Amended in Assembly March 26, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1431

Introduced by Assembly Member Gomez

February 27, 2015

An act to begin delete amend Section 65583 of the Government Code, end delete begin insert end insert begin insert add and repeal Article 60.4 (commencing with Section 20919.20) of Chapter 1 of Part 3 of Division 2 of the Public Contract Code, end insert relating to begin delete land use planning. end delete begin insert local public contracting. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 1431, as amended, Gomez. begin delete Housing element. end delete begin insert Local Agency Public Construction Act: job order contracting. end insert

begin insert

Existing law, the Local Agency Public Construction Act, authorizes job order contracting, as provided, by the Los Angeles Unified School District (LAUSD), until December 1, 2020.

end insert begin insert

This bill would authorize job order contracting in a similar manner for school districts other than LAUSD until January 1, 2022. The bill would restrict job order contracting pursuant to the bill to school districts that have entered into a project labor agreement or agreements, as defined, that will apply to all public works in excess of $25,000 undertaken by the school district through at least December 31, 2021, regardless of what contracting procedure is used to award that work. The bill would require job order contractors to submit a questionnaire to the school district containing specified information verified under oath. By expanding the crime of perjury, this bill would impose a state-mandated local program.

end insert begin insert

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert begin delete

The Planning and Zoning Law requires a city or county to adopt a comprehensive, long-term general plan for the physical development of the city or county and of any land outside its boundaries that bears relation to its planning. That law also requires the general plan to contain specified mandatory elements, including a housing element for the preservation, improvement, and development of housing. Existing law requires the housing element to include specified information.

end delete begin delete

This bill would make nonsubstantive changes to the provision regarding the information required to be included in the housing element.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Article 60.4 (commencing with Section 20919.20)
is added to Chapter 1 of Part 3 of Division 2 of the end insert begin insert Public Contract
Code end insert begin insert , to read: end insert

begin insert

 

Article begin insert 60.4. end insert   Job Order Contracting for School Districts

 

begin insert 20919.20. end insert   

The Legislature finds and declares all of the
following:

(a) It is the intent of the Legislature, in enacting this article, to
demonstrate an alternative and optional procedure for bidding of
public works projects that is applicable only to school districts
other than the Los Angeles Unified School District. The Legislature
has previously authorized the use of this alternative and optional
procedure in Article 60.3 (commencing with Section 20219) only
for the Los Angeles Unified School District, which is using the
procedure in conjunction with its project stabilization agreement.

(b) Districts should be able to utilize cost-effective options for
the delivery of public works projects, in accordance with the
national trend, which include authorizations in California, to allow
public entities to utilize job order contracts as a project delivery
method.

(c) The benefits of a job order contract project delivery system
include accelerated completion of the projects, cost savings, and
reduction of construction contracting complexity for the unified
school district.

(d) The job order contracting approach should be used for the
purposes of reducing project cost and expediting project
completion.

(e) The Legislature is uncertain of the benefits and advantages
of job order contracting for California school districts and
therefore looks forward to the reports required by Section 20919.32
in order to fully and competently assess any further exemptions to
the school contracting process.

(f) The availability of job order contracting as a project delivery
method will not preclude the use of traditional methods of project
delivery if a traditional method results in higher cost savings.

(g) It is the intent of the Legislature that job order contracts be
competitively bid and awarded to the bidder providing the most
qualified responsive bid. It is further the intent of the Legislature
that school districts use the job order contract process pursuant
to this article only if the school district has entered into a project
labor agreement that meets the requirements of Section 2500 for
all its public works projects.

begin insert 20919.21. end insert   

As used in this chapter:

(a) “Adjustment factor” means the job order contractor’s
competitively bid adjustment to the school district’s prices as
published in the catalog of construction tasks.

(b) “Catalog of construction tasks” means a book containing
specific construction tasks and the unit prices to install or demolish
that construction. The listed tasks shall be based on generally
accepted industry standards and information, where available, for
various items of work to be performed by the job order contractor.
The prices shall include the cost of materials, labor, and equipment
for performing the items of work. The prices shall not include
overhead and profit. All unit prices shall be developed using local
prevailing wages.

(c) “Indefinite quantity” means one or more of the construction
tasks listed in the catalog of construction tasks.

(d) “Job order” means a firm, fixed priced, lump-sum order
issued by the school district to a job order contractor for a definite
project scope of work as compiled from the catalog of construction
tasks to be performed pursuant to a job order contract. No single
job order may exceed one million dollars ($1,000,000) in value.

(e) “Job order contract” means a contract, awarded to the most
qualified bidder as described in paragraph (1) of subdivision (b)
of Section 20919.24, between the school district and a licensed,
bonded, and general liability insured contractor in which the
contractor agrees to a fixed period, fixed unit price, and indefinite
quantity contract that provides for the use of job orders for public
works or maintenance projects.

(f) “Job order contract technical specifications” means a book,
published by the school district, detailing the technical
specifications with regard to quality of materials and workmanship
to be used by the job order contractor in accomplishing the tasks
listed in the catalog of construction tasks.

(g) “Job order contractor” means a licensed, bonded, and
general liability insured contractor awarded a job order contract.

(h) “Offer to perform work” means the job order contractor’s
proposal for a specific job order.

(i) “Plans and specifications” means the catalog of construction
tasks and the job order contract technical specifications. The scope
of work to be performed with a job order contract is potentially,
but not necessarily, all the tasks published in the catalog of
construction tasks.

(j) “Project” means the specific requirements and work to be
accomplished by the job order contractor in connection with an
individual job order.

(k) “Project labor agreement” means an agreement that meets
the requirements of Section 2500.

(l) “Project scope of work” means the document and related
drawings, specifications, and writings referenced therein which
together set forth the specific requirements and work to be
accomplished by the job order contractor in connection with an
individual job order.

(m) “Proposal” means the job order contractor prepared
document quoting those construction tasks listed in the catalog of
construction tasks that the job order contractor requires to
complete the project scope of work, together with the appropriate
quantities of each task. The pricing of each task shall be
accomplished by multiplying the construction task unit price by
the proposed quantity and the contractor’s competitively bid
adjustment factor. The proposal shall also contain a schedule for
the completion of a specific project scope of work as requested by
the school district. The proposal may also contain approved
drawings, work schedule, permits, or other documentation as the
school district may require for a specific job order.

(n) “Public works” has the same meaning as in Chapter 1
(commencing with Section 1720) of Part 7 of Division 2 of the
Labor Code.

(o) “Public works project” has the same meaning as “public
project,” as defined in Section 22002.

(p) “Subcontractor” means any person, firm, or corporation,
other than the employees of the job order contractor, who is bonded
and general liability insured and who contracts to furnish labor,
or labor and materials, at the worksite or in connection with a job
order, whether directly or indirectly on behalf of the job order
contractor.

(q) “School district” means any school district other than the
Los Angeles Unified School District.

begin insert 20919.22. end insert   

Nothing in this article or in this code shall prohibit
the school district from utilizing job order contracting, as an
alternative to any contracting procedures that the school district
is otherwise authorized or required by law to use.

begin insert 20919.23. end insert   

(a) The school district may utilize job order
contracting pursuant to this article only if the school district has
entered into a project labor agreement or agreements that will
apply to all public works in excess of twenty-five thousand dollars
($25,000) undertaken by the school district through at least
December 31, 2021, regardless of what contracting procedure is
used to award that work.

(b) The school district shall prepare an execution plan for all
modernization projects that may be eligible for job order
contracting pursuant to this article. The school district shall select
from that plan a sufficient number of projects to be initiated as
job order contracts during each calendar year and shall determine
for each selected project that job order contracting will reduce
the total cost of that project. Job order contracting shall not be
used if the school district finds that it will increase the total cost
of the project.

begin insert 20919.24. end insert   

Bidding for job order contracts shall progress as
follows:

(a) (1) The school district shall prepare a set of documents for
each job order contract. The documents shall include a catalog
of construction tasks and preestablished unit prices, job order
contract technical specifications, and any other information
deemed necessary to describe adequately the school district’s
needs.

(2) Any architect, engineer, or consultant retained by the school
district to assist in the development of the job order contract
documents shall not be eligible to participate in the preparation
of a bid with any job order contractor.

(b) Based on the documents prepared under subdivision (a),
the school district shall prepare a request for bid that invites
prequalified job order contractors to submit competitive sealed
bids in the manner prescribed by the school district.

(1) (A) The prequalified job order contractors, as determined
by the school district, shall bid one or more adjustment factors to
the unit prices listed in the catalog of construction tasks based on
the job order contract technical specifications. Awards shall be
made to the prequalified bidder that the school district determines
to be the most qualified based upon preestablished criteria made
by the school district. The prequalified bidder must be in
compliance with the school district’s project labor agreement.

(B) Compliance shall constitute no more than three major
violations on any school district projects within the last three years.
If a contractor has more than three violations within a three-year
period of time, the school district shall seek administrative review
of the violations. Violations will include, but are not limited to,
the following:

(i) Failure to register core workers with the appropriate building
trade union.

(ii) Failure to assign apprentices in accordance with Section
1777.5 of the Labor Code.

(iii) Failure to comply with subdivision (c) of Section 20919.25.

(iv) Incorrect assignment of work in accordance with the school
district’s project labor agreement.

(2) The school district may award multiple job order contracts.
Each job order contract shall be awarded to the most qualified
prequalified bidder described in paragraph (1).

(3) The request for bids may encourage the participation of
local construction firms and the use of local subcontractors.

(c) (1) The school district shall establish a procedure to
prequalify job order contractors using a standard questionnaire
that includes, at a minimum, the issues covered by the standardized
questionnaire and model guidelines for rating bidders developed
by the Department of Industrial Relations pursuant to subdivision
(a) of Section 20101. This questionnaire shall require information
including, but not limited to, all of the following:

(A) If the job order contractor is a partnership, limited
partnership, or other association, a listing of all of the partners
or association members known at the time of bid submission who
will participate in the job order contract.

(B) Evidence that the members of the job order contractor have
the capacity to complete projects of similar size, scope, or
complexity, and that proposed key personnel have sufficient
experience and training to competently manage the construction
of the project, as well as a financial statement that assures the
school district that the job order contractor has the capacity to
complete the project.

(C) The licenses, registration, and credentials required to
perform construction, including, but not limited to, information
on the revocation or suspension of any license, credential, or
registration.

(D) Evidence that establishes that the job order contractor has
the capacity to obtain all required payment and performance
bonding and liability insurance.

(E) Information concerning workers’ compensation experience
history, worker safety programs, and apprenticeship programs.

(i) An acceptable safety record as determined by the school
district. In its determination, the school district shall consider, but
is not required to find, a contractor’s safety record as acceptable
if its experience modification rate for the most recent three-year
period is an average of 1.00 or less, and its average total
recordable injury/illness rate and average lost work rate for the
most recent three-year period do not exceed the applicable
statistical standards for its business category or if the contractor
is a party to an alternative dispute resolution system as provided
for in Section 3201.5 of the Labor Code.

(ii) Skilled labor force availability as determined by the
existence of an agreement with a registered apprenticeship
program, approved by the California Apprenticeship Council, that
has graduated apprentices in each of the preceding five years.
This graduation training for any craft that was first deemed by the
Department of Labor and the Department of Industrial Relations
to be an apprenticeable craft within the five years prior to the
effective date of this article.

(F) A full disclosure regarding all of the following that are
applicable:

(i) Any serious or willful violation of Part 1 (commencing with
Section 6300) of Division 5 of the Labor Code or the federal
Occupational Safety and Health Act of 1970 (Public Law 91-596),
settled against any member of the job order contractor.

(ii) Any debarment, disqualification, or removal from a federal,
state, or local government public works project.

(iii) Any instance where the job order contractor, or its owners,
officers, or managing employees submitted a bid on a public works
project and were found to be nonresponsive, or were found by an
awarding body not to be a responsible bidder.

(iv) Any instance where the job order contractor, or its owners,
officers, or managing employees defaulted on a construction
contract.

(v) Any violations of the Contractors’ State License Law
(Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code), excluding alleged violations of
federal or state law regarding the payment of wages, benefits,
apprenticeship requirements, or personal income tax withholding,
or of Federal Insurance Contribution Act (FICA) withholding
requirements settled against any member of the job order
contractor.

(vi) Any bankruptcy or receivership of any member of the job
order contractor, including, but not limited to, information
concerning any work completed by a surety.

(vii) Any settled adverse claims, disputes, or lawsuits between
the owner of a public works project and any member of the job
order contractor during the five years preceding submission of a
bid under this article, in which the claim, settlement, or judgment
exceeds fifty thousand dollars ($50,000). Information shall also
be provided concerning any work completed by a surety during
this period.

(G) In the case of a partnership or any association that is not
a legal entity, a copy of the agreement creating the partnership or
association and specifying that all partners or association members
agree to be fully liable for the performance under the job order
contract.

(2) The information required under this subdivision shall be
verified under oath by the entity and its members in the manner
in which civil pleadings in civil actions are verified. Information
that is not a public record under the California Public Records
Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code) shall not be open to public
inspection.

begin insert 20919.25. end insert   

(a) The maximum total dollar amount that may be
awarded under a single job order contract shall not exceed five
million dollars ($5,000,000) in the first term of the job order
contract and, if extended or renewed, ten million dollars
($10,000,000) over the maximum two terms of the job order
contract adjusted annually to reflect the percentage change in the
California Consumer Price Index.

(b) Job order contracts may be executed for an initial contract
term of no more than 12 months, with the option of extending or
renewing the job order contract for two 12-month periods. The
term of the job order contract shall be for the contract term or
whenever the maximum value of the contract is achieved, whichever
is less. All extensions or renewals shall be priced as provided in
the request for bids. The extension or renewal shall be mutually
agreed to by the school district and the job order contractor.

(c) The school district may issue job orders to the job order
contractor that has been awarded the job order contract. The job
order issued to the job order contractor shall not commence for
seven days from the time the job order was issued and the job
order contractor shall provide a minimum of seven days notice
for the addition of any subcontractor or substitution of any
subcontractor as described in subdivision (e) of Section 20919.26.
The job order shall be based on a project scope of work prepared
by the school district as well as a proposal from the job order
contractor who is awarded the job order contract. No single job
order may exceed one million dollars ($1,000,000).

(d) It is unlawful to split or separate into smaller job orders
any project for the purpose of evading the cost limitation provisions
of this chapter.

(e) All work performed under the job order contract shall be
covered by a project stabilization agreement.

(f) Any change or alteration to a job order shall be in
compliance with Section 20118.4.

begin insert 20919.26. end insert   

(a) All work bid under the job order shall comply
with Chapter 4 (commencing with Section 4100) of Part 1 and is
subject to all of the penalties and provisions set forth in that
chapter.

(b) For purposes of this article, if the primary job order
contractor chooses to use subcontractors, the primary job order
contractor is required to verify that the subcontractors possess
the appropriate licenses and credentials required to perform
construction.

(c) Notwithstanding subdivision (a), the primary job order
contractor may use subcontractors that are not listed at the time
the job order is issued if the work to be performed under that job
order is less than ten thousand dollars ($10,000).

(d) If the primary job order contractor chooses to use a
subcontractor that is not listed at the time of bid to perform work
on a job order, both of the following apply:

(1) The primary job order contractor shall provide public notice
of the availability of work to be subcontracted by trade. The public
notice shall include the scope of work; the project location; the
name, address, and the telephone number of the primary job order
contractor; and the closing date, time, and location for sealed bids
to be submitted.

(2) The primary job order contractor shall take sealed bids from
the subcontractors solicited for the proposal. These bids shall be
publicly opened at a prescribed time and place by the primary job
order contractor. After the bids are opened, the job order
contractor shall notify the school district which subcontractor was
selected.

(3) The notification shall include every subcontractor for all
tiers and must establish the authorized subcontractor list for the
job order. Work shall not commence prior to seven days notice of
the established subcontractor list and the subsequent addition of
any subcontractor to the job order.

(4) The notification shall identify the scope of the work to be
performed by each subcontractor to the job order, broken down
by craft. If a subcontractor performs multiple crafts, the job order
contractor shall identify the work of each craft to be performed.

(e) If the primary job order contractor chooses to make a
substitution to the subcontractor list, the primary job order
contractor shall provide a minimum of seven days’ notice to the
school district along with justification as to the need for the
substitution. The school district may request a hearing to evaluate
the substitution request, which shall be in accordance with Chapter
4 (commencing with Section 4100) of Part 1.

(f) If the school district determines that there has been a
violation of Chapter 4 (commencing with Section 4100) of Part 1,
including bid shopping by the primary job order contractor, the
school district may terminate the job order or the contractor may
lose authorization to proceed with awarded work subject to the
school district’s administrative due process review, if such review
is established pursuant to the school district’s project labor
agreement. If the school district determines that a job order
contractor has violated any provision set forth in Chapter 4
(commencing with Section 4100) of Part 1, the school district may
declare the contractor ineligible for future job orders and may
result in a loss of prequalification status for a period of time to be
determined by the school district.

begin insert 20919.27. end insert   

(a) A job order contract shall set forth in the general
conditions of the job order contract the party or parties responsible
for seeing that the provisions of Article 2 (commencing with Section
1770) of Chapter 1 of Part 7 of Division 2 of the Labor Code are
complied with.

(b) For purposes of job order contracting, prevailing wages
when required to be paid shall apply to all work ordered under
the job order contract regardless of thresholds set forth in Section
1771.5 of the Labor Code.

(c) The job order contractor shall pay the prevailing wage in
effect at the time the job order is issued by the school district and
all increases as published by the Department of Industrial
Relations for the term of the job order contract, including all
overtime, holiday, and shift provisions published by the Department
of Industrial Relations.

(d) The school district shall designate one individual within its
labor compliance office to act as a monitor to inspect job sites for
labor compliance violations at the request of the designated labor
representative in its project labor agreement.

begin insert 20919.28. end insert   

A willful violation of Section 20919.26 occurs when
the job order contractor or subcontractor knew or reasonably
should have known of his or her obligations under the public works
law and deliberately fails or refuses to comply with its provisions.
The school district using job order contracting shall publish and
distribute to the Labor Commissioner a list of all job order
contractors or subcontractors who violate this provision and the
school district shall not award a job order contract or any future
job orders under an existing job order contract to any contractor
or subcontractor who violates this provision during the effective
period of debarment of the contractor or subcontractor.

begin insert 20919.29. end insert   

For purposes of employment of apprentices on job
order contracts, when the individual job order involves more than
thirty thousand dollars ($30,000) or 20 working days, all general
contractors or subcontractors shall at all times be in compliance
with Section 1777.5 of the Labor Code and shall comply with the
following:

(a) Prior to commencing work on an individual job order, every
contractor shall submit job order award information to an
applicable apprenticeship program that can supply apprentices
to the site of the job order. The information submitted shall include
an estimate of the journeyman hours to be performed under the
contract, the number of apprenticeships proposed to be employed,
and the approximate dates the apprentices would be employed. A
copy of this information shall also be submitted to the awarding
agency if requested by the awarding agency.

(b) The ratio of work performed by apprentices to journeymen
employed in a particular craft or trade on the job order may be
no higher than the ratio stipulated in the apprenticeship standard
under which the apprenticeship program operates where the job
order contractor agrees to be bound by those standards but, except
as otherwise provided in Section 1777.5 of the Labor Code, in no
case shall the ratio be less than one hour of apprenticeship work
for every five hours of journeyman work.

(c) Every apprentice employed under the job order contract
shall be paid the prevailing rate of per diem wages for apprentices
in the trade to which he or she is registered and shall be employed
only at the work of the craft or trade to which he or she is
registered.

(d) Every apprentice employed under the job order contract
shall be hired from the local joint labor management
apprenticeship committee that has jurisdiction in the geographic
area of the project.

begin insert 20919.30. end insert   

A job order contractor or subcontractor that
knowingly violates the provisions involving employment of
apprentices shall forfeit as a civil penalty an amount not exceeding
one hundred dollars ($100) for each full calendar day of
noncompliance. The amount of this penalty shall be based on
consideration of whether the violation was a good faith mistake
due to inadvertence. A contractor or subcontractor that knowingly
commits a second or subsequent violation of the provisions
involving employment of apprentices within a three-year period
where the noncompliance results in apprenticeship training not
being provided as required, shall forfeit as a civil penalty a sum
of not more than three hundred dollars ($300) for each full
calendar day of noncompliance and shall not be awarded any
further job orders under the job order contract and shall be
precluded for a period of one year from bidding on any future job
order contracts.

begin insert 20919.31. end insert   

In order to prevent fraud, waste, and abuse, the
school district adopting job order contracting shall do all of the
following:

(a) Prepare for each individual job order developed under a
job order contract an independent school district estimate. The
estimate will be prepared prior to the receipt of the contractor’s
offer to perform work and will be compared to the contractor’s
proposed price to determine the reasonableness of that price before
issuance of any job order. The basis for any adjustments to the
school district estimate is to be documented. In the event that the
contractor’s proposal for a given job order is found to be
unreasonable, not cost effective, or undesirable, the school district
is under no obligation to issue the job order to the job order
contractor, and may instead utilize any other available
procurement procedures.

(b) The school district shall not issue a job order until the job
order has been reviewed and approved by at least two levels of
management.

(c) Once a job order has been issued, all documents pertaining
to preparation and approval of the job order, including the
independent school district estimate, shall be available for public
review.

begin insert 20919.32. end insert   

If the school district adopts the job order contracting
process, the school district shall submit to the Office of Public
School Construction in the Department of General Services, the
Senate Committee on Business, Professions and Economic
Development and Assembly Committee on Business, Professions
and Consumer Protection, the Senate and Assembly Committees
on Education, and the Joint Legislative Budget Committee before
December 31, 2019, a report containing a description of each job
order contract procured, and the work under each contract
completed on or before June 30, 2019. The report shall be prepared
by an independent third party and the school district shall pay for
the cost of the report. The report shall include, but not be limited
to, all of the following information:

(a) A listing of all projects completed under each job order
contract.

(b) The job order contractor that was awarded each contract.

(c) The estimated and actual project costs.

(d) The estimated procurement time savings.

(e) A description of any written protests concerning any aspect
of the solicitation, bid, proposal, or award of the job order
contract, including, but not limited to, the resolution of the protests.

(f) An assessment of the prequalification process and criteria.

(g) A description of the labor force compliance program
required under Section 20919.24, and an assessment of the impact
on a project where compliance with that program is required.

(h) Recommendations regarding the most appropriate uses for
the job order contract process.

begin insert 20919.33. end insert   

If, after 30 days from receipt of the invoice, a
contract has not been paid, the contractor shall contact the
designated school district employee to resolve payment. If the
contact with the school district’s designee does not provide full
payment within three business days, the contractor may request a
special convening of the payment resolution committee.

(a) The payment resolution committee shall be composed of a
representative of the contractor, a representative from labor, a
representative designated by the director of facilities within the
school district, and a representative designated by the director of
facilities support services within the school district.

(b) After convening, the committee shall make its
recommendation of payment within three business days.

begin insert 20919.34. end insert   

It is the intent of the Legislature that a moratorium
be placed on the enactment of any additional legislation
authorizing school districts to use job order contracting until the
Legislature has received the reports required by Sections 20919.12
and 20919.32.

begin insert 20919.35. end insert   

This article shall remain in effect only until January
1, 2022, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2022, deletes or extends
that date.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

begin delete

SECTION 1.  

Section 65583 of the Government Code is
amended to read:

65583.  

The housing element shall consist of an identification
and analysis of existing and projected housing needs and a
statement of goals, policies, quantified objectives, financial
resources, and scheduled programs for the preservation,
improvement, and development of housing. The housing element
shall identify adequate sites for housing, including rental housing,
factory-built housing, mobilehomes, and emergency shelters, and
shall make adequate provision for the existing and projected needs
of all economic segments of the community. The element shall
contain all of the following:

(a) An assessment of housing needs and an inventory of
resources and constraints relevant to the meeting of these needs.
The assessment and inventory shall include all of the following:

(1) An analysis of population and employment trends,
documentation of projections, and a quantification of the locality’s
existing and projected housing needs for all income levels,
including extremely low income households, as defined in
subdivision (b) of Section 50105 and Section 50106 of the Health
and Safety Code. These existing and projected needs shall include
the locality’s share of the regional housing need in accordance
with Section 65584. Local agencies shall calculate the subset of
very low income households allotted under Section 65584 that
qualify as extremely low income households. The local agency
may either use available census data to calculate the percentage
of very low income households that qualify as extremely low
income households or presume that 50 percent of the very low
income households qualify as extremely low income households.
The number of extremely low income households and very low
income households shall equal the jurisdiction’s allocation of very
low income households pursuant to Section 65584.

(2) An analysis and documentation of household characteristics,
including level of payment compared to ability to pay, housing
characteristics, including overcrowding, and housing stock
condition.

(3) An inventory of land suitable for residential development,
including vacant sites and sites having potential for redevelopment,
and an analysis of the relationship of zoning and public facilities
and services to these sites.

(4) (A) The identification of a zone or zones where emergency
shelters are allowed as a permitted use without a conditional use
or other discretionary permit. The identified zone or zones shall
include sufficient capacity to accommodate the need for emergency
shelter identified in paragraph (7), except that each local
government shall identify a zone or zones that can accommodate
at least one year-round emergency shelter. If the local government
cannot identify a zone or zones with sufficient capacity, the local
government shall include a program to amend its zoning ordinance
to meet the requirements of this paragraph within one year of the
adoption of the housing element. The local government may
identify additional zones where emergency shelters are permitted
with a conditional use permit. The local government shall also
demonstrate that existing or proposed permit processing,
development, and management standards are objective and
encourage and facilitate the development of, or conversion to,
emergency shelters. Emergency shelters may only be subject to
those development and management standards that apply to
residential or commercial development within the same zone,
except that a local government may apply written, objective
standards that include all of the following:

(i) The maximum number of persons or beds permitted to be
served nightly by the facility.

(ii) Off-street parking based upon demonstrated need, provided
that the standards do not require more parking for emergency
shelters than for other residential or commercial uses within the
same zone.

(iii) The size and location of exterior and interior onsite waiting
and client intake areas.

(iv) The provision of onsite management.

(v) The proximity to other emergency shelters, provided that
emergency shelters are not required to be more than 300 feet apart.

(vi) The length of stay.

(vii) Lighting.

(viii) Security during hours that the emergency shelter is in
operation.

(B) The permit processing, development, and management
standards applied under this paragraph shall not be deemed to be
discretionary acts within the meaning of the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code).

(C) A local government that can demonstrate, to the satisfaction
of the department, the existence of one or more emergency shelters
either within its jurisdiction or pursuant to a multijurisdictional
agreement that can accommodate that jurisdiction’s need for
emergency shelter identified in paragraph (7) may comply with
the zoning requirements of subparagraph (A) by identifying a zone
or zones where new emergency shelters are allowed with a
conditional use permit.

(D) A local government with an existing ordinance that complies
with this paragraph shall not be required to take additional action
to identify zones for emergency shelters. The housing element
must only describe how existing ordinances, policies, and standards
are consistent with the requirements of this paragraph.

(5) An analysis of potential and actual governmental constraints
upon the maintenance, improvement, or development of housing
for all income levels, including the types of housing identified in
paragraph (1) of subdivision (c), and for persons with disabilities
as identified in the analysis pursuant to paragraph (7), including
land use controls, building codes and their enforcement, site
improvements, fees and other exactions required of developers,
and local processing and permit procedures. The analysis shall
also demonstrate local efforts to remove governmental constraints
that hinder the locality from meeting its share of the regional
housing need in accordance with Section 65584 and from meeting
the need for housing for persons with disabilities, supportive
housing, transitional housing, and emergency shelters identified
pursuant to paragraph (7). Transitional housing and supportive
housing shall be considered a residential use of property, and shall
be subject only to those restrictions that apply to other residential
dwellings of the same type in the same zone.

(6) An analysis of potential and actual nongovernmental
constraints upon the maintenance, improvement, or development
of housing for all income levels, including the availability of
financing, the price of land, and the cost of construction.

(7) An analysis of any special housing needs, such as those of
the elderly; persons with disabilities, including a developmental
disability, as defined in Section 4512 of the Welfare and
Institutions Code; large families; farmworkers; families with female
heads of households; and families and persons in need of
emergency shelter. The need for emergency shelter shall be
assessed based on annual and seasonal need. The need for
emergency shelter may be reduced by the number of supportive
housing units that are identified in an adopted 10-year plan to end
chronic homelessness and that are either vacant or for which
funding has been identified to allow construction during the
planning period.

(8) An analysis of opportunities for energy conservation with
respect to residential development. Cities and counties are
encouraged to include weatherization and energy efficiency
improvements as part of publicly subsidized housing rehabilitation
projects. This may include energy efficiency measures that
encompass the building envelope, its heating and cooling systems,
and its electrical system.

(9) An analysis of existing assisted housing developments that
are eligible to change from low-income housing uses during the
next 10 years due to termination of subsidy contracts, mortgage
prepayment, or expiration of restrictions on use. “Assisted housing
developments,” for the purpose of this section, shall mean
multifamily rental housing that receives governmental assistance
under federal programs listed in subdivision (a) of Section
65863.10, state and local multifamily revenue bond programs,
local redevelopment programs, the federal Community
Development Block Grant Program, or local in-lieu fees. “Assisted
housing developments” shall also include multifamily rental units
that were developed pursuant to a local inclusionary housing
program or used to qualify for a density bonus pursuant to Section
65916.

(A) The analysis shall include a listing of each development by
project name and address, the type of governmental assistance
received, the earliest possible date of change from low-income
use, and the total number of elderly and nonelderly units that could
be lost from the locality’s low-income housing stock in each year
during the 10-year period. For purposes of state and federally
funded projects, the analysis required by this subparagraph need
only contain information available on a statewide basis.

(B) The analysis shall estimate the total cost of producing new
rental housing that is comparable in size and rent levels, to replace
the units that could change from low-income use, and an estimated
cost of preserving the assisted housing developments. This cost
analysis for replacement housing may be done aggregately for
each five-year period and does not have to contain a
project-by-project cost estimate.

(C) The analysis shall identify public and private nonprofit
corporations known to the local government which have legal and
managerial capacity to acquire and manage these housing
developments.

(D) The analysis shall identify and consider the use of all federal,
state, and local financing and subsidy programs which can be used
to preserve, for lower income households, the assisted housing
developments, identified in this paragraph, including, but not
limited to, federal Community Development Block Grant Program
funds, tax increment funds received by a redevelopment agency
of the community, and administrative fees received by a housing
authority operating within the community. In considering the use
of these financing and subsidy programs, the analysis shall identify
the amounts of funds under each available program which have
not been legally obligated for other purposes and which could be
available for use in preserving assisted housing developments.

(b) (1) A statement of the community’s goals, quantified
objectives, and policies relative to the maintenance, preservation,
improvement, and development of housing.

(2) It is recognized that the total housing needs identified
pursuant to subdivision (a) may exceed available resources and
the community’s ability to satisfy this need within the content of
the general plan requirements outlined in Article 5 (commencing
with Section 65300). Under these circumstances, the quantified
objectives need not be identical to the total housing needs. The
quantified objectives shall establish the maximum number of
housing units by income category, including extremely low income,
that can be constructed, rehabilitated, and conserved over a
five-year time period.

(c) A program which sets forth a schedule of actions during the
planning period, each with a timeline for implementation, which
may recognize that certain programs are ongoing, so that there
will be beneficial impacts of the programs within the planning
period, that the local government is undertaking or intends to
undertake to implement the policies and achieve the goals and
objectives of the housing element through the administration of
land use and development controls, the provision of regulatory
concessions and incentives, the utilization of appropriate federal
and state financing and subsidy programs when available, and the
utilization of moneys in a low- and moderate-income housing fund
of an agency if the locality has established a redevelopment project
area pursuant to the Community Redevelopment Law (Division
24 (commencing with Section 33000) of the Health and Safety
Code). In order to make adequate provision for the housing needs
of all economic segments of the community, the program shall do
all of the following:

(1) Identify actions that will be taken to make sites available
during the planning period with appropriate zoning and
development standards and with services and facilities to
accommodate that portion of the city’s or county’s share of the
regional housing need for each income level that could not be
accommodated on sites identified in the inventory completed
pursuant to paragraph (3) of subdivision (a) without rezoning, and
to comply with the requirements of Section 65584.09. Sites shall
be identified as needed to facilitate and encourage the development
of a variety of types of housing for all income levels, including
multifamily rental housing, factory-built housing, mobilehomes,
housing for agricultural employees, supportive housing,
single-room occupancy units, emergency shelters, and transitional
housing.

(A) Where the inventory of sites, pursuant to paragraph (3) of
subdivision (a), does not identify adequate sites to accommodate
the need for groups of all household income levels pursuant to
Section 65584, rezoning of those sites, including adoption of
minimum density and development standards, for jurisdictions
with an eight-year housing element planning period pursuant to
Section 65588, shall be completed no later than three years after
either the date the housing element is adopted pursuant to
subdivision (f) of Section 65585 or the date that is 90 days after
receipt of comments from the department pursuant to subdivision
(b) of Section 65585, whichever is earlier, unless the deadline is
extended pursuant to subdivision (f). Notwithstanding the
foregoing, for a local government that fails to adopt a housing
element within 120 days of the statutory deadline in Section 65588
for adoption of the housing element, rezoning of those sites,
including adoption of minimum density and development standards,
shall be completed no later than three years and 120 days from the
statutory deadline in Section 65588 for adoption of the housing
element.

(B) Where the inventory of sites, pursuant to paragraph (3) of
subdivision (a), does not identify adequate sites to accommodate
the need for groups of all household income levels pursuant to
Section 65584, the program shall identify sites that can be
developed for housing within the planning period pursuant to
subdivision (h) of Section 65583.2. The identification of sites shall
include all components specified in subdivision (b) of Section
65583.2.

(C) Where the inventory of sites pursuant to paragraph (3) of
subdivision (a) does not identify adequate sites to accommodate
the need for farmworker housing, the program shall provide for
sufficient sites to meet the need with zoning that permits
farmworker housing use by right, including density and
development standards that could accommodate and facilitate the
feasibility of the development of farmworker housing for low- and
very low income households.

(2) Assist in the development of adequate housing to meet the
needs of extremely low, very low, low-, and moderate-income
households.

(3) Address and, where appropriate and legally possible, remove
governmental constraints to the maintenance, improvement, and
development of housing, including housing for all income levels
and housing for persons with disabilities. The program shall remove
constraints to, and provide reasonable accommodations for housing
designed for, intended for occupancy by, or with supportive
services for, persons with disabilities.

(4) Conserve and improve the condition of the existing
affordable housing stock, which may include addressing ways to
mitigate the loss of dwelling units demolished by public or private
action.

(5) Promote housing opportunities for all persons regardless of
race, religion, sex, marital status, ancestry, national origin, color,
familial status, or disability.

(6) Preserve for lower income households the assisted housing
developments identified pursuant to paragraph (9) of subdivision
(a). The program for preservation of the assisted housing
developments shall utilize, to the extent necessary, all available
federal, state, and local financing and subsidy programs identified
in paragraph (9) of subdivision (a), except where a community has
other urgent needs for which alternative funding sources are not
available. The program may include strategies that involve local
regulation and technical assistance.

(7)  Include an identification of the agencies and officials
responsible for the implementation of the various actions and the
means by which consistency will be achieved with other general
plan elements and community goals.

(8) Include a diligent effort by the local government to achieve
public participation of all economic segments of the community
in the development of the housing element, and the program shall
describe this effort.

(d) (1) A local government may satisfy all or part of its
requirement to identify a zone or zones suitable for the
development of emergency shelters pursuant to paragraph (4) of
subdivision (a) by adopting and implementing a multijurisdictional
agreement, with a maximum of two other adjacent communities,
that requires the participating jurisdictions to develop at least one
year-round emergency shelter within two years of the beginning
of the planning period.

(2) The agreement shall allocate a portion of the new shelter
capacity to each jurisdiction as credit towards its emergency shelter
need, and each jurisdiction shall describe how the capacity was
allocated as part of its housing element.

(3) Each member jurisdiction of a multijurisdictional agreement
shall describe in its housing element all of the following:

(A) How the joint facility will meet the jurisdiction’s emergency
shelter need.

(B) The jurisdiction’s contribution to the facility for both the
development and ongoing operation and management of the
facility.

(C) The amount and source of the funding that the jurisdiction
contributes to the facility.

(4) The aggregate capacity claimed by the participating
jurisdictions in their housing elements shall not exceed the actual
capacity of the shelter.

(e) Except as otherwise provided in this article, amendments to
this article that alter the required content of a housing element
shall apply to both of the following:

(1) A housing element or housing element amendment prepared
pursuant to subdivision (e) of Section 65588 or Section 65584.02,
when a city, county, or city and county submits a draft to the
department for review pursuant to Section 65585 more than 90
days after the effective date of the amendment to this section.

(2) Any housing element or housing element amendment
prepared pursuant to subdivision (e) of Section 65588 or Section
65584.02, when the city, county, or city and county fails to submit
the first draft to the department before the due date specified in
Section 65588 or 65584.02.

(f) The deadline for completing required rezoning pursuant to
subparagraph (A) of paragraph (1) of subdivision (c) shall be
extended by one year if the local government has completed the
rezoning at densities sufficient to accommodate at least 75 percent
of the units for low- and very low income households and if the
legislative body at the conclusion of a public hearing determines,
based upon substantial evidence, that any of the following
circumstances exist:

(1) The local government has been unable to complete the
rezoning due to the action or inaction beyond the control of the
local government of any other state, federal, or local agency.

(2) The local government is unable to complete the rezoning
because of infrastructure deficiencies due to fiscal or regulatory
constraints.

(3) The local government must undertake a major revision to
its general plan in order to accommodate the housing-related
policies of a sustainable communities strategy or an alternative
planning strategy adopted pursuant to Section 65080.

The resolution and the findings shall be transmitted to the
department together with a detailed budget and schedule for
preparation and adoption of the required rezonings, including plans
for citizen participation and expected interim action. The schedule
shall provide for adoption of the required rezoning within one year
of the adoption of the resolution.

(g) (1) If a local government fails to complete the rezoning by
the deadline provided in subparagraph (A) of paragraph (1) of
subdivision (c), as it may be extended pursuant to subdivision (f),
except as provided in paragraph (2), a local government may not
disapprove a housing development project, nor require a
conditional use permit, planned unit development permit, or other
locally imposed discretionary permit, or impose a condition that
would render the project infeasible, if the housing development
project (A) is proposed to be located on a site required to be
rezoned pursuant to the program action required by that
subparagraph and (B) complies with applicable, objective general
plan and zoning standards and criteria, including design review
standards, described in the program action required by that
subparagraph. A subdivision of sites shall be subject to the
Subdivision Map Act (Division 2 (commencing with Section
66410)). Design review shall not constitute a “project” for purposes
of Division 13 (commencing with Section 21000) of the Public
Resources Code.

(2) A local government may disapprove a housing development
described in paragraph (1) if it makes written findings supported
by substantial evidence on the record that both of the following
conditions exist:

(A) The housing development project would have a specific,
adverse impact upon the public health or safety unless the project
is disapproved or approved upon the condition that the project be
developed at a lower density. As used in this paragraph, a “specific,
adverse impact” means a significant, quantifiable, direct, and
unavoidable impact, based on objective, identified written public
health or safety standards, policies, or conditions as they existed
on the date the application was deemed complete.

(B) There is no feasible method to satisfactorily mitigate or
avoid the adverse impact identified pursuant to paragraph (1), other
than the disapproval of the housing development project or the
approval of the project upon the condition that it be developed at
a lower density.

(3) The applicant or any interested person may bring an action
to enforce this subdivision. If a court finds that the local agency
disapproved a project or conditioned its approval in violation of
this subdivision, the court shall issue an order or judgment
compelling compliance within 60 days. The court shall retain
jurisdiction to ensure that its order or judgment is carried out. If
the court determines that its order or judgment has not been carried
out within 60 days, the court may issue further orders to ensure
that the purposes and policies of this subdivision are fulfilled. In
any such action, the city, county, or city and county shall bear the
burden of proof.

(4) For purposes of this subdivision, “housing development
project” means a project to construct residential units for which
the project developer provides sufficient legal commitments to the
appropriate local agency to ensure the continued availability and
use of at least 49 percent of the housing units for very low, low-,
and moderate-income households with an affordable housing cost
or affordable rent, as defined in Section 50052.5 or 50053 of the
Health and Safety Code, respectively, for the period required by
the applicable financing.

(h) An action to enforce the program actions of the housing
element shall be brought pursuant to Section 1085 of the Code of
Civil Procedure.

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