Cal. PRC § 21189.70.1 — California Code / Code prc / Division 13 / Chapter 6.9 / Section 21189.70.1
Section 21189.70.1
Status: in_force

(a) For purposes of this section, the following definitions apply:

(1) “Employment center project” means a project with a floor area ratio of no less than 0.75 and that is located within a transit priority area.

(2) “Floor area ratio” has the same meaning as in Section 21099.

(3) “Transit priority area” has the same meaning as in Section 21099.

(b) Except as provided in subdivision (c), the requirements of this division are satisfied by an environmental impact statement prepared pursuant to the notice of intent described in subdivision (i) of Section 21189.70 and that meets the requirements of subdivision (d) for a transit-oriented development project, including a residential, employment center, or mixed-use development project, approved by the lead agency, located in the Old Town Center site, if the transit-oriented development project meets all of the following criteria:

(1) The transit-oriented development project is proposed within a transit priority area.

(2) (A) The transit-oriented development project is undertaken to implement and is consistent with the land use standards approved by the Navy and SANDAG for the Old Town Center site and the site plan for which the environmental impact report has been certified on or before December 31, 2022.

(B) The site plan shall meet a vehicle miles traveled reduction of 25 percent below the regional average vehicle miles traveled identified in the sustainable communities strategy or alternative planning strategy applicable at the time of the approval of the site plan.

(3) The transit-oriented development project is consistent with the general use designation, density, building intensity, and applicable policies specified in the Old Town Center site 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 SANDAG’s determination that the sustainable communities strategy or the alternative planning strategy would, if implemented, achieve the greenhouse gas emissions reduction targets.

(4) (A) For a transit-oriented development project undertaken by a public agency, except as provided in subparagraph (B), an entity shall not be prequalified or short-listed or awarded a contract by the public agency to perform any portion of the transit-oriented development project unless the entity provides an enforceable commitment to the public agency that the entity and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the transit-oriented development project or contract that falls within an apprenticeable occupation in the building and construction trades.

(B) Subparagraph (A) does not apply if any of the following requirements are met:

(i) The public agency has entered into a project labor agreement that will bind all contractors and subcontractors performing work on the transit-oriented development project or contract to use a skilled and trained workforce, and the entity agrees to be bound by that project labor agreement.

(ii) The transit-oriented development project or contract is being performed under the extension or renewal of a project labor agreement that was entered into by the public agency before January 1, 2021.

(iii) The entity has entered into a project labor agreement that will bind the entity and all of its subcontractors at every tier performing the transit-oriented development project or contract to use a skilled and trained workforce.

(5) For a transit-oriented development project undertaken by a private entity, the transit-oriented development project applicant shall do both of the following:

(A) Certify to the lead agency that either of the following is true:

(i) The entirety of the transit-oriented development project is a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code.

(ii) If the transit-oriented development project is not in its entirety a public work, all construction workers employed in the execution of the transit-oriented development project will be paid at least the general prevailing rate of per diem wages for the type of work and geographic area, as determined by the Director of Industrial Relations pursuant to Sections 1773 and 1773.9 of the Labor Code, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate. If the transit-oriented development project is subject to this clause, then, for those portions of the transit-oriented development project that are not a public work, all of the following shall apply:

(I) The transit-oriented development project applicant shall ensure that the prevailing wage requirement is included in all contracts for the performance of the work.

(II) All contractors and subcontractors shall pay to all construction workers employed in the execution of the work at least the general prevailing rate of per diem wages, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate.

(III) Except as provided in subclause (V), all contractors and subcontractors shall maintain and verify payroll records pursuant to Section 1776 of the Labor Code and make those records available for inspection and copying as provided by that section.

(IV) Except as provided in subclause (V), the obligation of the contractors and subcontractors to pay prevailing wages may be enforced by the Labor Commissioner through the issuance of a civil wage and penalty assessment pursuant to Section 1741 of the Labor Code, which may be reviewed pursuant to Section 1742 of the Labor Code, within 18 months after the completion of the transit-oriented development project, by an underpaid worker through an administrative complaint or civil action, or by a joint labor-management committee through a civil action under Section 1771.2 of the Labor Code. If a civil wage and penalty assessment is issued, the contractor, subcontractor, and surety on a bond or bonds issued to secure the payment of wages covered by the assessment shall be liable for liquidated damages pursuant to Section 1742.1 of the Labor Code.

(V) Subclauses (III) and (IV) do not apply if all contractors and subcontractors performing work on the transit-oriented development project are subject to a project labor agreement that requires the payment of prevailing wages to all construction workers employed in the execution of the transit-oriented development project and provides for enforcement of that obligation through an arbitration procedure.

(VI) Notwithstanding subdivision (c) of Section 1773.1 of the Labor Code, the requirement that employer payments not reduce the obligation to pay the hourly straight time or overtime wages found to be prevailing shall not apply if otherwise provided in a bona fide collective bargaining agreement covering the worker. The requirement to pay at least the general prevailing rate of per diem wages does not preclude the use of an alternative workweek schedule adopted pursuant to Section 511 or 514 of the Labor Code.

(B) Certify to the lead agency that a skilled and trained workforce will be used to perform all construction work on the transit-oriented development project. All of the following requirements shall apply to the transit-oriented development project:

(i) The transit-oriented development project applicant shall require in all contracts for the performance of work that every contractor and subcontractor at every tier will individually use a skilled and trained workforce to complete the transit-oriented development project.

(ii) Every contractor and subcontractor shall use a skilled and trained workforce to complete the transit-oriented development project.

(iii) (I) Except as provided in subclause (II), the transit-oriented development project applicant shall provide to the lead agency, on a monthly basis while the transit-oriented development project or contract is being performed, a report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code. A monthly report provided to the lead agency pursuant to this subclause shall be a public record under the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) and shall be open to public inspection. A transit-oriented development project applicant that fails to provide a monthly report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code shall be subject to a civil penalty of ten thousand dollars ($10,000) per month for each month for which the report has not been provided. Any contractor or subcontractor that fails to use a skilled and trained workforce shall be subject to a civil penalty of two hundred dollars ($200) per day for each worker employed in contravention of the skilled and trained workforce requirement. Penalties may be assessed by the Labor Commissioner within 18 months of completion of the transit-oriented development project using the same procedures for issuance of civil wage and penalty assessments pursuant to Section 1741 of the Labor Code, and may be reviewed pursuant to the same procedures in Section 1742 of the Labor Code. Penalties shall be paid to the State Public Works Enforcement Fund.

(II) Subclause (I) does not apply if all contractors and subcontractors performing work on the transit-oriented development project are subject to a project labor agreement that requires compliance with the skilled and trained workforce requirement and provides for enforcement of that obligation through an arbitration procedure.

(c) Further environmental review, including the preparation of a supplemental environmental impact report, if appropriate, shall be conducted only if any of the events specified in Section 21166 have occurred.

(d) (1) Pursuant to Section 21083.5, the environmental impact statement prepared by the Navy for the redevelopment of the Old Town Center site pursuant to the federal National Environmental Policy Act of 1969 (42 U.S.C. Sec. 4321 et seq.) may be used in lieu of all or any part of an environmental impact report prepared pursuant to this division for the redevelopment of the Old Town Center site if that statement complies with the applicable requirements of this division and the guidelines adopted pursuant to this division and its use for purposes of compliance with this division shall not in and of itself constitute a prejudicial abuse of discretion so long as the lead agency consults with the Navy, notifies the Navy regarding any scoping meetings for the proposed transit-oriented development project, and a discussion of mitigation measures or growth-inducing impacts are included in the environmental impact statement.

(2) Paragraph (1) is not intended to exempt approvals of public agencies from the requirements of Section 21081, 21081.6, 21100, or 21151, or to limit judicial review of those approvals under Section 21168.

(3) Any significant impacts identified in the Navy’s environmental impact statement for the redevelopment of the Old Town Center site that are offsite of the Old Town Center site and that are incorporated by the lead agency into the environmental impact report shall be subject to the applicable mitigation requirements and enforcement provisions of this division.

(e) The approval of a transit-oriented development project shall be preceded by a determination under subdivisions (b) and (c).