA documents may be used to satisfy CEQA. (State CEQA Guidelines, § 15221.) For projects that are subject to NEPA, a scoping meeting held pursuant to NEPA satisfies the CEQA scoping requirement as long as notice is provided to the agencies and individuals listed in Local Guidelines Section 7.10, and provided in accordance with these Local Guidelines.
If the federal agency refuses to cooperate with the City with regard to the preparation of joint documents, the City should attempt to involve a state agency in the preparation of the EIR, Negative Declaration, or Mitigated Negative Declaration. Since federal agencies are explicitly permitted to utilize environmental documents prepared by agencies of statewide jurisdiction, it is possible that the federal agency will reuse the state-prepared CEQA documents instead of requiring the applicant to fund a redundant set of federal environmental documents. (State CEQA Guidelines, § 15228.)
Where the federal agency has circulated the EIS or FONSI and the circulation satisfied the requirements of CEQA and any other applicable laws, the City, when it is a Lead Agency under CEQA, may use the EIS or FONSI in place of an EIR or Negative Declaration without having to recirculate the federal documents. The City’s intention to adopt the previously circulated EIS or FONSI must be publicly noticed in the same way as a Notice of Availability of a Draft EIR.
Special rules may apply when the environmental documents are prepared for projects involving the reuse of military bases. (See State CEQA Guidelines, § 15225.)
5.05 AN INITIAL STUDY.
The Initial Study shall be used to determine whether a Negative Declaration, Mitigated Negative Declaration or an EIR shall be prepared for a project. It provides written documentation of whether the City found evidence of significant adverse impacts which might occur. The purposes of an Initial Study are to:
(a) Identify environmental impacts;
(b) Enable an applicant or Lead Agency to modify a project, mitigating adverse impacts before an EIR is written;
(c) Focus an EIR, if one is required, on potentially significant environmental effects; (d) Facilitate environmental assessment early in the design of a project; (e) Provide documentation of the factual basis for the finding in a Negative Declaration that a project will not have a significant effect on the environment; (f) Eliminate unnecessary EIRs; and
(g) Determine whether a previously prepared EIR could be used for the project. (Reference: State CEQA Guidelines, § 15063.)
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5.06 CONTENTS OF INITIAL STUDY.
An Initial Study shall contain in brief form:
(a) A description of the project, including the location of the project. The project description must be consistent throughout the environmental review process; (b) An identification of the environmental setting. The environmental setting is usually the existing physical environmental conditions in the vicinity of the project, as they exist at the time the Notice of Preparation is published, or if no Notice of Preparation is published, such as in the case of a Negative Declaration or Mitigated Negative Declaration, at the time environmental analysis begins. The environmental setting should describe both the project site and surrounding properties. The description should include, but not necessarily be limited to, a discussion of existing structures, land use, energy supplies, topography, water usage, soil stability, plants and animals, and any cultural, historical, or scenic aspects. This environmental setting will normally constitute the baseline physical conditions against which a Lead Agency may compare the project to determine whether an impact is significant;
(c) An identification of environmental effects by use of a checklist, matrix, or other method, provided that entries are briefly explained to show the evidence supporting the entries.
The brief explanation may be through either a narrative or a reference to other information such as attached maps, photographs, or an earlier EIR or Negative Declaration or Mitigated Negative Declaration. A reference to another document should include a citation to the page or pages where the information is found; (d) A discussion of ways to mitigate any significant effects identified; (e) An examination of whether the project is consistent with existing zoning and local land use plans and other applicable land use controls;
(f) The name of the person or persons who prepared or participated in the Initial Study; and (g) Identification of prior EIRs or environmental documents that could be used with the project.
(Reference: State CEQA Guidelines, § 15063(d).)
5.07 USE OF A CHECKLIST INITIAL STUDY.
When properly completed, the Environmental Checklist (Form “J”) will meet the requirements of Local Guidelines Section 5.05 for an Initial Study provided that the entries on the checklist are explained. Either the Environmental Checklist (Form “J”) should be expanded or a separate attachment should be prepared to describe the project, including its location, and to identify the environmental setting.
California courts have rejected the use of a bare, unsupported Environmental Checklist as an Initial Study. An Initial Study must contain more than mere conclusions. It must disclose supporting data or evidence upon which the Lead Agency relied in conducting the Initial Study.
The Lead Agency must augment checklists with supporting factual data and reference information sources when completing the forms. Explanation of all “potential impact” answers should be provided on attached sheets. For controversial projects, it is advisable to state briefly 891
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5.08 EVALUATING SIGNIFICANT ENVIRONMENTAL EFFECTS.
In evaluating the environmental significance of effects disclosed by the Initial Study, the Lead Agency shall consider:
(a) Whether the Initial Study and/or any comments received informally during consultations indicate that a fair argument can be made that the project may have a significant adverse environmental impact that cannot be mitigated to a level of insignificance. Even if a fair argument can be made to the contrary, an EIR should be prepared; (b) Whether both primary (direct) and reasonably foreseeable secondary (indirect) consequences of the project were evaluated. Primary consequences are immediately related to the project, while secondary consequences are related more to the primary consequences than to the project itself. For example, secondary impacts upon the resources base, including land, air, water and energy use of an area, may result from population growth, a primary impact;
(c) Whether adverse social and economic changes will result from a physical change caused by the project. Adverse economic and social changes resulting from a project are not, in themselves, significant environmental effects. However, if such adverse changes cause physical changes in the environment, those consequences may be used as the basis for finding that the physical change is significant;
(d) Whether there is serious public controversy or disagreement among experts over the environmental effects of the project. However, the existence of public controversy or disagreement among experts does not, without more, require preparation of an EIR in the absence of substantial evidence of significant effects; (e) Whether the cumulative impact of the project is significant and whether the incremental effects of the project are “cumulatively considerable” (as defined in Local Guidelines Section 11.13) when viewed in connection with the effects of past projects, current projects, and probable future projects. The City may conclude that a project’s incremental contribution to a cumulative effect is not cumulatively considerable if the project will comply with the requirements in a previously approved plan or mitigation program (including, but not limited to, water quality control plan, air quality attainment or maintenance plan, integrated waste management plan, habitat conservation plan, natural community conservation plan, plans or regulations for the reduction of greenhouse gas emissions) that provides specific requirements that will avoid or substantially lessen the cumulative problem. To be used for this purpose, such a plan or program must be specified in law or adopted by the public agency with jurisdiction over the affected resources through a public review process. In relying on such a plan or program, the City should explain which requirements apply to the project and ensure that the project’s incremental contribution is not cumulatively considerable; and (f) Whether the project may cause a substantial adverse change in the significance of an archaeological or historical resource.
The City may use a threshold of significance (as that term is defined in State CEQA Guidelines section 15064.7) to determine whether a project may cause a significant 892
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Compliance with the threshold, however, does not relieve the City of the obligation to consider substantial evidence indicating that a project’s environmental effects may still be significant. (Reference: State CEQA Guidelines, § 15064(b)(2).)
5.09 DETERMINING THE SIGNIFICANCE OF TRANSPORTATION IMPACTS On or about December 28, 2018, the California Natural Resources Agency added a new section to the State CEQA Guidelines—Section 15064.3, entitled “Determining the Significance of Transportation Impacts.”
Section 15064.3 provides:
(a) Purpose.
This section describes specific considerations for evaluating a project's transportation impacts. Generally, vehicle miles traveled is the most appropriate measure of transportation impacts. For the purposes of this section, “vehicle miles traveled” refers to the amount and distance of automobile travel attributable to a project. Other relevant considerations may include the effects of the project on transit and non-motorized travel. Except as provided in subdivision (b)(2) below (regarding roadway capacity), a project's effect on automobile delay shall not constitute a significant environmental impact.
(b) Criteria for Analyzing Transportation Impacts.
(1) Land Use Projects. Vehicle miles traveled exceeding an applicable threshold of significance may indicate a significant impact. Generally, projects within onehalf mile of either an existing major transit stop or a stop along an existing high quality transit corridor should be presumed to cause a less than significant transportation impact. Projects that decrease vehicle miles traveled in the project area compared to existing conditions should be presumed to have a less than significant transportation impact.
(2) Transportation Projects. Transportation projects that reduce, or have no impact on, vehicle miles traveled should be presumed to cause a less than significant transportation impact. For roadway capacity projects, agencies have discretion to determine the appropriate measure of transportation impact consistent with CEQA and other applicable requirements. To the extent that such impacts have already been adequately addressed at a programmatic level, such as in a regional transportation plan EIR, a lead agency may tier from that analysis as provided in Section 15152.
(3) Qualitative Analysis. If existing models or methods are not available to estimate the vehicle miles traveled for the particular project being considered, a 893
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(4) Methodology. A lead agency has discretion to choose the most appropriate methodology to evaluate a project's vehicle miles traveled, including whether to express the change in absolute terms, per capita, per household or in any other measure. A lead agency may use models to estimate a project's vehicle miles traveled, and may revise those estimates to reflect professional judgment based on substantial evidence. Any assumptions used to estimate vehicle miles traveled and any revisions to model outputs should be documented and explained in the environmental document prepared for the project. The standard of adequacy in Section 15151 shall apply to the analysis described in this section. (c) Applicability.
The provisions of this section shall apply prospectively as described in section 15007. A lead agency may elect to be governed by the provisions of this section immediately. Beginning on July 1, 2020, the provisions of this section shall apply statewide.
(Reference: State CEQA Guidelines, § 15064.3.)
5.10 MANDATORY FINDINGS OF SIGNIFICANT EFFECT.
Whenever there is substantial evidence, in light of the whole record, that any of the conditions set forth below may occur, the Lead Agency shall find that the project may have a significant effect on the environment and thereby shall require preparation of an EIR:
(a) The project has the potential to substantially degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, substantially reduce the number or restrict the range of a rare or endangered plant or animal, or eliminate important examples of major periods of California history or prehistory;
(b) The project has the potential to achieve short-term environmental goals to the disadvantage of long-term environmental goals;
(c) The project has possible environmental effects which are individually limited but cumulatively considerable, as defined in Local Guidelines Section 11.13. That is, the City, when acting as Lead Agency, is required to determine whether the incremental impacts of a project are cumulatively considerable by evaluating them against the backdrop of the environmental effects of the other projects; or (d) The environmental effects of a project will cause substantial adverse effects on humans either directly or indirectly.
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(1) as thresholds of significance for purposes of preparing the EIR’s impact analysis; (2) in making findings on the feasibility of alternatives or mitigation measures; (3) when found to be feasible, in making changes in the project to lessen or avoid the adverse environmental impacts; and
(4) when necessary, in adopting a statement of overriding considerations.
Although an EIR prepared for a project that triggers one of the mandatory findings of significance must use the relevant mandatory findings as thresholds of significance, the EIR need not conclude that the impact itself is significant. Rather, the City, as Lead Agency, must exercise its discretion and determine, on a case-by-case basis after evaluating all of the relevant evidence, whether the project’s environmental impacts are avoided or mitigated below a level of significance or whether a statement of overriding considerations is required.
With regard to a project that has the potential to substantially reduce the number or restrict the range of a protected species, the City, as Lead Agency, does not have to prepare an EIR solely due to that impact, provided the project meets the following three criteria:
(a) The project proponent must be bound to implement mitigation requirements relating to such species and habitat pursuant to an approved habitat conservation plan and/or natural communities conservation plan;
(b) The state or federal agency must have approved the habitat conservation plan and/or natural community conservation plan in reliance on an EIR and/or EIS; and (c) The mitigation requirements must either avoid any net loss of habitat and net reduction in number of the affected species, or preserve, restore, or enhance sufficient habitat to mitigate the reduction in habitat and number of the affected species below a level of significance.
(Reference: State CEQA Guidelines, § 15065.)
5.11 MANDATORY PREPARATION OF AN EIR FOR WASTE-BURNING PROJECTS.
Lead Agencies shall prepare or cause to be prepared and certify the completion of an EIR, or, if appropriate, an Addendum, Supplemental EIR, or Subsequent EIR, for any project involving the burning of municipal wastes, hazardous waste or refuse-derived fuel, including, but not limited to, tires, if the project consists of any of the following:
(a) The construction of a new facility;
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(c) The issuance of a hazardous waste facilities permit to a land disposal facility, as defined in Local Guidelines Section 11.32; or
(d) The issuance of a hazardous waste facilities permit to an offsite large treatment facility, as defined in Local Guidelines Sections 11.33 and 11.53.
This section does not apply to projects listed in subsections (c) and (d), immediately above, if the facility only manages hazardous waste that is identified or listed pursuant to Health and Safety Code section 25140 or 25141 or only conducts activities which are regulated pursuant to Health and Safety Code sections 25100, et seq.
The Lead Agency shall calculate the percentage of expansion for an existing facility by comparing the proposed facility’s capacity with either of the following, as applicable:
(a) The facility capacity authorized in the facility’s hazardous waste facilities permit pursuant to Health and Safety Code section 25200, or its grant of interim status pursuant to Health and Safety Code section 25200.5, or the facility capacity authorized in any state or local agency permit allowing the construction or operation of the facility for the burning of hazardous waste granted before January 1, 1990; or (b) The facility capacity authorized in the facility’s original hazardous facilities permit, grant of interim status, or any state or local agency permit allowing the construction or operation of a facility for the burning of hazardous waste, granted on or after January 1, 1990.
This section does not apply to any project over which the State Energy Resources Conservation and Development Commission has assumed jurisdiction per Health and Safety Code sections 25500 et seq.
The EIR requirement is also subject to a number of exceptions for specific types of waste-burning projects. (Public Resources Code section 21151.1 and State CEQA Guidelines section 15081.5.) Even if preparation of an EIR is not mandatory for a particular type of wasteburning project, those projects are not exempt from the other requirements of CEQA, the State CEQA Guidelines, or these Local Guidelines. In addition, waste-burning projects are subject to special notice requirements under Public Resources Code section 21092. Specifically, in addition to the standard public notices required by CEQA, notice must be provided to all owners and occupants of property located within one-fourth mile of any parcel or parcels on which the waste-burning project will be located. (Public Resources Code section 21092(c); see Local Guidelines Sections 6.12 and 7.27.)
5.12 DEVELOPMENT PURSUANT TO AN EXISTING COMMUNITY PLAN AND EIR.
Before preparing a CEQA document, Staff should determine whether the proposed project involves development consistent with an earlier zoning or community plan to accommodate a particular density for which an EIR has been certified. If an earlier EIR for the zoning or planning action has been certified, and if the proposed project concerns the approval of a subdivision map or development, CEQA applies only to the extent the project raises 896
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Environmental effects shall not be considered peculiar to the parcel if uniformly applied development policies or standards have been previously adopted by a city or county with a finding based on substantial evidence that the policy or standard will substantially mitigate the environmental effect when applied to future projects. Examples of uniformly applied development policies or standards include, but are not limited to: parking ordinances; public access requirements; grading ordinances; hillside development ordinances; flood plain ordinances; habitat protection or conservation ordinances; view protection ordinances; and requirements for reducing greenhouse gas emissions as set forth in adopted land use plans, policies or regulations. Any rezoning action consistent with the Community Plan shall be subject to exemption from CEQA in accordance with this section. “Community Plan” means part of a city’s general plan which: (1) applies to a defined geographic portion of the total area included in the general plan; (2) complies with Article 5 (commencing with Section 65300) of Chapter 3 of Division 1 of Title 7 of the Government Code by referencing each of the mandatory elements specified in Government Code section 65302; and (3) contains specific development policies adopted for the area in the Community Plan and identifies measures to implement those policies, so that the policies which will apply to each parcel can be determined. (Reference: State CEQA Guidelines, § 15183.)
5.13 LAND USE POLICIES.
When a project will amend a general plan or another land use policy, the Initial Study must address how the change in policy and its expected direct and indirect effects will affect the environment. When the amendments constitute substantial changes in policies that result in a significant impact on the environment, an EIR may be required.
5.14 EVALUATING IMPACTS ON HISTORICAL RESOURCES.
Projects that may cause a substantial adverse change in the significance of a historical resource, as defined in Local Guidelines Section 11.28 are projects that may have a significant effect on the environment, thus requiring consideration under CEQA. Particular attention and care should be given when considering such projects, especially projects involving the demolition of a historical resource, since such demolitions have been determined to cause a significant effect on the environment.
Substantial adverse change in the significance of a historical resource means physical demolition, destruction, relocation or alteration of the resource or its immediate surroundings, such that the significance of a historical resource would be materially impaired.
The significance of a historical resource is materially impaired when a project:
(a) Demolishes or materially alters in an adverse manner those physical characteristics of a historical resource that convey its historical significance and that justify its inclusion in, or eligibility for inclusion in, the California Register of Historical Resources; 897
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Generally, a project that follows either one of the following sets of standards and guidelines will be considered mitigated to a level of less than significant: (a) the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings; or (b) the Secretary of the Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings (1995), Weeks and Grimmer.
In the event of an accidental discovery of a possible historical resource during construction of the project, the City may provide for the evaluation of the find by a qualified archaeologist or other professional. If the find is determined to be a historical resource, the City should take appropriate steps to implement appropriate avoidance or mitigation measures. Work on non-affected portions of the project, as determined by the City, may continue during the process. Curation may be an appropriate mitigation measure for an artifact that must be removed during project excavation or testing.
(Reference: State CEQA Guidelines, § 15064.5.)
5.15 EVALUATING IMPACTS ON ARCHAEOLOGICAL SITES.
When a project will impact an archaeological site, the City shall first determine whether the site is a historical resource, as defined in Local Guidelines Section 11.28 If the archaeological site is a historical resource, it shall be treated and evaluated as such, and not as an archaeological resource. If the archaeological site does not meet the definition of a historical resource, but does meet the definition of a unique archaeological resource set forth in Public Resources Code section 21083.2, the site shall be treated in accordance with said provisions of the Public Resources Code. The time and cost limitations described in Section 21083.2(c-f) do not apply to surveys and site evaluation activities intended to determine whether the project site contains unique archaeological resources.
If the archaeological resource is neither a unique archaeological resource nor a historical resource, the effects of the project on those resources shall not be considered a significant effect on the environment. It shall be sufficient that both the resource and the effect on it are noted in the Initial Study or EIR, if one is prepared to address impacts on other resources, but they need not be considered further in the CEQA process.
In the event of an accidental discovery of a possible unique archaeological resource during construction of the project, the City may provide for the evaluation of the find by a qualified archaeologist. If the find is determined to be a unique archaeological resource, the City 898
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When an Initial Study identifies the existence of, or the probable likelihood of, Native American human remains within the Project, the City shall comply with the provisions of State CEQA Guidelines section 15064.5(d). In the event of an accidental discovery or recognition of any human remains in any location other than a dedicated cemetery, the City shall comply with the provisions of State CEQA Guidelines section 15064.5(e). (Reference: State CEQA Guidelines, § 15064.5(c).)
5.16 CONSULTATION WITH WATER AGENCIES REGARDING LARGE DEVELOPMENT PROJECTS.
(a) Projects Subject to Consultation Requirements.
For certain development projects, cities and counties must consult with water agencies.
If the City is a municipal water provider, the city or county may request that the City prepare a water supply assessment to be included in the relevant environmental documentation for the project. The City may refer to this section when preparing such an assessment or when reviewing projects in its role as a Responsible Agency. This section applies only to water demand projects as defined by Local Guidelines Section 11.83. Program level environmental review may not need to be as extensive as project level environmental review. (See Local Guidelines Sections 8.03 and 8.08.)
(b) Water Supply Assessment.
When a city or county as Lead Agency determines the type of environmental document that will be prepared for a water demand project or any project that includes a water demand project, the city or county must identify any public water system (as defined in Local Guidelines Sections 11.59 and 11.83) that may supply water for the project. The city or county must also request that the public water system determine whether the projected demand associated with the project was included in the most recently adopted Urban Water Management Plan. The city or county must also request that the public water system prepare a specified water supply assessment for approval at a regular or special meeting of the public water system governing body. A sample request for a water supply assessment is provided as Form “N” of these Local CEQA Guidelines.
If no public water system is identified that may supply water for the water demand project, the city or county shall prepare the water supply assessment. The city or county shall consult with any entity serving domestic water supplies whose service area includes the site of the water demand project, the local agency formation commission, and the governing body of any public water system adjacent to the site of the water demand project. The city council or county board of supervisors must approve the water assessment prepared pursuant to this paragraph at a regular or special meeting.
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The water assessment must determine the ability of the public water system to meet existing and future demands along with the demands of the proposed water demand project in light of existing and future water supplies. This supply demand analysis is to be conducted via a twenty-year projection, and must assess water supply sufficiency during normal year, single dry year, and multiple dry year hydrology scenarios. If the public water agency concludes that the water supply is, or will be, insufficient, it must submit plans for acquiring additional water supplies.
The city or county may grant the public water agency a thirty (30) day extension of time to prepare the assessment if the public water agency requests an extension within ninety (90) days of being asked to prepare the assessment. If the governing body of the public water system fails to request and receive an extension of time, or fails to submit the water assessment notwithstanding the thirty (30) day extension, the city or county may seek a writ of mandamus to compel the governing body of the public water system to comply.
If a water-demand project has been the subject of a water assessment, no additional water assessment shall be required for subsequent water-demand projects that were included in the larger water-demand project if all of the following criteria are met:
(1) The entity completing the water assessment concluded that its water supplies are sufficient to meet the projected water demand associated with the larger waterdemand project, in addition to the existing and planned future uses, including, but not limited to, agricultural and industrial uses; and
(2) None of the following changes has occurred since the completion of the water assessment for the larger water-demand project:
(A) Changes in the larger water-demand project that result in a substantial increase in water demand for the water-demand project;
(B) Changes in the circumstances or conditions substantially affecting the ability of the public water system identified in the water assessment to provide a sufficient supply of water for the water demand project; and (C) Significant new information becomes available which was not known and could not have been known at the time when the entity had reached its assessment conclusions.
(3) The city or county shall include the water assessment, and any water acquisition plan in the EIR, negative declaration, or mitigated negative declaration, or any supplement thereto, prepared for the project, and may include an evaluation of the water assessment and water acquisition plan information within such environmental document. A discussion of water supply availability should be included in the main text of the environmental document. Normally, this discussion should be based on the data and information included in the water 900
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The degree of certainty regarding the availability of water supplies will vary depending on the stage of project approval. A Lead Agency should have greater confidence in the availability of water supplies for a specific project than might be required for a conceptual plan (i.e. general plan, specific plan). An analysis of water supply in an environmental document may incorporate by reference information in a water supply assessment, urban water management plan, or other publicly available sources. The analysis shall include the following:
(1) Sufficient information regarding the project's proposed water demand and proposed water supplies to permit the Lead Agency to evaluate the pros and cons of supplying the amount of water that the project will need. (2) An analysis of the reasonably foreseeable environmental impacts of supplying water throughout all phases of the project.
(3) An analysis of circumstances affecting the likelihood of the water's availability, as well as the degree of uncertainty involved. Relevant factors may include but are not limited to, drought, salt-water intrusion, regulatory or contractual curtailments, and other reasonably foreseeable demands on the water supply.
(4) If the Lead Agency cannot determine that a particular water supply will be available, it shall conduct an analysis of alternative sources, including at least in general terms the environmental consequences of using those alternative sources, or alternatives to the project that could be served with available water.
For complete information on these requirements, consult Water Code sections 10910, et seq. For other CEQA provisions applicable to these types of projects, see Local Guidelines Sections 7.03 and 7.25.
5.17 SUBDIVISIONS WITH MORE THAN 500 DWELLING UNITS.
Cities and counties must obtain written verification (see Form “O” for a sample) from the applicable public water system(s) that a sufficient water supply is available before approving certain residential development projects. If the City is a municipal water provider for a project, the city or county may request such a verification from the City. The City should also be aware of these requirements when reviewing projects in its role as a Responsible Agency.
Cities and counties are prohibited from approving a tentative map, parcel map for which a tentative map was not required, or a development agreement for a subdivision of property of more than 500 dwellings units, unless:
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(2) Under certain circumstances, the City Council, Board of Supervisors or the advisory agency makes a specified finding that sufficient water supplies are, or will be, available prior to completion of the project.
For complete information on these requirements, consult Government Code section 66473.7.
(Reference: Pub. Resources Code, § 21083.4.)
5.18 IMPACTS TO OAK WOODLANDS.
When a county prepares an Initial Study to determine what type of environmental document will be prepared for a project within its jurisdiction, the county must determine whether the project may result in a conversion of oak woodlands that will have a significant effect on the environment. Normally, this rule will not apply to projects undertaken by the City.
However, if the City is a Responsible Agency on such a project, the City should endeavor to ensure that the county, as Lead Agency, analyzes these impacts in accordance with CEQA. (Reference: State CEQA Guidelines, § 21083.4.)
5.19 CLIMATE CHANGE AND GREENHOUSE GAS EMISSIONS.
A. Estimating or Calculating the Magnitude of the Project’s Greenhouse Gas Emissions.
The City shall analyze the greenhouse gas emissions of its projects as required by State CEQA Guidelines section 15064.4. For projects subject to CEQA, the City shall make a goodfaith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project.
In performing analysis of greenhouse gas emissions, the City, as Lead Agency, shall have discretion to determine, in the context of a particular project, whether to:
(1) Quantify greenhouse gas emissions resulting from a project; and/ or (2) Rely on a qualitative analysis or performance-based standards.
B. Factors in Determining Significance.
In determining the significance of a project's greenhouse gas emissions, the City, when acting as Lead Agency, should focus its analysis on the reasonably foreseeable incremental contribution of the project's emissions to the effects of climate change. A project's incremental contribution may be cumulatively considerable even if it appears relatively small compared to statewide, national, or global emissions. The City’s analysis should consider a timeframe that is 902
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Once the amount of a project’s greenhouse gas emissions have been described, estimated, or calculated, the City should consider the following factors, among others, to determine whether those emissions are significant:
(1) The extent to which the project may increase or reduce greenhouse gas emissions as compared to the existing environmental setting. Physical environmental conditions in the vicinity of the project, as they exist at the time the Notice of Preparation is published or the time when the environmental analysis is commenced, will normally constitute the baseline. All project phases, including construction and operation, should be considered in determining whether a project will cause emissions to increase or decrease as compared to the baseline; (2) Whether the project emissions exceed a threshold of significance that the Lead Agency determines applies to the project. The Lead Agency may rely on thresholds of significance developed by experts or other agencies, provided that application of the threshold and the significance conclusion is supported with substantial evidence. When relying on thresholds developed by other agencies, the Lead Agency should ensure that the threshold is appropriate for the project and the project’s location; and (3) The extent to which the project complies with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of greenhouse gas emissions (see, e.g., State CEQA Guidelines section 15183.5(b)). Such requirements must be adopted by the relevant public agency through a public review process and must reduce or mitigate the project’s incremental contribution of greenhouse gas emissions. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding compliance with the adopted regulations or requirements, an EIR must be prepared for the project. In determining the significance of impacts, the Lead Agency may consider a project's consistency with the State's long-term climate goals or strategies, provided that substantial evidence supports the agency's analysis of how those goals or strategies address the project's incremental contribution to climate change and its conclusion that the project's incremental contribution is not cumulatively considerable.
The Lead Agency may use a model or methodology to estimate greenhouse gas emissions resulting from a project. The Lead Agency has discretion to select the model or methodology it considers most appropriate to enable decision makers to intelligently take into account the project's incremental contribution to climate change. The Lead Agency must support its selection of a model or methodology with substantial evidence. The Lead Agency should explain the limitations of the particular model or methodology selected for use. 903
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California Environmental Quality Act (2024) INITIAL STUDY 2024 City of Palm Desert Local Guidelines 5-17 ©Best Best & Krieger LLP C. Consistency with Applicable Plans.
When an EIR is prepared, it must discuss any inconsistencies between the proposed project and any applicable general plan, specific plans, and regional plans. This includes, but is not limited to, any applicable air quality attainment plans, regional blueprint plans, or plans for the reduction of greenhouse gas emissions.
D. Mitigation Measures Related to Greenhouse Gas Emissions.
Lead Agencies must consider feasible means of mitigating the significant effects of greenhouse gas emissions. Any such mitigation measure must be supported by substantial evidence and be subject to monitoring or reporting. Potential mitigation will depend on the particular circumstances of the project, but may include the following, among others:
(1) Measures in an existing plan or mitigation program for the reduction of emissions that are required as part of the Lead Agency’s decision; (2) Reductions in emissions resulting from a project through implementation of project features, project design, or other measures, such as those described in State CEQA Guidelines Appendix F;
(3) Off-site measures, including offsets that are not otherwise required, to mitigate a project’s emissions;
(4) Measures that sequester greenhouse gases; and
(5) In the case of the adoption of a plan, such as a general plan, long range development plan, or plan for the reduction of greenhouse gas emissions, mitigation may include the identification of specific measures that may be implemented on a project-by-project basis. Mitigation may also include the incorporation of specific measures or policies found in an adopted ordinance or regulation that reduces the cumulative effect of emissions.
E. Streamlined Analysis of Greenhouse Gas Emissions.
Under certain limited circumstances, the legislature has specifically declared that the analysis of greenhouse gas emissions or climate change impacts may be limited. Public Resources Code sections 21155, 21155.2, and 21159.28 provide that if certain residential, mixed use and transit priority projects meet specified ratios and densities, then the lead agencies for those projects may conduct a limited review of greenhouse gas emissions or may be exempted from analyzing global warming impacts that result from cars and light duty trucks, if a detailed list of requirements is met. However, unless the project is exempt from CEQA, the Lead Agency must consider whether such projects will result in greenhouse gas emissions from other sources, including, but not limited to, energy use, water use, and solid waste disposal. 904
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The City may analyze and mitigate the significant effects of greenhouse gas emissions at a programmatic level. Later project-specific environmental documents may then tier from and/or incorporate by reference that existing programmatic review.
G. Plans for the Reduction of Greenhouse Gas Emissions.
Public agencies may choose to analyze and mitigate greenhouse gas emissions in a plan for the reduction of greenhouse gas emissions or in a similar document. A plan for the reduction of greenhouse gas emissions should:
(1) Quantify greenhouse gas emissions, both existing and projected over a specified time period, resulting from activities within a defined geographic area; (2) Establish a level, based on substantial evidence, below which the contribution to greenhouse gas emissions from activities covered by the plan would not be cumulatively considerable;
(3) Identify and analyze the greenhouse gas emissions resulting from specific actions or categories of actions anticipated within the geographic area; (4) Specify measures or a group of measures, including performance standards, that substantial evidence demonstrates, if implemented on a project-by-project basis, would collectively achieve the specified emissions level; (5) Establish a mechanism to monitor the plan’s progress toward achieving the level and to require amendment if the plan is not achieving specified levels; and (6) Be adopted in a public process following environmental review.
A plan for the reduction of greenhouse gas emissions, once adopted following certification of an EIR, or adoption of another environmental document, may be used in the cumulative impacts analysis of later projects. An environmental document that relies on a plan for the reduction of greenhouse gas emissions for a cumulative impacts analysis must identify those requirements specified in the plan that apply to the project, and, if those requirements are not otherwise binding and enforceable, incorporate those requirements as mitigation measures applicable to the project. If there is substantial evidence that the effects of a particular project may be cumulatively considerable notwithstanding the project’s compliance with the specified requirements in the plan for reduction of greenhouse gas emissions, an EIR must be prepared for the project.
H. Analyzing the Effects of Climate Change on the Project.
Where an EIR is prepared for a project, the EIR shall analyze any significant environmental effects the project might cause by bringing development and people into the project area that may be affected by climate change. In particular, the EIR should evaluate any potentially significant impacts of locating development in areas susceptible to hazardous 905
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5.20 ENERGY CONSERVATION.
Potentially significant energy implications of a project must be considered in an EIR to the extent relevant and applicable to the project. Therefore, the project description should identify the following as applicable or relevant to the particular project:
(1) Energy consuming equipment and processes which will be used during construction, operation and/or removal of the project. If appropriate, this discussion should consider the energy intensiveness of materials and equipment required for the project;
(2) Total energy requirements of the project by fuel type and end use; (3) Energy conservation equipment and design features;
(4) Identification of energy supplies that would serve the project; and (5) Total estimated daily vehicle trips to be generated by the project and the additional energy consumed per trip by mode.
As described in Local Guidelines Section 5.06, above, an initial study must include a description of the environmental setting. The discussion of the environmental setting may include existing energy supplies and energy use patterns in the region and locality. The City may also consider the extent to which energy supplies have been adequately considered in other environmental documents. Environmental impacts may include:
(1) The project’s energy requirements and its energy use efficiencies by amount and fuel type for each stage of the project including construction, operation, maintenance and/or removal. If appropriate, the energy intensiveness of materials may be discussed;
(2) The effects of the project on local and regional energy supplies and on requirements for additional capacity;
(3) The effects of the project on peak and base period demands for electricity and other forms of energy;
(4) The degree to which the project complies with existing energy standards; (5) The effects of the project on energy resources; and/or 906
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As discussed above in Section 5.06, the Initial Study must identify the potential environmental effects of the proposed activity. That discussion must include the unavoidable adverse effects. Unavoidable adverse effects may include wasteful, inefficient and unnecessary consumption of energy during the project construction, operation, maintenance and/or removal that cannot be feasibly mitigated.
When discussing energy conservation, alternatives should be compared in terms of overall energy consumption and in terms of reducing wasteful, inefficient and unnecessary consumption of energy.
5.21 ENVIRONMENTAL IMPACT ASSESSMENT.
The Initial Study identifies which environmental impacts may be significant. Based upon the Initial Study, Staff shall determine whether a proposed project may or will have a significant effect on the environment. Such determination shall be made in writing on the Environmental Impact Assessment Form (Form “C”). If Staff finds that a project will not have a significant effect on the environment, it shall recommend that a Negative Declaration be prepared and adopted by the decision-making body. If Staff finds that a project may have a significant effect on the environment, but the effects can be mitigated to a level of insignificance, it shall recommend that a Mitigated Negative Declaration be prepared and adopted by the decisionmaking body. If Staff finds that a project may have a significant effect on the environment, it shall recommend that an EIR be prepared and certified by the decision-making body.
5.22 FINAL DETERMINATION.
The City Council shall have the final responsibility for determining whether an EIR, Negative Declaration or Mitigated Negative Declaration shall be required for any project. The City Council’s determination shall be final and conclusive on all persons, including Responsible Agencies and Trustee Agencies, except as provided in Section 15050(c) of the State CEQA Guidelines. Additionally, in the event the City Council has delegated authority to a subsidiary board or official to approve a project, the City Council also hereby delegates to that subsidiary board or official the authority to make all necessary CEQA determinations, including whether an EIR, Negative Declaration, Mitigated Negative Declaration or exemption shall be required for any project. A subsidiary board or official’s CEQA determination shall be subject to appeal consistent with the City’s established procedures for appeals. (Reference: Pub. Resources Code, § 21151.)
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6. NEGATIVE DECLARATION
6.01 DECISION TO PREPARE A NEGATIVE DECLARATION.
A Negative Declaration (Form “E”) shall be prepared for a project subject to CEQA when the Initial Study shows that there is no substantial evidence in light of the whole record that the project may have a significant or potentially significant adverse effect on the environment. (See Local Guidelines Sections 11.65 and 11.71.) (Reference: State CEQA Guidelines, § 15070(a).)
6.02 DECISION TO PREPARE A MITIGATED NEGATIVE DECLARATION.
A Mitigated Negative Declaration (Form “E”) shall be prepared for a project subject to CEQA when the Initial Study identifies potentially significant effects on the environment, but:
(a) The project applicant has agreed to revise the project or the City can revise the project to avoid these significant effects or to mitigate the effects to a point where it is clear that no significant effects would occur; or
(b) There is no substantial evidence in light of the whole record before the City that the revised project may have a significant effect.
It is insufficient to require an applicant to adopt mitigation measures after final adoption of the Mitigated Negative Declaration or to state that mitigation measures will be recommended on the basis of a future study. The City must know the measures at the time the Mitigated Negative Declaration is adopted in order for them to be evaluated and accepted as adequate mitigation. Evidence of agreement by the applicant to such mitigation should be in the record prior to public review. Except where noted, the procedural requirements for the preparation and approval of a Negative Declaration and Mitigated Negative Declaration are the same. (Reference: State CEQA Guidelines, § 15070(b).)
6.03 CONTRACTING FOR PREPARATION OF NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION.
The City, when acting as Lead Agency, is responsible for preparing all documents required pursuant to CEQA. The documents may be prepared by Staff or by private consultants pursuant to a contract with the City, but they must be the City’s product and reflect the independent judgment of the City.
6.04 NOTICE OF INTENT TO ADOPT A NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION.
When, based upon the Initial Study, it is recommended to the decision-making body that a Negative Declaration or Mitigated Negative Declaration be adopted, a Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration (Form “D”) shall be prepared.
In addition to being provided to the public through the means set forth in Local Guidelines Section 6.07, this Notice shall also be provided to:
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California Environmental Quality Act (2024) NEGATIVE DECLARATION 2024 City of Palm Desert Local Guidelines 6-2 ©Best Best & Krieger LLP (a) Each Responsible and Trustee Agency;
(b) Any other federal, state, or local agency that has jurisdiction by law or exercises authority over resources affected by the project, including:
(1) Any water supply agency consulted under Local Guidelines Section 5.16; (2) Any city or county bordering on the project area;
(3) For a project of statewide, regional, or area-wide significance, to any transportation agencies or public agencies which have major local arterials or public transit facilities within five (5) miles of the project site or freeways, highways, or rail transit service within ten (10) miles of the project site which could be affected by the project; and
(4) For a subdivision project located within one mile of a facility of the State Water Resources Development System, to the California Department of Water Resources;
(c) The last known name and address of all organizations and individuals who have previously filed a written request with the City to receive these Notices; (d) For certain projects that may impact a low-level flight path, military impact zone, or special use airspace and that meet the other criteria of Local Guidelines Section 6.05, to the specified military services contact;
(e) For certain projects that involve the construction or alteration of a facility anticipated to include hazardous air emissions or handle hazardous substances within one-quarter mile of a school and that meet the other requirements of Local Guidelines Section 6.06, to any potentially affected school district;
(f) For certain waste-burning projects that meet the requirements of Local Guidelines Section 5.11 (regarding mandatory preparation of EIR) (see also Local Guidelines Section 7.27), to the owners and occupants of property within one-fourth mile of any parcel on which the project will be located; and
(g) For a project that establishes or amends a redevelopment plan that contains land in agricultural use, notice shall be provided to the agricultural and farm agencies and organizations specified in Health and Safety Code section 33333.3.
The Notice of Intent must also be posted to the Lead Agency’s website, if any. (Pub.
Resources Code, § 21092.2(d).) Additionally, for a project of statewide, regional, or area-wide significance, the Lead Agency should also consult with public transit agencies with facilities within one-half mile of the proposed project.
A copy of the proposed Negative Declaration or Mitigated Negative Declaration and the Initial Study shall be attached to the Notice of Intent to Adopt that is sent to every Responsible Agency and Trustee Agency concerned with the project and every other public agency with jurisdiction by law over resources affected by the project.
The public review period for a Negative Declaration or Mitigated Negative Declaration shall not be less than twenty (20) days; the public review period shall be at least thirty (30) days 909
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California Environmental Quality Act (2024) NEGATIVE DECLARATION 2024 City of Palm Desert Local Guidelines 6-3 ©Best Best & Krieger LLP where the Negative Declaration or Mitigated Negative Declaration is for a proposed project where (1) a state agency is the lead agency, a responsible agency, or a trustee agency; (2) a state agency otherwise has jurisdiction by law with respect to the project; or (3) the proposed project is of sufficient statewide, regional, or area-wide significance as determined pursuant to State CEQA Guidelines section 15206. The Lead Agency shall give notice of the public review period by filing and posting a Notice of Intent to Adopt a Negative Declaration (Form “D”) with the County Clerk before commencement of the public review period; where a public review period of at least 30 days is required, the Lead Agency shall also electronically submit the Notice of Intent to the State Clearinghouse. (Pub. Resources Code, § 21091.) For purposes of calculating the length of the public review period, the last day of the public review period cannot fall on a weekend, a legal holiday, or other day on which the lead agency’s offices are closed.1 (Reference: Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, 708.)
The City requires requests for notices to be in writing and to be renewed annually. If the City is not otherwise required by CEQA or another regulation to provide notice, the City may charge a fee for providing notices to individuals or organizations that have submitted written requests to receive such notices, unless the request is made by another public agency.
If the Negative Declaration or Mitigated Negative Declaration has been submitted to the State Clearinghouse for review by state agencies, the public review period shall be at least as long as the period of review and comment by state agencies as established by the State Clearinghouse. (See Local Guidelines Section 6.10.) Day one of the state agency review period shall be the date that the State Clearinghouse distributes the Negative Declaration or Mitigated Negative Declaration to state agencies.
The Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration shall contain the following information:
(a) The period during which comments shall be received; (b) The date, time and place of any public meetings or hearings on the proposed project; (c) A brief description of the proposed project and its location; (d) The address where copies of the proposed Negative Declaration or Mitigated Negative Declaration and all documents incorporated by reference in the proposed Negative Declaration or Mitigated Negative Declaration are available for review; (e) A description of how the proposed Negative Declaration or Mitigated Negative Declaration can be obtained in electronic format;
(f) The Environmental Protection Agency (“EPA”) list on which the proposed project site is located, if applicable, and the corresponding information from the applicant’s statement (see Local Guidelines Section 2.04); and
1 A public agency’s “offices are closed” for purposes of this section on days in which the agency is formally closed for business (for example, due to a weekend, a legal holiday, or a formal furlough affecting the entire office). A public agency’s office is not considered closed for purposes of this section where the agency’s office may be physically closed, but the agency is nonetheless open for business and is operating remotely or virtually (for example, in response to the Covid-19 pandemic).
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(Reference: Pub. Resources Code, §§ 21082.1, 21091, 21161; State CEQA Guidelines, §§ 15072, 15105, 15205.)
6.05 PROJECTS AFFECTING MILITARY SERVICES; DEPARTMENT OF DEFENSE NOTIFICATION.
CEQA imposes additional requirements to provide notice to potentially affected military agencies when:
(a) The project meets one of the following three criteria:
(1) The project includes a general plan amendment;
(2) The project is of statewide, regional, or area-wide significance; or (3) The project relates to a public use airport or certain lands surrounding a public use airport; and
(b) A “military service” (defined in Section 11.42 of these Local Guidelines) has provided its contact office and address and notified the Lead Agency of the specific boundaries of a “low-level flight path” (defined in Section 11.37 of these Local Guidelines), “military impact zone” (defined in Section 11.41 of these Local Guidelines), or “special use airspace” (defined in Section 11.67 of these Local Guidelines).
When a project meets these requirements, the City must provide the military service’s designated contact with a copy of the Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration that has been prepared for the project, unless the project involves the remediation of lands contaminated with hazardous wastes and meets certain other requirements. (Reference: Pub. Resources Code §§ 21080.4 and 21092; Health & Safety Code §§ 25300, et seq., 25396, and 25187.)
The City must provide the military service with sufficient notice of its intent to adopt a Negative Declaration or Mitigated Negative Declaration to ensure that the military service has no fewer than twenty (20) days to review the documents before they are approved, provided that the military service shall have a minimum of thirty (30) days to review the environmental documents if the documents have been submitted to the State Clearinghouse. (Reference: State CEQA Guidelines, §§ 15105(b), 15190.5(c).)
6.06 SPECIAL FINDINGS REQUIRED FOR FACILITIES THAT MAY EMIT HAZARDOUS AIR EMISSIONS NEAR SCHOOLS.
Special procedural rules apply to projects involving the construction or alteration of a facility within one-quarter mile of a school/schools when: (1) the facility might reasonably be anticipated to emit hazardous air emissions or to handle an extremely hazardous substance or a 911
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California Environmental Quality Act (2024) NEGATIVE DECLARATION 2024 City of Palm Desert Local Guidelines 6-5 ©Best Best & Krieger LLP mixture containing extremely hazardous substances in a quantity equal to or greater than the threshold specified in Health and Safety Code section 25532(j), and (2) the emissions or substances may pose a health or safety hazard to persons who would attend or would be employed at the school. If the project meets both of those criteria, a Lead Agency may not approve a Negative Declaration or a Mitigated Negative Declaration unless both of the following have occurred:
(a) The Lead Agency consulted with the affected school district or districts having jurisdiction over the school regarding the potential impact of the project on the school; and
(b) The school district(s) was given written notification of the project not less than thirty (30) days prior to the proposed approval of the Negative Declaration.
When the City is considering the adoption of a Negative Declaration or Mitigated Negative Declaration for a project that meets these criteria, it can satisfy this requirement by providing the Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration, the proposed Negative Declaration or Mitigated Negative Declaration, and the Initial Study to the potentially affected school district at least thirty (30) days before the decision-making body will consider the adoption of the Negative Declaration or Mitigated Negative Declaration. See also Local Guidelines Section 6.04.
Implementation of this Guideline shall be consistent with the definitions and terms utilized in State CEQA Guidelines section 15186.
6.07 CONSULTATION WITH CALIFORNIA NATIVE AMERICAN TRIBES.
Prior to the release of a Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration for a project, the Lead Agency shall begin consultation with a California Native American tribe that is traditionally and culturally affiliated with the geographic area of the proposed project if:
(a) The California Native American tribe requested to the Lead Agency, in writing, to be informed by the Lead Agency through formal notification of proposed projects in the geographic area that is traditionally and culturally affiliated with the tribe; and
(b) The California Native American tribe responds, in writing, within 30 days of receipt of the formal notification, and requests the consultation. The California Native American tribe shall designate a lead contact person when responding to the Lead Agency. If a lead contact is not designated by the California Native American tribe, or it designates multiple lead contact people, the Lead Agency shall defer to the individuals listed on the contact list maintained by the Native American Heritage Commission. Consultation is defined in Local Guidelines Section 11.11.
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California Environmental Quality Act (2024) NEGATIVE DECLARATION 2024 City of Palm Desert Local Guidelines 6-6 ©Best Best & Krieger LLP To expedite the requirements of this section, the Native American Heritage Commission shall assist the Lead Agency in identifying the California American Native tribes that are traditionally and culturally affiliated with the project area.
Within 14 days of determining that an application for a project is complete or a decision by a public agency to undertake a project, the Lead Agency shall provide formal notification to the designated contact of, or a trial representative of, traditionally and culturally affiliated California Native America tribes that have requested notice, which shall be accomplished by at least one written notification that includes a brief description of the proposed project and its location, the Lead Agency contact information, and a notification that the California Native American tribe has 30 days to request consultation. Where the application for a housing development project is deemed to be complete on or after March 4, 2020 and before December 31, 2021, the California Native American tribe shall have 60 days to respond to the Lead Agency and request consultation. (Reference: Gov. Code, § 65583(i).) The Lead Agency shall begin the consultation process within 30 days of receiving a California Native American tribe's request for consultation.
If consultation is requested, the parties may propose mitigation measures, including those set forth in Public Resources Code section 21084.3, capable of avoiding or substantially lessening potential significant impacts to a tribal cultural resource or alternatives that would avoid significant impacts to a tribal cultural resource. The consultation may include discussion concerning the type of environmental review necessary, the significance of tribal cultural resources, the significance of the project's impacts on the tribal cultural resources, and, if necessary, project alternatives or the appropriate measures for preservation or mitigation that the California Native American tribe may recommend to the Lead Agency.
The consultation shall be considered concluded when either of the following occurs:
(1) The parties agree to measures to mitigate or avoid a significant effect, if a significant effect exists, on a tribal cultural resource. (2) A party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached.
The California Native American tribe is not limited in its ability to submit information to the lead agency regarding the significance of the tribal cultural resources, the significance of the project's impact on tribal cultural resources, or any appropriate measures to mitigate the impacts.
Additionally, the lead agency or project proponent is not limited in its ability to incorporate changes and additions to the project as a result of the consultation, even if not legally required. (Reference: Pub. Resources Code, §§ 21080.3.1, 21080.3.2.) 913
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6.08 IDENTIFICATION OF TRIBAL CULTURAL RESOURCES AND PROCESSING OF
INFORMATION AFTER CONSULTATION WITH THE CALIFORNIA NATIVE AMERICAN TRIBE
After consultation with the California Native American tribe listed above in Local Guidelines Section 6.07, any mitigation measures agreed upon in the consultation conducted pursuant to Public Resources Code section 21080.3.2 shall be recommended for inclusion in the Mitigated Negative Declaration and in an adopted mitigation monitoring and reporting program, if the mitigation measures are determined to avoid or lessen the proposed project’s impacts on tribal cultural resources, and if the mitigation measures are enforceable.
If a project may have a significant impact on a tribal cultural resource, the Lead Agency's Mitigated Negative Declaration shall discuss both of the following:
(a) Whether the proposed project has a significant impact on an identified tribal cultural resource;
(b) Whether feasible alternatives or mitigation measures, including those measures that may be agreed to during the consultation, avoid or substantially lessen the impact on the identified tribal cultural resource.
Any information provided regarding the location, description and use of the tribal cultural resource that is submitted by a California Native American tribe during the environmental review process shall not be included in the Negative Declaration or Mitigated Negative Declaration or otherwise disclosed by the Lead Agency or any other public agency to the public, consistent with Government Code section 7927.005, and State CEQA Guidelines section 15120(d), without the prior consent of the tribe that provided the information. If the Lead Agency publishes any information submitted by a California Native American tribe during the consultation or environmental review process, that information shall be published in a confidential appendix to the Negative Declaration or Mitigated Negative Declaration unless the tribe provides consent, in writing, to the disclosure of some or all of the information to the public. This does not prohibit the confidential exchange of the submitted information between public agencies that have lawful jurisdiction over the preparation of the Negative Declaration or the Mitigated Negative Declaration.
The exchange of confidential information regarding tribal cultural resources submitted by a California Native American tribe during the consultation or environmental review process among the Lead Agency, the California Native American tribe, the project applicant, or the project applicant's agent is not prohibited by Public Resources Code section 21082.3. The project applicant and the project applicant's legal advisers must use a reasonable degree of care and maintain the confidentiality of the information exchanged for the purposes of preventing looting, vandalism, or damage to tribal cultural resources and shall not disclose to a third party confidential information regarding the cultural resource unless the California Native American tribe providing the information consents in writing to the public disclosure of such information.
Public Resources Code section 21082.3 does not prevent a Lead Agency or other public agency from describing the information in general terms in the Negative Declaration or 914
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(a) The consultation process between the California Native American tribe and the Lead Agency has occurred as provided in Public Resources Code sections 21080.3.1 and 21080.3.2 and concluded pursuant to subdivision (b) of Section 21080.3.2.
(b) The California Native American tribe has requested consultation pursuant to Public Resources Code section 21080.3.1 and has failed to provide comments to the Lead agency, or otherwise failed to engage, in the consultation process. (c) The Lead Agency has complied with subdivision (d) of Section 21080.3.1 of the Public Resources Code and the California Native American tribe has failed to request consultation within 30 days.
If substantial evidence demonstrates that a project will cause a significant effect to a tribal cultural resource but the decision-makers do not include the mitigation measures recommended by the staff in the Mitigated Negative Declaration, or if there are no agreed upon mitigation measures at the conclusion of the consultation; or if no consultation has occurred, the Lead Agency must still consider the adoption of feasible mitigation. (Reference: Pub. Resources Code, § 21082.3.)
6.09 SIGNIFICANT ADVERSE IMPACTS TO TRIBAL CULTURAL RESOURCES Public agencies shall, when feasible, avoid damaging effects to any tribal cultural resource. If the Lead Agency determines that a project may cause a substantial adverse change to a tribal cultural resource, and measures are not otherwise identified in the consultation process provided in Public Resources Code section 21080.3.2 and as set forth in Local Guidelines Section 6.07, the following examples of mitigation measures, if feasible, may be considered to avoid or minimize the significant adverse impacts:
(a) Avoidance and preservation of the resources in place, including, but not limited to, planning and construction to avoid the resources and protect the cultural and natural context, or planning greenspace, parks, or other open space, to incorporate the resources with culturally appropriate protection and management criteria. (b) Treating the resource with culturally appropriate dignity taking into account the tribal cultural values and meaning of the resource, including, but not limited to, the following:
(1) Protecting the cultural character and integrity of the resource. (2) Protecting the traditional use of the resource.
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(c) Permanent conservation easements or other interests in real property, with culturally appropriate management criteria for the purposes of preserving or utilizing the resources or places.
(d) Protecting the resource.
(Reference: Pub. Resources Code, § 21084.3.)
6.10 POSTING AND PUBLICATION OF NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION.
The City shall have a copy of the Notice of Intent to Adopt, the Negative Declaration or Mitigated Negative Declaration, and the Initial Study posted at the City’s offices and on the City’s website, if any, and shall make these documents available for public inspection. The Notice must be provided either twenty (20) or thirty (30) days prior to final adoption of the Negative Declaration or Mitigated Negative Declaration. The public review period for a Negative Declaration or Mitigated Negative Declaration prepared for a project subject to state agency review, as set forth in Local Guidelines Section 6.11, must be circulated for at least as long as the review period established by the State Clearinghouse, usually no less than thirty (30) days. Under certain circumstances, a shortened review period of at least twenty (20) days may be approved by the State Clearinghouse as provided for in State CEQA Guidelines section 15105. See the Shortened Review Request Form “P.” The state review period will commence on the date the State Clearinghouse distributes the document to state agencies. The State Clearinghouse will distribute the document within three (3) days of receipt if the Negative Declaration or Mitigated Negative Declaration is deemed complete.
The Notice must also be posted in the office of the Clerk in each county in which the project is located and must remain posted throughout the public review period. The County Clerk is required to post the Notice within twenty-four (24) hours of receiving it.
Notice shall be provided as stated in Local Guidelines Section 6.04. In addition, Notice of the Intent to Adopt shall be given to the last known name and address of all organizations and individuals who have previously requested notice; by posting the notice on the website of the lead agency; and by at least one of the following procedures:
(a) Publication at least once in a newspaper of general circulation in the area affected by the proposed project. If more than one area will be affected, the notice shall be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas;
(b) Posting of notice on and off site in the area where the project is to be located; or (c) Direct mailing to owners and occupants of property contiguous to the project, as shown on the latest equalized assessment roll.
The City, when acting as Lead Agency, shall consider all comments received during the public review period for the Negative Declaration or Mitigated Negative Declaration. For a Negative Declaration or Mitigated Negative Declaration, the City is not required to respond in 916
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6.11 SUBMISSION OF NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION TO STATE CLEARINGHOUSE.
A Negative Declaration or Mitigated Negative Declaration must be submitted to the State Clearinghouse, in an electronic form as required by the Office of Planning and Research, regardless of whether the document must be circulated for review and comment by state agencies under State CEQA Guidelines section 15205 and 15206. The Negative Declaration or Mitigated Negative Declaration must be submitted via the Office of Planning and Research’s CEQA Submit website (https://ceqasubmit.opr.ca.gov/Security/LogOn?ReturnUrl=%2f). The CEQA Submit website differentiates between environmental documents that do require review and comment by state agencies and those that do not. In particular, the website provides a “Local Review Period” tab for submitting documents that do not require review and comment by state agencies, and a “State Review Period” tab for submitting documents that do require review and comment by state agencies.
A Negative Declaration or Mitigated Negative Declaration must be submitted to the State Clearinghouse for review and comment by state agencies (i.e., a Negative Declaration or Mitigated Negative Declaration must be submitted through the CEQA Submit website under the “State Review Period” tab) in the following situations:
(a) The Negative Declaration or Mitigated Negative Declaration is prepared by a Lead Agency that is a state agency;
(b) The Negative Declaration or Mitigated Negative Declaration is prepared by a public agency where a state agency is a Responsible Agency, Trustee Agency, or otherwise has jurisdiction by law with respect to the project; or
(c) The Negative Declaration or Mitigated Negative Declaration is for a project identified in State CEQA Guidelines section 15206 as being of statewide, regional, or area-wide significance.
State CEQA Guidelines section 15206 identifies the following types of projects as being examples of projects of statewide, regional, or area-wide significance that require submission to the State Clearinghouse for circulation:
(1) Projects that have the potential to cause significant environmental effects beyond the city or county where the project would be located, such as:
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(b) Commercial projects employing more than 1,000 persons or covering more than 500,000 square feet of floor space;
(c) Office building projects employing more than 1,000 persons or covering more than 250,000 square feet of floor space;
(d) Hotel or motel development of more than 500 rooms; or (e) Industrial projects housing more than 1,000 persons, occupying more than 40 acres of land, or covering more than 650,000 square feet of floor area; (2) Projects for the cancellation of a Williamson Act contract covering 100 or more acres;
(3) Projects in one of the following Environmentally Sensitive Areas:
(a) Lake Tahoe Basin;
(b) Santa Monica Mountains Zone;
(c) Sacramento-San Joaquin River Delta;
(d) Suisun Marsh;
(e) Coastal Zone, as defined by the California Coastal Act; (f) Areas within one-quarter mile of a river designated as wild and scenic; or (g) Areas within the jurisdiction of the San Francisco Bay Conservation and Development Commission;
(4) Projects that would affect sensitive wildlife habitats or the habitats of any rare, threatened, or endangered species;
(5) Projects that would interfere with water quality standards; and (6) Projects that would provide housing, jobs, or occupancy for 500 or more people within 10 miles of a nuclear power plant.
A Negative Declaration or Mitigated Negative Declaration may also be submitted to the State Clearinghouse for circulation if a state agency has special expertise with regard to the environmental impacts involved.
The public review period for a Negative Declaration or a Mitigated Negative Declaration shall not be less than twenty (20) days. The review period, however, shall be at least thirty (30) days if the Negative Declaration or Mitigated Negative Declaration is for a proposed project where a state agency is the lead agency, a responsible agency, or a trustee agency; a state agency otherwise has jurisdiction by law with respect to the project; or the proposed project is of sufficient statewide, regional, or areawide significance as determined pursuant to the guidelines certified and adopted pursuant to State CEQA Guidelines section 15206.
When the Negative Declaration or Mitigated Negative Declaration is submitted to the State Clearinghouse for state agency review, the review period begins (day one) on the date that the State Clearinghouse distributes the Negative Declaration or Mitigated Negative Declaration to state agencies. The State Clearinghouse is required to distribute the Negative Declaration or Mitigated Negative Declaration to state agencies within three (3) working days from the date the 918
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A shorter review period by the State Clearinghouse for a Negative Declaration or Mitigated Negative Declaration can be requested by the decision-making body. The shortened review period shall not be less than twenty (20) days. Such a request must be made in writing by the Lead Agency to the Office of Planning and Research. The decision-making body may designate by resolution or ordinance an individual authorized to request a shorter review period. (See Form “P”). Any approval of a shortened review period must be given prior to, and reflected in, the public notice. However, a shortened review period shall not be approved by the Office of Planning and Research for any proposed project of statewide, regional or area-wide environmental significance, as defined by State CEQA Guidelines section 15206.
When the City completes its Negative Declaration or Mitigated Negative Declaration for a proposed project, the City must also cause a Notice of Completion (Form “H”) to be filed with the Office of Planning and Research via the Office of Planning and Research’s CEQA Submit website. The Notice of Completion should briefly identify the project, indicate that an environmental document has been prepared for the project, and identify the project location by latitude and longitude.
The City must post the Notice of Intent, Notice of Completion, and Negative Declaration or Mitigated Negative Declaration on its website, if any. (Reference: Pub. Resources Code, §§ 21082.1, 21161; State CEQA Guidelines, §§ 15205, 15206.)
6.12 SPECIAL NOTICE REQUIREMENTS FOR WASTE- AND FUEL-BURNING PROJECTS.
For any project that involves the burning of municipal waste, hazardous waste, or refusederived fuel (such as tires) and that does not require an EIR, as defined in Local Guidelines Section 5.11, a Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration shall be given to all organizations and individuals who have previously requested it and shall also be given by all three of the procedures listed in Local Guidelines Section 6.07. In addition, Notice shall be given by direct mailing to the owners and occupants of property within one-quarter mile of any parcel or parcels on which such a project is located.
These notice requirements apply only to those projects described in Local Guidelines Section 5.11. These notice requirements do not preclude the City from providing additional notice by other means if desired.
(Reference: Pub. Resources Code, § 21092(c).)
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6.13 CONSULTATION WITH WATER AGENCIES REGARDING LARGE DEVELOPMENT PROJECTS.
Under specific circumstances a city or county acting as Lead Agency must consult with the public water system that will supply the project to determine whether the public water system can adequately supply the water needed for the project. As a Responsible Agency, the City should be aware of these requirements. See Local Guidelines Section 5.16 for more information on these requirements. (Reference: State CEQA Guidelines, § 15155.)
6.14 CONTENT OF NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION.
A Negative Declaration must be prepared directly by or under contract to the City and should generally resemble Form “E.” It shall contain the following information:
(a) A brief description of the project proposed, including any commonly used name for the project;
(b) The location of the project and the name of the project proponent; (c) A finding that the project as proposed will not have a significant effect on the environment; and
(d) An attached copy of the Initial Study documenting reasons to support the finding.
For a Mitigated Negative Declaration, feasible mitigation measures included in the project to substantially lessen or avoid potentially significant effects must be fully enforceable through permit conditions, agreements, or other measures. Such permit conditions, agreements, and measures must be consistent with applicable constitutional requirements such as the “nexus” and “rough proportionality” standards established by case law.
The proposed Negative Declaration or Mitigated Negative Declaration must reflect the independent judgment of the City.
(Reference: State CEQA Guidelines, § 15071.)
6.15 TYPES OF MITIGATION.
The following is a non-exhaustive list of potential types of mitigation the City may consider:
(a) Avoidance;
(b) Preservation;
(c) Rehabilitation or replacement. Replacement may be on-site or off-site depending on the particular circumstances; and/or
(d) Participation in a fee program.
(Reference: State CEQA Guidelines, § 15370.)
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6.16 ADOPTION OF NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION.
Following the publication, posting or mailing of the Notice of Intent to Adopt a Negative Declaration or Mitigated Negative Declaration, but not before the expiration of the applicable twenty (20) or thirty (30) day public review period, the Negative Declaration or Mitigated Negative Declaration may be presented to the decision-making body at a regular or special meeting. Prior to adoption, the City shall independently review and analyze the Negative Declaration or Mitigated Negative Declaration and find that the Negative Declaration or Mitigated Negative Declaration reflects the independent judgment of the City.
If new information is added to the Negative Declaration or Mitigated Negative Declaration after public review, the City should determine whether recirculation is warranted. (See Local Guidelines Section 6.19). If the decision-making body finds that the project will not have a significant effect on the environment, it shall adopt the Negative Declaration or Mitigated Negative Declaration. If the decision-making body finds that the proposed project may have a significant effect on the environment that cannot be mitigated or avoided, it shall order the preparation of a Draft EIR and the filing of a Notice of Preparation of a Draft EIR.
When adopting a Negative Declaration or Mitigated Negative Declaration, the City shall specify the location and custodian of the documents or other material that constitute the record of proceedings upon which it based its decision. If adopting a Negative Declaration for a project that may emit hazardous air emissions within one-quarter mile of a school and that meets the other requirements of Local Guidelines Section 6.06, the decision-making body must also make the findings required by Local Guidelines Section 6.06.
As Lead Agency, the City may charge a non-elected official or body with the responsibility of independently reviewing the adequacy of and adopting a Negative Declaration or a Mitigated Negative Declaration. Any final CEQA determination made by a non-elected decisionmaker, however, is appealable to the City Council within either (a) the time period set forth in the City’s established process to appeal the non-elected decisionmaker’s CEQA determination; or, if no such process exists, (2) ten (10) days of the non-elected decisionmaker’s determination. If the non-elected decisionmaker’s CEQA determination is not timely appealed as set forth herein, the non-elected decisionmaker’s determination shall be final. (Reference: State CEQA Guidelines, § 15074.)
6.17 MITIGATION REPORTING OR MONITORING PROGRAM FOR MITIGATED NEGATIVE DECLARATION.
When adopting a Mitigated Negative Declaration pursuant to Local Guidelines Section
6.13, the City shall adopt a reporting or monitoring program to assure that mitigation measures, which are required to mitigate or avoid significant effects on the environment, will be fully enforceable through permit conditions, agreements, or other measures and implemented by the project proponent or other responsible party in a timely manner, in accordance with conditions of project approval. The City shall also specify the location and the custodian of the documents that constitute the record of proceedings upon which it based its decision. There is no requirement that the reporting or monitoring program be circulated for public review; however, 921
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This reporting or monitoring program shall be designed to assure compliance during the implementation or construction of a project and shall otherwise comply with the requirements described in Local Guidelines Section 7.38. If a Responsible Agency or Trustee Agency has required that certain conditions be incorporated into the project, the City may request that agency to prepare and submit a proposed reporting or monitoring program. The City shall also require that, prior to the close of the public review period for a Mitigated Negative Declaration (see Local Guidelines Section 6.04), the Responsible or Trustee Agency submit detailed performance objectives for mitigation measures, or refer the City to appropriate, readily available guidelines or reference documents. Any mitigation measures submitted to the City by a Responsible or Trustee Agency shall be limited to measures that mitigate impacts to resources that are within the Responsible or Trustee Agency’s authority.
Local agencies have the authority to levy fees sufficient to pay for this program.
Therefore, the City can charge the project proponent a fee to cover actual costs of program processing and implementation.
Transportation information resulting from the reporting or monitoring program required to be adopted by the City shall be submitted to the regional transportation planning agency where the project is located and to the Department of Transportation for a project of statewide, regional or area-wide significance according to State CEQA Guidelines section 15206. The transportation planning agency and the Department of Transportation are required by law to adopt guidelines for the submittal of these reporting or monitoring programs, so the City may wish to tailor its submittal to such guidelines.
(Reference: State CEQA Guidelines, §§ 15074, 15097.)
6.18 APPROVAL OR DISAPPROVAL OF PROJECT.
At the time of adoption of a Negative Declaration or Mitigated Negative Declaration, the decision-making body may consider the project for purposes of approval or disapproval. Prior to approving the project, the decision-making body shall consider the Negative Declaration or Mitigated Negative Declaration, together with any written comments received and considered during the public review period, and shall approve or disapprove the Negative Declaration or Mitigated Negative Declaration. In making a finding as to whether there is any substantial evidence that the project will have a significant effect on the environment, the factors listed in Local Guidelines Section 5.08 should be considered. (See Local Guidelines Section 6.06 for approval requirements for facilities that may emit hazardous pollutants or that may handle extremely hazardous substances within one-quarter mile of a school site.) (Reference: State CEQA Guidelines, § 15092.)
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6.19 RECIRCULATION OF A NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION.
A Negative Declaration or Mitigated Negative Declaration must be recirculated when the document must be substantially revised after the public review period but prior to its adoption.
A “substantial revision” occurs when the City has identified a new and avoidable significant effect for which mitigation measures or project revisions must be added in order to reduce the effect to a level of insignificance, or when the City determines that the proposed mitigation measures or project revisions will not reduce the potential effects to less than significant and new measures or revisions must be required.
Recirculation is not required under the following circumstances:
(a) Mitigation measures are replaced with equal or more effective measures, and the City makes a finding to that effect;
(b) New project revisions are added after circulation of the Negative Declaration or Mitigated Negative Declaration or in response to written or oral comments on the project’s effects, but the revisions do not create new significant environmental effects and are not necessary to mitigate an avoidable significant effect; (c) Measures or conditions of project approval are added after circulation of the Negative Declaration or Mitigated Negative Declaration, but the measures or conditions are not required by CEQA, do not create new significant environmental effects, and are not necessary to mitigate an avoidable significant effect; or (d) New information is added to the Negative Declaration or Mitigated Declaration which merely clarifies, amplifies, or makes insignificant modifications to the Negative Declaration or Mitigated Negative Declaration.
If, after preparation of a Negative Declaration or Mitigated Negative Declaration, the City determines that the project requires an EIR, it shall prepare and circulate the Draft EIR for consultation and review and advise reviewers in writing that a proposed Negative Declaration or Mitigated Declaration had previously been circulated for the project. (Reference: State CEQA Guidelines, § 15073.5.)
6.20 NOTICE OF DETERMINATION ON A PROJECT FOR WHICH A PROPOSED NEGATIVE OR MITIGATED NEGATIVE DECLARATION HAS BEEN APPROVED.
After final approval of a project for which a Negative Declaration or Mitigated Negative Declaration has been prepared, Staff shall cause to be prepared, filed, and posted a Notice of Determination (Form “F”). The Notice of Determination shall contain the following information:
(a) An identification of the project, including the project title as identified on the proposed Negative Declaration or Mitigated Negative Declaration, location, and the State Clearinghouse identification number for the proposed Negative Declaration or Mitigated Negative Declaration if the Notice of Determination is filed with the State Clearinghouse; (b) For private projects, identification of the person undertaking a project that is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of 923
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(c) A brief description of the project;
(d) The name of the City and the date on which the City approved the project; (e) The determination of the City that the project will not have a significant effect on the environment;
(f) A statement that a Negative Declaration or Mitigated Negative Declaration was adopted pursuant to the provisions of CEQA;
(g) A statement indicating whether mitigation measures were made a condition of the approval of the project, and whether a mitigation monitoring plan/program was adopted; and
(h) The address where a copy of the Negative Declaration or Mitigated Negative Declaration may be examined.
The Notice of Determination shall be filed with the Clerk of each county in which the project will be located within five (5) working days of project approval.
The City must also post the Notice of Determination on its website. Such electronic notice is in addition to the posting requirements of the State CEQA Guidelines and the Public Resources Code. The Clerk must post the Notice of Determination within twenty-four (24) hours of receipt. The Notice must be posted in the office of the Clerk for a minimum of thirty (30) days. Thereafter, the Clerk shall return the notice to the City with a notation of the period it was posted. The City shall retain the notice for not less than twelve (12) months. If the project requires discretionary approval from any State agency, the Notice of Determination shall also be filed with OPR within five (5) working days of project approval along with proof of payment of the DFW fee or a no effect determination form from the DFW (see Local Guidelines Section
6.24). Simultaneously with the filing of the Notice of Determination with the Clerk, Staff shall cause a copy of the Notice of Determination to be posted at City Offices.
If a written request has been made for a copy of the Notice of Determination prior to the date on which the City adopts the Negative Declaration or Mitigated Negative Declaration, the copy must be mailed, first class postage prepaid, within five (5) days of the City’s determination.
If such a request is made following the City’s determination, then the copy should be mailed in the same manner as soon as possible. The recipients of such documents may be charged a fee reasonably related to the cost of providing the service.
For projects with more than one phase, Staff shall file a Notice of Determination for each phase requiring a discretionary approval.
The filing and posting of the Notice of Determination with the County Clerk, and, if necessary, with OPR, usually starts a thirty (30) day statute of limitations on court challenges to the approval under CEQA. When separate notices are filed for successive phases of the same overall project, the thirty (30) day statute of limitations to challenge the subsequent phase begins to run when the second notice is filed. Failure to file the Notice may result in a one hundred eighty (180) day statute of limitations.
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6.21 ADDENDUM TO NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION.
The City may prepare an addendum to an adopted Negative Declaration or Mitigated Negative Declaration if only minor technical changes or additions are necessary. The City may also prepare an addendum to an adopted Negative Declaration or Mitigated Negative Declaration when none of the conditions calling for a subsequent Negative Declaration or Mitigated Negative Declaration have occurred. (See Local Guidelines Section 6.22 below.) An addendum need not be circulated for public review but can be attached to the adopted Negative Declaration or Mitigated Negative Declaration. The City shall consider the addendum with the adopted Negative Declaration or Mitigated Negative Declaration prior to project approval. (Reference: State CEQA Guidelines, § 15164.)
6.22 SUBSEQUENT NEGATIVE DECLARATION OR MITIGATED NEGATIVE DECLARATION.
When a Negative Declaration or Mitigated Negative Declaration has been adopted for a project, or when an EIR has been certified, no subsequent Negative Declaration, Mitigated Negative Declaration, or EIR shall be prepared for that project unless the Lead Agency determines, on the basis of substantial evidence in the light of the whole record, one or more of the following:
(a) Substantial changes are proposed in the project which will require major revisions of the previous EIR, Negative Declaration, or Mitigated Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or (b) Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR, Negative Declaration, or Mitigated Negative Declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or
(c) New information of substantial importance which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified or the Negative Declaration was adopted which shows any of the following:
(1) The project will have one or more significant effects not discussed in the previous EIR or Negative Declaration;
(2) Significant effects previously examined will be substantially more severe than shown in the previous EIR;
(3) Mitigation measure(s) or alternative(s) previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the project, but the project proponents declined to adopt the mitigation measure(s) or alternative(s); or
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The City, as Lead Agency, would then determine whether a Subsequent EIR, Supplemental EIR, Subsequent Negative Declaration, Subsequent Mitigated Negative Declaration, or Addendum would be applicable. Subsequent Negative Declarations and Mitigated Negative Declarations must be given the same notice and public review period as other Negative Declarations. The Subsequent Negative Declaration shall state where the previous document is available and can be reviewed.
(Reference: State CEQA Guidelines, § 15162.)
6.23 PRIVATE PROJECT COSTS.
For private projects, the person or entity proposing to carry out the project shall bear all costs incurred by the City in preparing the Initial Study and in preparing and filing the Negative Declaration or Mitigated Negative Declaration and Notice of Determination.
6.24 FILING FEES FOR PROJECTS THAT AFFECT WILDLIFE RESOURCES.
At the time a Notice of Determination for a Negative Declaration or Mitigated Negative Declaration is filed with the County or Counties in which the project is located, a fee of $2,764.00, or the then applicable fee, shall be paid to the Clerk for projects that will adversely affect fish or wildlife resources. These fees are collected by the Clerk on behalf of DFW pursuant to Fish and Game Code section 711.4.
Only one filing fee is required for each project unless the project is tiered or phased and separate environmental documents are prepared. (Fish & Game Code section 711.4(g).) For projects where Responsible Agencies file separate Notices of Determination, only the Lead Agency is required to pay the fee.
Note: County Clerks are authorized to charge a documentary handling fee for each project in addition to the Fish and Game Code fees specified above. Refer to the Index in the Staff Summary to help determine the correct total amount of fees applicable to the project.
For private projects, the City may pass these costs on to the project applicant.
Fish and Game Code fees may be waived for projects with “no effect” on fish or wildlife resources or for certain projects undertaken by the DFW and implemented through a contract with a non-profit entity or local government agency; however, the Lead Agency must obtain a form showing that the DFW has determined that the project will have “no effect” on fish and wildlife. (Fish and Game Code section 711.4(c)(2)(A)). Projects that are statutorily or categorically exempt from CEQA are also not subject to the filing fee, and do not require a no effect determination. (State CEQA Guidelines sections 15260 through 15333; Fish and Game Code section 711.4(d)(1)). The applicable DFW Regional Office’s environmental review and 926
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The request should be submitted when the CEQA document is released for public review, or as early as possible in the public comment period. Documents submitted in digital format are preferred (e.g. compact disk). If insufficient documentation is submitted to DFW for the proposed project, a no effect determination will not be issued.
If the City believes that a project for which it is Lead Agency will have “no effect” on fish or wildlife resources, it should contact the appropriate DFW Regional Office. The project’s CEQA document may need to be provided to the appropriate DFW Regional Office along with a written request. Documentation submitted to the appropriate DFW Regional Office should set forth facts in support of the fee exemption. Previous examples of projects that have qualified for a fee exemption include: minor zoning changes that did not lead to or allow new construction, grading, or other physical alterations to the environment; and minor modifications to existing structures, including addition of a second story to single or multi-family residences.
The fee exemption requirement that the project have “no” impact on fish or wildlife resources is more stringent than the former requirement that a project have only “de minimis” effects on fish or wildlife resources. DFW may determine that a project would have no effect on fish and wildlife if all of the following conditions apply:
• The project would not result in or have the potential to result in harm, harassment, or take of any fish and/or wildlife species.
• The project would not result in or have the potential to result in direct or indirect destruction, ground disturbance, or other modification of any habitat that may support fish and/or wildlife species.
• The project would not result in or have the potential to result in the removal of vegetation with potential to support wildlife.
• The project would not result in or have the potential to result in noise, vibration, dust, light, pollution, or an alteration in water quality that may affect fish and/or wildlife directly or from a distance.
• The project would not result in or have the potential to result in any interference with the movement of any fish and/or wildlife species.
Any request for a fee exemption should include the following information:
(1) the name and address of the project proponent and applicant contact information; (2) a brief description of the project and its location; (3) site description and aerial and/or topographic map of the project site; (4) State Clearinghouse number or county filing number; 927
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If insufficient documentation is submitted to DFW for the proposed project, a no effect determination will not be issued. (A sample Request for Fee Exemption is attached as Form “L”.) DFW will review the City’s finding, and if DFW agrees with the City’s conclusions, DFW will provide the City with written confirmation. Retain DFW’s determination as part of the administrative record; the City is required to file a copy of this determination with the County after project approval and at the time of filing of the Notice of Determination.
The Lead Agency must have written confirmation of DFW’s finding of “no impact” at the time the Lead Agency files its Notice of Determination with the County. The County cannot accept the Notice of Determination unless it is accompanied by the appropriate fee or a written no effect determination from DFW.
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7. ENVIRONMENTAL IMPACT REPORT
7.01 DECISION TO PREPARE AN EIR.
An EIR shall be prepared whenever there is substantial evidence in light of the whole record which supports a fair argument that the project may have a significant effect on the environment. (See Local Guidelines Sections 11.65 and 11.71.) The record may include the Initial Study or other documents or studies prepared to assess the project’s environmental impacts.
(Reference: Pub. Resources Code, § 21151.)
7.02 CONTRACTING FOR PREPARATION OF EIRS.
If an EIR is prepared under a contract with the City, the contract must be executed within forty-five (45) days from the date on which the City sends a Notice of Preparation. The City may take longer to execute the contract if the project applicant and the City mutually agree to an extension of the 45-day time limit. (Reference: Pub. Resources Code, § 21151.5.) The EIR prepared under contract must be the City’s product. Staff, together with such consultant help as may be required, shall independently review and analyze the EIR to verify its accuracy, objectivity and completeness prior to presenting it to the decision-making body. The EIR made available for public review must reflect the independent judgment of the City. Staff may require such information and data from the person or entity proposing to carry out the project as Staff deems necessary for completion of the EIR. (Reference: State CEQA Guidelines, §§ 15084, 15090.)
7.03 NOTICE OF PREPARATION OF DRAFT EIR.
After determining that an EIR will be required for a proposed project, the Lead Agency shall prepare and submit a Notice of Preparation (Form “G”) to the Office of Planning and Research through its CEQA Submit website and to each of the following:
(a) Each Responsible Agency and Trustee Agency involved with the project; (b) Any other federal, state, or local agency which has jurisdiction by law or exercises authority over resources affected by the project, including:
(1) Any water supply agency consulted under Local Guidelines Section 5.16; (2) Any city or county bordering on the project area;
(3) For a project of statewide, regional, or area-wide significance, to any transportation agencies or public agencies which have major local arterials or public transit facilities within five (5) miles of the project site or freeways, highways, or rail transit service within ten (10) miles of the project site which could be affected by the project; and
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(e) For certain projects that involve the construction or alteration of a facility anticipated to emit hazardous air emissions or handle hazardous substances within one-quarter mile of a school and that meet the other requirements of Local Guidelines Section 7.36, any potentially affected school district;
(f) For certain waste-burning projects that meet the requirements of Local Guidelines Section 5.11 (See also Local Guidelines Section 7.27), the owners and occupants of property within one-fourth mile of any parcel on which the project will be located; and (g) For a project that establishes or amends a redevelopment plan that contains land in agricultural use, the agricultural and farm agencies and organizations specified in Health and Safety Code section 33333.3.
Additionally, for a project of statewide, regional, or area-wide significance, the Lead Agency should also consult with public transit agencies with facilities within one-half mile of the proposed project.
The Notice of Preparation must also be filed and posted in the office of the Clerk in each county in which the project is located for thirty (30) days. The County Clerk must post the Notice within twenty-four (24) hours of receipt.
When submitting the Notice of Preparation to OPR, a Notice of Completion (Form “H”) should be used as a cover sheet. Responsible and Trustee Agencies, the State Clearinghouse, and the state agencies contacted by the State Clearinghouse have thirty (30) days to respond to the Notice of Preparation in writing via certified mail, email, or an equivalent procedure. Agencies that do not respond within thirty (30) days shall be deemed not to have any comments on the Notice of Preparation.
At a minimum, the Notice of Preparation shall include:
(a) A description of the project;
(b) The location of the project indicated either on an attached map (preferably a copy of the USGS 15’ or 7½’ topographical map identified by quadrangle name) or by a street address and cross street in an urbanized area;
(c) The probable environmental effects of the project;
(d) The name and address of the consulting firm retained to prepare the Draft EIR, if applicable; and
(e) The Environmental Protection Agency (“EPA”) list on which the proposed site is located, if applicable, and the corresponding information from the applicant’s statement. (See Local Guidelines Section 2.04.)
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7.04 SPECIAL NOTICE REQUIREMENTS FOR AFFECTED MILITARY AGENCIES CEQA imposes additional requirements to provide notice to potentially affected military agencies when:
(a) A “military service” (defined in Section 11.42 of these Local Guidelines) has provided the City with its contact office and address and notified the City of the specific boundaries of a “low-level flight path” (defined in Section 11.37 of these Local Guidelines), “military impact zone” (defined in Section 11.41 of these Local Guidelines), or “special use airspace” (defined in Section 11.67 of these Local Guidelines); and (b) The project meets one of the following criteria:
(1) The project is within the boundaries specified pursuant to subsection (a) of this guideline;
(2) The project includes a general plan amendment;
(3) The project is of statewide, regional, or area-wide significance; or (4) The project relates to a public use airport or certain lands surrounding a public use airport.
When a project meets these requirements, the City must provide the military service’s designated contact with any Notice of Preparation, and/or Notice of Availability of Draft EIRs that have been prepared for a project, unless the project involves the remediation of lands contaminated with hazardous wastes and meets certain other requirements.
The City must provide the military service with sufficient notice of its intent to certify an EIR to ensure that the military service has no fewer than thirty (30) days to review the document; or forty-five (45) days to review the environmental documents before they are approved if the documents have been submitted to the State Clearinghouse.
It should be noted that the effect, or potential effect, a project may have on military activities does not itself constitute an adverse effect on the environment pursuant to CEQA. (Reference: Pub. Resources Code, §§ 21080.4, 21092; Health & Safety Code, §§ 25300, et seq., 25396, 25187; State CEQA Guidelines, § 15082(a).)