HomeMy WebLinkAboutOctober 4, 2016 AgendaOctober 4, 2016 Dublin City Council Agenda Page 1 of 4
REGULAR MEETING
Tuesday, October 4, 2016
Council Chamber, 100 Civic Plaza
DUBLIN CITY COUNCIL
A G E N D A
Agendas and Staff Reports are posted on the City’s Internet Website (www.dublin.ca.gov)
Agendas may be picked up at the City Clerk’s Office for no charge, or to request information on being placed on
the annual subscription list, please call 833-6650.
A complete packet of information containing Staff Reports and exhibits relate to each item is available of public
review at least 72 hours prior to a City Council Meeting or, in the event that it is delivered to City Council
members less than 72 hours prior to a City Council Meeting, as soon as it is so delivered. The packet is
available in the City Clerk’s Office and also at the Dublin Library.
REGULAR MEETING 7:00 PM
1. CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. ORAL COMMUNICATIONS
3.1. Employee Introductions: Elizabeth Elliott and Amy Million
New members of City Staff will be introduced: Elizabeth Elliott, Recreation Coordinator in
Parks and Community Services, and Amy Million, Principal Planner in Community
Development.
STAFF RECOMMENDATION:
Staff recommends that the City Council welcome City of Dublin Staff members.
3.2. Fire Prevention Week Proclamation
The City Council will proclaim October 9-15, 2016 as Fire Prevention Week. Established
by the National Fire Protection Association, the annual Fire Prevention Week campaign
began in 1922 as a commemoration of the Great Chicago Fire and as a way to annually
emphasize the need for fire safety through out Communities.
STAFF RECOMMENDATION:
Staff recommends that the City Council present the proclamation.
3.3. Public Comment
At this time, the public is permitted to address the City Council on non-agendized items. Please step to the podium and
clearly state your name for the record. COMMENTS SHOULD NOT EXCEED THREE (3) MINUTES. In accordance with
State Law, no action or discussion may take place on any item not appearing on the posted agenda. The Council may
respond to statements made or questions asked, or may request Staff to report back at a future meeting concerning the
matter. Any member of the public may contact the City Clerk’s Office related to the proper procedure to place an item on a
future City Council agenda. The exceptions under which the City Council MAY discuss and/or take action on items not
appearing on the agenda are contained in Government Code Section 54954.2(b)(1)(2)(3).
4. CONSENT CALENDAR
Consent Calendar items are typically non-controversial in nature and are considered for approval by the City Council with
one single action. Members of the audience, Staff or the City Council who would like an item removed from the Consent
Calendar for purposes of public input may request the Mayor to remove the item.
4.1. Minutes of the September 20, 2016 Regular City Council Meeting
The City Council will consider approval of the minutes of the September 20, 2016 Regular
City Council meeting.
October 4, 2016 Dublin City Council Agenda Page 2 of 4
STAFF RECOMMENDATION:
Staff recommends that the City Council approve the minutes of the September 20, 2016
Regular City Council meeting.
4.2. TV30 Supplemental Capital Appropriation
The Tri-Valley Community Television Corporation (TV30) has requested an additional
appropriation of funds for capital equipment acquisition to replace end-of-life hardware
necessary due to the inability to upgrade software; and compliance and emergency hardware.
STAFF RECOMMENDATION:
Staff recommends that the City Council approve a budget change in the amount of $31,106
for additional TV30 capital expenses.
4.3. Authorization to Purchase Electronic Locker Systems for the Emerald Glen Recreation
& Aquatic Complex Project (CIP No. PK0105)
The City Council will consider the direct purchase of electronic locker systems for the
Emerald Glen Recreation & Aquatic Complex Project (CIP No. PK0105). The locker
systems were included in the construction documents for the project but Staff is
recommending procuring them directly from the vendor.
STAFF RECOMMENDATION:
Staff recommends that the City Council authorize the purchase of the electronic locker
systems and accompanying license and maintenance agreement for the Emerald Glen
Recreation & Aquatic Complex Project (CIP No. PK0105).
4.4. Kaiser Dublin Medical Center Project
On September 20, 2016, the City Council approved the Kaiser Dublin Medical Center
project, which is comprised of 950,000 square feet of medical campus uses in three main
buildings, 250,000 square feet of commercial uses, a parking structure, and associated site,
roadway frontage, and landscape improvements. The land use approvals included a General
Plan Amendment and Eastern Dublin Specific Plan Amendment to create new land use
districts, Site Development Review for the first phase of development (a 220,000 square foot
medical office building), and certification of a Final Environmental Impact Report (EIR). In
addition, two ordinances were introduced, one amending the Zoning Map and approving a
Planned Development Zoning District with a related Stage 1 Development Plan for the whole
Kaiser Dublin Medical Center project site and a Stage 2 Development Plan for Phase 1A, and
one approving a Development Agreement between the City of Dublin and Kaiser Foundation
Hospitals related to the Kaiser Dublin Medical Center project. The City Council is currently
considering adoption of the two ordinances.
STAFF RECOMMENDATION:
Staff recommends that the City Council waive the reading and adopt the following two
Ordinances:
a) Amending the Zoning Map and approving a Planned Development Zoning District with a
related Stage 1 Development Plan for the whole Kaiser Dublin Medical Center project
site and a Stage 2 Development Plan for Phase 1A; and
b) Approving a Development Agreement between the City of Dublin and Kaiser Foundation
Hospitals related to the Kaiser Dublin Medical Center project.
4.5. Crossing Guard Budget Increase
The City Council will consider an amendment to Resolution No. 112-16, increasing the
City's budget for crossing guard services as a result of a request by Dublin Unified School
District to add a second crossing guard at Frederiksen Elementary. The District will be
covering the cost associated with the additional crossing guard.
STAFF RECOMMENDATION:
October 4, 2016 Dublin City Council Agenda Page 3 of 4
Staff recommends that the City Council adopt the Resolution Amending Resolution No.
112-16 to increase the budget for crossing guard services for Fiscal Year 2016-17.
5. WRITTEN COMMUNICATION - NONE.
6. PUBLIC HEARING
6.1. Amendments to Chapters 5.58, 8.08 and 8.12 of the Dublin Municipal Code Related to
Non-Medical Marijuana Deliveries, Businesses and Cultivation, and to Medical
Marijuana Businesses
The Control, Regulate and Tax Adult Use of Marijuana Act will be on the November 2016
ballot as Proposition 64 (“Prop. 64”). Prop. 64 would authorize a person 21 years of age or
older to possess and use marijuana and to cultivate up to six living marijuana plants at a
private residence. It allows cities and counties to prohibit marijuana businesses and outdoor
cultivation and to regulate (but not prohibit) indoor cultivation of six or fewer plants.
In order to preserve the City Council's discretion to regulate non-medical marijuana to the
greatest extent possible, the proposed ordinance would, if Prop. 64 passes, prohibit non-
medical marijuana businesses and deliveries within the City of Dublin and would prohibit the
outdoor cultivation of non-medical marijuana. The proposed ordinance would also regulate
the indoor cultivation of up to six marijuana plants inside a private residence or accessory
structure. The City would retain the authority to amend the Municipal Code’s provisions
regarding marijuana in the future as the industry develops.
STAFF RECOMMENDATION:
Staff recommends that the City Council conduct the public hearing, deliberate, and adopt an
Ordinance Amending Chapters 5.58, 8.08 and 8.12 of the Dublin Municipal Code relating to
Non-Medical Marijuana Deliveries, Businesses and Cultivation and to Medical Marijuana
Businesses.
7. UNFINISHED BUSINESS - NONE.
8. NEW BUSINESS
8.1. Plan Bay Area 2040 Draft Preferred Scenario
Plan Bay Area (formerly referred to as the Sustainable Communities Strategy) is a regional
planning effort led by the Association of Bay Area Governments (ABAG) and the
Metropolitan Transportation Commission (MTC). Plan Bay Area was first prepared 2013 in
response to Senate Bill 375, California’s 2008 climate law, and must be updated every four
years. The document is intended to provide a roadmap to help Bay Area cities and counties
plan for and accommodate regional jobs and housing growth while reducing greenhouse gas
emissions. The original Plan Bay Area 2013 was jointly adopted by ABAG and MTC in
2013. ABAG and MTC are currently preparing the first strategic update which is known as
Plan Bay Area 2040. They have released the Draft Preferred Scenario and corresponding
transportation investment strategy, which represents a regional pattern of household and
employment growth by the year 2040.
STAFF RECOMMENDATION:
Staff recommends that the City Council receive Staff’s presentation and provide direction as
appropriate.
8.2. Information on California State Ballot Proposition 57, "The Public Safety and
Rehabilitation Act of 2016"
October 4, 2016 Dublin City Council Agenda Page 4 of 4
The City Council will receive information on California State Ballot Proposition 57, “The
Public Safety and Rehabilitation Act of 2016,” and will consider whether to support, oppose
or maintain a neutral position on the Proposition.
STAFF RECOMMENDATION:
Staff recommends the City Council receive the report and, if desired, provide policy direction
concerning the California State Ballot Proposition 57, “The Public Safety and Rehabilitation
Act of 2016.”
9. OTHER BUSINESS
10. ADJOURNMENT
This AGENDA is posted in accordance with Government Code Section 54954.2(a)
If requested, pursuant to Government Code Section 54953.2, this agenda shall be made available in appropriate
alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of
1990 (42 U.S.C. Section 12132), and the federal rules and regulations adopted in implementation thereof. To make
a request for disability-related modification or accommodation, please contact the City Clerk’s Office (925) 833-
6650 at least 72 hours in advance of the meeting.
Mission
The City of Dublin promotes and supports a high quality of life, ensures a safe and secure environment, and fosters
new opportunities.
Vision
Dublin is a vibrant city committed to its citizens, natural resources and cultural heritage. As Dublin grows, it will
balance history with progress, to sustain an enlightened, economically balanced and diverse community.
Dublin is unified in its belief that an engaged and informed community encourages innovation in all aspects of City
life, including programs to strengthen our economic vitality, and preserve our natural surroundings through
environmental stewardship and sustainability. Dublin is dedicated to promoting an active and healthy lifestyle
through the creation of first-class recreational opportunities, facilities and programs.
Page 1 of 1
STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Employee Introductions: Elizabeth Elliott and Amy Million
Prepared by: Caroline P. Soto, City Clerk
EXECUTIVE SUMMARY:
New members of City Staff will be introduced: Elizabeth Elliott, Recreation Coordinator
in Parks and Community Services, and Amy Million, Principal Planner in Community
Development.
STAFF RECOMMENDATION:
Staff recommends that the City Council welcome City of Dublin Staff members.
FINANCIAL IMPACT:
None.
DESCRIPTION:
New members of City Staff will be introduced: Elizabeth Elliott, Recreation Coordinator
in Parks and Community Services and Amy Million, Principal Planner in Community
Development.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
3.1
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Page 1 of 2
STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Fire Prevention Week Proclamation
Prepared by: Bonnie S. Terra, Division Chief/Fire Marshal
EXECUTIVE SUMMARY:
The City Council will proclaim October 9-15, 2016 as Fire Prevention Week.
Established by the National Fire Protection Association, the annual Fire Prevention
Week campaign began in 1922 as a commemoration of the Great Chicago Fire and as
a way to annually emphasize the need for fire safety through out Communities.
STAFF RECOMMENDATION:
Staff recommends that the City Council present the proclamation.
FINANCIAL IMPACT:
None.
DESCRIPTION:
In 1920, President Woodrow Wilson issued the first National Fire Prevention Day
proclamation, and since 1922, Fire Prevention Week has been observed on the Sunday
through Saturday period in which October 9 falls.
Each year a theme is established. The theme for 2016, "Don't Wait - Check the Date!
Replace Smoke Alarms Every 10 years", effectively serves to educate the public about
the vital importance of replacing the smoke alarms in their homes at least every ten
years, and to determine the age of their smoke alarms by checking the date of
manufacture on the back of the alarms.
During the week of October 9-15, 2016, the City is asking residents to check detectors
and replace those with dates of manufacture prior to October 9, 2006.
3.2
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Page 2 of 2
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
None
3.2
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1449.txt
None.
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STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Minutes of the September 20, 2016 Regular City Council Meeting
Prepared by: Caroline P. Soto, City Clerk
EXECUTIVE SUMMARY:
The City Council will consider approval of the minutes of the September 20, 2016
Regular City Council meeting.
STAFF RECOMMENDATION:
Staff recommends that the City Council approve the minutes of the September 20, 2016
Regular City Council meeting.
FINANCIAL IMPACT:
None.
DESCRIPTION:
The City Council will consider approval of the minutes of the September 20, 2016
Regular City Council meeting.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
September 20, 2016 Minutes 2
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MINUTES OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
REGULAR MEETING – SEPTEMBER 20, 2016
DUBLIN CITY COUNCIL MINUTES 1
REGULAR MEETING
SEPTEMBER 20, 2016
A Regular Meeting of the Dublin City Council was held on Tuesday, September 20,
2016, in the City Council Chamber. The meeting was called to order at 7:02 p.m., by
Mayor Haubert.
1. CALL TO ORDER
Attendee Name Title Status Arrived
David Haubert Mayor Present
Abe Gupta Vice Mayor Present
Kevin Hart Councilmember Late 7:52 PM
Don Biddle Councilmember Present
Doreen Wehrenberg Councilmember Present
2. PLEDGE OF ALLEGIANCE
3. ORAL COMMUNICATIONS
3.1. INTRODUCTION OF COMMANDER OF CAMP PARKS, LTC GERALD J.
HALL
The City Council welcomed the new Commander of Camp Parks, Lieutenant
Colonel Gerald J. Hall.
3.2. INFORMATIONAL PRESENTATION ON THE ALAMEDA COUNTY GENERAL
OBLIGATION BOND FOR AFFORDABLE HOUSING
The City Council accepted the presentation.
Diane Luther, EHA Housing, provided public comment on this item.
3.3. PUBLIC COMMENT (Due to administrative issues, we apologize if your name is spelled
incorrectly.)
Dan Cunningham, Dublin resident, provided public comment.
Chris Manios, Dublin resident, provided public comment.
Tiffany Wong, Dublin resident, provided public comment.
Hitendra Mishra, Dublin resident, provided public comment.
4.1.a
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DUBLIN CITY COUNCIL MINUTES 2
REGULAR MEETING
SEPTEMBER 20, 2016
Sheila Gundi, Dublin resident, provided public comment.
Marlene Hutchison, Dublin resident, provided public comment.
Mike Grant, Dublin resident, provided public comment.
4. CONSENT CALENDAR
RESULT: ADOPTED [UNANIMOUS]
MOVER: Abe Gupta, Vice Mayor
SECONDER: Don Biddle, Councilmember
AYES: Haubert, Gupta, Biddle, Wehrenberg
ABSENT: Kevin Hart, Councilmember
4.1. Approved the minutes of the September 6, 2016 Regular City Council meeting.
4.2. Adopted
RESOLUTION NO. 148 - 16
FINDING THAT THE DEVELOPERS HAVING OBLIGATIONS UNDER THE
FOLLOWING DEVELOPMENT AGREEMENTS AND SUPPLEMENTAL
AGREEMENTS AS AMENDED, HAVE COMPLIED IN GOOD FAITH WITH THE
TERMS AND PROVISIONS OF THE AGREEMENTS FOR THE FOLLOWING
PROJECTS: BRANNIGAN PROJECT, DUBLIN CROSSINGS (BOULEVARD),
DUBLIN GATEWAY MEDICAL, DUBLIN RANCH MASTER AGREEMENT
(AREAS A-H), DUBLIN RANCH SUBAREA 3 (IRONGATE), DUBLIN RANCH
WEST (WALLIS RANCH), DUBLIN TRANSIT CENTER MASTER AGREEMENT,
DUBLIN TRANSIT CENTER E-1 (ESPRIT), HERITAGE PARK, JORDAN
RANCH, MOLLER RANCH, SCHAEFER RANCH SOUTH, AND SORRENTO
EAST, AND CONCLUDE THE DEVELOPMENT AGREEMENT ANNUAL
REVIEW FOR 2016
4.3. Received the Payment Issuance Report and Electronic Funds Transfers report.
4.4. Adopted
RESOLUTION NO. 149 – 16
APPROVING AN AMENDMENT TO THE CONSULTING SERVICES AGREEMENT
WITH SWATT I MIERS ARCHITECTS FOR DESIGN SERVICES FOR THE CITY
COUNCIL CHAMBER RENOVATION
4.5. Proclaimed the week of October 3rd through October 7th as “Walk and Roll to
School Week” in the City of Dublin
4.1.a
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DUBLIN CITY COUNCIL MINUTES 3
REGULAR MEETING
SEPTEMBER 20, 2016
4.6. Adopted
RESOLUTION NO. 154 - 16
APPROVING AN AMENDMENT TO THE CONSULTING SERVICES
AGREEMENT WITH SMARTWAVE TECHNOLOGIES, LLC
and approved the budget change.
4.7. Waived the reading and INTRODUCED an Ordinance of the City of Dublin
Amending Chapters 5.58, 8.08 and 8.12 of the Dublin Municipal Code relating to
Non-Medical Marijuana Deliveries, Businesses and Cultivation and to Medical
Marijuana Businesses.
4.8. Adopted
RESOLUTION NO. 150 - 16
AMENDING THE PUBLIC ART AGREEMENT BETWEEN THE CITY OF DUBLIN AND
TODJI KURTZMAN
and approved the budget change.
5. WRITTEN COMMUNICATION – NONE.
6. PUBLIC HEARING
6.1. KAISER DUBLIN MEDICAL CENTER PROJECT
Cm. Wehrenberg recused herself from this item as she is an employee of Kaiser.
She left the dais and the Council Chamber.
Vm. Gupta recused himself from this item as he owns property within 500 feet of
the subject project. He left the dais but remained in the Council Chamber as a
member of the public.
RESULT: ADOPTED [3 TO 0]
MOVER: Kevin Hart, Councilmember
SECONDER: Don Biddle, Councilmember
AYES: Haubert, Hart, Biddle
RECUSED: Gupta, Wehrenberg
4.1.a
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DUBLIN CITY COUNCIL MINUTES 4
REGULAR MEETING
SEPTEMBER 20, 2016
RESOLUTION NO. 151 – 16
AMENDING THE GENERAL PLAN AND THE EASTERN DUBLIN
SPECIFIC PLAN RELATED TO THE KAISER DUBLIN MEDICAL
CENTER PROJECT PA 08-50 AND PLPA 2016-00007 (APNS 985-
0061-005-00 AND 985-0027-009-02)
RESOLUTION NO. 152 – 16
APPROVING A SITE DEVELOPMENT REVIEW PERMIT FOR PHASE 1A OF
THE KAISER DUBLIN MEDICAL CENTER PROJECT PA 08-50 and PLPA 2016-
00007 (APNS 985-0061-005-00 AND 985-0027-009-02)
RESOLUTION NO. 153 – 16
CERTIFYING AN ENVIRONMENTAL IMPACT REPORT, ADOPTING
ENVIRONMENTAL FINDINGS, A STATEMENT OF OVERRIDING
CONSIDERATIONS AND A MITIGATION MONITORING AND REPORTING
PROGRAM UNDER CEQA FOR THE KAISER DUBLIN MEDICAL CENTER
PROJECT PA 08-50 AND PLPA 2016-00007 (APNS 985-0061-005-00
AND 985-0027-009-02)
And waived the readings, and INTRODUCED the following Ordinances:
1) Amending the Zoning Map and Approving a Planned Development Zoning District
with a related Stage 1 Development Plan for the Whole Project Site and a Stage 2
Development Plan for Phase 1A of the Kaiser Dublin Medical Center; and, 2)
Approving a Development Agreement between the City of Dublin and Kaiser
Foundation Hospitals related to the Kaiser Dublin Medical Center project.
7. UNFINISHED BUSINESS
7.1. SEAN DIAMOND PARK - AMENDMENT TO CAPITAL IMPROVEMENT
PROJECT TO ACCELERATE PARK CONSTRUCTION
Catherine McCarthy, Dublin resident, provided public comment on this item.
RESULT: ADOPTED [UNANIMOUS]
MOVER: Don Biddle, Councilmember
SECONDER: Doreen Wehrenberg, Councilmember
AYES: Haubert, Gupta, Hart, Biddle, Wehrenberg
Amended the capital project titled "Sean Diamond Park (PK0216)" to accelerate
the construction of the project from Fiscal Year 2017-18 to this Fiscal Year; and,
approved the budget change.
4.1.a
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DUBLIN CITY COUNCIL MINUTES 5
REGULAR MEETING
SEPTEMBER 20, 2016
8. NEW BUSINESS
8.1. 2016 DECORATE DUBLIN HOLIDAY CONTEST
The City Council accepted the presentation.
RESULT: BY CONSENSUS
8.2. CODE ENFORCEMENT UPDATE
By consensus, the City Council directed Staff to bring back information regarding
best practices in other Cities regarding commercial spaces; include input from
the Chamber of Commerce input.
RESULT: BY CONSENSUS
9. OTHER BUSINESS
By consensus, the City Council requested Staff return with an item regarding
Proposition 57.
10. ADJOURNMENT
The meeting was adjourned at 9:05 p.m.
4.1.a
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STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
TV30 Supplemental Capital Appropriation
Prepared by: Caroline P. Soto, City Clerk/Records Manager
EXECUTIVE SUMMARY:
The Tri-Valley Community Television Corporation (TV30) has requested an additional
appropriation of funds for capital equipment acquisition to replace end-of-life hardware
necessary due to the inability to upgrade software; and compliance and emergency
hardware.
STAFF RECOMMENDATION:
Staff recommends that the City Council approve a budget change in the amount of
$31,106 for additional TV30 capital expenses.
FINANCIAL IMPACT:
TV30 requests that the City provide $31,106 in additional capital funding, which would
come from the City’s Public, Education, and Government (PEG) revenues. The City
has sufficient funds in its PEG revenues to fund this request.
DESCRIPTION:
At the September 15, 2016 Tri-Valley Community Television (TV30) Board of Directors
meeting, the Board of Directors approved an additional capital budget request for
replacement of end-of-life hardware as part of its planned five-year Capital replacement
project. In addition, the request also included compliance and emergency hardware to
be integrated in the project; both of which are beyond the amount included within the
City’s Fiscal Year 2016-2017 Budget. TV30 has $212,174 available, with a total project
cost of $336,600. The current request is for the remaining $124,426, divided amongst
the Tri-Valley Cities of Dublin, Livermore, and Pleasanton, with the City of Dublin
contribution being $31,106 for additional Fiscal Year 2016-2017 TV30 capital
acquisition.
4.2
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TV30 states the equipment is necessary to ensure all upgraded equipment in this
project is compatible. The equipment has over-served its useful life by 50% and now
needs to be replaced. In addition to the equipment to be purchased ($276,754), it was
determined that the Crispin, a master control automation system for multichannel
operation, required a software upgrade to be integrated with the rest of the Capital
project. The cost for the Crispin is $19,862. Additionally, it was recommended to add
equipment that would allow ADA compliance in the future and upgrade emergency
response information capabilities. This equipment, along with a contingency of
$15,000, would be $39,984.
The City of Dublin receives, on a quarterly basis, Public, Education, and Governmental
(PEG) fees from the City’s cable service providers. The City of Dublin Fiscal Year 2016-
2017 revenue estimate projects the City will receive $155,000 in revenue from this
source. As this funding can only be used only for capital acquisition that supports public
cable access facilities, it would be appropriate for the City Council to allocate PEG funds
for this equipment purchase request.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Budget Change Form TV 30
4.2
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Budget Change Reference #:
From Un-Appropriated Reserves X Budget Transfer Between Funds
From Designated Reserves Other
Account Amount Account Amount
2811.7101.64001 $31,106
10/4/2016
Posted By:Date:
CITY OF DUBLIN
Additional appropriation for TV30 Capital replacement project equipment and software upgrades
REASON FOR BUDGET CHANGE
FISCAL YEAR 2016-17
BUDGET CHANGE FORM
DECREASE BUDGET AMOUNT INCREASE BUDGET AMOUNT
Cable TV Facilities Fund - Community TV - Contract ServicesFund - Program - Account Description
City Council's Approval Required
As Presented at the City Council Meeting
**********Finance Use Only**********
C:\Users\carolines\appdata\local\temp\minutetraq\dublinca@dublinca.iqm2.com\work\attachments\1491.xlsx 1491.xlsx
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Page 1 of 2
STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Authorization to Purchase Electronic Locker Systems for the Emerald Glen
Recreation & Aquatic Complex Project (CIP No. PK0105)
Prepared by: Douglas Rooney, Parks and Facilities Development Coordinator
EXECUTIVE SUMMARY:
The City Council will consider the direct purchase of electronic locker systems for the
Emerald Glen Recreation & Aquatic Complex Project (CIP No. PK0105). The locker
systems were included in the construction documents for the project but Staff is
recommending procuring them directly from the vendor.
STAFF RECOMMENDATION:
Staff recommends that the City Council authorize the purchase of the electronic locker
systems and accompanying license and maintenance agreement for the Emerald Glen
Recreation & Aquatic Complex Project (CIP No. PK0105).
FINANCIAL IMPACT:
Funds have been allocated in the existing Project construction budget. The Contractor
will provide a deductive change order to the construction contract which will cover the
cost of the locker purchase.
DESCRIPTION:
While the Emerald Glen Recreation and Aquatic Complex project was in the design
phase, the Parks and Community Services Department determined that one of the
amenities of the new facility should be electronic lockers. This type of locker provides
patrons with convenient storage that can be accessed throughout the day. Working with
the design team, Staff researched and assembled a list of electronic lockers with
features that align with the Department’s operational needs. Staff concluded that the
GoPod system from Best Lockers, LLC was the sole system that met all of the
requirements and could be licensed and maintained on a scale appropriate for the
facility.
The drawings and specifications for the original project bid in December 2014 contained
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Page 2 of 2
electronic lockers from Best Lockers, LLC. The contract for construction was awarded to
C. Overaa & Company in February of 2015. While under construction, Staff was
notified by C. Overaa & Company that they were unable to procure the lockers by the
usual means as the purchase required the buyer to enter into a licensing and
maintenance agreement with Best Lockers, LLC. Staff consulted with the City Attorney
and the City Attorney recommended removing the electronic lockers from the
construction contract and procuring them in a direct purchase from the vendor. C.
Overaa & Company will issue a deductive change order of the construction contract,
which will return monies to the construction contingency and said funds will be used for
the direct purchase of the electronic lockers.
Proposed Expenditures for Electronic Locker Systems:
Equipment purchase (214 lockers and 3 kiosks) $155,012
This is a onetime purchase from the construction budget.
Annual license and maintenance (for 5 years) $12,412 per year
Yearly fee paid from the facility operating budget. (First year free)
Because the GoPod Electronic Locker System from Best Lockers, LLC. is the only
locker system that met all of the operational needs, it qualifies as a sole source
purchase under the City’s Purchasing Ordinance.
A detailed list of equipment and the license and maintenance agreement are included in
Schedule A and Exhibit A within Attachments 1 and 2.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Sale Agreement.
2. License and Maintenance Agreement
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Best Initial ________ 1 Agreement L-15 / 08-05 S
Buyer Initial ________
SALE AGREEMENT
THIS SALE AGREEMENT (the “Agreement”) made and entered into as of this the 4th day of October 2016 (the “Effective Date”), by and between
BEST LOCKERS, LLC, a Delaware limited liability company with its principal place of business at 2126 W. Landstreet Rd., Suite 300, Orlando,
Florida 32809 (“Best”) and City of Dublin, California (“Buyer”), a municipality with its principal place of business at 100 Civic Plaza, Dublin,
California 94568.
1. PURCHASE AND SALE. Best, on the terms and conditions of this Agreement, agrees to sell to Buyer, and Buyer agrees to purchase from
Best, the security lockers (the “Lockers”) and related kiosk(s) and other equipment (the “Kiosks” and, together with the Lockers, the “Equipment”)
described in the order attached to this Agreement as Exhibit A and the additional orders, if any, that the parties execute from time to time (each, an
“Order”). Buyer acknowledges that Buyer, to use the software associated with the Equipment (the “Best Software”) and operate the Equipment, must
enter into and maintain a separate License and Maintenance Agreement (numbered L-15 / 08-05 LM) with Best.
2. DELIVERY; TITLE; RISK OF LOSS; SECURITY INTEREST. Except as otherwise specified by the Order, shipping and delivery of
the Equipment will be on or about February 20, 2017, F.O.B. to the Buyer’s facilities identified by the Order (each, a “Facility”). Title and ownership
to the Equipment will remain in Best until payment is made in full, including any additional charges provided for in this Agreement, and Buyer will
keep in full force fire, theft, and accident insurance for the benefit of both parties from delivery until payment in full is received by Best. Best reserves
a security interest in the Equipment sold as security for performance of the Buyer’s obligations.
3. INSTALLATION AND TRAINING.
3.1. INSTALLATION. Best, subject to Buyer’s performance of its obligations under this Agreement will install the Equipment in the
areas of the Facilities designated by this Agreement (each, a “Location”), in each case substantially on the time schedule specified by the Order. This
Agreement refers to the date on which Best notifies Buyer that installation is complete and the Equipment is ready for use as the “Installation Date.”
3.2. TRAINING. Best will provide to Buyer training for a reasonable number of Buyer’s staff regarding use, maintenance and repair
of the Equipment. The training will be conducted at the Facilities at a mutually agreeable time. Best, as between Best and Buyer, will be responsible
for the travel costs incurred by the trainers, provided, that if the training is rescheduled at Buyer’s request on less than forty-five (45) days’ prior notice
or because Buyer personnel are not available at the agreed time, Best will provide the rescheduled training on a time and materials basis.
4. OBLIGATIONS OF BUYER.
4.1. SITE PREPARATION; UTILITIES. Buyer, prior to the scheduled date for installation of the Equipment, will prepare the
Location for installation of the Equipment. Without limiting the foregoing, Buyer will (i) remove any obstructions interfering with access to the
Location, (ii) provide a flat, true and plumb 4 inch tall raised base on which to install the Locker System being provided, per Best CAD drawings
provided after tech site visit (may be constructed of wood, plastic or concrete so long as the material used in construction provides sufficient load
bearing strength to support the equipment to be installed upon it for the duration of equipment installation), (iii) install or have installed at the Location
the utility and communications connections described by the Order or, in the absence of such a description, appropriate lighting, electric connections,
switches and outlets, and a dedicated broadband Internet connection, and (iv) receive the Locker System components up to three weeks prior to the
installation date and store them in a secure place at the Facilities.
4.2. COOPERATION WITH INSTALLATION AND TRAINING. Buyer, at its option and expense following the Installation Date,
may install such additional facades, framing and other aesthetic improvements as it deems appropriate, provided, that such improvements do not impede
the user or operation of the Equipment.
5. PAYMENT.
5.1. PURCHASE PRICE. Buyer will pay the purchase price and other charges specified by the Order on the schedule specified by
the Order or, if no schedule is specified, within thirty (30) days of Best’s invoice.
5.2. TAXES. All prices are exclusive of all sales taxes, use taxes, value added taxes and any other similar taxes imposed by any federal,
state, provincial or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon Best’s net income.
When Best has the legal obligation to pay or collect such taxes, the amount shall be invoiced to and paid by Buyer unless Buyer provides Best with a
valid tax exemption certificate authorized by the appropriate taxing identity.
5.3. LATE FEES. If Buyer fails to pay any amount within fifteen (15) days following the due date, Best may impose a late fee of one
and one-half percent (1.5%) for each month or part thereof the amount remains past due.
6. WARRANTY, DISCLAIMER. Best represents and warrants that (i) it owns or has sufficient rights in the Equipment to enter into and
perform this Agreement, (ii) the Equipment, as of the date delivered to Buyer and for a period of one year thereafter, will be free of material defects in
workmanship, and (iii) Best’s installation services provided will be of workmanlike quality and performed in workmanlike manner. The warranties
set forth in subparagraphs (ii) and (iii) are conditioned on Buyer (a) keeping the Equipment (including the bill acceptors and card readers) clean, under
cover and otherwise protected from wind, rain, snow, sand, excessive temperatures and other adverse environmental conditions, (b) keeping each
Location and surrounding areas reasonably safe from theft, vandalism, fire and water hazards, and other dangers to persons or property, (c) not power
washing the Location(s) or applying water or other liquids to the Location or Equipment beyond the minimum amounts necessary or appropriate for
cleaning purposes; (d) not removing, disconnecting or transporting the Equipment from the Location, (e) not exposing the Equipment to unusual
vibrations or other similar stresses, or (f) not permitting any third party to do the foregoing, in each case other than as Best may expressly authorize in
advance. If Buyer notifies Best of a breach of the foregoing warranty within the warranty period, and Buyer has met the conditions set forth in in this
section, Best will repair, replace or re-perform the defective Equipment, Best Software or services or, if Best determines the foregoing remedies are
not commercially practicable, Best will accept return of the affected Equipment and refund Buyer’s purchase price therefor. THE FOREGOING
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, AND BEST HEREBY
DISCLAIMS ALL OTHER WARRANTIES TO BUYER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE
EQUIPMENT AND ANY COMPONENTS THEREOF, AND WITH RESPECT TO ANY SERVICES HEREUNDER, INCLUDING BUT NOT
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Best Initial ________ 2 Agreement L-15 / 08-05 S
Buyer Initial ________
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE,
AND IMPLIED WARRANTIES OF NONINFRINGEMENT.
7. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY OBLIGATION OR LIABILITY
TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE
OTHER PARTY (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS OR DAMAGES TO BUSINESS REPUTATION),
REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT A PARTY WAS ADVISED SUCH
DAMAGES MIGHT ARISE. IN NO EVENT SHALL BEST BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY DAMAGES, DIRECT
OR OTHERWISE, IN EXCESS OF THE AMOUNTS PAID BY BUYER TO BEST FOR THE EQUIPMENT OR SERVICES GIVING RISE TO
THE DAMAGES, PRORATED OVER A PERIOD OF FIVE (5) YEARS FROM THE DATE SUCH EQUIPMENT IS DELIVERED. THIS
LIMITATION IS CUMULATIVE; THE SUM OF MULTIPLE CLAIMS MAY NOT EXCEED THIS LIMIT. THE PROVISIONS OF THIS
SECTION WILL APPLY IF LOSS, DAMAGE OR INJURY, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY
TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS AGREEMENT OR
FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF BEST, ITS AGENTS OR EMPLOYEES. BUYER WAIVES ALL OTHER REMEDIES
THAT MIGHT OTHERWISE BE AVAILABLE UNDER THE LAWS OF ANY JURISDICTION. BECAUSE SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
LIMITATION MAY NOT APPLY TO BUYER. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. RETURNS. Best will not be required to accept return of any Equipment or Best Software properly delivered under this Agreement. If Best,
in its sole discretion, accepts return of Equipment or Best Software, and the Equipment is returned in its original packaging in saleable condition, Best
will credit Buyer for the purchase price (excluding shipping and related delivery charges) net of a restocking and write-down fee equal to 20% of the
original purchase price for the Equipment and Best Software. Buyer will not incur a restocking and write-down fee for any returns made under Section
6 of this Agreement.
9. RELATIONSHIP OF PARTIES. In making and performing this Agreement, the parties act and shall act as independent contractors, and
nothing contained shall be construed or implied to create an agency, association, partnership or joint venture between the parties. At no time shall
either party make commitments or incur any charges or expenses for or in the name of the other party.
10. APPLICABLE LAW, JURISDICTION, AND ATTORNEY’S FEES. This Agreement shall be construed under the laws of the State of
Florida. Exclusive jurisdiction and venue in any action related to or arising from this Agreement shall be in state or federal courts sitting in Orange
County, Florida, and the parties waive any right to a jury trial in any such matter. Buyer shall reimburse Best for any attorney’s fees, costs, and
collection agency fees, incurred by Best to obtain compliance with this Agreement and, in any action to enforce this Agreement, including post judgment
and appellate proceedings, the prevailing party shall recover its reasonable attorney’s fees and costs.
11. ENTIRE AGREEMENT. This Agreement (including the exhibits hereto) constitutes the entire Agreement of the parties and may not be
modified except by a written document duly executed by the parties. Buyer certifies and warrants that Buyer has not relied upon any statements
purporting to modify or which are otherwise inconsistent with or in addition to the written terms of this Agreement.
12. WAIVER AND AMENDMENT. This Agreement may not be amended, modified, superseded, canceled, renewed or extended, and the
terms and conditions may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance.
The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
13. CAPTIONS FOR CONVENIENCE ONLY. Captions are for convenience only and do not constitute part of this contract. No party will
acquire any rights or defenses based upon the failure of any caption to adequately or fully describe the contents.
14. NOTICE. Any notice made under this Agreement shall be given by certified or registered first class mail at the parties’ respective addresses
set out above or at such alternative address as the parties may designate in writing. Notice shall be deemed given upon receipt.
15. INVALIDITY OF CONTRACT PROVISION. If a court shall hold invalid or unenforceable any portion of this Agreement, such a holding
shall not affect or invalidate the entire Agreement or other portions.
16. NO OTHER BENEFICIARIES. This Agreement is being made and entered into solely for the benefit of the parties hereto, and no party
intends to create any rights in favor of any other person as a third party beneficiary of this Agreement or otherwise.
17. COUNTERPARTS; ELECTRONIC COPIES. This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute the same instrument. A party’s execution or delivery of this Agreement by electronic mail or other
electronic means shall bind on such party as had such party executed this Agreement in writing.
18. AUTHORITY TO EXECUTE CONTRACT.
18.1. The individual executing this Agreement represents and warrants he or she has the authority to execute this Agreement on behalf
of Buyer and that the identifying information regarding Buyer set out in this Agreement correctly identifies the owner of the Facilities.
18.2. Buyer represents and warrants that (i) it has the corporate power and authority to execute and deliver this Agreement, to perform
its obligations, and (ii) its execution and delivery of this Agreement, the performance of each of its obligations have been duly authorized by all requisite
corporate action of the party, and do not and will not result in a violation or breach of or default under (with or without giving notice or the lapse of
time or both), any provision of its articles of incorporation or formation, bylaws, operating agreement or other organization documents, or any contract
or any other agreement or instrument to which any of it is a party or by which any of their respective properties or assets may be bound.
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Best Initial ________ 3 Agreement L-15 / 08-05 S
Buyer Initial ________
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective authorized representatives as of the Effective
Date.
CITY OF DUBLIN, CALIFORNIA
By: _____________________________________________
Name: _________________________________________
Title: _________________________________________
Date: _________________________________________
BEST LOCKERS, LLC
By: __________________________________________
Name: ______________________________________
Title: ______________________________________
Date: _______________________________________
4.3.a
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Best Initial ________ 4 Agreement L-15 / 08-05 S
Buyer Initial ________
EXHIBIT A
ORDER
GoPod™ Electronic Locker System Description
Product Cabinet Material Cabinet Dimension Openings/Cabinet Locker Dimension
Locker-5T Steel 24”w x 74”h x 18”d 10/1 12”w x 14”h x 18”d
Locker-4T Steel 30”w x 74”h x 18”d 8/1 12”w x 18”h x 18”d
Kiosk** Metal-powder coat 20”w x 60”h x 24”d N/A N/A
**includes credit card acceptor, bill acceptor & recycler (change maker) & hardwire LAN connection
GoPod™ Electronic Locker System Purchase
Property Name Locker
5T
(Steel)
Locker
4T
(Steel)
Locker
3T
(Steel)
Kiosk
System Price Estimated Delivery Date
Wave @ Emerald
Glen
110 104 3 $155.012 February 20, 2017
Annual License &
Maintenance Fee
$12,412 Years 2-5 (2018 – 2022)
System Price includes equipment (defined above), freight to project site and installation at project site. Tax not included. Payment for
Equipment is due as follows: 20% of the Equipment purchase price upon execution of the Agreement which will cover design fees
and initial site visits, 80% (which constitutes the total balance due) shall be paid on the day of delivery by Best Lockers.
To be agreed upon between Best Lockers and City of Dublin, California. 5 Year License and Maintenance Agreement to cover
software license and parts required due to normal wear and tear:
Software License Fee License Plan
Software License
$58.00/locker/year for a total of $12,412 annually (Payable
annually years 2 through 5 prior to the anniversary date of
final equipment installation.)
Service and Maintenance Service Plan
Annual Fee (per opening) Included above
Annual Fee (per kiosk) Included above
Annual Site Visit 2 included*
Phone Support/hour** Included
Parts required due to normal wear and tear No Charge
Freight (parts) Standard Delivery
Fees above and beyond the two site visits:
On-site Daily Charge (after 2 included site visits) $415.00
On-Site Travel Rate $59.00/hour
Buyer Obligations:
Site Preparation by Buyer (Describe):
o Internet Connection: Required at each kiosk per layout drawing (attached)
o Utilities: Required at each kiosk per layout drawing
o Credit Card Processing:
GoPod™ Kiosk requires a Payment Process Inc. (PPI) account to process credit card transactions.
Owner to set up their own account; Phone 510.795.3642 (www.paypros.com).
o Support Bases:
Recommended that Buyer builds a 2-4” high base to set the lockers on a level surface.
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Best Initial ________ 1 Agreement L-15 / 08-05 LM
Buyer Initial ________
LICENSE AND MAINTENANCE AGREEMENT
THIS SALE AGREEMENT (the “Agreement”) made and entered into as of this 4th day of October, 2016 (the “Effective Date”), by and between BEST
LOCKERS, LLC, a Delaware limited liability company with its principal place of business at 2126 W. Landstreet Rd., Suite 300, Orlando, Florida
32809 (“Best”) and City of Dublin, California (“Buyer”), a municipality with its principal place of business at 100 Civic Plaza, Dublin, California
94568.
Buyer and Best are parties to a Sale Agreement and one or more Orders (as define by the Sale Agreement) under which Buyer has purchased, or has
agreed to purchase, security locker components together with one or more kiosks and other equipment (collectively, the “Equipment”) for installation
at the facilities and locations specified by the Orders (respectively, the “Facilities” and “Locations”). Buyer, on the terms and conditions of this
Agreement, wishes to license certain related Best proprietary software (the “Best Software”) for installation and use with the Equipment, and to retain
Best to maintain and support the Best Software and to support Buyer’s maintenance and repair of the Equipment. Best on the terms and conditions of
this Agreement is pleased to provide such license, maintenance and repair services.
In consideration of the foregoing and other good and valuable consideration, receipt of which is hereby acknowledged, IT IS THEREFORE AGREED
as follows:
1. SOFTWARE LICENSE. For each kiosk included in the Equipment, (i) the Windows operating system and any other third party software
products delivered with the Equipment will be governed by the terms of the vendor’s license as the same may be amended from time to time by the
applicable vendor, and (ii) the Best Software will be governed by the following terms:
1.1. LICENSE GRANT. Best, subject to the terms and conditions of this Agreement, grants to Buyer a non-exclusive, non-assignable,
non-sublicenseable, right and license during the Term (as defined below) to use the Best Software, in object code form, to operate the Equipment on
which Best delivers it, and for no other purpose. If and to the extent Best provides or installs on the Equipment additional, different or replacement
versions of the Best proprietary software, that software will be deemed Best Software for all purposes under this Agreement.
1.2. OWNERSHIP. Notwithstanding any other provision of this Agreement, Best retains all right, title and interest in and to the Best
Software and associated intellectual property rights, including all patent, copyright, trade secret, and trademark rights. Buyer acknowledges that it
neither owns nor acquires any rights in any of the foregoing not expressly granted by this Agreement.
1.3. RESTRICTIONS. The Best Software comprises Best confidential and proprietary information, and Buyer will not (a) use or
disclose the Best Software other than as expressly contemplated by this Agreement, (b) authorize or permit access to the Best Software by persons
other than Buyer’s trained personnel or for any purpose other than the operation of the Equipment as contemplated by this Agreement; (c) market,
distribute or disclose the Best Software to any third party; (d) assign, sublicense, sell, lease or otherwise transfer or convey Buyer’s rights under the
licenses granted, except that Buyer may assign its rights to the Best Software to a purchaser of all of the Equipment who agrees in writing to be bound
by the terms of this Agreement; (e) use the Best Software in any time-sharing or service bureau arrangement, including, without limitation, any use to
provide services or process data for the benefit of, or on behalf of, any third party; (f) modify or create derivative works of the Best Software; (g)
combine or integrate the Best Software with hardware, software or technology not provided to Buyer by Best; (h) decompile, disassemble, reverse
engineer or otherwise attempt to obtain or perceive the source code from which any component of the Best Software is compiled or interpreted, and
Buyer acknowledges that nothing in this Agreement shall be construed to grant Buyer any right to obtain or use such source code; or (i) make copies
of the Best Software other than solely for archival purposes by making one copy. Buyer shall duplicate all proprietary notices and legends of Best and
its suppliers or licensors upon all copies of the Best Software made by Buyer. Buyer shall not remove, alter or obscure any such proprietary notice or
legend.
2. SERVICES.
2.1. Best, in exchange for the license and maintenance fees specified by Schedule A hereto and on the terms and conditions of this
Agreement, will provide (i) routine maintenance and repair services for the Best Software, and (ii) support for Buyer’s maintenance and repair of the
Equipment, in each case as specified by such Schedule A.
2.2. In addition to the services specified by Section 2.1, Best for its time and materials rates, may perform such additional maintenance
and repair services as Buyer may request, including repairs and other services required because of excessive wear and tear, Buyer’s breach of this
Agreement (including without limitation breach of any of Buyer’s obligations under Section 3 of this Agreement), or the negligent acts or omissions
of Buyer or any of Buyer’s agents, employees or representatives.
3. OBLIGATIONS OF BUYER. Buyer, at its own expense throughout the Term, will:
3.1. Maintain lighting, electric service and Internet service at the Location.
3.2. Employ and maintain a staff trained in the operation of the Equipment;
3.3. Ensure that the Equipment is, and throughout the Term remains, connected to the Internet through a broadband connection. Note
that Best’s ability to perform its obligations under this Agreement depends on this Internet connection ;
3.4. Purchase and maintain an inventory of receipt paper, and replace the paper rolls in the kiosk(s) as necessary. Note that the kiosks
will not work without receipt paper;
3.5. As between Best and Buyer, be solely responsible for the processing of credit card, debit card and other payment transactions ;
3.6. Monitor the operation of the Equipment and its customers’ use of the same, and promptly report to Best any failure of, defect in or
damage to the Equipment or any component thereof;
3.7. Perform on-site troubleshooting to address operational and performance issues, including (i) following troubleshooting procedures
provided from time to time by Best, (ii) contacting and working with Best online and/or telephone technical support personnel, and (iii) if and when
instructed by Best, installing repair and replacement parts supplied by Best.
4.3.b
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Best Initial ________ 2 Agreement L-15 / 08-05 LM
Buyer Initial ________
3.8. Keep the Equipment (including the bill acceptors and card readers) clean, under cover and otherwise protected from wind, rain,
snow, sand, excessive temperatures and other adverse environmental conditions, and keep the Equipment location and surrounding areas reasonably
safe from theft, vandalism, fire and water hazards, and other dangers to persons or property;
3.9. Not power wash the Location or apply water or other liquids to the Location or Equipment beyond the minimum amounts necessary
or appropriate for cleaning;
3.10. Not remove, disconnect or transport the Equipment from the place of installation, expose the Equipment to unusual vibrations or
other similar stresses, or permit any third party to do the foregoing, other than as Best may expressly authorize in advance; and
4. FEES; PAYMENT.
4.1. FEES. Buyer will pay Best annual fees, and any time and materials and other fees contemplated by this Agreement, in each case
in Schedule A. Annual fees will be due prior to the first day of the initial term of this Agreement (as defined below) and each anniversary thereof
during the Term. All other fees and charges will be due within thirty (30) days of the date of Best’s invoice.
4.2. LATE FEES. If Buyer fails to pay any amount within fifteen (15) days following the due date, Best may impose a late fee of one
and one-half percent (1.5%) for each month or part thereof the amount remains past due.
5. TERM; TERMINATION.
5.1. TERM. The term of this Agreement (the “Term”) will commence on the date Best first advises Buyer under the Sale Agreement
that Equipment at any Facility has been installed and is ready for use, and will continue for five (5) years. This Agreement refers to the initial term
together with all renewal terms as the “Term.”
5.2. TERMINATION. Either party may terminate this Agreement on immediate written notice if the other party (i) commits a material
breach of this Agreement and fails to cure the breach within thirty (30) days of the nonbreaching party’s notice thereof, (ii) makes a general assignment
for the benefit of creditors, (iii) files a petition under any chapter of the Bankruptcy Code or any state insolvency statute, or (iv) is the subject of an
involuntary petition in bankruptcy or insolvency and such petition is not dismissed within ninety (90) days.
6. WARRANTY, DISCLAIMER. Best represents and warrants that the services Best provides hereunder will be of workmanlike quality and
performed in workmanlike manner. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS OR IMPLIED, AND BEST HEREBY DISCLAIMS ALL OTHER WARRANTIES TO BUYER, EXPRESS, IMPLIED, STATUTORY
OR OTHERWISE, WITH RESPECT TO THE EQUIPMENT AND ANY COMPONENTS THEREOF, AND WITH RESPECT TO ANY SERVICES
HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NONINFRINGEMENT.
7. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY OBLIGATION OR LIABILITY
TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCURRED BY THE
OTHER PARTY (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS OR DAMAGES TO BUSINESS REPUTATION),
REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT A PARTY WAS ADVISED SUCH
DAMAGES MIGHT ARISE. IN NO EVENT SHALL BEST BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY DAMAGES, DIRECT
OR OTHERWISE, IN EXCESS OF THE AMOUNTS PAID BY BUYER TO BEST HEREUNDER IN RESPECT OF THE SIX (6) MONTHS PRIOR
TO THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION IS CUMULATIVE; THE SUM OF MULTIPLE CLAIMS MAY NOT
EXCEED THIS LIMIT. THE PROVISIONS OF THIS SECTION WILL APPLY IF LOSS, DAMAGE OR INJURY, IRRESPECTIVE OF CAUSE
OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF
OBLIGATIONS IMPOSED BY THIS AGREEMENT OR FROM NEGLIGENCE, ACTIVE OR OTHERWISE, OF BEST, ITS AGENTS OR
EMPLOYEES. BUYER WAIVES ALL OTHER REMEDIES THAT MIGHT OTHERWISE BE AVAILABLE UNDER THE LAWS OF ANY
JURISDICTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO BUYER. THE FOREGOING
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. RELATIONSHIP OF PARTIES. In making and performing this Agreement, the parties act and shall act as independent contractors, and
nothing contained shall be construed or implied to create an agency, association, partnership or joint venture between the parties. At no time shall
either party make commitments or incur any charges or expenses for or in the name of the other party.
9. CONTRACT BINDING ON SUCCESSORS. Neither party may assign this Agreement in whole or part without the prior written consent
of the other party, except that, subject to Buyer’s obligations under Section 10, no consent will be required for either party to assign this Agreement in
its entirety to a purchaser of substantially all of such party’s outstanding ownership interests or substantially all of such party’s assets to which this
Agreement relates. This Agreement shall bind the parties’ heirs, successors, assigns, and personal representatives.
10. NOTICE OF SALE OR ASSUMPTION. Upon entering into any Agreement for the sale of the Facilities, but in no event later than thirty
(30) days prior to the closing on any such sale, Buyer shall furnish Best with written notice of the sale and identify the purchaser and individuals
authorized to act on behalf of the purchaser. Best may, but is not required to, contact and advise the purchaser regarding the contents of this Agreement.
Buyer will obtain from the purchaser, on a form supplied by Best, a written assumption of Buyer’s obligations under this Agreement. Buyer’s failure
to obtain such written assumption Agreement at closing or to provide notice of a pending sale shall constitute a material breach of this Agreement.
11. APPLICABLE LAW, JURISDICTION, AND ATTORNEY’S FEES. This Agreement shall be construed under the laws of the State of
Florida. Exclusive jurisdiction and venue in any action related to or arising from this Agreement shall be in state or federal courts sitting in Orange
County, Florida, and the parties waive any right to a jury trial in any such matter. Buyer shall reimburse Best for any attorney’s fees, costs, and
collection agency fees, incurred by Best to obtain compliance with this Agreement and, in any action to enforce this Agreement, including post judgment
and appellate proceedings, the prevailing party shall recover its reasonable attorney’s fees and costs.
12. ENTIRE AGREEMENT. This Agreement (including the schedules hereto) constitutes the entire Agreement of the parties and may not be
modified except by a written document duly executed by the parties. Buyer certifies and warrants that Buyer has not relied upon any statements
purporting to modify or which otherwise contradict or add to the written terms of this Agreement.
4.3.b
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Best Initial ________ 3 Agreement L-15 / 08-05 LM
Buyer Initial ________
13. WAIVER AND AMENDMENT. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms
and conditions may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. The
waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
14. CAPTIONS FOR CONVENIENCE ONLY. Captions are for convenience only and do not constitute part of this contract. No party will
acquire any rights or defenses based upon the failure of any caption to adequately or fully describe the contents.
15. NOTICE. Any notice made in connection with this Agreement shall be given by certified or registered first class mail at the parties’
respective addresses set out above or at such alternative address as the parties may designate in writing. Notice shall be deemed given upon receipt.
16. INVALIDITY OF CONTRACT PROVISION. If a court shall hold invalid or unenforceable any portion of this Agreement, such a holding
shall not affect or invalidate the entire Agreement or other portions hereof.
17. NO OTHER BENEFICIARIES. This Agreement is being made and entered into solely for the benefit of the parties hereto, and no party
intends to create any rights in favor of any other person as a third party beneficiary of this Agreement or otherwise.
18. COUNTERPARTS; ELECTRONIC COPIES. This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which shall constitute the same instrument. A party’s execution or delivery of this Agreement by electronic mail or other
electronic means shall bind such party as if such party had executed this Agreement in writing.
19. AUTHORITY TO EXECUTE CONTRACT.
19.1. The individual executing this Agreement represents and warrants he or she has the authority to execute this Agreement on behalf
of Buyer and that the identifying information regarding Buyer set out in this Agreement correctly identifies the owner of the Facilities.
19.2. Buyer represents and warrants that (i) it has the corporate power and authority to execute and deliver this Agreement, to perform
its obligations, and (ii) its execution and delivery of this Agreement, the performance of each of its obligations have been duly authorized by all requisite
corporate action of the party, and do not and will not result in a violation or breach of or default under (with or without giving notice or the lapse of
time or both), any provision of its articles of incorporation or formation, bylaws, operating agreement or other organization documents, or any contract
or any other agreement or instrument to which any of it is a party or by which any of their respective properties or assets may be bound.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective authorized representatives as of the Effective
Date.
CITY OF DUBLIN, CALIFORNIA
By: _____________________________________________
Name: _________________________________________
Title: _________________________________________
Date: _________________________________________
BEST LOCKERS, LLC
By: __________________________________________
Name: ______________________________________
Title: ______________________________________
Date: _______________________________________
Witness: ____________________________________ Witness: __________________________________
4.3.b
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Best Initial ________ 4 Agreement L-15 / 08-05 LM
Buyer Initial ________
SCHEDULE A
ADDITIONAL TERMS
GoPod™ Electronic Locker System
Property Name Locker 5T
(Steel)
Locker 4T
(Steel)
Locker 3T
(Steel)
Kiosk
Estimated Start Date
Wave @ Emerald Glen 110 104 3 Q2 2017
Maintenance Services
Includes:
Software Maintenance and Support:
Configuration and data backup
24 hour monitoring and troubleshooting via LOG ME IN
Unlimited remote computer and phone support
Maintenance upgrades are pushed-out to all kiosks via remote LOG ME IN on an as-needed basis and are
typically undetected by customers
Equipment Maintenance and Support:
All parts (for normal wear and tear, standard delivery)
Unlimited remote computer and phone support
2 site visits per year
Available for Additional Charge:
Additional Site Visits (current charge: $_____ per day + $_____/hour of travel, plus travel and
subsistence expenses)
Parts to address vandalism, abuse, etc.
Express shipping of parts
Annual License and Maintenance
$58.00 per opening = $12,412 annually
Payment to be made in full, due in advance, on or before the anniversary of final installation each year.
Payments due for years 2, 3, 4 and 5 of the term (after the expiration of the one year warranty).
Best, by or on 30 days’ notice to take effect on or after January 1, 2017, may increase the foregoing fees
by the lesser of 5% per year or the percentage change in the percentage increase since the date prior fees
were established in the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City
Average for All Items.
4.3.b
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Page 1 of 4
STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Kaiser Dublin Medical Center Project
Prepared by: Kristi Bascom, Consulting Planner
EXECUTIVE SUMMARY:
On September 20, 2016, the City Council approved the Kaiser Dublin Medical Center
project, which is comprised of 950,000 square feet of medical campus uses in three
main buildings, 250,000 square feet of commercial uses, a parking structure, and
associated site, roadway frontage, and landscape improvements. The land use
approvals included a General Plan Amendment and Eastern Dublin Specific Plan
Amendment to create new land use districts, Site Development Review for the first
phase of development (a 220,000 square foot medical office building), and certification
of a Final Environmental Impact Report (EIR). In addition, two ordinances were
introduced, one amending the Zoning Map and approving a Planned Development
Zoning District with a related Stage 1 Development Plan for the whole Kaiser Dublin
Medical Center project site and a Stage 2 Development Plan for Phase 1A, and one
approving a Development Agreement between the City of Dublin and Kaiser Foundation
Hospitals related to the Kaiser Dublin Medical Center project. The City Council is
currently considering adoption of the two ordinances.
STAFF RECOMMENDATION:
Staff recommends that the City Council waive the reading and adopt the following two
Ordinances:
a) Amending the Zoning Map and approving a Planned Development Zoning District
with a related Stage 1 Development Plan for the whole Kaiser Dublin Medical Center
project site and a Stage 2 Development Plan for Phase 1A; and
b) Approving a Development Agreement between the City of Dublin and Kaiser
Foundation Hospitals related to the Kaiser Dublin Medical Center project.
DESCRIPTION
Kaiser Foundation Health Plan, Inc. submitted an application for a medical campus and
commercial center on approximately 58 acres of land south of Dublin Boulevard
between Tassajara Road and Fallon Road.
4.4
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Page 2 of 4
The project site is shown in the Vicinity Map below:
Figure 1: Project Vicinity
Kaiser Permanente acquired the property several years ago with the intent of eventually
constructing a medical campus to serve the greater Tri-Valley area. The project will be
developed in three phases over the course of up to 25 years, consisting of
approximately 1.2 million square feet of medical campus and commercial uses on the
project site, as follows:
Building/Use Size (in
square feet)
Building
Size
Estimated
Construction
Phase 1A Medical Office Building 1 -advanced
facilities including an urgent care
clinic, medical office space, and a
radiation/oncology center
220,000 3 stories <
60 feet tall
2016-2020
Phase 1B Commercial uses including retail,
office, ancillary health-related
facilities, and business park
250,000 Up to 4
stories 60
feet tall
2016-2020
Phase 2 High-Acuity Medical Services
building (possibly a hospital)
400,000 5 stories 85
feet tall
2025-2035
Phase 2 Energy Center 50,000 2 stories 40
feet tall
2025-2035
Phase 3 Medical Office Building 2 280,000 6 stories 90
feet tall
2035-2040
Phase 3 Parking Structure 6 stories <
70 feet tall
2035-2040
Total Project 1,200,000
4.4
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Page 3 of 4
Project Applications
At a public hearing on September 20, 2016, the City Council approved the following:
1. General Plan and Eastern Dublin Specific Plan Amendment (Resolution 151-16).
2. Site Development Review for the Phase 1A Medical Office Building and related
site improvements (Resolution 152-16).
3. Certification of the Final Environmental Impact Report (Resolution 153-16).
The City Council also waived the reading and introduced Ordinances related to Planned
Development Rezoning, and a Development Agreement, described in more detail
below.
Planned Development Rezoning
The Planned Development Rezoning for the property will establish the detailed
Development Plan (site plan) for the site, the specific uses that are permitted by right,
conditionally permitted, and prohibited, the overall development density and intensity
(e.g. FAR, building heights) for the site, and design guidelines for the future medical
center and commercial buildings. Kaiser is proposing that the Planned Development
Zoning District allow hospitals as a permitted use, whereas citywide, hospitals are
allowed with a Conditional Use Permit. The Planned Development Zoning District
contains development standards to address issues typically addressed through a
Conditional Use Permit that are related to hospitals such as noise and compatibility with
surrounding uses.
If approved, the Planned Development Zoning District will have a related Stage 1
Development Plan for the entire 58-acre project area and a Stage 2 Development Plan
for Phase 1A. The details of the Planned Development Zoning District are provided in
Attachment 2 to the Staff Report.
The City Council is being asked to waive the second reading and adopt the Planned
Development Rezoning Ordinance.
Development Agreement
The Development Agreement outlines the obligations of the Applicant as it relates to
different phases of the development of the medical campus and the associated
commercial parcel. The specifics of the Development Agreement were agreed to by
both parties and further described the City Council Staff Report dated September 20
(Attachment 1). The Development Agreement is included as Exhibit A to Attachment 3
to the Staff Report.
The City Council is being asked to waive the second reading and adopt the
Development Agreement Ordinance.
ENVIRONMENTAL IMPACT REPORT
A Draft Environmental Impact Report (EIR) was prepared for the Kaiser project and was
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Page 4 of 4
circulated for a 45-day public review period that closed on March 21, 2016. The EIR
concluded that the project will have significant impacts in several topic areas and
mitigation measures have been written to reduce the impacts to a level that is less than
significant. These impacts are primarily related to aesthetics, air quality, biology,
cultural resources, geology, hydrology, noise, and transportation.
The Draft and Final EIR were considered by the City Council on September 20, 2016.
At the public hearing, the City Council voted to certify the Final EIR.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
A notice of this public hearing was published in the East Bay Times. All persons who
have expressed an interest in being notified of actions related to this project were
notified via email. Notices were mailed to all property owners and tenants within 300
feet of the Kaiser site and also to an expanded area beyond 300 feet, as shown below:
Figure 2: Public Noticing
The total mailing list was over 2,000 addresses. The Staff Report for this public hearing
was also available on the City’s website. A copy of this Staff Report was provided to the
Project Applicant.
ATTACHMENTS:
1. City Council Staff Report 9.20.16 without attachments
2. Planned Development Ordinance
3. Development Agreement Odinance
3. Exhibit A - Kaiser Development Agreement
4.4
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Page 1 of 10
STAFF REPORT
CITY COUNCIL
DATE: September 20, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Kaiser Dublin Medical Center Project
Prepared by: Kristi Bascom, Consulting Planner
EXECUTIVE SUMMARY:
The City Council will consider the Kaiser Dublin Medical Center project, which allows up
to 950,000 square feet of medical campus uses in three main buildings, 250,000 square
feet of commercial uses, a parking structure, and associated site, roadway frontage,
and landscape improvements. Requested land use approvals include a General Plan
and Eastern Dublin Specific Plan Amendment to create new land use districts, Planned
Development Rezoning (Stage 1 and Stage 2), and Site Development Review for the
first phase of development (a 220,000 square foot medical office building). Certification
of a Final Environmental Impact Report (EIR) and approval of a project-specific
Development Agreement is also being considered.
STAFF RECOMMENDATION:
Staff recommends that the City Council conduct the public hearing; deliberate; and
adopt the following Resolutions:
a) Certifying an Environmental Impact Report, adopting Environmental Findings, a
Statement of Overriding Considerations, and a Mitigation Monitoring and Reporting
Program under CEQA for the Kaiser Dublin Medical Center Project;
b) Amending the General Plan and the Eastern Dublin Specific Plan related to the
Kaiser Dublin Medical Center project; and
c) Approving Site Development Review Permit for Phase 1A of the Kaiser Dublin
Medical Center project.
Staff further recommends that the City Council waive the readings, and INTRODUCE
the following Ordinances:
a) Amending the Zoning Map and approving a Planned Development Zoning District
with a related Stage 1 Development Plan for the whole project site and a Stage 2
Development Plan for Phase 1A of the Kaiser Dublin Medical Center; and
b) Approving a Development Agreement between the City of Dublin and Kaiser
Foundation Hospitals related to the Kaiser Dublin Medical Center project.
FINANCIAL IMPACT:
4.4.a
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The cost to process this application is borne by the applicant. Please refer to the
Development Agreement section of this staff report for additional information about
financial impacts.
DESCRIPTION
Kaiser Foundation Health Plan, Inc. has submitted an application to build a medical
campus and associated commercial center on approximately 58 acres of land south of
Dublin Boulevard between Tassajara Road and Fallon Road. The property currently
has a General Plan land use designation of Campus Office, which allows for the
development of a “campus-like setting for office and other non-retail commercial uses.”
Typical uses include professional and administrative offices (including medical),
research and development, business and commercial services, and limited light
manufacturing.
The project site is shown in the Vicinity Map below:
Figure 1: Project Vicinity
Kaiser acquired the property several years ago with the intent of eventually constructing
a medical campus to serve the greater Tri-Valley area. If approved, the project will be
developed in three phases over the course of up to 25 years, consisting of
approximately 1.2 million square feet of medical campus and commercial uses on the
project site, as follows:
Building/Use Size (in
square feet)
Building Size Estimated
Construction
4.4.a
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Phase 1A “The Hub” medical office building with
advanced facilities including an urgent
care clinic, medical office space, and a
radiation/oncology center
220,000 3 stories < 60
feet tall
2016-2020
Phase 1B Commercial uses including retail, office,
ancillary health-related facilities, and
business park
250,000 Up to 4
stories 60
feet tall
2016-2020
Phase 2 High-Acuity Medical Services building
(possibly a hospital)
400,000 5 stories 85
feet tall
2025-2035
Phase 2 Energy Center 50,000 2 stories 40
feet tall
2025-2035
Phase 3 Medical Office Building 2 280,000 6 stories 90
feet tall
2035-2040
Phase 3 Parking Structure 6 stories < 70
feet tall
2035-2040
Total Project 1,200,000
The site plan (at full build out) is included as Attachment 1 to this Staff Report. On April
19, 2016, the City Council received a report on the status of the project and opportunity
for the City Council to provide feedback to the Applicant and Staff regarding the project
as described above.
ANALYSIS
Project Applications
Kaiser has applied for the following land use entitlements:
1. General Plan and Eastern Dublin Specific Plan Amendment.
2. Planned Development Rezone (with a related Stage 1 Development Plan for the
whole site and Stage 2 Development Plan for Phase 1A).
3. Site Development Review for the Phase 1A Medical Office Building and related
site improvements.
4. Certification of an Environmental Impact Report.
When the future phases of the project are ready to move forward, planning applications
at that time will include:
1. Planned Development Rezoning (with a related Stage 2 Development Plan) and
Site Development Review for each future development phase:
a. Phase 1B - Commercial Center
b. Phase 2 - High Acuity Medical Center and Energy Center
c. Phase 3 - Medical Office Building and parking garage
2. Conditional Use Permit(s) to establish any use that is required by the Planned
Development Zoning District to have one.
3. Vesting Tentative Parcel Map to subdivide the property, dedicate right of way,
and formalize easements.
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General Plan and Eastern Dublin Specific Plan Amendment
In order to accommodate the project as proposed, two new land use categories are
proposed to be created for inclusion in both the General Plan and the Eastern Dublin
Specific Plan. The existing land use designation is Campus Office, which allows a
variety of office uses (including medical), but which does not explicitly identify the
proposed medical-related uses to the extent desired by Kaiser. Therefore, two new
land use categories are proposed: “Medical Campus,” which applies to the Kaiser
Medical Center portion of the site, and “Medical Campus/Commercial,” which applies to
the commercially-designated portion of the site.
The proposed description for the Medical Campus land use category identifies the
range of outpatient primary and specialty care services that Kaiser intends to provide at
the future medical center (Phases 1A, 2, and 3). The proposed description for the
Medical Campus/Commercial land use category identifies the range of commercial uses
that are expected for the commercial parcel (Phase 1B) including retail, office, hotel,
and restaurants.
The language for both land use categories is provided in Attachment 2 to the Staff
Report.
Planned Development Rezoning
The Planned Development Rezoning for the property will establish the detailed
Development Plan (site plan) for the site, the specific uses that are permitted by right,
conditionally permitted, and prohibited, the overall development density and intensity
(e.g. FAR, building heights) for the site, and design guidelines for the future medical
center and commercial buildings. Kaiser is proposing that the Planned Development
Zoning District allow hospitals as a permitted use, whereas citywide, hospitals are
allowed with a Conditional Use Permit. The Planned Development Zoning District
contains development standards to address issues typically addressed through a
Conditional Use Permit that are related to hospitals such as noise and compatibility with
surrounding uses.
If approved, the Planned Development Zoning District will have a related Stage 1
Development Plan for the entire 58-acre project area and a Stage 2 Development Plan
for Phase 1A. The Planned Development Zoning District recognizes the phased
development of the Kaiser project and includes a Stage 1 Development Plan for Phase
1A only, Phases 1A and 2 combined, and the full campus with Phases 1A, 2, and 3
completed, which is the final buildout condition. The details of the Planned Development
Zoning District are provided in Attachment 3 to the Staff Report.
Phase 1A Site Development Review
The first phase of the Kaiser Dublin Medical Center is the 220,000 square foot medical
office building. This facility - referred to as “The Hub” - will contain advanced medical
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facilities, urgent care clinics, medical office spaces, and a connected radiation/oncology
center, along with surface parking for nearly 1,000 vehicles and associated site
improvements. The detailed Project Plans for Phase 1A are included as Exhibit A to
Attachment 4. Additional details on the key project components are provided below.
Site Plan
The site plan for Phase 1A includes the construction of the two main entry driveways
into the project site that align with Keegan Street and Lockhart Street, the 220,000
square foot medical office building, the associated parking field, perimeter landscaping
along the length of Dublin Boulevard and the medical campus portion of Interstate 580,
photovoltaic panels in the southern parking lot, and landscaping throughout the middle
portion of the site. Sheet A1.1 of the Project Plans (Exhibit A to Attachment 4) identifies
the physical limits of Phase 1A and those improvements that will be installed with the
first building in the medical campus.
Access, Circulation, and Parking
Vehicular access to the medical office building will be provided by both the Keegan and
Lockhart Street entry driveways. Parking lots exist on both the north and south sides of
the building, the patient drop-off point is on the north side of the building, the shuttle
drop off is on the north side of the building, and the loading dock/service area is on the
west side. There are clear, accessible pedestrian pathways from every parking area,
the bus stop on Dublin Boulevard, and from the public sidewalk to all building entry
points. Sheet A1.4 of the Project Plans (Exhibit A to Attachment 4) illustrates the
pedestrian pathways through and around the project site.
The Phase 1A site plan identifies 978 parking spaces for the medical office building,
including 100 accessible spaces, 50 spaces for fuel-efficient vehicles, and 29 spaces for
car/vanpools. The remainder of the parking stalls are regular and compact sizes as well
as motorcycle parking. All of the parking sizes and other requirements are in
conformance with the Dublin Zoning Ordinance. The Zoning Ordinance requires a total
of 880 parking spaces for a 220,000 square foot health clinic/medical office building (1
space per 250 square feet), so the project has 98 more vehicular spaces than is
required. The project also provides 28 long-term and 28 short term bicycle parking
spaces in both lockers and racks. The southern parking field is expected to be covered
with photovoltaics that will provide shade for parked cars, but included in the Project
Plans is an alternate plan that includes the tree planting plan in the event that the
photovoltaics are not feasible. Either the photovoltaics or the trees will be required to
be installed prior to occupancy of the building (Condition of Approval 49 noted in
Attachment 4)
Building Design/Architecture:
Kaiser has opened a number of new medical office buildings and hospitals in the Bay
Area in recent years. With each new facility, lessons are learned and design techniques
are improved. The design concept for the Dublin medical campus is to incorporate
materials, features, and an architectural statement that is compatible with the other
buildings in the vicinity while allowing for creative and imaginative design that will
provide amenities beyond those expected in conventional developments.
4.4.a
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The building is primarily oriented along an east-west axis with the medical offices and
urgent care at the western-most portion of the building and the cancer center on the
eastern side. The building is four stories and stands 58’6” tall to the peak of the roof
parapet. The building (and the rest of the future campus) has a contemporary aesthetic
with the main building materials being an aluminum and glass curtain wall system
blended with concrete panels in white and grey, accent metal panels with a horizontal
wood effect, corrugated metal panels for the roof screen, and perforated silver/grey
panels on the south side of the building serving as sunshades. Sheet A3.1 of the
Project Plans demonstrates the exterior material palette, and Sheet A7.1 illustrates the
location of the various colors and materials on the building elevations.
Sustainability
Kaiser serves a key role in developing nationally recognized health-based green
building strategies for the health care sector, and they intend to incorporate Kaiser’s
leading sustainable building standards and green initiatives into the Dublin Medical
Center Project. As part of its commitment to green building, Kaiser will pursue LEED
Gold certification or equivalent for the buildings that it develops on the Project Site. To
attain this goal, Kaiser anticipates implementing many of the following less-typical green
strategies:
· PVC-free materials (such as resilient flooring, carpet and roofs)
· Low or VOC-free paints
· CFC-free refrigerants
· Formaldehyde-free casework
· Cogeneration electricity production and heat recovery
· Permeable paving to reduce stormwater runoff in parking areas
· Thermal fluid heaters as a high-efficient water heating source
Landscape Concept:
The landscape concept for Phase 1A is “building within a garden.” Sheet L.1.2 most
clearly illustrates the various landscape and hardscape amenities that surround the
building - focused primarily on the southern and eastern sides of the building. There are
a variety of sitting areas (“rooms”) that are connected by pedestrian pathways
surrounded by generous amounts of landscaped spaces. The various materials and
finishes that are will be employed in the outdoor rooms and pathways are shown on
Sheet L.3.0 of the Project Plans and the tree and plant palettes are shown on Sheets
L.5.0, 5.1, and 5.2. Sheet L.6.0 of the Project Plans shows several precedent images
that demonstrate the design goals for the medical office building landscape concepts.
The Resolution approving a Site Development Review Permit for Phase 1A of the
Kaiser Dublin Medical Center is Attachment 4 to the Staff Report.
DEVELOPMENT AGREEMENT
The Applicant requested a Development Agreement for the Kaiser Dublin Medical
Center project. The proposed Development Agreement would give Kaiser a vested
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right to develop the proposed project for a period of 25 years. This is a long period of
time to vest development rights, but Staff feels it is reasonable for a master-planned
medical campus. In exchange, Kaiser has agreed to terms that benefit the City's
General Fund. In particular, Kaiser would commit to actively marketing the Commercial
Parcel (Phase 1B). The prompt development of that parcel would benefit the City's
General Fund by generating significant sales and property tax from a development that
would be largely tax exempt at build out. If Kaiser has not sold the Commercial Parcel
when it seeks a property tax exemption for any development on the site, the
Development Agreement would terminate unless Kaiser makes a payment equal to
$200,000 in today's dollars for each year it desires to extend the term. The proposed
Development Agreement also obligates Kaiser to take certain steps to ensure that sales
and use tax revenue associated with its construction and purchases is allocated to the
City of Dublin. Staff believes that the agreed-upon terms are reasonable in light of
Kaiser's non-profit status and the public benefits its services provide to the community.
An Ordinance approving the Development Agreement is included as Attachment 5 with
the Development Agreement included as Exhibit A to Attachment 5 to the Staff Report.
ENVIRONMENTAL IMPACT REPORT
A Draft Environmental Impact Report (FEIR) was prepared for the Kaiser project and
was circulated for a 45-day public review period that closed on March 21, 2016.
Comments were received from seven public agencies, one comment letter from the
Project Applicant, and one comment letter from a Dublin resident that does not support
the project. Responses to comments were incorporated into the Final EIR (FEIR). The
DEIR and FEIR are included as Exhibit A to Attachment 6 of this Staff Report. The EIR
examined potential environmental impacts resulting from the project at full build out in
the following topic areas:
· Aesthetics, Light, and Glare
· Air Quality/Greenhouse Gas Emissions
· Biological Resources
· Cultural Resources
· Geology, Soils, and Seismicity
· Hazards and Hazardous Materials
· Hydrology and Water Quality
· Land Use
· Noise
· Public Services and Utilities
· Transportation
In summary, the EIR concludes that the project will have significant impacts in several
topic areas and mitigation measures have been written to reduce the impacts to a level
that is less than significant. These impacts are primarily related to aesthetics, air
quality, biology, cultural resources, geology, hydrology, noise, and transportation.
As is typical for other projects of this size, several other impacts were identified where,
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even with the implementation of mitigation measures, the effects to the environment are
still expected to be significant. There are impacts to vehicular delays at certain street
intersections in the future, notable greenhouse gas emissions, and air pollution impacts
that cannot be mitigated. If the project receives support from the City Council, the
following components are part of the resolution (Attachment 6) certifying the EIR:
1. Exhibit B: The Findings on Impacts and Mitigation Measures outlines the
reasons which proposed mitigation measures are expected to be successful in
reducing the impacts of the project.
2. Exhibit C: The Findings Concerning the Infeasibility of Alternatives and Potential
Mitigation Measures outlines the reasons which measures that have the potential
to mitigate project-related impacts are not desirable or are not being proposed.
3. Exhibit D: A Statement of Overriding Considerations (SOC) that identifies all
environmental impacts that cannot be mitigated and explain why the project is
being approved. The SOC, is required in order to certify the EIR and, if desired
by a majority of the City Council, ultimately approve the project.
4. Exhibit E: The Mitigation Monitoring or Reporting Plan outlines those measures
needed to reduce the impacts of the proposed project, the timeline for
implementing the measures, and the agency/department responsible for
confirming their implementation.
PLANNING COMMISSION ACTION:
On May 10, 2016, a Study Session was held with the Planning Commission to receive a
report on the project status and provide feedback on the project design. The
Commission provided feedback for Kaiser’s consideration on the building and
site/landscape design.
On August 23, 2016, the Planning Commission reviewed the project applications in their
entirety. After discussion and deliberation, the Commission voted unanimously to
recommend approval of the project to the City Council, and the Planning Commission
adopted the following Resolutions:
1. Resolution 16-16 Recommending City Council certification of a Final
Environmental Impact Report and Adoption of Environmental Findings under
CEQA for the Kaiser Dublin Medical Center project
2. Resolution 16-17 Recommending that the City Council adopt a Resolution
amending the General Plan and the Eastern Dublin Specific Plan related to the
Kaiser Dublin Medical Center project;
3. Resolution 16-18 Recommending that the City Council Adopt an Ordinance
amending the Zoning Map and approving a Planned Development Zoning District
with a related Stage 1 Development Plan for the whole project site and a Stage 2
Development Plan for Phase 1A
4. Resolution 16-19 Recommending that the City Council adopt an Ordinance
approving a Development Agreement between the City of Dublin and Kaiser
Foundation Hospitals related to the Kaiser Dublin Medical Center project; and
5. Resolution 16-20 Recommending that the City Council adopt a Resolution
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approving Site Development Review for Phase 1A of the Kaiser Dublin Medical
Center project.
The resolutions are included as Attachments 7 to 11 of this staff report.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
A notice of this public hearing was published in the East Bay Times. All persons who
have expressed an interest in being notified of actions related to this project were
notified via email. Notices were mailed to all property owners and tenants within 300
feet of the Kaiser site and also to an expanded area beyond 300 feet, as shown below:
Figure 2: Public Noticing
The total mailing list was over 2,000 addresses. The Staff Report for this public hearing
was also available on the City’s website. A copy of this Staff Report was provided to the
Project Applicant.
ATTACHMENTS:
1. Kaiser Dublin Medical Center Site Plan
2. Resolution Specific Plan Amendment and General Plan Amendment
3. Ordinance Planned Development
4. Resolution Site Development Review
4. Exhibit A - Project Plans
5. Ordinance Development Agreement
5. Exhibit A - Kaiser Development Agreement
6. Resolution Certifying an Environmental Impact Report
6. Exhibit A - Draft EIR Kaiser
6. Exhibit A - Final EIR Kaiser
6. Exhibit B - Findings Concerning Significant Impacts and Mitigation Measures
4.4.a
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6. Exhibit C - Findings Concerning Infeasibility of Alternatives and Potential Additional
Mitigation Measures
6. Exhibit D - Statement of Overriding Considerations
6. Exhibit E - Mitigation Monitoring and Reporting Program
7. Planning Commission Resolution 16-16
8. Planning Commission Resolution 16-17
9. Planning Commission Resolution 16-18
10. Planning Commission Resolution 16-19
11. Planning Commission Resolution 16-20
4.4.a
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1
ORDINANCE NO. xx – 16
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * * * * *
AMENDING THE ZONING MAP AND APPROVING A PLANNED DEVELOPMENT ZONING
DISTRICT WITH A RELATED STAGE 1 DEVELOPMENT PLAN FOR THE WHOLE PROJECT
SITE AND STAGE 2 DEVELOPMENT PLAN FOR PHASE 1A
OF THE KAISER DUBLIN MEDICAL CENTER PROJECT
PA 08-50 and PLPA 2016-00007
(APNs 985-0061-005-00 and 985-0027-009-02)
The Dublin City Council does ordain as follows:
SECTION 1: Findings
A. Pursuant to Section 8.32.070 of the Dublin Municipal Code, the City Council finds as follows.
1. The Kaiser Dublin Medical Center Project (“the Project”) PD-Planned Development
zoning meets the purpose and intent of Chapter 8.32 in that it provides a comprehensive
development plan that creates a desirable use of land that is sensitive to surrounding
land uses by virtue of the layout and design of the site plan.
2. Development of Kaiser Dublin Medical Center Project under the PD-Planned
Development zoning will be harmonious and compatible with existing and future
development in the surrounding area in that the site will provide new retail, restaurant,
and personal services to residents in an area that has similar uses nearby and is also
adjacent to existing and future workplaces and residential neighborhoods.
B. Pursuant to Sections 8.120.050.A and B of the Dublin Municipal Code, the City Council finds
as follows.
1. The PD-Planned Development zoning for Kaiser Dublin Medical Center Project will be
harmonious and compatible with existing and potential development in the surrounding
area in that the proposed Site Plan has taken into account sensitive adjacencies and will
provide a wide range of amenities to the surrounding neighborhoods.
2. The project site conditions were documented in the Environmental Impact Report
(EIR) that has been prepared, and the environmental impacts that have been identified
will be mitigated to the greatest degree possible. There are no site challenges that were
identified in the EIR that will present an impediment to utilization of the site for the
intended purposes. There are no major physical or topographic constraints and thus the
site is physically suitable for the type and intensity of the retail commercial center
approved through the PD zoning.
3. The PD-Planned Development zoning will not adversely affect the health or safety of
persons residing or working in the vicinity, or be detrimental to the public health, safety
and welfare in that the project will comply with all applicable development regulations and
standards and will implement all adopted mitigation measures.
4.4.b
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4. The PD-Planned Development zoning is consistent with and in conformance with the
Dublin General Plan, as amended, in that the proposed use as a medical campus and
adjacent commercial shopping center is consistent with the proposed Medical Campus
and Medical Campus/Commercial land use designations for the site.
C. Pursuant to the California Environmental Quality Act, the City Council adopted a Final EIR
via Resolution 153-16 on September 20, 2016, prior to approving the Project.
SECTION 2:
Pursuant to Chapter 8.32, Title 8 of the City of Dublin Municipal Code the City of Dublin Zoning
Map is amended to rezone the property described below to a Planned Development Zoning
District:
58 acres south of Dublin Blvd. between Grafton Station and Fallon Gateway. Interstate
580 forms the southern boundary of the site. (Assessor Parcel Numbers 985-0061-005-
00 and 985-0027-009-02) (“the Property”).
A map of the rezoning area with a related Stage 1 Development Plan is shown below (entire
project site and outlined in red):
A map of the rezoning area with a related Stage 2 Development Plan for Phase 1A only is
shown below:
4.4.b
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SECTION 3.
The regulations for the use, development, improvement, and maintenance of the Property are
set forth in the following Stage 1 Development Plan for the entire 58 acre Project area, which is
hereby approved. Any amendments to the Stage 1 Development Plan shall be in accordance
with section 8.32.080 of the Dublin Municipal Code or its successors.
Stage 1 and Stage 2 Development Plan for the Kaiser Dublin Medical Center Project
This is a Stage 1 and Stage 2 Development Plan pursuant to Chapter 8.32 of the Dublin Zoning
Ordinance. This Development Plan meets all the requirements for both a Stage 1 and Stage 2
Development Plan and is adopted as part of the PD-Planned Development rezoning for the
Kaiser Dublin Medical Center Project, PA 08-50 and PLPA-2016-00007.
The PD-Planned Development District and this Stage 1/Stage 2 Development Plan provides
flexibility to encourage innovative development while ensuring that the goals, policies, and
action programs of the General Plan and provisions of Chapter 8.32 of the Zoning Ordinance
are satisfied.
The following Stage 1 Development Plan applies to the entire 58-acre project site and the
Zoning District for the project site is PD-Planned Development (PA 08-050).
1. Statement of Permitted Uses.
Permitted Uses (as defined by the Zoning Ordinance) for the Medical Campus (identified
as Phases 1A, 2, and 3):
Health Services/Clinics—including, without limitation, a comprehensive range of
outpatient primary and specialty care services, urgent care, radiation/oncology
4.4.b
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services, outpatient surgery, diagnostic services including radiology and telemedicine,
women’s services, inpatient care, including diagnostic and treatment services,
surgical services and emergency care, and supporting ancillary health care services
such as optical, pharmacy, laboratory, education and training
Medical Offices and Medical Office Buildings
High-Acuity Medical Centers/Hospitals (including full service High-Acuity Medical
Centers/Hospitals with 24-hour operations)
Central Utility Plants, including renewable energy facilities, and ancillary structures to
serve the project site
Parking Structures ancillary to medical uses
Skilled Nursing, Assisted Living, or Licensed Care Facilities
Day Care Facilities
Permitted Uses (as defined by the Zoning Ordinance) for the Commercial parcel
(identified as Phase 1B):
Hotel or resort
Eating and drinking establishments1
Entertainment (including movie theater, performance venue, or similar)
Automotive sales (outdoor display/storage area limited to 10% of the subject parcel)
The following retail uses:
o Home Furnishings
o Clothing/Fashion
o Office Supplies
o Home Appliance/Electronics
o Hardware
o Jewelry
o Bookstore
o Sporting Goods
o Grocery2
o Other retail establishments determined by the Community Development Director to
be similar (in terms of City revenue generation and use type) to the foregoing3
Conditionally Permitted Uses for the Commercial parcel (identified as Phase 1B)
Membership-based warehouse retail store4
Professional and Administrative Offices
Research and Development
Automotive sales (outdoor display/storage area more than 10% of the subject parcel)
Fitness/Health Club2
Notes:
1. Up to a maximum of 20% of the total building square footage on the commercial parcel. Drive-through
or traditional fast-food chain restaurants shall not be permitted.
2. Up to a maximum of 30% of the total building square footage on the commercial parcel
3. Tobacco Retail uses shall not be permitted.
4. CUP analysis will require a trip generation assessment/site plan review and potentially a supplemental
analysis to determine if the use generates traffic more than what was assumed in the EIR
4.4.b
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2. Stage 1 Site Plan.
3. Site area, proposed densities, and development regulations.
Maximum Building Height: 90 feet
Signage Pursuant to an approved Master Sign Program
Minimum Lot Size None
Maximum lot coverage None
Maximum Building Area 1.2 million square feet
Maximum Floor Area
Ratio
.80
Parking Stall Dimensions
Standards
Per Chapter 8.76 Off-Street Parking And Loading Regulations of
the Dublin Zoning Ordinance
Minimum Setbacks None
Parking Spaces Required: Per Chapter 8.76 Off-Street Parking And Loading Regulations of
the Dublin Zoning Ordinance
4. Phasing Plan.
Building/Use Size (SF) Estimated
construction
timeframe
Phase 1A “The Hub” medical office building 220,000 2016-2020
4.4.b
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Phase 1B Commercial parcel 250,000 2016-2020
Phase 2 High-Acuity Medical Services building
(possibly a hospital)
400,000 2025-2035
Phase 2 Energy Center 50,000 2025-2035
Phase 3 2nd Medical Office Building 280,000 2035-2040
Phase 3 Parking Structure 2035-2040
Total Project Size 1,200,000 SF
5. Concept Landscape Plan. The landscape design concept is being established with the
detailed designs for Phase 1A, which are included in the Project Plans associated with
the Phase 1A SDR application. The same plant palette and design vocabulary approved
for Phase 1A shall continue through the remainder of the project site.
6. Consistency with General Plan and any applicable Specific Plan. The proposed
project is consistent with the General Plan and Eastern Dublin Specific Plan (as
amended).
7. Inclusionary Zoning Regulations. The Inclusionary Zoning Regulations do not regulate
non-residential projects, so therefore this is not applicable.
8. Aerial Photo. An aerial photo is on file with the Community Development Department.
The following Stage 2 Development Plan applies to Phase 1A only. The Zoning District for the
project site is PD-Planned Development (PLPA-2016-00007).
1. Statement of Compatibility with Stage 1 Development Plan. The Phase 1A portion of
the Kaiser Dublin Medical Center Project is wholly consistent with the Stage 1
Development Plan.
2. Statement of Permitted Uses. Same as Stage 1 Development Plan.
3. Stage 2 Site Plan
4.4.b
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4. Site area, proposed densities
a. Gross area: 22.2 acres
b. Net area: 22.1 acres
5. Development Regulations
Maximum Building Height: 60 feet
Signage Pursuant to an approved Master Sign Program
Minimum Lot Size None
Maximum lot coverage None
Maximum Building Area 220,000 square feet
Maximum Floor Area
Ratio
.80
Parking Stall Dimensions
Standards
Per Chapter 8.76 Off-Street Parking And Loading Regulations of
the Dublin Zoning Ordinance
Minimum Setbacks None
Parking Spaces Required: Per Chapter 8.76 Off-Street Parking And Loading Regulations of
the Dublin Zoning Ordinance
6. Architectural Standards. The conceptual architectural design of the project shall reflect
the following standards as illustrated in the Project Plans. The architectural design shall:
Employ a variety of materials, textures and colors to provide visual interest in the
project and to complement its surroundings.
Use diversity of colors and textures in the building finishes to provide a varied and
interesting base form for the buildings.
Incorporate features such as different wall planes, heights, wall textures, roof elements,
storefront designs, awnings, canopies, trellises, base treatments, signs, light fixtures
and landscaping to contribute layers of detail at the pedestrian level.
Provide functional outdoor plazas where people will gather and socialize, with
landscaping, outdoor seating, enhanced paving treatment, and other features to
provide an appropriate urban scale for the center.
4.4.b
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7. Preliminary Landscaping Plan.
8. Compliance with adopted Mitigation Measures. The Applicant/Developer shall comply
with all applicable action programs and mitigation measures of the Eastern Dublin
Specific Plan and General Plan Amendment EIR and the Kaiser Dublin Medical Center
Project EIR.
SECTION 4.
The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three (3)
public places in the City of Dublin in accordance with Section 36933 of the Government Code of
the State of California.
SECTION 5.
This ordinance shall take effect and be enforced thirty (30) days from and after its passage.
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this _________
day of _____________ 2016, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________
Mayor
ATTEST:
_____________________________
City Clerk
4.4.b
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ORDINANCE NO. XX - 16
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *
APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND
KAISER FOUNDATION HOSPITALS RELATED TO THE
KAISER DUBLIN MEDICAL CENTER PROJECT
PA 08-50 and PLPA 2016-00007
(APNs 985-0061-005-00 and 985-0027-009-02)
WHEREAS, THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN
AS FOLLOWS:
Section 1. RECITALS
A. A request has been made by Kaiser Foundation Hospitals (“Applicant”) to enter
into a Development Agreement with the City of Dublin for the property known as the Kaiser site,
which includes properties identified by Assessor Parcel Numbers 985-0061-005-00 and 985-
0027-009-02, an approximately 58 acre site; and
B. The Applicant, Kaiser Foundation Hospitals, submitted a Planning Application for,
and is proposing to obtain approvals for, the Kaiser Dublin Medical Center project, which is
comprised of 950,000 square feet of medical campus uses in three main buildings, 250,000
square feet of commercial uses, a parking structure, and associated site, roadway frontage, and
landscape improvements. Requested land use approvals include a General Plan Amendment
and Eastern Dublin Specific Plan to create two new land use districts, Planned Development
Rezoning (Stage 1 and Stage 2), and Site Development Review for Phase 1A (a 220,000
square foot medical office building), a request for a Development Agreement , and certification of
a Final Environmental Impact Report, among other related actions. These planning and
implementing actions are collectively known as the “Kaiser Dublin Medical Center Project” or the
“Project”; and
C. The project is the subject of an Environmental Impact Report (EIR), State
Clearinghouse number 2015012018. On August 23, 2016, the Planning Commission approved
Resolution No. 16-16, recommending that the City Council certify the Kaiser Dublin Medical
Center Final EIR and adopt CEQA findings, a Statement of Overriding Considerations, and
Mitigation Monitoring and Reporting Program for the Project. The Development Agreement was
part of the Project analyzed in the EIR and the impacts of the activities under the Development
Agreement were analyzed in the EIR; and
D. The Applicant has applied for a Development Agreement which will vest the
Project Approvals.
E. The Planning Commission held a public hearing on the proposed Development
Agreement on August 23, 2016, for which public notice was given by law; and
F. The Planning Commission made its recommendation to the City Council for
approval of the Development Agreement by Resolution.
4.4.c
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G. A public hearing on the proposed Development Agreement was held before the
City Council on September 20, 2016 for which public notice was given as provided by law.
H. The City Council has considered the recommendation of the Planning
Commission, including the Planning Commission’s reasons for its recommendation, the Agenda
Statement, all comments received in writing, and all testimony received at the public hearing.
Section 2. FINDINGS AND DETERMINATIONS
Therefore, on the basis of: (a) the foregoing Recitals which are incorporated herein, (b)
the City of Dublin General Plan; (c) the Eastern Dublin Specific Plan, (d) the Kaiser Dublin
Medical Center Project EIR; (e) the Staff Report; (f) information in the entire record of
proceeding for the Project, and on the basis of the specific conclusions set forth below, the City
Council finds and determines that:
1. The Development Agreement is consistent with the objectives, policies, general
land uses and programs specified and contained in the City’s General Plan, and in the Eastern
Dublin Specific Plan in that: (a) the Development Agreement incorporates the objectives
policies, general land uses and programs in the General Plan and Specific Plan and does not
amend or modify them; and (b) the project is consistent with the fiscal policies of the General
Plan and Specific Plan with respect to the provision of infrastructure and public services.
2. The Development Agreement is compatible with the uses authorized in, and the
regulations prescribed for, the land use districts in which the real property is located because the
Development Agreement does not amend the uses or regulations in the applicable land use
district.
3. The Development Agreement is in conformity with public convenience, general
welfare, and good land use policies in that the Developer’s project will implement land use
guidelines set forth in the Eastern Dublin Specific Plan and the General Plan as articulated in
Resolution No. 151-16, amending the General Plan and the Eastern Dublin Specific Plan,
adopted by the City Council on September 20, 2016.
4. The Development Agreement will not be detrimental to the health, safety, and
general welfare in that the Developer’s proposed project will proceed in accordance with all the
programs and policies of the General Plan, Eastern Dublin Specific Plan, and future Project
Approvals and any Conditions of Approval.
5. The Development Agreement will not adversely affect the orderly development of
property or the preservation of property values in that the project will be consistent with the
General Plan, the Eastern Dublin Specific Plan, and future Project Approvals.
6. The Development Agreement specifies the duration of the agreement, the
permitted uses of the property, and the obligations of the Applicant. The Development
Agreement contains an indemnity and insurance clause requiring the developer to indemnify
and hold the City harmless against claims arising out of the development process, including all
legal fees and costs.
4.4.c
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Section 3. APPROVAL
The City Council hereby approves the Development Agreement (Exhibit A to the
Ordinance) and authorizes the City Manager to execute it.
Section 4. RECORDATION
Within ten (10) days after the Development Agreement is fully executed by all parties, the
City Clerk shall submit the Agreement to the County Recorder for recordation.
Section 5. EFFECTIVE DATE AND POSTING OF ORDINANCE
This Ordinance shall take effect and be in force thirty (30) days from and after the date of
its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at
least three (3) public places in the City of Dublin in accordance with Section 36933 of the
Government Code of the State of California.
PASSED AND ADOPTED BY the City Council of the City of Dublin, on this _____ day of
______, 2016 by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________________
Mayor
ATTEST:
________________________________
City Clerk
4.4.c
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RECORDING REQUESTED BY:
CITY OF DUBLIN
WHEN RECORDED MAIL TO:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
Space above this line for Recorder’s use
DEVELOPMENT AGREEMENT
BETWEEN THE
CITY OF DUBLIN
AND
KAISER FOUNDATION HOSPITALS
FOR THE KAISER DUBLIN MEDICAL CENTER PROJECT
4.4.d
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THIS DEVELOPMENT AGREEMENT (this “Agreement” or this “Development
Agreement”) is made and entered in the City of Dublin on this day of ,
2016, by and between the City of Dublin, a Municipal Corporation (hereafter “City”) and
Kaiser Foundation Hospitals, a California nonprofit public benefit corporation (hereafter
referred to as “Kaiser”) pursuant to the authority of §§ 65864 et seq. of the California
Government Code and Dublin Municipal Code, Chapter 8.56. City and Kaiser are, from
time-to-time, individually referred to in this Agreement as a “Party,” and are collectively
referred to as “Parties.”
RECITALS
A. California Government Code §§ 65864 et seq. (“Development Agreement
Statute”) and Chapter 8.56 of the Dublin Municipal Code (hereafter “Chapter 8.56”)
authorize the City to enter into a Development Agreement for the development of real
property with any person having a legal or equitable interest in such property in order to
establish certain development rights in such property.
B. Kaiser owns certain real property (the “Property”) consisting of
approximately 58.7 acres of land and that is more particularly described in Exhibit A
attached hereto and is incorporated herein by reference.
C. Kaiser has applied for, and City has approved or is processing, various
land use approvals in connection with the development of the Project, including, without
limitation, a General Plan Amendment (Resolution No. adopted on , 2016), an
Eastern Dublin Specific Plan Amendment (Resolution No. adopted on , 2016), a
Stage 1 Planned Development Zoning and Development Plan (Ord. No. adopted by
the City Council on _, 2016); a Stage 2 Planned Development Rezoning and
Development Plan for Medical Center Phase 1A (Ord. No. adopted by the City
Council on , 2016), Site Development Review (SDR) approval for Phase 1A
(Resolution No. adopted on , 2016), and the DA Approving Ordinance
(defined below), which collectively are referred to herein as the “Existing Project
Approvals” and together with any Subsequent Project Approvals defined below are
referred to herein as the “Project Approvals.”
D. On , 2016, the City Council again considered and approved the
DA Approving Ordinance and the other ordinances described above.
E. Development of the Property as currently anticipated by Kaiser will be
subject to other future discretionary and non-discretionary City approvals and permits
(collectively, the “Subsequent Project Approvals”) including Stage 2 Planned
Development Plans, a vesting tentative parcel map (an application for which was
submitted to the City by Kaiser on July 28, 2016), and site development review
approvals, which if granted by the City in accordance with this Agreement, shall
automatically become part of the Project Approvals, except as otherwise specified
herein.
4.4.d
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F. City desires the timely, efficient, orderly and proper development of the
Project.
G. The City Council has found that, among other things, this Development
Agreement is consistent with its General Plan and the Eastern Dublin Specific Plan
(“Specific Plan”), as both have been amended by the Project Approvals, and has been
reviewed and evaluated in accordance with the Development Agreement Statute and
Chapter 8.56.
H. City and Kaiser have reached agreement and desire to express herein a
Development Agreement that will facilitate development of the Project subject to
conditions set forth herein.
I. City has undertaken, pursuant to the California Environmental Quality Act
(Public Resources Code Section 21000 et seq., hereinafter “CEQA”), the required
analysis of the environmental effects that would be caused by the Project and has
determined those feasible mitigation measures which will eliminate, or reduce to an
acceptable level, the adverse environmental impacts of the Project. The environmental
effects of the proposed development of the Property were analyzed by the Final
Environmental Impact Report (the “FEIR”) certified by City on , 20 .
City has also adopted a mitigation monitoring and reporting program (the “MMRP”) to
ensure that those mitigation measures incorporated as part of, or imposed on, the
Project are enforced and completed. Those mitigation measures for which Kaiser is
responsible are incorporated into, and required by, the Project Approvals.
J. The City is aware that the State of California, through its Office of
Statewide Health, Planning and Development, regulates health, safety and internal
design aspects of hospitals and related facilities for public health and safety.
K. On , 2016, the City Council of the City of Dublin adopted
Ordinance No. approving this Development Agreement (“the DA Approving
Ordinance”). The DA Approving Ordinance took effect on (“the
Effective Date”).
NOW, THEREFORE, with reference to the foregoing recitals and in consideration
of the mutual promises, obligations and covenants herein contained, City and Kaiser
agree as follows:
AGREEMENT
1. Description of Property. The Property that is the subject of this
Agreement is described in Exhibit A attached hereto (“Property”).
2. Interest of Kaiser. Kaiser has a legal interest in the Property in that it is
the owner of the Property.
3. Relationship of City and Kaiser. It is understood that this Agreement is a
contract that has been negotiated and voluntarily entered into by the City and Kaiser
4.4.d
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and that Kaiser is not an agent of the City. The City and Kaiser hereby renounce the
existence of any form of joint venture or partnership between them, and agree that
nothing contained herein or in any document executed in connection herewith shall be
construed as making the City and Kaiser joint venturers or partners.
4. Effective Date and Term
4.1 Effective Date. The effective date of this Agreement (“Effective
Date”) is (as defined in Recital K).
4.2 Term. The term of this Agreement shall commence on the Effective
Date and shall continue for twenty-five (25) years thereafter, unless said term is
otherwise extended or terminated as provided in this Agreement. In the event that any
third-party lawsuit is f iled challenging the City’s issuance of the Project Approvals or its
compliance with CEQA, the term of this Agreement shall be automatically extended for
a duration equal to the time from the filing of such lawsuit to the entry of an order
dismissing or otherwise terminating such lawsuit, which duration shall include any
appeals.
4.3 Term of Project Approvals. Pursuant to the Subdivision Map Act
(Government Code § 66410 et seq.), and in particular, Government Code Section
66452.6(a), the term of any tentative or vesting tentative map, parcel map or vesting
parcel map for the Property or any Portion thereof, shall be extended automatically for
the Term of this Agreement, such that such tentative or vesting tentative maps or parcel
maps remain in effect for no less than the Term, and shall also be extended by any
other extension(s) granted under the Subdivision Map Act and/or City ordinance
consistent with the Subdivision Map Act.
5. Vested Rights/Use of the Property/Applicable Law/Processing.
5.1 Right to Develop. Kaiser shall have the vested right to develop the
Project on the Property in accordance with the terms and conditions of this Agreement,
the Project Approvals (as and when issued), and any amendments to any of them as
shall, f rom time to time, be approved pursuant to this Agreement, and the City’s
ordinances, codes, resolutions, rules, regulations and official policies governing the
development, construction, subdivision, occupancy and use of the Project and the
Property including, without limitation, the General Plan, the Dublin Municipal Code, and
the Specific Plan, the permitted uses of the Property, density and intensity of use of the
Property and the maximum height, bulk and size of proposed buildings, and the
provisions for reservation or dedication of land for public purposes that are in force and
effect on the Effective Date of this Agreement (collectively, “Applicable Law”). In
exercising its discretion when acting upon Subsequent Project Approvals, City shall
apply the Applicable Law as the controlling body of law (within which Applicable Law
such discretion shall be exercised). Notwithstanding the foregoing or anything to the
contrary herein, any amendment to the Existing Project Approvals shall not become part
of the law Kaiser is vested into under this Agreement unless an additional amendment
of this Agreement is entered into between Kaiser and City in accordance with this
4.4.d
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Agreement. In the event that such amendments to the Existing Project Approvals are
sought for any distinct portion of the Property or Project (for example, for the
Commercial Parcel as defined herein), such amendments shall not require amendment
of this Agreement with respect to any other portion of the Property or Project, except to
the extent set forth in such amendment.
5.1 Fees, Exactions, Dedications. The City shall not apply to the
Project any development impact fee that the City first enacts after the Effective Date.
Except as otherwise set forth in this Agreement, City and Kaiser agree that this
Agreement does not limit the City’s discretion to impose or require (a) payment of any
fees in connection with the issuance of any Subsequent Project Approvals for purposes
of mitigating environmental and other impacts of the Project, (b) dedication of any land,
or (c) construction of any public improvement or facilities (collectively “Exactions”),
unless the Exactions could have been imposed on the Existing Project Approvals, in
which case the City shall be prohibited from imposing them. Notwithstanding the
foregoing, the City shall be permitted to impose any Exaction on the vesting tentative
parcel map application submitted on July 28, 2016 and on a Subsequent Project
Approval that requires an amendment to the Existing Project Approvals. Nothing in this
Agreement shall limit the City’s ability to impose existing development impact fees at
rates that are increased beyond the amounts in effect on the Effective Date or limit
Kaiser’s ability to challenge any such increases under state or local law.
5.2 Construction Codes. Notwithstanding the provisions of Section 5.1
above, to the extent Applicable Law includes requirements under the state or locally
adopted building, plumbing, mechanical, electrical and fire codes (collectively the
“Codes”), the Codes included shall be those in force and effect at the time Kaiser
submits its application for the relevant building, grading, or other construction permits to
City, unless governed by the State of California as referenced in Recital J. In the event
of a conflict between such Codes and the Project Approvals, the Project Approvals
shall, to the maximum extent allowed by law, prevail. For construction of public
infrastructure, the Codes applicable to such construction shall be those in force and
effect at the time of execution of an improvement agreement between City and Kaiser
pursuant to Chapter 9.16 of the Dublin Municipal Code.
5.3 Rights Under Vesting Tentative Map. Notwithstanding anything to
the contrary contained herein, this Agreement shall not supersede any rights Kaiser
may obtain pursuant to City’s approval of the vesting tentative map for the Project. The
parties agree that the vesting tentative map shall confer a vested right to proceed with
development in accordance with the Project Approvals for the life of the vesting
tentative map.
5.4 New Rules and Regulations. During the term of this Agreement,
the City may apply new or modified ordinances, resolutions, rules, regulations and
official policies of the City to the Property which were not in force and effect on the
Effective Date only to the extent they are not in conflict with the vested rights granted
by this Agreement, the Applicable Law, the Project Approvals or this Agreement. In
addition to any other conflicts that may occur, each of the following new or modified
4.4.d
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ordinances, resolutions, rules, regulations or official policies shall be considered a per
se conflict with the Applicable Law:
5.4.1 Any application or requirement of such new or modified
ordinances, resolutions, rules, regulations or official policies that would (i) cause or
impose a substantial financial burden on, or materially delay development of the
Property as otherwise contemplated by this Agreement or the Existing Project
Approvals, (ii) frustrate in a more than insignificant way the intent or purpose of the
Existing Project Approvals or preclude compliance therewith including, without
limitation, by preventing or imposing limits or controls in the rate, timing, phasing or
sequencing of development of the Project; (iii) prevent or limit the processing or
procuring of Subsequent Project Approvals; or (iv) reduce the density or intensity of use
of the Property as a whole, or otherwise requiring any reduction in the square footage
of, or total number of, proposed buildings, structures and other improvements, in a
manner that is inconsistent with or more restrictive than the limitations included in this
Agreement and the Project Approvals; and/or
5.4.2 If any of such ordinances, resolutions, rules, regulations or
official policies do not have general (City-wide) applicability.
Kaiser specifically acknowledges that it will be subject to new or modified ordinances,
resolutions, rules, regulations or official policies that implement the Municipal Regional
Stormwater NPDES Permit issued by the Regional Water Quality Control Board for the
San Francisco Bay Region from time to time (the “MRP”) to the extent that the permit
does not include exemptions that apply to the Project.
5.5 Moratorium Not Applicable. Notwithstanding anything to the
contrary contained herein, if a City ordinance, resolution, policy, directive, or other
measure is enacted or becomes effective, whether by action of the City or by initiative,
and if it imposes a building moratorium which affects all or any part of the Project, City
agrees that such ordinance, resolution or other measure shall not apply to the Project,
the Property, this Agreement or the Project Approvals unless the building moratorium is
imposed as part of a declaration of a local emergency or state of emergency as defined
in Government Code section 8558, provided that to the extent a moratorium applies to
all or any part of the Project then the Term shall automatically be extended for a period
of time equal to the period of the moratorium.
5.6 Revised Application Fees. Notwithstanding section 5.1 above5.2
above, any existing application, processing and inspection fees that are revised during
the term of this Agreement shall apply to the Project provided that (1) such fees have
general applicability and are consistent with State law limitations that processing fees
not exceed the estimated reasonable cost of providing the service for which they are
charged; (2) the application of such fees to the Property is prospective; and (3) the
application of such fees would not prevent, impose a substantial financial burden on, or
materially delay development in accordance with this Agreement. By so agreeing,
Kaiser does not waive its rights to challenge the legality of any such application,
processing and/or inspection fees.
4.4.d
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5.7 New Taxes. This Agreement shall not prohibit the application of
any subsequently enacted city-wide taxes to the Project provided that (1) the application
of such taxes to the Property is prospective, and (2) the application of such taxes would
not prevent development in accordance with this Agreement. By so agreeing, Kaiser
does not waive its rights to challenge the legality of any such taxes, facially or as
applied to its Project or Property, or to claim exemption from any taxes to the extent
allowed by law.
5.8 Development of the Project; Phasing, Timing. Since the California
Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal. 3d
465, that the failure of the parties therein to provide for the timing of development
resulted in a later adopted initiative restricting the timing of development to prevail over
such parties’ agreement, it is the Parties’ intent to cure that deficiency by acknowledging
and providing that this Agreement contains no requirements that Kaiser must initiate or
complete any action, including without limitation, development of the Project within any
period of time set by City. Nothing in this Agreement is intended to create nor shall it be
construed to create any affirmative development obligations to develop the Project at all
or in any particular order or manner, or liability in Kaiser under this Agreement if the
development fails to occur. It is the intention of this provision that Kaiser be able to
develop the Property in accordance with its own time schedules and the Project
Approvals.
5.9 Processing. Nothing in this Agreement shall be construed to limit
the authority or obligation of City to hold necessary public hearings, nor to limit the
discretion of City or any of its officers or officials with regard to those Subsequent
Project Approvals that require the exercise of discretion by City, provided that such
discretion shall be exercised consistent with the vested rights granted by this
Agreement, the Applicable Law and this Agreement.
6. Community Benefits.
6.1 Kaiser’s Obligation to Allocate Sales and Use Tax Revenue. The
Landowner shall use its best efforts to maximize the City’s allocation of sales and use
taxes associated with Project construction and operation as follows:
6.1.1 The parties understand that state law gives construction
contractors the option to allow certain use tax revenues derived from contracts of
$5,000,000 or more to be allocated to the jurisdiction in which the jobsite is located,
rather than to the countywide pool. (See California State Board of Equalization [“BOE”],
Compliance Policy and Procedures Manual, Contractors, 260.020.) In order to ensure
that such revenues accrue to the City, Kaiser will include in any construction contracts a
provision that requires qualifying general contractors and subcontractors to exercise
their option to obtain a Board of Equalization sub-permit for the jobsite and allocate all
eligible use tax payments to the City. Prior to commencement of any construction
activity onsite, Kaiser will require that the contractor or subcontractor provide the City
with either a copy of their BOE account number and sub-permit or a statement either
4.4.d
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that use tax does not apply to their portion of the project or that the contractor is not
eligible for a permit and the reason why.
6.1.2 Kaiser will take commercially reasonable steps to ensure
that its purchases of tangible personal property subject to use tax or its making of
qualified leases of tangible property are completed in a manner that allocates local
taxes f rom such purchases to City.
6.2 Development of the Commercial Parcel.
6.2.1 Kaiser will promptly begin marketing the commercial site
(designated as “Commercial Parcel” on the Stage 1 Site Plan) (the “Commercial
Parcel”) for sale to a buyer intending to develop the Commercial Parcel in a manner
consistent with the uses approved for the Commercial Parcel in the Stage 1
Development Plan. Kaiser shall have an obligation to attempt in good faith to sell the
Commercial Parcel to a reputable developer on reasonable commercial terms,
consistent with the then-current values in the real estate market. The parties recognize
that values will vary depending on the specific development the buyer intends to pursue
on the Commercial Parcel, and that nothing herein obligates Kaiser to establish a
certain sale price for the Commercial Parcel.
6.2.2 In furtherance of its obligation to actively and diligently
market the Commercial Parcel, Kaiser shall engage a commercial real estate broker
that specializes in marketing retail sites, update the City Manager and Economic
Development Director on a monthly basis on the status of its efforts, and update the City
as part of its annual review. The City agrees to assist and cooperate with Kaiser with its
efforts to market the site. City recognizes that aside from simple use categories or
considerations, Kaiser’s decision to sell to a particular buyer that will be a long term
neighbor to its investment in the Project will necessarily consider numerous variables
other than use or price.
6.2.3 Notwithstanding the Term set forth in Section 4, the
Agreement shall terminate upon Kaiser submitting to the applicable tax authority a
Claim for Welfare Exemption (“Claim for Exemption”) for any development on the
Property, unless Kaiser has completed the sale of the Commercial Parcel consistent
with the requirements of this Section 6.2.
(a) Notwithstanding the foregoing, Kaiser may elect to
continue the Term beyond the termination arising from the filing of the Claim for
Exemption (a “Continuation Period”) by making a payment of Two-Hundred Thousand
Dollars ($200,000), adjusted based on the change between the then-most recently
published the CPI-U index for the SF Bay Area and the same index most recently
published on the Effective Date (“Annual Payment”) for each one-year period it desires
to continue the Term beyond the submittal of the Claim for Exemption. Thereafter,
Kaiser may continue the Term by making an Annual Payment for each one-year
Continuation Period it desires to continue the Term. The Annual Payments shall be
made, as the case may be, prior to the submission of the Claim for Exemption or the
4.4.d
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end of the Continuation Period. If, at the time a Claim for Exemption is filed, Kaiser has
entered an agreement for the sale of the Commercial Parcel to a qualified purchaser,
Kaiser may elect to extend the Term beyond the termination date by making a payment
of Fif ty Thousand Dollars, adjusted based on the change between the then-most
recently published the CPI-U index for the SF Bay Area and the same index most
recently published on the Effective Date, for each three-month period it desires to
continue the Term beyond the submittal of the Claim for Exemption, not to exceed one
year.
(b) If Kaiser sells the Commercial Parcel consistent with
the requirements of this Section 6.2 at any point prior to submitting the Claim for
Exemption or during any Continuation Period, the Term for the remainder of the
Property shall be as set forth Section 4.
7. Amendment or Cancellation.
7.1 Modification Because of Conflict with State or Federal Laws. The
Project and Property shall be subject to state and federal laws and regulations and this
Agreement does not create any vested right in state and federal laws and regulations in
effect on the Effective Date. In the event that state or federal laws or regulations
enacted after the Effective Date of this Agreement prevent or preclude compliance with
one or more provisions of this Agreement or require changes in plans, maps or permits
approved by the City, the parties shall meet and confer in good faith in a reasonable
attempt to modify this Agreement to comply with such federal or state law or regulation.
Any such amendment or suspension of the Agreement shall be subject to approval by
the City Council (in accordance with Chapter 8.56). Each Party agrees to extend to the
other its prompt and reasonable cooperation in so modifying this Agreement or
approved plans.
7.2 Amendment by Mutual Consent. This Agreement may be amended
in writing f rom time to time by mutual consent of the parties hereto and in accordance
with the procedures of State law and Chapter 8.56. W hen a Party seeking such an
amendment owns or has an equitable right to only a portion of the whole of the Property
(“Portion”), then such Party may only seek amendment of this Agreement as directly
relates to the Portion, and the Party owning any other Portion shall not be required or
entitled to be a signatory or to consent to an amendment that affects only the other
Party’s Portion. If any Portion of the Property is subject to a document which creates an
association which oversees common areas and any construction or reconstruction on or
of the same, then the association shall be deemed to be the “owner” of that Portion of
the Property for the purpose of amending this Agreement.
7.3 Major Amendments. Any amendments to this Agreement which
relate to (a) the Term; (b) the permitted uses of the Property as provided in paragraph
5.1; (c) provisions for “significant” reservation or dedication of land; (d) conditions,
terms, restrictions or requirements for subsequent discretionary actions; (e) an increase
in the density or intensity of use of the overall Project; (f) the maximum height or size of
proposed buildings; or (g) monetary contributions by Kaiser as provided in this
4.4.d
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Agreement, shall be deemed a “Major Amendment” and shall require notice or public
hearing before the Planning Commission and the City Council before the parties may
execute an amendment hereto. The City’s Public W orks Director shall determine
whether a reservation or dedication is “significant” in the context of the overall Project.
7.4 Minor Amendments. Any amendment that is not a Major
Amendment shall be deemed a “Minor Amendment” and shall not, except to the extent
otherwise required by law, require notice or public hearing before the parties may
execute an amendment hereto. The City Manager or his or her designee shall have the
authority to determine if an amendment is a Major Amendment subject to Section 7.3
above or a Minor Amendment subject to this Section 7.4. The City Manager shall have
the authority to review and approve amendments to this Agreement provided that such
amendments are not Major Amendments.
7.5 Cancellation by Mutual Consent. Except as otherwise permitted
herein, this Agreement may be canceled in whole or in part only by the mutual consent
of the parties or their successors in interest, in accordance with the provisions of
Chapter 8.56. Any fees paid pursuant to this Agreement prior to the date of cancellation
shall be retained by the City.
8. Annual Review .
8.1 Review Date. The annual review date for this Agreement shall be
between July 15 and August 15, 2017 and thereafter between each July 15 and August
15 during the Term.
8.2 Initiation of Review. The City’s Community Development Director
shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by
giving to Kaiser thirty (30) days’ written notice that the City intends to undertake such
review. Kaiser shall provide evidence to the Community Development Director prior to
the hearing on the annual review, as and when reasonably determined necessary by
the Community Development Director, to demonstrate good faith compliance with the
provisions of the Agreement. The burden of proof by substantial evidence of
compliance is upon Kaiser.
8.3 Staff Reports. To the extent practical, the City shall deposit in the
mail to Kaiser a copy of all staff reports, and related exhibits concerning contract
performance at least five (5) days prior to any public hearing addressing annual review.
8.4 Costs. Costs reasonably incurred by the City in connection with the
annual review shall be paid by Kaiser in accordance with the City’s schedule of fees in
effect at the time of review.
9. Default.
9.1 Remedies Available. Upon the occurrence of an event of default,
the parties may pursue all remedies at law or in equity which are not otherwise provided
for in this Agreement or in the City’s regulations governing development agreements,
4.4.d
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expressly including, but not limited to, the remedy of specific performance of this
Agreement.
9.2 Notice and Cure. Upon the occurrence of an event of default by
either party, the nondefaulting party shall serve written notice of such default upon the
defaulting party. If the default is not cured by the defaulting party within thirty (30) days
after service of such notice of default, the nondefaulting party may then commence any
legal or equitable action to enforce its rights under this Agreement; provided, however,
that if the default cannot be cured within such thirty (30) day period, the nondefaulting
party shall ref rain from any such legal or equitable action so long as the defaulting party
begins to cure such default within such thirty (30) day period and diligently pursues such
cure to completion. Failure to give notice shall not constitute a waiver of any default.
9.3 No Damages against City. Notwithstanding anything to the
contrary contained herein, in no event shall damages be awarded against the City upon
an event of default or upon termination of this Agreement.
9.4 Commercial Parcel. In no event shall Kaiser’s failure to complete a
sale of the Commercial Parcel, after diligent and good faith efforts in accordance with
Section 6 of this Agreement, be deemed a default subject to this Section 9. Should
Kaiser partially assign this Agreement as to any portion of the Property, the City shall
not deem a default by Kaiser or its assignee a default by the other.
10. Estoppel Certificate. Either party may, at any time, and from time to time,
request written notice from the other party requesting such party to certify in writing that,
(a) this Agreement is in full force and effect and a binding obligation of the parties,
(b) this Agreement has not been amended or modified either orally or in writing, or if so
amended, identifying the amendments, and (c) to the knowledge of the certifying party,
the requesting party is not in default in the performance of its obligations under this
Agreement, or if in default, to describe therein the nature and amount of any such
defaults. A party receiving a request hereunder shall execute and return such certificate
within thirty (30) days following the receipt thereof, or such longer period as may
reasonably be agreed to by the parties. The City Manager of the City shall be
authorized to execute any certificate requested by Kaiser. Should the party receiving
the request not execute and return such certificate within the applicable period, this
shall not be deemed to be a default, provided that such party shall be deemed to have
certified that the statements in clauses (a) through (c) of this section are true, and any
party may rely on such deemed certification.
11. Mortgagee Protection; Certain Rights of Cure.
11.1 Mortgagee Protection. This Agreement shall be superior and
senior to any lien placed upon the Property, or any portion thereof after the date of
recording this Agreement, including the lien for any deed of trust or mortgage
(“Mortgage”). Notwithstanding the foregoing, no breach hereof shall defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but
all the terms and conditions contained in this Agreement shall be binding upon and
4.4.d
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effective against any person or entity, including any deed of trust beneficiary or
mortgagee (“Mortgagee”) who acquires title to the Property, or any portion thereof, by
foreclosure, trustee’s sale, deed in lieu of foreclosure, or otherwise.
11.2 Mortgagee Not Obligated. Notwithstanding the provisions of
Section 11.1 above, no Mortgagee shall have any obligation or duty under this
Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or
complete the construction of improvements, or to guarantee such construction of
improvements, or to guarantee such construction or completion, or to pay, perform or
provide any fee, dedication, improvements or other exaction or imposition; provided,
however, that a Mortgagee shall not be entitled to devote the Property to any uses or to
construct any improvements thereon other than those uses or improvements provided
for or authorized by the Project Approvals or by this Agreement.
11.3 Notice of Default to Mortgagee and Extension of Right to Cure. If
the City receives notice from a Mortgagee requesting a copy of any notice of default
given Kaiser hereunder and specifying the address for service thereof, then the City
shall deliver to such Mortgagee, concurrently with service thereon to Kaiser, any notice
given to Kaiser with respect to any claim by the City that Kaiser has committed an event
of default. Each Mortgagee shall have the right during the same period available to
Kaiser to cure or remedy, or to commence to cure or remedy, the event of default
claimed set forth in the City’s notice. The City, through its City Manager, may extend
the thirty-day cure period provided in paragraph 12.2 for not more than an additional
sixty (60) days upon request of Kaiser or a Mortgagee.
12. Severability. The unenforceability, invalidity or illegality of any provisions,
covenant, condition or term of this Agreement shall not render the other provisions
unenforceable, invalid or illegal.
13. Attorneys’ Fees and Costs.
13.1 Prevailing Party. If the City or Kaiser initiates any action at law or in
equity to enforce or interpret the terms and conditions of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys’ fees and costs in addition to any
other relief to which it may otherwise be entitled.
13.2 Third Party Challenge. If any person or entity not a party to this
Agreement initiates an action at law or in equity to challenge the validity of any provision
of this Agreement or the Project Approvals, the parties shall cooperate in defending
such action. Kaiser shall bear its own costs of defense as a real party in interest in any
such action, and shall reimburse the City for all reasonable court costs and attorneys’
fees expended by the City in defense of any such action or other proceeding.
14. Transfers and Assignments.
14.1 Agreement Runs with the Land. All of the provisions, rights, terms,
covenants, and obligations contained in this Agreement shall be binding upon the
Parties and their respective heirs, successors and assignees, representatives, lessees,
4.4.d
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and all other persons acquiring the Property, or any portion thereof, or any interest
therein, whether by operation of law or in any manner whatsoever. All of the provisions
of this Agreement shall be enforceable as equitable servitude and shall constitute
covenants running with the land pursuant to applicable laws, including, but not limited
to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or
refrain from doing, some act on the Property hereunder, or with respect to any owned
property, (a) is for the benefit of such properties and is a burden upon such properties,
(b) runs with such properties, and (c) is binding upon each party and each successive
owner during its ownership of such properties or any portion thereof, and shall be a
benefit to and a burden upon each party and its property hereunder and each other
person succeeding to an interest in such properties.
14.2 Right to Assign. Kaiser may wish to sell, transfer or assign all or
portions of its Property to other developers (each such other developer is referred to as
a “Transferee”). In connection with any such sale, transfer or assignment to a
Transferee, Kaiser may sell, transfer or assign to such Transferee any or all rights,
interests and obligations of Kaiser arising hereunder and that pertain to the portion of
the Property being sold or transferred, to such Transferee, provided, however, that:
except as provided herein, no such transfer, sale or assignment of Kaiser’s rights,
interests and obligations hereunder shall occur without prior written notice to City and
approval by the City Manager, which approval shall not be unreasonably withheld or
delayed.
14.3 Approval and Notice of Sale, Transfer or Assignment. The City
Manager shall consider and decide on any transfer, sale or assignment within ten (10)
days after Kaiser’s notice, provided all necessary documents, certifications and other
information are provided to the City Manager to enable the City Manager to determine
whether the proposed Transferee can perform Kaiser’s obligations hereunder. Notice of
any such approved sale, transfer or assignment (which includes a description of all
rights, interests and obligations that have been transferred and those which have been
retained by Kaiser) shall be recorded in the official records of Alameda County, in a
form acceptable to the City Manager, concurrently with such sale, transfer or
assignment.
14.4 Considerations for Approval of Sale, Transfer or Assignment. In
considering the request, the City Manager shall base the decision upon the proposed
assignee's reputation, experience, financial resources and access to credit and
capability to successfully carry out the development of the Property to completion. The
City Manager's approval shall be for the purposes of: a) providing notice to City; b)
assuring that all obligations of Kaiser are allocated as between Kaiser and the proposed
purchaser, transferee or assignee as provided by this Agreement; and c) assuring City
that the proposed purchaser, transferee or assignee is financially capable of performing
Kaiser's obligations hereunder not withheld by Kaiser. Notwithstanding the foregoing,
the City Manager’s approval shall not be required for (i) an assignment in conjunction
with a sale of the Commercial Parcel consistent with Section 6.2 above, provided that
Kaiser shall provide notice of the sale to the City, or (ii) an assignment to an entity or
entities controlling Kaiser, controlled by Kaiser, or under common control with Kaiser,
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provided that Kaiser owns and controls no less than fifty percent (50%) of such
successor entity.
14.5 Release upon Transfer. Upon the transfer, sale, or assignment of
all of Kaiser’s rights, interests and obligations hereunder pursuant to Section 14.2 of this
Agreement, Kaiser shall be released from the obligations under this Agreement, with
respect to the Property transferred, sold, or assigned, arising subsequent to the date of
City Manager approval of such transfer, sale, or assignment; provided, however, that if
any transferee, purchaser, or assignee approved by the City Manager expressly
assumes all of the rights, interests and obligations of Kaiser under this Agreement,
Kaiser shall be released with respect to all such rights, interests and assumed
obligations. Notwithstanding the foregoing, such release shall be automatic with
respect to a sale of the Commercial Parcel upon Kaiser’s provision of notice to the City
Manager pursuant to Section 14.4. In any event, the transferee, purchaser, or assignee
shall be subject to all the provisions hereof and shall provide all necessary documents,
certifications and other necessary information prior to City Manager approval.
14.6 Kaiser’s Right to Retain Specified Rights or Obligations. Kaiser may
withhold from a sale, transfer or assignment of this Agreement or any portion of the
Property transferred, certain rights, interests and/or obligations which Kaiser wishes to
retain, provided that Kaiser specifies such rights, interests and/or obligations in a written
document to be appended to this Agreement and recorded with the Alameda County
Recorder prior to the sale, transfer or assignment of the Property. Kaiser’s purchaser,
transferee or assignee shall then have no interest or obligations for such rights,
interests and obligations and this Agreement shall remain applicable to Kaiser with
respect to such retained rights, interests and/or obligations.
14.7 Omitted.
15. Bankruptcy. The obligations of this Agreement shall not be dischargeable
in bankruptcy.
16. Indemnification. Kaiser agrees to indemnify, defend and hold harmless
the City, and its elected and appointed councils, boards, commissions, officers, agents,
employees, and representatives from any and all claims, costs (including legal fees and
costs) and liability for any personal injury or property damage which may arise directly
or indirectly as a result of any actions or inactions by Kaiser, or any actions or inactions
of Kaiser’s contractors, subcontractors, agents, or employees in connection with the
construction, improvement, operation, or maintenance of the Project, provided that
Kaiser shall have no indemnification obligation with respect to negligence or wrongful
conduct of the City, its contractors, subcontractors, agents or employees or with respect
to the maintenance, use or condition of any improvement after the time it has been
dedicated to and accepted by the City or another public entity (except as provided in an
improvement agreement or maintenance bond). If City is named as a party to any legal
action, City shall cooperate with Kaiser, shall appear in such action and shall not
unreasonably withhold approval of a settlement otherwise acceptable to Kaiser.
4.4.d
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17. Insurance.
17.1 Commercial General Liability Insurance. During the term of this
Agreement, Kaiser shall maintain in effect a policy of commercial general liability
insurance with a per-occurrence combined single limit of not less than one million
dollars ($1,000,000.00). The policy so maintained by Kaiser shall name the City as an
additional insured and shall include either a severability of interest clause or cross-
liability endorsement. City and Kaiser agree that such insurance may include alternative
risk management programs, including self-insurance or a combination of self-insurance
and insurance, provided that such alternative risk management programs provide
protection equivalent to that specified under this Agreement.
17.2 Workers Compensation Insurance. During the term of this
Agreement Kaiser shall maintain W orker’s Compensation insurance for all persons
employed by Kaiser for work at the Project site. Kaiser shall require each contractor
and subcontractor similarly to provide W orker’s Compensation insurance for its
respective employees. Kaiser agrees to indemnify the City for any damage resulting
f rom Kaiser’s failure to maintain any such insurance.
17.3 Evidence of Insurance. Prior to issuance of any permits for the
Project, including grading permits, Kaiser shall furnish the City satisfactory evidence of
the insurance required in Sections 17.1 and 17.2 and evidence that the carrier is
required to give the City at least fifteen days prior written notice of the cancellation or
reduction in coverage of a policy unless replaced with similar coverage. The insurance
shall extend to the City, its elective and appointive boards, commissions, officers,
agents, employees and representatives and to Kaiser performing work on the Project.
18. Sewer and Water. Kaiser acknowledges that it must obtain water and
sewer permits f rom the Dublin San Ramon Services District (“DSRSD”) which is another
public agency not within the control of the City. City agrees that it shall not take any
action with DSRSD opposing Kaiser’s efforts to reserve water and sewer capacity
sufficient to serve the Project described herein.
19. Notices. All notices required or provided for under this Agreement shall be
in writing. Notices required to be given to the City shall be addressed as follows:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fax No. (925) 833-6651
Notices required to be given to Kaiser shall be addressed as follows:
Kaiser Health Foundation
Real Estate Department
1800 Harrison St.
Oakland, CA 94612
4.4.d
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With a copy to:
Kaiser Health Foundation
Legal Department
Attn: Christopher Alonzi
One Kaiser Plaza, 19 Bayside
Oakland, CA 94612
A party may change address by giving notice in writing to the other party and thereafter
all notices shall be addressed and transmitted to the new address. Notices shall be
deemed given and received upon personal delivery, or if mailed, upon the expiration of
48 hours after being deposited in the United States Mail. Notices may also be given by
overnight courier which shall be deemed given the following day or by facsimile
transmission which shall be deemed given upon verification of receipt.
20. Agreement is Entire Understanding. This Agreement constitutes the
entire understanding and agreement of the parties.
21. Exhibits. The following document is referred to in this Agreement and is
attached hereto and incorporated herein as though set forth in full:
Exhibit A Legal Description of Property
22. Recitals. The foregoing Recitals are true and correct and are made a part
hereof.
23. Counterparts. This Agreement is executed in two (2) duplicate originals,
each of which is deemed to be an original.
24. Recordation. The City shall record a copy of this Agreement within ten
(10) days following execution by all parties.
25. No Third Party Beneficiaries. Nothing contained in this Agreement is
intended to or shall be deemed to confer upon any person, other than the Parties and
their respective permitted successors and assigns, any rights or remedies hereunder.
[Execution Page Follows]
4.4.d
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
CITY OF DUBLIN
By:
Chris Foss, City Manager
Attest:
KAISER
Kaiser Foundation Hospitals, a California
nonprofit public benefit corporation
By:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
2690303.3
(NOTARIZATION ATTACHED)
4.4.d
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Exhibit A
Legal Description of Property
Real property in the County of Alameda, State of California, described as follows:
[ADD]
4.4.d
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Page 1 of 2
STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Crossing Guard Budget Increase
Prepared by: Linda Smith, Assistant City Manager
EXECUTIVE SUMMARY:
The City Council will consider an amendment to Resolution No. 112-16, increasing the
City's budget for crossing guard services as a result of a request by Dublin Unified
School District to add a second crossing guard at Frederiksen Elementary. The District
will be covering the cost associated with the additional crossing guard.
STAFF RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution Amending Resolution No.
112-16 to increase the budget for crossing guard services for Fiscal Year 2016-17.
FINANCIAL IMPACT:
Costs associated with the additional crossing guard will be offset by a reimbursement
payment from Dublin Unified School District, estimated at approximately $12,500. The
City and the District have entered into a reimbursement agreement for the additional
crossing guard, subject to City Council approval.
DESCRIPTION:
Following the start of the school year, the City received a request from the Dublin
Unified School District for an additional crossing guard at Frederiksen Elementary. In
response, Staff from Police Services and Public Works met on site with the District and
school staff to evaluate the situation leading to the request.
Currently, the driveway entrance is offset from the three-way stop sign at the front of the
school. It was determined by City staff that the best measure to alleviate this
circumstance was a modification to the driveway entrance and advised the District that
they would be eligible to apply for grant funds from the Active Transportation Program
(ATP) to pay for the modification. The next grant period is expected to open in March
2017 and end in mid-2017.
4.5
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Page 2 of 2
In the meantime, the District believes that an additional crossing guard is needed and
has made its own financial arrangements with the Frederiksen Parent Faculty Club to
cover the cost, estimated at $12,500. The City has drafted a reimbursement agreement
with the District to cover the costs associated with this request for Fiscal Year 2016-17.
The agreement will be executed by the City Manager only if the City Council authorizes
the budget change to crossing guard services. The agreement will also gives authority
to the City Manager and the Superintendent to extend the agreement for future fiscal
years.
In order to enter into the agreement, the City Council must first amend Resolution 112-
16, increasing the budget for crossing guard services for Fiscal Year 2016-17. The
amending Resolution also includes language allowing the City Manager to exercise his
budgeting appropriation and budgeting authority to make any further amendments to the
budget for crossing guard services, rather than having it restricted via the Resolution.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
A copy of the Staff Report was provided to the Dublin Unified School District.
ATTACHMENTS:
1. Resolution
2. Reimbursement Agreement City of Dublin and DUSD for Additional Crossing Guard
Services
4.5
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ATTACHMENT 2
RESOLUTION NO. XX - 16
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * *
AMENDING RESOLUTION NO. 112-16 TO INCREASE THE BUDGET FOR CROSSING
GUARD SERVICES FOR FISCAL YEAR 2016-2017
WHEREAS, the City of Dublin uses adult crossing guards to ensure the safety of
schoolchildren crossing streets; and
WHEREAS, since 1995, the City of Dublin has contracted with All City Management Services
to provide such services to Dublin Unified School District; and
WHEREAS, the City Council adopted Resolution 112-16 to extend its term (June 30, 2017)
and rate of pay with All City Management Services. In addition, the Resolution established the “not
to exceed” budget amount for services provided under the contract of $138,321; and
WHEREAS, the City received a request from Dublin Unified School District to add a crossing
guard at Frederiksen Elementary for this school year which will necessitate an increase to the
budget for crossing guard services by approximately $12,500; and
WHEREAS, the District has agreed to reimburse the City for its expenses related to the
crossing guard, thereby not impacting the City’s General Fund; and
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby
amend Resolution 112-16 to increase the budget by $12,500, for a total budget for Fiscal Year 2016-
17 of $150,821 for crossing guard services.
BE IT FURTHER RESOLVED that the City Manager will use his budgeting appropriation
and purchasing authority to execute any amendments to the budget contract for crossing guard
services, as needed, to carry out the intent of this Resolution and Resolution No. 112-16.
PASSED, APPROVED AND ADOPTED this 4th day of October, 2016, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
4.5.a
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REIMBURSEMENT AGREEMENT
BY AND BETWEEN
CITY OF DUBLIN AND DUBLIN UNIFIED SCHOOL DISTRICT
FOR ADDITIONAL CROSSING GUARD SERVICES
THIS REIMBURSEMENT AGREEMENT (“Agreement”) is made and entered into
on ________ (“Effective Date”), by and between City of Dublin, ("City") and Dublin Unified
School District (“District”) with respect to the matters hereinafter stated.
1. Intent.
District has requested an additional crossing guard at Frederiksen Elementary School for
the 2016-17 School Year, effective _____________________. The City has agreed to amend its
existing contract with All City Management Services for crossing guard services to add an
additional crossing guard (“Additional Crossing Guard Services”) so long as the District
reimburses the City for the expenses incurred as a result of the additional crossing guard.
Additional Crossing Guard is estimated to cost $12,500 for the balance of the 2016-17 school
year.
2. Reimbursement Payments.
A. District agrees to provide funds (“Reimbursement Payment”) to the City for the
additional crossing guard at Frederiksen Elementary based on billings for the period ending on
December 30, 2016, March 30, 2017 and June 30, 2017.
B. City will allocate the Reimbursement Payments by District for the costs City
incurs in providing Additional Crossing Guard Services.
C. Additional Crossing Guard Services will be provided through the City’s contract
provider for crossing guard services.
3. Authority and Obligations of City.
District fully understands and agrees that the City, in the exercise of the sole discretion of
its officials, agents, or employees, shall use the Reimbursement Payments for the purpose
represented in this Agreement. Except as provided herein, City makes no promise,
representation, or warranty, express or implied, as to the manner in which City will use the
Reimbursement Payments.
4. Authority and Obligation of District.
District agrees to make timely payments, to the City, based on the billing dates outlined
above, and within 30 days of receipt of request for reimbursement. City shall invoice the District
on the above outlined dates and the District shall make payment within 30 days of the request for
reimbursement.
4.5.b
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6. Amendments and/or Extensions of Agreement.
This Agreement, including any exhibits hereto, may be amended and/or extended only by
mutual written agreement of the City Manager and the Superintendent. Should the District
request a continuation of this crossing guard for future school years, an amendment, as required
by this Section 6, shall set forth additional costs and an extended term.
7. Entire Agreement.
Each party acknowledges that this Agreement sets forth all covenants, promises,
conditions and understanding between the parties regarding the matters set forth herein, and there
are no promises, conditions, or understanding either oral or in writing between the parties other
than as set forth herein. No subsequent alteration, amendment, change or addition to this
Agreement shall be binding upon the parties unless reduced to writing and signed by them.
9. Effect of Waiver.
No waiver by a party of any provision of this Agreement shall be considered a waiver of
any other provision or any subsequent breach of the same or any other provision, including the
time for performance of any such provision. The exercise by a party of any remedy provided in
this Agreement or at law shall not prevent the exercise by that party of any other remedy
provided in this Agreement or at law.
10. Interpretation of Agreement.
This Agreement constitutes the entire agreement between the parties and supersedes all
prior discussions, negotiations, and agreements whether oral or written. Any amendment to this
Agreement, including an oral modification supported by new consideration, must be reduced to
writing and signed by both parties before it will be effective. Both parties have had an equal
opportunity to participate in the drafting of this Agreement. The usual construction of an
agreement as to the drafting party shall not apply to this Agreement.
11. Attorneys’ Fees. If a party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this Agreement, the
prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to
which that party may be entitled. The court may set such fees in the same action or in a separate
action brought for that purpose.
12. Dispute Resolution. If any dispute arises between the parties that cannot be
settled after engaging in good faith negotiations, City and District agree to resolve the dispute in
accordance with the following:
12.1 Each party will designate a senior management or executive level
representative to negotiate the dispute. Through good faith negotiations, the representatives will
attempt to resolve the dispute by any means within their authority.
4.5.b
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Page 1 of 4
STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Amendments to Chapters 5.58, 8.08 and 8.12 of the Dublin Municipal
Code Related to Non-Medical Marijuana Deliveries, Businesses and
Cultivation, and to Medical Marijuana Businesses
Prepared by: John D. Bakker, City Attorney
EXECUTIVE SUMMARY:
The Control, Regulate and Tax Adult Use of Marijuana Act will be on the November
2016 ballot as Proposition 64 (“Prop. 64”). Prop. 64 would authorize a person 21 years
of age or older to possess and use marijuana and to cultivate up to six living marijuana
plants at a private residence. It allows cities and counties to prohibit marijuana
businesses and outdoor cultivation and to regulate (but not prohibit) indoor cultivation of
six or fewer plants.
In order to preserve the City Council's discretion to regulate non-medical marijuana to
the greatest extent possible, the proposed ordinance would, if Prop. 64 passes, prohibit
non-medical marijuana businesses and deliveries within the City of Dublin and would
prohibit the outdoor cultivation of non-medical marijuana. The proposed ordinance
would also regulate the indoor cultivation of up to six marijuana plants inside a private
residence or accessory structure. The City would retain the authority to amend the
Municipal Code’s provisions regarding marijuana in the future as the industry develops.
STAFF RECOMMENDATION:
Staff recommends that the City Council conduct the public hearing, deliberate, and
adopt an Ordinance Amending Chapters 5.58, 8.08 and 8.12 of the Dublin Municipal
Code relating to Non-Medical Marijuana Deliveries, Businesses and Cultivation and to
Medical Marijuana Businesses.
FINANCIAL IMPACT:
None.
6.1
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DESCRIPTION:
California voters enacted the Compassionate Use Act (“CUA”) in 1996 to permit the
possession and cultivation of marijuana for limited medical treatment purposes. In
2004, the Legislature adopted the Medical Marijuana Program Act (“MMPA”) to provide
greater access to medical marijuana for qualified patients and caregivers by allowing
collective, cooperative cultivation projects known as “dispensaries.” In 2014, the
Legislature adopted the Medical Marijuana Regulation and Safety Act (“MMRSA”),
which regulates commercial activities associated with medical marijuana and assigns
certain state agencies with regulatory tasks regarding commercial medical marijuana,
including product labeling and environmental regulation.
MMRSA, among other matters, authorizes certain state agencies to issue licenses for
commercial medical marijuana businesses but requires such businesses to obtain a
state license and any necessary permit, license, or authorization from the local
jurisdiction in which the business operates. State agencies have not begun issuing
licenses for medical marijuana businesses yet, but they anticipate doing so in 2017.
CUA, MMPA, and MMRSA allow a city to regulate or prohibit commercial medical
marijuana businesses pursuant to the police power granted to cities in Section 7 of
Article XI of the California Constitution.
In order to maintain local control over medical marijuana deliveries and cultivation,
MMRSA required a city to have explicit provisions in its municipal code. Accordingly, in
January 2016, the City Council amended the Municipal Code to prohibit medical
marijuana deliveries and to prohibit medical marijuana cultivation as part of the Zoning
Ordinance.
The Control, Regulate and Tax Adult Use of Marijuana Act will be on the November
2016 ballot as Proposition 64 (“Prop. 64”). Prop. 64, if adopted by the voters, would
legalize non-medical (recreational) marijuana use. Additionally, Prop. 64 would
authorize a person 21 years of age or older to plant, cultivate, harvest, dry, or process
no more than six living marijuana plants at a private residence. A city may enact and
enforce “reasonable regulations” related to such marijuana cultivation, but it may not
completely prohibit cultivation from occurring inside a private residence or accessory
structure. However, cities are authorized to completely prohibit outdoor cultivation.
Prop. 64 would also create a statewide regulatory scheme for the licensing of
businesses conducting non-medical marijuana related activities, such as cultivation,
manufacturing, testing, retail, and distribution. However, cities retain the authority to
adopt and enforce local ordinances to regulate marijuana businesses, and they are
explicitly authorized to prohibit the establishment or operation of such businesses.
ANALYSIS:
In order to preserve the City’s authority to regulate non-medical marijuana activities in
the future, Staff is proposing certain amendments to Chapters 5.58, 8.08 and 8.12 of the
Dublin Municipal Code. The proposed amendments will prohibit non-medical marijuana
businesses and deliveries within the City, and they will also prohibit the cultivation of
non-medical marijuana outdoors. Although Prop. 64 would prevent the City from
prohibiting the indoor cultivation of up to six marijuana plants in a private residence or
accessory structure, the proposed ordinance will adopt regulations for such cultivation.
6.1
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The sections of the ordinance regarding non-medical marijuana will only become
operative if Prop. 64 is adopted by the voters.
The proposed amendments would also rename the medical marijuana dispensary and
medical marijuana cultivation use types within the Zoning Ordinance, without changing
any substantive provisions related to such uses. The renaming will result in better
organization of the Zoning Ordinance.
In order to clarify that all medical marijuana businesses are prohibited in the City of
Dublin, Staff is proposing certain amendments to Chapters 5.58, 8.08 and 8.12 of the
Dublin Municipal Code. The proposed amendments will prohibit commercial medical
marijuana businesses in every zone within the City. The proposed amendments are
intended to preserve the City’s authority to regulate such businesses in the future.
The proposed amendments to Chapter 5.58, Chapter 8.08 and Chapter 8.12 of the
Dublin Municipal Code prohibit medical marijuana businesses, non-medical marijuana
businesses, non-medical marijuana deliveries, and the outdoor cultivation of non-
medical marijuana in all zones in the City. As required by Prop. 64, the proposed
amendments would allow the cultivation of up to six marijuana plants inside a private
residence or accessory structure in any zone in the City where private residences are
allowed. The ordinance is necessary to ensure that the City retains maximum authority
and local control regarding marijuana related activities should California voters adopt
Prop. 64 at the November 2016 election. The proposed amendments do not alter the
City’s existing prohibitions on medical marijuana cultivation, medical marijuana
deliveries, or medical marijuana dispensaries.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
The Planning Commission held a duly noticed public hearing on the proposed
amendments on September 13, 2016. The Planning Commission discussed the
proposed Ordinance but was not able to reach a consensus on a recommendation
regarding the adoption of the proposed Ordinance as reflected in the Minutes
(Attachment 2). At the conclusion of the public hearing, the Planning Commission
adopted a resolution with no recommendation regarding the City Council adoption of the
proposed amendments.
In compliance with State law, notice was posted at least 10 days prior to the hearing in
at least three public places within City.
ENVIRONMENTAL REVIEW:
The California Environmental Quality Act (CEQA), together with State Guidelines and
City Environmental Regulations require that certain projects be reviewed for
environmental impacts and that environmental documents be prepared. Pursuant to the
CEQA, Staff is recommending that the proposed Ordinance be found exempt from
CEQA per CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that
CEQA applies only to those projects that have the potential to cause a significant effect
on the environment. The adoption of the proposed amendments of the Municipal Code
does not, in itself, allow the construction of any building or structure, or authorize any
6.1
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activity. This Ordinance itself, therefore, has no potential for resulting in significant
physical change in the environment, directly or ultimately.
ATTACHMENTS:
1. Proposed Ordinance Amending Chapters 5.58, 8.08 and 8.12 of the Dublin Municipal
Code relating to Non-Medical Marijuana Deliveries, Businesses and Cultivation and to
Medical Marijuana Businesses
2. Planning Commission Minutes September 13, 2016
6.1
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1
ORDINANCE NO. __ - 16
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * * * * *
AMENDING CHAPTERS 5.58,
8.08 AND 8.12 OF THE DUBLIN MUNICIPAL CODE RELATING
TO NON-MEDICAL MARIJUANA DELIVERIES, BUSINESSES
AND CULTIVATION AND TO MEDICAL MARIJUANA BUSINESSES
WHEREAS, Health and Safety Code section 11362.5, the Compassionate Use Act of
1996 (“CUA”), adopted by the voters in the State of California, authorizes a limited
defense to criminal charges for the use, possession or cultivation of marijuana for
medical purposes when a qualified patient has a doctor's recommendation for the use of
marijuana; and
WHEREAS, Health and Safety Code section 11362.7 et seq., the Medical Marijuana
Program Act (“MMPA”), was adopted by the state legislature and offers some
clarification on the scope of the Compassionate Use Act of 1996, and section 11362.83
specifically authorizes cities and other governing bodies to adopt and enforce rules and
regulations related to medical marijuana; and
WHEREAS, Business and Professions Code section 19300 et seq., the Medical
Marijuana Regulation and Safety Act (“MMRSA”), which was adopted by the Legislature
in 2015, regulates commercial activities associated with medical marijuana and assigns
certain state agencies with regulatory tasks regarding commercial medical marijuana,
including product labeling and environmental regulation.
WHEREAS, the CUA, MMPA, and MMRSA do not prevent a city from using its
constitutional authority to enact nuisance and land use regulations regarding medical
marijuana cultivation, dispensaries or commercial businesses, including the ability to
enact a prohibition on such activities.
WHEREAS, the MMRSA, among other matters, authorizes certain state agencies to
issue licenses for commercial medical marijuana businesses, and Business and
Professions Code section 19320 requires commercial medical marijuana businesses to
obtain a state license and any necessary permit, license, or authorization from the local
jurisdiction in which the business operates.
WHEREAS, Business and Professions Code section 19316 specifically recognizes that
a city may regulate commercial medical marijuana businesses pursuant to the police
power granted to cities in Section 7 of Article XI of the California Constitution.
6.1.a
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WHEREAS, the Control, Regulate and Tax Adult Use of Marijuana Act has qualified for
the November 8, 2016 ballot as Proposition 64; and
WHEREAS, if adopted by the voters, Proposition 64 will legalize the recreational use of
marijuana in California for individuals 21 years of age and older; and
WHEREAS, Proposition 64 would authorize the personal cultivation of up to six
marijuana plants in a private residence for non-medical purposes; and
WHEREAS, pursuant to Proposition 64, the City can enact reasonable regulations for
the cultivation of non-medical marijuana that occurs inside a residence or accessory
structure, and may completely prohibit outdoor non-medical marijuana cultivation until
such time as the California Attorney General determines that the non-medical use of
marijuana is lawful in California under federal law; and
WHEREAS, the California Attorney General has not made a determination that non-
medical use of marijuana is lawful in California under Federal law; and
WHEREAS, if adopted by the voters, Proposition 64 would regulate the commercial
activity of non-medical marijuana and assign certain state agencies with regulatory
tasks regarding commercial non-medical marijuana, including product labeling and
environmental regulation; and
WHEREAS, Proposition 64 would authorize certain state agencies to issue licenses for
commercial non-medical marijuana businesses; and
WHEREAS, Proposition 64 would adopt Business and Professions Code section 26200,
which would specifically recognize that a city may regulate or completely prohibit the
establishment or operation of one or more types of non-medical marijuana businesses
licensed by the state within the city’s jurisdiction; and
WHEREAS, Proposition 64 would authorize certain licensed businesses to make
deliveries of non-medical marijuana, if such businesses are acting in compliance with
local law adopted pursuant to Business and Professions Code section 26200; and
WHEREAS, Sections 5.58.030 and 8.12.050 of the Dublin Municipal Code prohibit
medical marijuana cultivation in or upon any premises or property in the City; and
WHEREAS, Sections 5.58.020 and 8.12.050 of the Dublin Municipal Code prohibit
medical marijuana dispensaries from operating in or upon any premises or property in
the City; and
WHEREAS, Sections 5.58.040 of the Dublin Municipal Code prohibits medical
marijuana delivery in or upon any premises or property in the City; and
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WHEREAS, the cultivation of medical marijuana in other cities has resulted in calls for
service to the police department, including calls for robberies and thefts, and it is
reasonable to assume that the cultivation of non-medical marijuana, the operation of
marijuana businesses of any kind, and the delivery of non-medical marijuana will have
similar impacts; and
WHEREAS, there is a threat to the public health, safety and welfare of the community if
marijuana businesses of any kind operate in the City or if non-medical marijuana
deliveries are made in the City or if non-medical marijuana is cultivated without
regulations in the City, and such activities may result in harmful effects to businesses,
property owners, and residents of the City; and
WHEREAS, Article XI, Section 7 of the California Constitution provides a city may make
and enforce within its limits all local police, sanitary and other ordinances and
regulations not in conflict with general laws; and
WHEREAS, the City Council desires to exercise its authority under Article XI, Section 7
of the California Constitution and Business and Professions Code sections 9316 and
26200 to prohibit all commercial medical marijuana businesses and commercial non-
medical marijuana businesses from operating in the City of Dublin, and to also prohibit
the delivery of non-medical marijuana in the City of Dublin; and
WHEREAS, the City Council desires to adopt regulations regarding the indoor
cultivation of non-medical marijuana in a private residence and to prohibit all other forms
of non-medical marijuana cultivation; and
WHEREAS, the City Council also desires to rename the medical marijuana dispensary
and medical marijuana cultivation use types, without changing any substantive
provisions related to such uses; and
WHEREAS, the City Council desires that those portions of this ordinance regarding
non-medical marijuana shall only take effect if Proposition 64 is approved by the voters
of California at the election occurring on November 8, 2016; and
WHEREAS, the Planning Commission held a duly noticed public hearing on the
proposed amendments on September 13, 2016, at which time all interested parties had
the opportunity to be heard. Following the public hearing, the Planning Commission
recommended that the City Council adopt the amendments; and
WHEREAS, the City Council held a duly noticed public hearing on the proposed
amendments on October 4, 2016 at which time all interested parties had the opportunity
to be heard.
NOW, THEREFORE, the City Council of the City of Dublin does ordain as
follows:
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SECTION 1:
The above recitals are true and correct and incorporated herein.
SECTION 2:
Section 5.58.010, Definitions, of the Dublin Municipal Code is hereby amended to
include the following definition:
“Commercial medical marijuana business” means any activity licensed pursuant to the
Medical Cannabis Regulation and Safety Act, Business and Professions Code section
19300 et seq., including but not limited to medical marijuana cultivation, distribution,
manufacturing, transporting and testing.
SECTION 3:
Section 5.58.050, Operation of commercial medical marijuana businesses prohibited, is
hereby added to the Dublin Municipal Code to read as follows:
5.58.050 Operation of commercial medical marijuana businesses prohibited.
No person shall operate or permit to be operated a commercial medical marijuana
business in or upon any premises or property in the city.
SECTION 4:
Chapter 5.58 of the Dublin Municipal Code is hereby amended to read as follows
(with text in strikeout format indicating deletion and underlined text indicating addition):
Chapter 5.58 Medical Marijuana Regulations Dispensaries and Cultivation
5.58.010 Definitions.
For the purposes of this chapter, unless otherwise apparent from the context, the
following definitions shall apply:
A. “Commercial medical marijuana business” means any activity licensed pursuant
to the Medical Cannabis Regulation and Safety Act, Business and Professions Code
section 19300 et seq., including but not limited to medical marijuana cultivation,
distribution, manufacturing, transporting and testing
B. “Commercial non-medical marijuana business” means any activity licensed by
Business and Professions Code section 26000 et seq., including but not limited to non-
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medical marijuana cultivation, distribution, manufacturing, retail, testing, and operation
of a microbusiness.
C. “Fully enclosed and secure structure means” a space within a building that
complies with the applicable building code, and has a complete roof enclosure
supported by connecting walls extending from the ground to the roof, a foundation, slab
or equivalent base to which the floor is secured by bolts or similar attachments, is
secure against unauthorized entry, and is accessible only through one or more lockable
doors. Walls and roof must be constructed of solid materials that cannot be easily
broken through, and must be constructed with non-transparent material.
D. “Indoors” means inside a fully enclosed and secure structure or within a private
residence.
EA. “Medical marijuana” is marijuana authorized in strict compliance with Health and
Safety Code Section 11362.5 et seq.
FB. “Medical marijuana delivery” means the transfer of medical marijuana or medical
marijuana products from a medical marijuana dispensary to a qualified patient or
primary caregiver, as well as the use by a dispensary of any technology platform to
arrange for or facilitate the transfer of medical marijuana or medical marijuana products.
GC. “Medical marijuana dispensary” means any facility or location, whether fixed or
mobile, where medical marijuana is made available to, distributed by, or distributed to
two (2) or more of the following: a qualified patient, a person with an identification card,
or a primary caregiver qualified patients, persons with an identification card, or primary
caregivers, or combination thereof.
A medical marijuana dispensary shall not include the following uses, so long as such
uses comply with this code, Health and Safety Code Section 11362.5 et seq., and other
applicable law:
1. A clinic licensed pursuant to Chapter 1 of Division 2 of the Health and Safety Code.
2. A health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and
Safety Code.
3. A residential care facility for persons with chronic life-threatening illness licensed
pursuant to Chapter 3.01 of Division 2 of the Health and Safety Code.
4. A residential care facility for the elderly licensed pursuant to Chapter 3.2 of Division
2 of the Health and Safety Code.
5. A hospice or a home health agency, licensed pursuant to Chapter 8 of Division 2 of
the Health and Safety Code.
HD. “Medical marijuana cultivation” means any activity involving the planting, growing,
harvesting, drying, curing, grading or trimming of medical marijuana.
Outdoors means any location within the city that is not within a fully enclosed and
secure structure or a private residence.
6.1.a
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I. “Non-medical marijuana” means marijuana that is intended to be used for non-
medical purposes pursuant to Health and Safety Code section 11362.1 et seq.
J. “Non-Medical Marijuana Cultivation” means the planting, growing, harvesting,
drying or processing of marijuana plants or any part thereof pursuant to Health and
Safety Code section 11362.1 et seq., as those sections may be amended from time to
time.
K. “Non-medical marijuana delivery” means the commercial transfer of non-medical
marijuana or non-medical marijuana products to a person, including any technology that
enables persons to arrange for or facilitate the commercial transfer of non-medical
marijuana or non-medical marijuana products.
L. “Non-medical marijuana products” means non-medical marijuana that has
undergone a process whereby the plant material has been transformed into a
concentrate, including, but not limited to, concentrated cannabis, or an edible or tropical
product containing marijuana or concentrated cannabis and other ingredients.
ME. “Person with an identification card” shall have the meaning given that term by
Health and Safety Code Section 11362.7.
N. “Person” means any individual, partnership, co-partnership, firm, association,
joint stock company, corporation, limited liability corporation, collective, cooperative, or
combination thereof in whatever form or character.
OF. “Primary caregiver” shall have the meaning given that term by Health and Safety
Code Section 11362.7.
P. “Private residence” means a house, an apartment unit, a mobile home or other
similar dwelling.
QG. “Qualified patient” shall have the meaning given that term by Health and Safety
Code Section 11362.7.
R. “Solid fence “means a fence constructed of substantial material, such as wood or
metal, that prevents viewing the contents from one side to the other side of the fence.
5.58.020 Operation of medical marijuana dispensaries prohibited.
No person shall operate or permit to be operated a medical marijuana dispensary in or
upon any premises or property in the city.
5.58.030 Medical marijuana cultivation prohibited.
6.1.a
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No person shall engage in medical marijuana cultivation in or upon any premises or
property in the city.
5.58.040 Medical marijuana delivery prohibited.
No person shall engage in medical marijuana delivery in or upon any premises or
property in the city
5.58.050 Operation of commercial medical marijuana businesses prohibited.
No person shall operate or permit to be operated a commercial medical marijuana
business in or upon any premises or property in the city.
5.58.060 Non-medical marijuana delivery prohibited.
No person shall engage in non-medical marijuana delivery in or upon any premises or
property in the city.
5.58.070 Operation of commercial non-medical marijuana businesses prohibited.
No person shall operate or permit to be operated a commercial non-medical marijuana
business in or upon any premises or property in the city.
5.58.080 Outdoor non-medical marijuana cultivation.
No person shall engage in outdoor non-medical marijuana cultivation in or upon any
premises or property in the city.
5.58.090 Indoor non-medical marijuana cultivation.
No person shall engage in the indoor cultivation of non-medical marijuana in or upon
any premises or property in the city, except when such cultivation occurs on a premises
or property with an approved private residence. Such cultivation shall be i n
conformance with the following minimum standards:
A. The primary use of the property shall be for a residence. Non-medical marijuana
cultivation is prohibited as a home occupation.
B. All areas used for cultivation of non-medical marijuana shall comply with all
chapter of Title 7 (Public Works) of the Dublin Municipal Code, as well as
applicable law.
C. Indoor grow lights shall not exceed 1,000 watts per light, and shall comply with
the California Building, Electrical and Fire Codes as adopted by the city.
6.1.a
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D. The use of gas products (CO2, butane, propane, natural gas, etc.) or generators
for cultivation of non-medical marijuana is prohibited.
E. Any fully enclosed and secure structure or residential structure used for the
cultivation of non-medical marijuana must have a ventilation and filtration system
installed that shall prevent marijuana plant odors from exiting the interior of the
structure and that system shall comply with all chapters of Title 7 (Public Works)
of the Dublin Municipal Code.
F. A fully enclosed and secure structure used for the cultivation of non-medical
marijuana shall be located in the rear yard area of the parcel or premises, and
must maintain a minimum ten-foot setback from any property line and otherwise
comply with all chapters of Title 8 (Zoning Code). The yard where the fully
enclosed and secure structure is maintained must be enclosed by a solid fence
at least six feet in height. This provision shall not apply to cultivation occurring in
a garage.
G. Adequate mechanical locking or electronic security systems must be installed as
part of the fully enclosed and secure structure or the residential structure prior to
the commencement of cultivation.
H. Non-medical marijuana cultivation shall be limited to six marijuana plants per
private residence, regardless of whether the marijuana is cultivated inside the
residence or a fully enclosed and secure structure. The limit of six plants per
private residence shall apply regardless of how many individuals reside at the
private residence.
I. The residential structure shall remain at all times a residence, with legal and
functioning cooking, sleeping and sanitation facilities with proper ingress and
egress. These rooms shall not be used for non-medical marijuana cultivation
where such cultivation will prevent their primary use for cooking of meals,
sleeping and bathing.
J. Cultivation of non-medical marijuana shall only take place on impervious
surfaces.
K. From a public right-of-way, there shall be no exterior evidence of non-medical
marijuana cultivation occurring on the parcel.
L. Non-medical marijuana cultivation area, whether in a fully enclosed and secure
structure or inside a residential structure, shall not be accessible to persons
under 21 years of age.
M. Written consent of the property owner to cultivate non-medical marijuana within
the residential structure shall be obtained and shall be kept on the premises, and
available for inspection by the chief of police or his/her designee.
6.1.a
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N. A portable fire extinguisher, that complies with the regulations and standards
adopted by the state fire marshal and applicable law, shall be kept in the fully
enclosed and secure structure used for cultivation of non-medical marijuana. If
cultivation occurs in a residential structure, the portable fire extinguisher shall be
kept in the same room as where the cultivation occurs.
SECTION 5:
Section 8.08.020 (Definitions (A-Z)) of Title 8 of the Dublin Municipal Code is hereby
amended to add the following definitions:
Marijuana - Non-Medical Cultivation. See definition of “non-medical marijuana
cultivation” in Section 5.58.010. Marijuana - Non-Medical Cultivation must be in
compliance with the requirements of Chapter 5.58.
Marijuana - Commercial Non-Medical Business. See definition of “commercial non-
medical marijuana business” in Section 5.58.010.
SECTION 6:
Section 8.08.020 (Definitions (A-Z)) of Title 8 of the Dublin Municipal Code is hereby
amended to add the following definitions:
Marijuana - Commercial Medical Business. See definition of “commercial medical
marijuana business” in Section 5.58.010.
SECTION 7:
The following definitions contained in Section 8.08.020 (Definitions (A-Z)) of Title 8 of the
Dublin Municipal Code are hereby amended to read as follows (with text in strikeout format
indicating deletion and underlined text indicating addition):
Marijuana - Medical Marijuana Cultivation. See definition of “medical marijuana
cultivation” in Section 5.58.010(D).
Marijuana - Medical Marijuana Dispensary. See definition of “medical marijuana
dispensary” in Section 5.58.010(C).
SECTION 8:
Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin
Municipal Code is hereby amended to add Non-Medical Marijuana Cultivation as an
Agricultural Use Type and to establish the zoning districts in which such use is allowed, to
read as follows:
6.1.a
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AGRICULTURAL
USE TYPE
A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2
Marijuana –
Non-Medical
Cultivation (up to
6 plants)3
P P P P - - P P P P P
3 Non-medical marijuana cultivation must comply with all regulations contained in Chapter 5.58.
SECTION 9:
Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin
Municipal Code is hereby amended to add Commercial Medical Marijuana Businesses as a
Commercial Use Type and to prohibit the use in every zoning district, to read as follows:
COMMERCIAL
USE TYPE
A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2
Marijuana –
Commercial
Medical
Business
- - - - - - - - - - -
SECTION 10:
Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin
Municipal Code is hereby amended to add Commercial Non-Medical Marijuana Businesses
as a Commercial Use Type and to prohibit the use in every zoning district, to read as
follows:
COMMERCIAL
USE TYPE
A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2
Marijuana –
Commercial
Non-Medical
Business
- - - - - - - - - - -
SECTION 11:
Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of Title 8 of the Dublin
Municipal Code is hereby amended to change the name of the “medical marijuana
cultivation” use contained in the Agricultural Use Types table and the name of the “medical
marijuana dispensary” use contained in the Commercial Use Types table, to read as
6.1.a
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follows (with text in strikeout format indicating deletion and underlined text indicating
addition):
AGRICULTURAL
USE TYPE
A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2
Marijuana -
Medical
Marijuana
Cultivation
- - - - - - - - - - -
COMMERCIAL
USE TYPE
A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2
Marijuana-
Medical
Marijuana
Dispensary
- - - - - - - - - - -
SECTION 12: Severability.
The provisions of this Ordinance are severable and if any provision, clause, sentence,
word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person
or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not
affect or impair any of the remaining provisions, clauses, sentences, sections, words or
parts thereof of the ordinance or their applicability to other persons or circumstances.
SECTION 13: CEQA.
This Ordinance is exempt from the California Environmental Quality Act (CEQA) per
CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies
only to those projects that have the potential to cause a significant effect on the
environment. The adoption of the proposed Ordinance is exempt from CEQA because
the adoption of the proposed amendments to the Municipal Code does not, in itself,
allow the construction of any building or structure or authorize any activity, but rather
prohibits the cultivation of medical marijuana within the City. This Ordinance , therefore,
has no potential for resulting in significant physical change in the environment, directly
or ultimately.
SECTION 14: Effective Date and Posting of Ordinance
This Ordinance shall be in full force and effective thirty (30) days after its adoption, except
that Sections 4, 5, 7, 8 and 10 of this Ordinance shall only become operative upon adoption
of Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, by the voters
of California at the election occurring on November 8, 2016. The City Clerk of the City of
6.1.a
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Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City
of Dublin in accordance with Section 39633 of the Government Code of California.
PASSED, APPROVED, AND ADOPTED BY the City Council of the City of
Dublin on this day of , 2016, by the following votes:
AYES:
NOES:
ABSENT:
ABSTAIN:
_____________________________
Mayor
ATTEST:
___________________________________
City Clerk
2702855.3
6.1.a
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DRAFT DRAFT
Planning Commission September 13, 2016
Regular Meeting 96 | Page
Planning Commission Minutes
Tuesday, September 13, 2016
1. CALL TO ORDER & PLEDGE OF ALLEGIENCE TO THE FLAG
A regular meeting of the City of Dublin Planning Commission was held on Tuesday, September
13, 2016, in the City Council Chambers located at 100 Civic Plaza. Chair Kohli called the
meeting to order at 7:12:51 PM. Chair Kohli called for a recess until a quorum could be present.
Once a quorum was present, Chair Kohli called the meeting back to order at 7:21:34 PM.
Present: Chair Kohli; Commissioners Bhuthimethee and Goel; Jeff Baker, Assistant
Community Development Director; Kit Faubion, Assistant City Attorney; Alex Mog,
Assistant City Attorney; Robert Paley, Assistant Planner; and Debra LeClair,
Recording Secretary.
Absent: Cm. Do; Vice Chair Mittan
2. ORAL COMMUNICATIONS – NONE
3. CONSENT CALENDAR –
3.1 Minutes of the August 23, 2016 Planning Commission Meeting. On a motion by
Cm. Bhuthimethee and seconded by Goel, on a vote of 3-0-0, with Cm. Do and Vice
Chair Mittan being absent, the Planning Commission approved the minutes of the
August 23, 2016 meeting.
4. WRITTEN COMMUNICATIONS – NONE
5. PUBLIC HEARINGS –
5.1 PLPA-2016-00040 Whole Foods Outdoor Display Conditional Use Permit for
Outdoor Display
Robert Paley, Assistant Planner, presented the project as outlined in the Staff Report.
Cm. Goel asked if the Conditional Use Permit (CUP) will be in effect year round or only at
certain times during the year.
Mr. Paley answered that the outdoor display will be used for seasonal items.
Cm. Goel felt it would be similar to a Safeway display.
Mr. Paley answered yes.
Jeff Baker, Assistant Community Development Director, responded that the permit will allow
them to have displays year round.
6.1.b
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DRAFT DRAFT
Planning Commission September 13, 2016
Regular Meeting 97 | Page
Cm. Goel asked if there is a trigger in place for reevaluation of the CUP.
Mr. Baker answered yes; Conditions of Approval #5 and #6 provides for annual review and
revocation for cause.
Cm. Goel asked if there is a time period for the CUP before revisiting the permit.
Mr. Baker answered that the CUP will be in effect unless there is problem.
Chair Kohli opened the public hearing and having no speakers, closed the public hearing.
Cm. Bhuthimethee felt that the Whole Foods Markets always have tasteful displays.
On a motion by Cm. Goel and seconded by Cm. Bhuthimethee, on a vote of 3-0-2, with Cm. Do
and Vice Chair Mittan being absent, the Planning Commission adopted:
RESOLUTION NO. 16 - 21
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
APPROVING A CONDITIONAL USE PERMIT FOR “RETAIL – OUTDOOR STORAGE” AT
AN EXISTING RETAIL STORE AT 5200 DUBLIN BOULEVARD
(WHOLE FOODS MARKET)
5.2 PLPA 2016-00054 Amendments to Chapters 5.58, 8.08 and 8.12 of the Dublin
Municipal Code related to non-medical marijuana deliveries, businesses and
cultivation, and to medical marijuana businesses
Alex Mog, Assistant City Attorney, presented the project as outlined in the Staff Report.
Chair Kohli asked if “local” means “city” or “county.”
Mr. Mog answered that it means City.
Chair Kohli stated that the City previously passed regulations prohibiting medical marijuana
facilities. He asked, if Prop 64 passes, would this ordinance allow non-medical marijuana
dispensaries and related entities, but would keep the ban on medical marijuana in place.
Mr. Mog answered yes; there are different state licenses. If the City wanted to create different
rules for medical and non-medical marijuana, they would have the authority to do so. He added
that the proposed ordinance does not create different rules, but prohibits both types of
marijuana businesses.
Cm. Bhuthimethee felt that the City had already prohibited medical marijuana businesses in
December 2015.
Mr. Mog responded that the previous Ordinance prohibited deliveries and cultivation of medical
marijuana.
6.1.b
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DRAFT DRAFT
Planning Commission September 13, 2016
Regular Meeting 98 | Page
Cm. Bhuthimethee felt that the Ordinance also prohibited any commercial business.
Mr. Mog answered no.
Chair Kohli reminded the Planning Commission of their discussion regarding prohibiting
deliveries and how that would affect home-bound individuals.
Cm. Bhuthimethee asked if the language in the proposed ordinance was taken from neighboring
jurisdictions’ ordinances.
Mr. Mog answered if there was any particular language that she was concerned with.
Cm. Bhuthimethee stated that the proposed ordinance speaks to cities being able to create
“reasonable regulations” for growing plants indoors and asked where the definition of
“reasonable” came from.
Mr. Mog responded that the initiative states that cities can adopt “reasonable regulations” and
the proposed regulations are similar to what other cities have adopted. He stated that each city
may have slightly different regulations, but typically follow the building/electric codes, and
generally prohibit anyone from using gasses in their cultivation or using large light bulbs that
could create fire danger. He felt that the proposed ordinance has fairly standard regulations.
Chair Kohli asked, if Dublin allowed non-medical marijuana businesses, would the City also
have control as to how the businesses are taxed and regulated. For example, if the City
decides to allow non-medical marijuana businesses, can the City set the conditions/regulations
and also create a City tax.
Mr. Mog responded that a special tax on medical or non-medical marijuana businesses would
need to be approved by the voters. But, the City could create the requirements that the
businesses would have to comply with.
Cm. Goel asked how the adjacent cities are handling this issue.
Mr. Mog stated that he was unsure how adjacent cities were handling Prop 64, but in response
to last year’s Medical Marijuana Regulation and Safety Act (MMRSA) he understood that cities
were creating similar ordinances regarding medical marijuana businesses. He stated that cities
such as Berkeley, San Leandro and Oakland were being more lenient. He stated that many
cities haven’t adopted an ordinance yet.
Cm. Goel felt that Mr. Mog was speaking about prohibiting medical marijuana business, but they
had addressed the delivery at a meeting last December.
Mr. Mog responded that the delivery of medical marijuana is prohibited, which means that any
businesses, located elsewhere, are not allowed to make deliveries in the City.
Cm. Goel asked if it would that be illegal to make deliveries in Dublin now.
Mr. Mog answered yes; a business can travel through Dublin but it is currently illegal for them to
stop and make a delivery.
6.1.b
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Planning Commission September 13, 2016
Regular Meeting 99 | Page
Cm. Goel stated that his internet search found different information regarding these types of
businesses.
Mr. Mog stated that it is possible that there are businesses that are continuing to deliver.
Cm. Goel asked if the previous ordinance also addressed outdoor cultivation of medical
marijuana.
Mr. Mog answered that the previous ordinance addressed all medical marijuana growth by
completely prohibiting it. The proposed ordinance differentiates between cultivation of non-
medical marijuana and medical marijuana because Prop 64 does. He stated that the City can
ban cultivation of medical marijuana but must allow some level of non-medical marijuana
cultivation.
Cm. Goel stated that, although the Planning Commission is dealing with the Municipal Code
changes now, he felt that the City could change the ordinance in the future.
Mr. Mog answered that the proposed ordinance will prohibit and regulate to the maximum extent
possible. But the city could, in the future, allow some type of marijuana business or allow
outdoor cultivation and the proposed ordinance preserves the city’s power to do so. He stated
that it is easier to change the ordinance in the future to allow these types of businesses rather
than trying to enact a ban.
Chair Kohli opened the public hearing and with no speakers, closed the public hearing.
Chair Kohli asked if the Planning Commission has the ability to break up the ordinance and vote
on each part separately. He felt that the City may not want to prohibit non-medical marijuana
businesses but would want to prohibit outdoor cultivation.
Cm. Mog answered yes; the Planning Commission can recommend that the City Council only
prohibit certain parts of the marijuana issue.
Chair Kohli felt that the ordinance was putting all parts of the issue together and wanted to ask
the other Planning Commissioners if they had any thoughts about breaking up the ordinance for
a vote.
Cm. Bhuthimethee stated that her views have not changed since December but understood the
reason for that ordinance. She stated that, at that time, the Planning Commission had
reservations about certain parts of the ordinance. The Planning Commission felt that it was a
blanket statement and too strict. She wanted to leave the door open for someone who was not
able to leave their home, for medical reasons, and felt that they should be able to get what they
need. She felt that medical marijuana deliveries should be allowed.
Chair Kohli stated that his views have not changed as well regarding the medical marijuana
deliveries. He asked if the other Planning Commissioners felt strongly about different sections
of the ordinance.
Cm. Goel asked Chair Kohli what his thoughts were on breaking up the ordinance.
Chair Kohli responded that he has a different view regarding enacting a strict ordinance and
then going back and making the ordinance looser. He felt that the City should not jump into an
6.1.b
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Planning Commission September 13, 2016
Regular Meeting 100 | Page
ordinance because of time constraints. He stated that he has been to cities that have both non-
medical and medical marijuana dispensaries and spoken to residents and has not seen anything
more detrimental than a liquor store. He was concerned about outdoor cultivation and what that
means. He asked if residents could grow plants on their front lawn or is outdoor cultivation
different.
Mr. Mog responded that outdoor cultivation is considered any part of a private residence that is
not inside, which could be a front yard. He stated that the proposed ordinance does restrict
outdoor cultivation of non-medical marijuana, but the City could adopt regulations for outdoor
cultivation and only allow it in the backyard, for example.
Chair Kohli asked if there are regulations restricting certain plants from being planted in the front
yard of a private residence because they may be deemed poisonous.
Mr. Mog felt that individual cities may have those types of restrictions.
Mr. Baker responded that the City of Dublin does not have any regulations of that type.
Chair Kohli felt that, if the City bans certain things from being planted on the private residence
because of their nature, that could open the door for more restrictions of private property.
Mr. Baker stated that, if the Planning Commission wanted to recommend allowing outdoor
cultivation in the back yard, but prohibit the cultivation in the front yard, that could be put into the
ordinance.
Chair Kohli agreed but wanted to ensure that there was a regulation restricting outdoor
cultivation, such as to only in allow it in an enclosed environment that was not easily accessible
to children or others. He stated that he would be open to changing that part of the ordinance if
the other Planning Commissioners were also in favor of changing that part.
Cm. Bhuthimethee agreed with Chair Kohli but was not ready to suggest any regulations for or
against. She felt that the Planning Commission did not have enough information and that she
has not heard from any members of the public, either for or against the issue.
Chair Kohli felt that he was not ready to recommend the ordinance to the City Council and did
not feel that the City should be prohibiting anything at this time. He stated that, at this time, he
is leaning towards voting against the recommendation.
Cm. Goel felt that Chair Kohli does not like the regulations being placed on non-medical
marijuana but the Municipal Code currently has regulations regarding medical marijuana. He
asked if Chair Kohli felt that the ordinance should be more lenient.
Chair Kohli stated that he would like the restrictions to be looser on everything. He stated that, if
you look at the December vote, regarding the medical marijuana delivery, he voted against
prohibiting that, as well as Cm. Bhuthimethee. He stated that he is against prohibiting anything
at this time. He felt that, whether Prop 64 passes or not, he would rather give Dublin residents
the option to do more research and offer different ways to bring this opportunity to the City
rather than prohibiting everything and then having to go back and change it. He felt that, from an
economic standpoint, if adjacent cities allow non-medical and medical marijuana businesses
and, because Dublin hasn’t allowed the marijuana business, the City may lose additional
revenue opportunities.
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Planning Commission September 13, 2016
Regular Meeting 101 | Page
Cm. Bhuthimethee felt that Dublin does not need to be in the forefront of the marijuana
ordinances. She felt that Dublin is a more conservative community. She stated that she voted
against the ordinance in December, because she wanted to show that there was opposition.
Cm. Goel felt that, if the Planning Commission recommends this ordinance to the City Council
and the City Council votes on it, the public could come forward and ask the City Council to bring
the item back for more discussion. He asked if the Planning Commission should act
conservatively and then let the public dictate how to proceed or should they be more lenient and
then have to change the ordinance. He stated that he understood Chair Kohli’s comment
regarding revenue for the City and being creative, but was unsure if this issue is the way to
accomplish that goal.
Chair Kohli felt that it comes down to an individual view on the issue. He stated that there are
numerous liquor stores and a store that sells firearms, and people have views for and against
what is good for the City and what is not. He felt that the City can tightly regulate the issue while
keeping the door open by limiting the number of businesses and the area where they will be
allowed, etc. without shutting the door at the beginning of the discussion. He also felt that there
could be residents that would come to the City Council and support the ban of non-medical
marijuana businesses. He felt that it depends on individual views on whether this would be a
good thing for the City or harmful in the long run. He stated that there were no residents at the
meeting to speak regarding the issue, either for or against, and felt that there needs to be a
better understanding of the issue. He agreed that approaching the issue conservatively, but if
the door is shut at the beginning, there are obstacles to try to open the door. He felt that the
City should wait to see if Prop 64 passes and not create an all-out ban on non-medical
marijuana businesses before that time.
Cm. Goel asked, if the Planning Commission does not recommend adopting the ordinance and
the City Council does not adopt the ordinance but waits for the vote on the proposition, can the
City Council take action after the vote.
Mr. Mog answered that there is the risk that, if the City has no regulation in place before the
vote, and then Prop 64 passes, someone could plant their six plants the next day, before the
City Council acts on the ordinance. They could then argue that they should be grandfathered in
and be able to continue.
Chair Kohli asked, since the federal regulations still do not recognize outdoor cultivation, could
the City call the FBI and put a stop to it. He felt that the City is protected under the federal law.
Mr. Mog answered that the Department of Justice has issued a guidance that states their priority
for enforcement will be marijuana cultivation and delivery businesses that are not in compliance
with state law.
Cm. Bhuthimethee felt that there may be individuals that would not want to come out publicly
and let their views be known on this issue and felt that most people would be more on the
conservative side.
Chair Kohli felt that this is a substance that could cause harm, depending on how it is used and
how it affects the user. He was concerned about imposing a prohibition without complete
understanding of the issue.
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Planning Commission September 13, 2016
Regular Meeting 102 | Page
Cm. Goel asked if Chair Kohli felt that if they were lenient on the issue that the various “grow
houses” that have been found in Dublin would go away.
Chair Kohli felt that the City could avoid some of the illegal activities by regulating the
businesses and mentioned the Prohibition era. He felt that the ordinance was too much of a
blanket prohibition and stated that he would vote no on recommending this ordinance to the City
Council.
Cm. Bhuthimethee felt that, out of necessity, the Planning Commission needs to recommend the
ordinance to the City Council because she was not ready to propose anything different at this
time. She commended Staff for bringing this issue to the Planning Commission’s attention so
that the City can be prepared before the November vote. She felt that, from the polling that she
has seen, Prop 64 has a good chance of passing and the City should be ready with an
ordinance.
Cm. Bhuthimethee made a motion to adopt a resolution recommending that the City Council
adopt an Ordinance amending Chapters 5.58, 8.08 and 8.12 of the Dublin Municipal Code.
Having no second to the motion, the motion failed, and there was a discussion regarding how to
proceed.
Kit Faubion, Assistant City Attorney, stated that the Planning Commission could let the motion
die for failure to have a second.
Chair Kohli asked if the motion dies, can the Planning Commission continue their discussion.
Ms. Faubion stated that an affirmative recommendation, whatever it is, requires three votes and
the other recommendation could move forward on a lesser vote; perhaps this motion didn’t have
the second but felt that there could be another motion that might garner the three votes for an
affirmative recommendation.
There was a discussion regarding how to vote on the ordinance and if the Planning Commission
wanted to not recommend the ordinance to the City Council but recommend a study of adjacent
cities with the pros and cons of having this type of business in their community, as well as
economic considerations. They also discussed continuing the item in order to gather more
information and to have a discussion with the full Planning Commission before making a
recommendation to the City Council.
Mr. Baker stated that one of the roles of the Planning Commission is to make recommendations
to the City Council in order to help them make a decision. He felt that the Planning Commission
has raised some valid and thoughtful issues. He mentioned that the Planning Commission
could continue the item for further study, and the other option would be to express their
reservations about the item and recommend that the City Council study the issue before making
a decision. This would allow the City Council, as the decision makers, to decide whether they
think it is important to have an ordinance in place before the law becomes effective ; or the City
Council could direct Staff to complete additional studies. The City Council could then direct
those studies to be done and remand the item back to the Planning Commission, that way the
City Council can decide if they want to hold the item for more study or they want to have an
ordinance in place and do the study later.
Cm. Goel mentioned an item that was continued previously and the outcome was a better
project.
6.1.b
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Planning Commission September 13, 2016
Regular Meeting 103 | Page
Chair Kohli felt that Mr. Baker made some good points but the strongest recommendation is an
official vote. He felt that it would be better to bring the item back to the Planning Commission in
order to have a full discussion of the issue.
Cm. Bhuthimethee stated that the item that was continued previously was a project brought
forward by a developer who was footing the bill for staff’s time. She added that this is the City’s
item which means the City foots the bill for a continuation.
Mr. Baker answered yes; this is a City of Dublin ordinance.
Cm. Bhuthimethee felt the ordinance was sufficient to recommend adoption to the City Council.
There was a continued discussion regarding how to move forward with the ordinance.
The Planning Commission’s issues regarding recommending this Ordinance to the City Council
are as follows:
Chair Kohli felt that the Ordinance was too restrictive and could cause the City to lose out on
needed revenue. He also wanted to have more information regarding adjacent cities and
how they are dealing with Prop 64.
Cm. Bhuthimethee was in favor of the Ordinance but would also like more information
regarding adjacent cities and how they are dealing with Prop 64.
Cm. Goel was in favor of more public input and a study of adjacent cities’ ordinances before
acting on the ordinance.
Mr. Baker stated that, if there is a desire by the City Council to have an Ordinance in place by
the time Prop 64 either passes or not, the vote must take place this evening in order for the
Ordinance to take effect before the election. He felt that the Planning Commission has
concerns about how the Ordinance is written. He stated that, one way to let the City Council
know their issues would be to have a “no recommendation” which is an affirmative
recommendation but a stance taken and then list the reasons why. The City Council would then
have that information when they make their decision.
Cm. Goel asked why it took Staff so long to bring this item to the Planning Commission if Staff
knew about it earlier, thus creating an urgency to move on the item.
Mr. Baker answered that Prop 64 has not passed yet; therefore, we do not know if the law will
become effective. He stated that the City is moving forward proactively in making some
recommendations. He stated that the Ordinance is written as a restrictive Ordinance to secure
the City’s rights to regulate. If Prop 64 passes, the City Council could direct Staff to do a
thoughtful analysis which would include community outreach, studies and all the things the
Planning Commission was concerned with which are all part of creating an ordinance that
affects a lot of people. He felt that there is not enough time for that to happen before the
election. He stated that this Ordinance would secure the right that nothing happens until a
thoughtful analysis has been completed.
Cm. Goel asked if one of the recommendations could be an approval pending the results of
further study within a certain amount of time after the passing of Prop 64.
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Planning Commission September 13, 2016
Regular Meeting 104 | Page
Mr. Baker stated yes.
Cm. Goel stated that he would like the three commissioners present to vote in the affirmative,
understanding that the issue will be revisited based on the Planning Commission’s
recommendation. He felt that the City Council could say that they accept the Planning
Commission’s recommendation and take action, but not bring it back to the Planning
Commission until they deem it necessary. He felt that would make it clear that the Planning
Commission is not comfortable taking action, but doing so out of respect to move forward with
the Ordinance.
Chair Kohli did not agree and felt that the City does not need to put these measures in place at
this time. He felt that the Planning Commission should not be rushed to a decision and that the
City does not need to put the Ordinance in place before Prop 64 is voted in. He felt that the City
has time to understand how the issue will evolve, but by passing the Ordinance as is, the
Planning Commission is basically “rubber stamping” this Ordinance and telling the City Council
to put the “prohibition” in place.
Cm. Bhuthimethee was concerned that, if Prop 64 passes, the next day some people might
plant their six plants and then, if the City decides to change the ordinance to make it more
lenient, then there is a problem. She felt that it would be difficult for the City to deal with that
issue. Basically saying that these people are allowed to keep their six plants but everyone else
missed their window and are not allowed.
Chair Kohli agreed but felt that the City is being a bit paranoid about the issue and did not feel
that there will be a lot of people planting their six plants the day after Prop 64 passes. He felt
that if the voters of California are going to pass Prop 64, and if it passes with an overwhelming
majority, why should Dublin ignore the majority and prohibit non-medical marijuana businesses
from our City.
Cm. Bhuthimethee stated that the Ordinance allows the six plants to be grown inside a
residence.
Chair Kohli responded that if the City passes this Ordinance they will not be allowed to plant
outdoors.
Cm. Bhuthimethee asked if he was referring to commercial cultivation, because people could
plant their six plants indoors.
Chair Kohli responded that, if the Ordinance passes, no one will be allowed to cultivate
outdoors. He felt that Cm. Bhuthimethee was concerned that if Prop 64 passes people will begin
to plant the next day and the City Council could control that by adopting this Ordinance.
Cm. Bhuthimethee asked if Chair Kohli wanted to allow outdoor cultivation.
Chair Kohli stated that he was concerned about outdoor cultivation and the safety of having it
growing in front yards. He felt that, fundamentally, the City should not prohibit non-medical
marijuana businesses yet. He felt that there could be ways to regulate outdoor cultivation in the
future, rather than prohibiting it now and then having to repeal the prohibition. He felt that the
City should wait to see what happens with Prop 64. He felt that they were viewing the issue
6.1.b
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Planning Commission September 13, 2016
Regular Meeting 105 | Page
from both sides and each have sound arguments but felt that the issue will not be resolved
tonight.
Mr. Baker felt that the Planning Commission does not have a consensus on a recommendation
and that should be relayed to the City Council through the minutes and through a resolution
which would state that this is a complicated issue and the Planning Commission is not able to
recommend adoption without more information.
Chair Kohli stated that he is in favor of continuing the item.
Cm. Bhuthimethee stated that she is comfortable with a vote to show where the Planning
Commission stands which would be “no recommendation.”
Ms. Faubion stated that the Planning Commission requires three votes for an affirmative vote on
the Ordinance. If the Planning Commission wants to send a “no recommendation” with a list of
the issues, that would move forward with a 2-1 vote.
Cm. Goel stated that he would be in favor of making a recommendation to the City Council of
“no recommendation.” He felt that he needed more information in order to make an affirmative
recommendation.
On a motion by Cm. Goel and seconded by Cm. Bhuthimethee, on a vote of 2-1-2, with Cm. Do
and Cm. Mittan being absent, to make a recommendation to the City Council of “no
recommendation,” due to the lack of a consensus among the Planning Commission, with
reference to the minutes to summarize the important issues related to the Ordinance, the
Planning Commission adopted:
RESOLUTION 16-22
A RESOLUTION OF THE PLANNING COMMISSION
OF THE CITY OF DUBLIN
RECOMMENDING “NO RECOMMENDATION” TO THE CITY COUNCIL REGARDING THE
ADOPTION OF AN ORDINANCE AMENDING CHAPTERS 5.58, 8.08 AND 8.12 OF THE
DUBLIN MUNICIPAL CODE RELATING
TO NON-MEDICAL MARIJUANA DELIVERIES, BUSINESSES
AND CULTIVATION AND TO MEDICAL MARIJUANA BUSINESSES
6. UNFINISHED BUSINESS – NONE
7. NEW BUSINESS - NONE
8. OTHER BUSINESS –
8.1 Mr. Baker mentioned that the current appointments to the Planning Commission of
Cm. Do, Chair Kohli and Cm. Goel will expire at the end of this year. He stated
that the City Clerk will be sending out information soon and, if they are interested
in being on the Planning Commission again, they will need to apply. The
6.1.b
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Planning Commission September 13, 2016
Regular Meeting 106 | Page
application period is October 24th through November 18th and the Mayor will then
make recommendations at the December 20th City Council meeting.
8.2 Mr. Baker stated that the next Planning Commission meeting will be October 11th
9. ADJOURNMENT – The meeting was adjourned at 8:42:40 PM
Respectfully submitted,
Planning Commission Chair
ATTEST:
Jeff Baker
Assistant Community Development Director
G:\MINUTES\2016\PLANNING COMMISSION\09.13.16 DRAFT PC MINUTES.docx
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Page 1 of 5
STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Plan Bay Area 2040 Draft Preferred Scenario
Prepared by: Marnie Delgado, Senior Planner
EXECUTIVE SUMMARY:
Plan Bay Area (formerly referred to as the Sustainable Communities Strategy) is a
regional planning effort led by the Association of Bay Area Governments (ABAG) and
the Metropolitan Transportation Commission (MTC). Plan Bay Area was first prepared
2013 in response to Senate Bill 375, California’s 2008 climate law, and must be updated
every four years. The document is intended to provide a roadmap to help Bay Area
cities and counties plan for and accommodate regional jobs and housing growth while
reducing greenhouse gas emissions. The original Plan Bay Area 2013 was jointly
adopted by ABAG and MTC in 2013. ABAG and MTC are currently preparing the first
strategic update which is known as Plan Bay Area 2040. They have released the Draft
Preferred Scenario and corresponding transportation investment strategy, which
represents a regional pattern of household and employment growth by the year 2040.
STAFF RECOMMENDATION:
Staff recommends that the City Council receive Staff’s presentation and provide
direction as appropriate.
FINANCIAL IMPACT:
None.
DESCRIPTION:
Plan Bay Area is a state-mandated, integrated long-range transportation, land-use and
housing plan. The Plan is intended to provide a roadmap to help Bay Area cities and
counties plan for and accommodate regional jobs and housing growth while reducing
greenhouse gas emissions. State law gives joint responsibility for Plan Bay Area to the
Association of Bay Area Governments (ABAG) and to the Metropolitan Transportation
Commission (MTC). The Plan must be updated every four years. These two agencies
work with the Bay Area Air Quality Management District and the Bay Conservation and
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Development Commission. They also reach out to local communities, agencies and a
wide range of stakeholders to obtain public input into the Plan’s preparation.
Plan Bay Area 2013 was jointly approved on July 18, 2013 by ABAG and MTC. Plan
Bay Area 2013 includes the region’s Sustainable Communities Strategy and the
Regional Transportation Plan.
In January 2015, work began on the first state mandated update, which is known as
Plan Bay Area 2040. Staff from MTC and ABAG met with stakeholders, hosted open
houses, and established goals and targets. This information was used to develop a
Draft Preferred Land Use Scenario for allocating jobs and housing growth throughout
the region. The Draft Preferred Scenario represents a regional pattern of household and
employment growth by the year 2040, and includes a corresponding transportation
investment strategy. In September 2016, the Draft Preferred Land Use Scenario was
released for public review and comment.
Draft Preferred Land Use Scenario
In May 2016, MTC and ABAG released three alternative land use and transportation
scenarios illustrating the effects that different housing, land use and transportation
strategies would have on the regional goals and performance targets set forth in Plan
Bay Area 2040. The three scenarios were featured at public open houses and online
forums throughout May and June. They represent a progression of plausible regional
futures, from more intense housing and employment growth in the urban core (“Big
Cities Scenario”); to more evenly apportioned development among priority development
areas (PDAs) in medium-sized cities with access to rail services (“Connected
Neighborhoods Scenario”); to a more dispersed development pattern, with relatively
more growth occurring outside of PDAs (“Main Streets Scenario”).
Since then, MTC and ABAG incorporated feedback received from the public and from
policymakers to develop the Draft Preferred Scenario. The Draft Preferred Scenario
largely reflects the foundation established in Plan Bay Area 2013 by:
Focusing development toward Priority Development Areas (PDAs) -
neighborhoods served by public transit identified by local jurisdictions as being
appropriate for smart, compact development.
Preserving Priority Conservation Areas (PCAs) by confining growth to
established communities, and protecting the Bay Area’s legacy of vast and varied
open spaces.
The Draft Preferred Scenario largely follows the regional growth pattern of Plan Bay
Area 2013 by focusing 75 percent of new households and 52 percent of new jobs into
PDAs, and distributing the remaining growth within the region’s planned urban growth
boundaries/limit lines. Similar to Plan Bay Area 2013, the Draft Preferred Scenario
concentrates household growth in the cities of San Jose, San Francisco and Oakland,
and along the east and west bayside corridors.
In terms of employment, the Draft Preferred Scenario anticipates a modest shift from
the growth pattern adopted in Plan Bay Area 2013 and incorporates substantial
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employment growth that has occurred since 2010. Since 2010, a significant amount of
job growth has occurred in bayside communities (46 percent) and in the cities of San
Jose, San Francisco and Oakland (37 percent) - areas comprising the preponderance of
the region’s commercial space. The Draft Preferred Scenario job growth pattern echoes
the current trend over the plan horizon and encompasses a more rigorous analysis of
potential employment growth by location.
Housing and Employment: Regional Forecast
The Bay Area economy has been strong over the past four years, attracting thousands
of new people and jobs. As a result, ABAG adopted a revised regional growth forecast
in February 2016. This forecast estimates an additional 1.3 million jobs and 2.4 million
people, and therefore the need for approximately 820,000 housing units between 2010
and 2040. This represents an increase of 15 percent in employment and a 25 percent
increase in households, relative to Plan Bay Area 2013.
The Draft Preferred Scenario accommodates 100 percent of the needed housing units,
and offers a rationale that these units can be built given future market conditions and
existing or expected policies to support focused growth at the local, regional or state
level.
The Draft Preferred Scenario does not mandate any changes to local zoning rules,
general plans, or processes for reviewing projects, nor is it an enforceable direct or
indirect cap on development locations or targets in the region. As is the case across
California, the Bay Area’s cities, towns, and counties maintain control of all decisions to
adopt plans and permit or deny development projects. Plan Bay Area 2040 does not
establish new state-mandated Regional Housing Needs Allocation (RHNA) numbers for
each jurisdiction. RHNA operates on an eight-year cycle, with the next iteration not due
until the 2021 Regional Transportation Plan/Sustainable Community Strategy (the nex t
update of Plan Bay Area). Because RHNA numbers are not at stake this cycle, MTC
and ABAG are characterizing this update to the region’s long-range plan as limited and
focused.
Tables 1 and 2 below summarize the distribution of 2040 employment and household
forecasts within three regional geographies:
Big 3 Cities (the region’s three largest cities - San Jose, San Francisco, and
Oakland)
Bayside (generally cities directly adjacent to San Francisco Bay - e.g., Hayward,
San Mateo, San Rafael and Richmond)
Inland, Coastal, and Delta (generally cities just outside of Bayside - e.g., Walnut
Creek, Dublin, Santa Rosa, Antioch, Brentwood, Dixon)
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Table 1: 2040 Household Forecast
Subarea 2010
Households
Share of
2010
Households
2040
Households
Share of
2040
Households
Growth in
Households
from 2010
Share of
Regional
Growth
Total 2,607,000 3,427,000 820,000
Big 3 Cities 802,000 31% 1,151,000 34% 349,000 43%
Bayside 1,030,000 39% 1,304,000 38% 275,000 33%
Inland, Coastal,
Delta
775,000 30% 971,000 28% 196,000 24%
in PDA 559,000 21% 1,172,000 34% 613,000 75%
outside PDA 2,048,000 79% 2,255,000 66% 207,000 25%
Table 2: 2040 Employment Forecast
Subarea 2010 Jobs Share of
2010 Jobs
2040 Jobs Share of
2040 Jobs
Growth in
Jobs from
2010
Share of
Regional
Growth
Total 3,422,000 4,699,000 1,276,000
Big 3 Cities 1,144,000 33% 1,648,000 35% 504,000 40%
Bayside 1,405,000 41% 1,997,000 43% 591,000 46%
Inland, Coastal, Delta 873,000 26% 1,054,000 22% 181,000 14%
in PDA 1,433,000 42% 2,094,000 45% 661,000 52%
outside PDA 1,989,000 58% 2,605,000 55% 616,000 48%
Housing and Employment: Dublin
The Draft Preferred Scenario forecasts household and employment growth for Dublin
based on the premise that the region’s future growth will primarily be concentrated in
the cities of San Jose, San Francisco and Oakland, and along the east and west
bayside corridors. Table 3 below summarizes the distribution of 2040 household and
employment forecasts for Dublin under the Draft Preferred Scenario. Table 4
summarizes City’s estimates for household and employment growth in Dublin based on
the Dublin General Plan, Eastern Dublin Specific Plan, Dublin Crossing Specific Plan,
Downtown Dublin Specific Plan and the City of Dublin Economic Development Strategy.
Table 3: 2040 Household and Employment Forecasts for Dublin (Source:
ABAG/MTC)
Jurisdiction 2010
Households
2040
Households
2010 Jobs 2040 Jobs
Dublin 14,900 23,300 18,100 31,400
in PDA 3,100 8,500 5,000 14,000
outside PDA 11,800 14,800 13,100 17,400
Table 4: 2040 Household and Employment Forecasts for Dublin (Source: City of
Dublin)
Jurisdiction2010 Households2040
Households2010 Jobs2040 Jobs
Dublin 14,900 28,245 18,100 31,008
in PDA 3,100 11,856 5,000 n/a
outside PDA 11,800 16,389 13,100 n/a
City Staff estimates 4,945 more 2040 Households and 3,356 more PDA households
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than the Draft Preferred Scenario. Dublin’s three PDA’s include Downtown Dublin,
Dublin Transit Center/Dublin Crossing, and Dublin Town Center (see Attachments 1-3).
City Staff’s estimates assume full build-out at 2040 under the current General Plan and
various Specific Plans. Based on this assumption, 42% of total households in Dublin
would be located within a PDA. Under the Draft Preferred Scenario, 36% of households
would be located within a PDA. Under the Draft Preferred Scenario, ABAG/MTC is
forecasting a slower rate of growth in Dublin by 2040.
Employment forecasts under the Draft Preferred Scenario closely align with the City of
Dublin Economic Development Strategy.
Next Steps
MTC and ABAG will be accepting comments on the Draft Preferred Scenario until
October 14. This Input will be used to refine the preferred scenario before the MTC
Commission and ABAG Executive Board are asked to adopt a final preferred scenario
at a joint November 2016 meeting. The final preferred scenario will form the foundation
for Plan Bay Area 2040, slated for final adoption in 2017. Staff will prepare a letter to
MTC and ABAG advising them of the difference between their housing assumptions and
those contained in our General Plan and Specific Plans.
Staff recommends that the City Council receive Staff’s presentation and provide
direction as appropriate on the housing and employment forecasts in the Draft Preferred
Scenario.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
Public noticing is not required for informational reports to the City Council.
ATTACHMENTS:
1. Downtown Dublin Specific Plan Priority Development Area Map
2. Transit Center/Dublin Crossing Priority Development Area Map
3. Dublin Town Center Priority Development Area Map
8.1
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Page 1 of 4
STAFF REPORT
CITY COUNCIL
DATE: October 4, 2016
TO: Honorable Mayor and City Councilmembers
FROM:
Christopher L. Foss, City Manager
SUBJECT:
Information on California State Ballot Proposition 57, "The Public Safety
and Rehabilitation Act of 2016"
Prepared by: Hazel L. Wetherford, Assistant to the City Manager
EXECUTIVE SUMMARY:
The City Council will receive information on California State Ballot Proposition 57, “The
Public Safety and Rehabilitation Act of 2016,” and will consider whether to support,
oppose or maintain a neutral position on the Proposition.
STAFF RECOMMENDATION:
Staff recommends the City Council receive the report and, if desired, provide policy
direction concerning the California State Ballot Proposition 57, “The Public Safety and
Rehabilitation Act of 2016.”
FINANCIAL IMPACT:
There is no financial impact to receiving this information.
DESCRIPTION:
At the September 20, 2016 City Council meeting, the City Council requested information
be provided on the California State Ballot Proposition 57, “The Public Safety and
Rehabilitation Act of 2016.”
In January of this year, Governor Brown unveiled a plan to overhaul the rules regarding
parole eligibility for inmates serving time for non-violent crimes. The Governor added
the plan to a proposed ballot initiative that dealt solely with juvenile justice.
The California District Attorneys Association (CDAA) filed a lawsuit, challenging the
move to insert the language into the existing ballot measure, arguing the substantial
revisions warranted additional review. A Sacramento Superior Court judge sided with
the plaintiffs in the lawsuit.
8.2
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In his appeal of the ruling, the Governor warranted that California’s long-term ability to
comply with a federal court order to reduce its prison population hinged on voters being
given a chance to approve his plan. Additionally, the proponents of the ballot measure
argued any delay through the courts would make the initiative impossible to qualify.
In early June 2016, the Supreme Court ruled in favor of Governor Brown, overturning
the lower court ruling initially blocking the initiative. On June 30, 2016, the initiative
officially qualified for the ballot.
The Legislative Analyst’s Office (LAO) has produced an initial overview and fiscal
analysis of Proposition 57 in accordance with State law.
Proposal Analysis by LAO:
This measure would make changes to the State Constitution to increase the number of
inmates eligible for parole consideration and provide the California Department of
Corrections and Rehabilitation (CDCR) with additional authority to award credits to
inmates. The measure also would make statutory changes to require that youths have a
hearing in juvenile delinquency court before they can be transferred to adult criminal
court.
Parole Consideration for Non-Violent Offenders - The measure amends the State
Constitution to specify that any person convicted of a non-violent felony offense
and sentenced to state prison shall be eligible for parole consideration after
completing the full term for his or her primary offense. The measure defines
primary offense as the longest term imposed excluding any additional terms that
are added to an offender’s sentence. Such additional terms include: (1) the
sentences for the lesser crimes the inmate is convicted of in certain cases where
the inmate is convicted of multiple crimes and (2) sentencing enhancements
(such as the additional time an inmate must serve for using a firearm while
committing a crime). As a result, these offenders could be released on an
expedited basis, after serving the term for their primary offense. In addition, the
measure authorizes CDCR to adopt regulations to implement the above changes
and requires the Secretary of CDCR to certify that they protect and enhance
public safety.
Authority to Award Credits - The measure also amends the State Constitution to
specify that CDCR shall have the authority to award credits to inmates for good
behavior and approved rehabilitative or educational achievements. As a result,
CDCR could authorize credits beyond the current limits. In addition, the measure
authorizes CDCR to adopt regulations to implement the above changes and
requires the Secretary of CDCR to certify that they protect and enhance public
safety.
Juvenile Transfer Hearings - The measure modifies statute regarding fitness
hearings to require that all youths have a hearing in juvenile delinquency court
before they can be transferred to adult criminal court. As a result, prosecutors
8.2
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would no longer be able to file charges directly in adult criminal court and no
youths would have their cases heard in adult criminal court on a mandatory
basis. In addition, the measure specifies that hearings to transfer youths to adult
criminal court could only be sought for (1) youths accused of committing certain
major crimes specified in statute (such as murder, robbery, and certain sex
offenses) when they were age 14 or 15 and (2) youths accused of committing a
felony when they were 16 years of age or older. As a result, there may be fewer
youth tried in adult court. These youth would likely be subject to shorter terms
than would be the case if they were subject to adult sentences.
The LAO estimates that this measure would have the following major fiscal effects,
which could widely range depending on such factors as the discretion exercised by (1)
the state Board of Parole Hearings in determining whether to grant inmates parole and
(2) CDCR in determining whether to grant additional credits:
Net state savings that could range from the tens of millions of dollars to the low
hundreds of millions of dollars annually primarily due to a reduction in the prison
population from additional paroles granted and credits earned.
Net county costs that could range from the millions to tens of millions of dollars
annually, declining to a few million dollars after initial implementation of the
measure.
As of the date of this report, the following agencies / organizations have taken a position
on Proposition 57:
Support* Oppose** No Position
California Democratic Party City of Beverly Hills Town of Danville
California Faculty Association City of Fresno City of Livermore
California Federation of Teachers City of Hesperia City of San Ramon
California State Law Enforcement
Association City of Imperial City City of Pleasanton
Catholic Bishops of California City of Monrovia California State Association of
Counties
Chief Probation Officers of California City of San Clemente
Crime Survivors for Safety & Justice
Governor Jerry Brown
League of Women Voters
Los Angeles Chamber of Commerce
Los Angeles County Democratic Party
SEIU State Council
State Building and Construction Trades
Council
The Bakersfield Californian
*Information gathered from www.vote4prop57.com
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Summary background information along with information from supporters and
opponents of Proposition 57 has been included as Attachment 4, as presented in the
Official Voter Information Guide by the California Secretary of State.
Staff has developed the following options for City Council consideration:
1. Take a formal position to oppose Proposition 57
2. Take a formal position to support Proposition 57
3. Take no formal position on Proposition 57
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None.
ATTACHMENTS:
1. Resolution - Oppose Proposition 57
2. Resolution - Support Proposition 57
3. California District Attorneys Association, Violent and Serious Acts Eligible for Early
Release Under the Governor’s “Public Safety and Rehabilitation” Initiative
4. California Secretary of State, Official Voter Information Guide (Prop 57)
8.2
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RESOLUTION NO. XX-16
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
RESOLUTION DECLARING OPPOSITION TO CALIFORNIA STATE BALLOT PROPOSITION
57, “THE PUBLIC SAFETY AND REHABILITATION ACT OF 2016”
WHEREAS, the City of Dublin believes it is appropriate to oppose actions or initiatives at
local, state and federal levels that could jeopardize the safety of its citizens; and
WHEREAS, Proposition 57, known as the “Public Safety and Rehabilitation Act of 2016”
has qualified for the November 8, 2016 General Election ballot in California; and
WHEREAS, Proposition 57 has multiple ambiguous terms that are not identified by the
Initiative, such as just what constitutes a “non-violent felony” or what would constitute “parole
consideration;” and
WHEREAS, Proposition 57 could increase parole chances for persons convicted of non-
violent felonies after completing the full term for his or her primary offense and give them more
opportunities to earn credits for good behavior. It would also allow judges, not prosecutors, to
decide whether to try certain juveniles as adults in court; and
WHEREAS, Proposition 57 is intended to ease over-crowding in prisons and offer
leniency to inmates with a history of good behavior; and
WHEREAS, Proposition 57 would conflict with many other initiatives passed by the
voters of California, such as the Victims’ Bill of Rights, Marsy’s Law, the Gang Violence and
Juvenile Crime Prevention Act, the Three Strikes Law, as well as the recent Californians Against
Sexual Exploitation Act.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin
opposes the passage of Proposition 57, the “Public Safety and Rehabilitation Act of 2016.”
PASSED, APPROVED AND ADOPTED this 4th day of October, 2016, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Mayor
ATTEST:
______________________________
City Clerk
8.2.a
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RESOLUTION NO. XX-16
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
*********
RESOLUTION DECLARING SUPPORT TO CALIFORNIA STATE BALLOT PROPOSITION
57, “THE PUBLIC SAFETY AND REHABILITATION ACT OF 2016”
WHEREAS, the City of Dublin believes it is appropriate to support actions or initiatives at
local, state and federal levels that could protect the safety of its citizens; and
WHEREAS, Proposition 57, known as the “Public Safety and Rehabilitation Act of 2016”
has qualified for the November 8, 2016 General Election ballot in California; and
WHEREAS, Proposition 57 would save taxpayer dollars by reducing wasteful spending
on prisons; and
WHEREAS, Proposition 57 focuses resources on keeping dangerous criminals behind
bars; and
WHEREAS, Proposition 57 allows parole consideration for people with non-violent
convictions who complete the full prison term for their primary offense; and
WHEREAS, Proposition 57 authorizes a system of credits that can be earned for
rehabilitation, good behavior and education milestones or taken away for bad behavior; and
WHEREAS, Proposition 57 requires the Secretary of the Department of Corrections and
Rehabilitation to certify that these policies are consistent with protecting and enhancing public
safety; and
WHEREAS, Proposition 57 requires instead of prosecutors to decide whether minors
should be prosecuted as adults, emphasizing rehabilitation for minors in the juvenile system.
NOW THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin
supports the passage of Proposition 57, the “Public Safety and Rehabilitation Act of 2016.”
PASSED, APPROVED AND ADOPTED this 4th day of October, 2016, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Mayor
ATTEST:
______________________________
City Clerk
8.2.b
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VIOLENT AND SERIOUS ACTS ELIGIBLE FOR
EARLY RELEASE UNDER THE GOVERNOR’S
“PUBLIC SAFETY AND REHABILITATION”
INITIATIVE
8.2.c
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Violent and Serious Acts Eligible for Early Release
Under the Governor’s Proposed “Public Safety and Rehabilitation” Initiative
The term “non-violent felony offense” is not defined in the initiative, or elsewhere in California
law. However, Penal Code section 667.5(c) defines a limited number of felonies as “violent.”
The following crimes are not technically considered “violent,” so therefore, appear to qualify as
“non-violent offense” eligible for early release in the Governor’s initiative. Crimes with an
asterisk (*) appear more than once in the categories below.
This list is not necessarily an exhaustive compilation of every such felony, but should be
considered a fairly complete listing. This list is offered as an aid to prosecution offices to be
used should the Governor’s initiative pass. Should you have any suggested additions, please
send them to CDAA.
Crimes Involving Acts of Violence
¥ Assault by Means of Force Likely to Produce Great Bodily Injury (Pen. Code § 245(a)(4))
¥ Assault with a Deadly Weapon (Pen. Code § 245(a)(1))*
¥ Taking a Hostage (Pen. Code § 210.5)
¥ Any Felony in Which a Defendant Personally Uses a Dangerous or Deadly Weapon (Pen.
Code § 667/1192.7)*
¥ Discharge of Firearm at Inhabited House, Occupied Building or Occupied Motor Vehicle
[“Drive-by Shooting”] (Pen. Code § 246)
¥ Hit & Run Resulting in Death or Permanent, Serious Injury (Pen. Code § 20001(b)(2))
¥ Domestic Violence Resulting in a Traumatic Condition (Pen. Code § 273.5)*
¥ False Imprisonment by Violence, Menace, Fraud, or Deceit (Pen. Code §§ 236-237)
¥ Using Force or Violence Upon a Witness or Victim Because of Assistance Provided to a
Law Enforcement Officer or Prosecutor (Pen. Code § 140)*
¥ Soliciting Another Person to Commit Murder (Pen. Code § 653f(b))
¥ Resisting a Peace Officer and Proximately Causing Death or Serious Bodily Injury to the
Officer (Pen. Code § 148.10)*
¥ Peace Officer Beating or Assaulting a Person Without Lawful Necessity (Pen. Code § 149)
¥ Supplying, Selling, or Giving a Firearm to a Person to Commit a Gang Crime, and the
Person Commits the Gang Crime and is Convicted of It (Pen. Code § 186.28)*
¥ Assault with a Stun Gun or Less Lethal Weapon (Pen. Code § 244.5)
¥ Corporal Punishment or Injury on a Child Resulting in a Traumatic Condition (Pen. Code
§ 273d)*
¥ False Imprisonment of an Elder or Dependent Adult by Violence, Menace, Fraud, or
Deceit (Pen. Code § 368(f))*
¥ Hate Crime Causing Physical Injury, Property Damage Over $950, or Where the
Defendant Has a Prior Conviction for a Hate Crime (Pen. Code § 422.7)*
8.2.c
Packet Pg. 120
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¥ Soliciting Another Person to Commit a Specified Crime Such as Carjacking, Robbery,
Burglary, Kidnapping, Arson, Grand Theft, Perjury, Extortion, or Assault With a Deadly
Weapon (Pen. Code § 653f(a))
¥ Inflicting Physical Pain or Mental Suffering on an Elder or Dependent Adult; Or, a
Caretaker Endangering the Health of an Elder or Dependent Adult (Pen. Code §
368(b)(1))*
¥ Unlawfully Causing a Fire that Causes Great Bodily Injury (Pen. Code § 452(a))*
¥ Driving Under the Influence of Alcohol and/or Drugs and Causing Bodily Injury (Veh.
Code § 23153)*
¥ Conspiracy to Commit Any Serious or Violent Felony (Pen. Code § 182)
¥ Involuntary Manslaughter with Personal Use of a Weapon, or Personal Infliction of Great
Bodily Injury (i.e., death) (Pen. Code § 192(c))*
¥ Vehicular Manslaughter with Personal Infliction of Great Bodily Injury (i.e., death) (Pen.
Code § 192(c))
¥ Vehicular Manslaughter While Intoxicated with Personal Infliction of Great Bodily Injury
(i.e., death) (Pen. Code § 191.5(b))*
Sexual Assault-Related Crimes
¥ Rape of a Person Incapable of Giving Legal Consent (Pen. Code § 261(a)(1))
¥ Rape By an Intoxicating, Anesthetic, or Controlled Substance (Pen. Code § 261(a)(3))
¥ Rape of an Unconscious Person (Pen. Code § 261(a)(4))
¥ Sexual Penetration of an Unconscious Person (Pen. Code § 289(d))
¥ Sexual Penetration By an Intoxicating, Anesthetic, or Controlled Substance (Pen. Code §
289(e))
¥ Sexual Battery By Unlawful Restraint (Pen. Code § 243.4(a))
¥ Sexual Battery of a Disabled or Medically Incapacitated Person (Pen. Code § 243.4(b))
¥ Sexual Battery on an Unconscious Person (Pen. Code § 243.4(c))
¥ Sodomy on an Unconscious Person (Pen. Code § 286(f))
¥ Sodomy on a Person Incapable of Giving Legal Consent (Pen Code § 286(g))
¥ Sodomy By Intoxicating, Anesthetic, or Controlled Substance (Pen. Code § 286(i))
¥ Oral Copulation on an Unconscious Person (Pen. Code § 288a(f))
¥ Oral Copulation on a Person Incapable of Giving Legal Consent (Pen. Code § 288a(g))
¥ Oral Copulation By an Intoxicating, Anesthetic, or Controlled Substance (Pen. Code §
288a(i))
¥ Soliciting Another Person to Commit a Forcible Sex Crime (Pen. Code § 653f(c))
Crimes Against Children
¥ Abandonment of a Child Under Age 14 (Pen. Code § 271)
¥ Failing to Provide for a Child Under Age 14 (Pen. Code § 271a)
¥ Corporal Punishment or Injury on a Child Resulting in a Traumatic Condition (Pen. Code
§ 273d)*
¥ Child Abduction By a Person Not Having a Right to Custody (Pen. Code § 277)
¥ Child Abduction to Deprive a Lawful Custodian of a Right to Custody (Pen. Code § 278)
8.2.c
Packet Pg. 121
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¥ Transporting or Providing a Child Under Age 16 For the Purpose of a Lewd Act (Pen.
Code § 266j)*
¥ Abduction of a Minor For the Purpose of Prostitution (Pen. Code § 267)*
¥ Physical Child Abuse/Endangering the Health of a Child (Pen. Code § 273a(a))
¥ Sodomy With a Minor Under Age 18; Or a Person Over Age 21 Participating in an Act of
Sodomy With a Minor Under Age 16 (Pen. Code § 286(b))
¥ Lewd or Lascivious Act on Child Age 14 or 15 Where the Perpetrator is at Least 10 Years
Older (Pen. Code § 288(c)(1))
¥ Contacting a Minor With Intent to Commit to a Specified Offense Such as Kidnapping,
Sexual Assault, Physical Abuse, or Distribution of Obscene Matter (Pen. Code § 288.3)
¥ Arranging a Meeting With a Minor For Lewd Purposes, Where the Defendant Has a Prior
Conviction for an Offense Requiring Registration as a Sex Offender; Or, Arranging a
Meeting With a Minor for Lewd Purposes and Actually Going to the Meeting Place at the
Arranged Time (Pen. Code § 288.4)
¥ Oral Copulation With a Minor Under Age 18; Or a Person Over Age 21 Participating in an
Act of Oral Copulation With a Minor Under Age 16 (Pen. Code § 288a(b))
¥ Employing or Using a Minor, or a Parent Permitting a Minor, to Pose or Model or
Produce Matter Involving Sexual Conduct by the Minor Alone or With Other Persons or
Animals, for Commercial Purposes (Pen. Code § 311.4(b))
¥ Soliciting or Encouraging a Minor Violate Laws With Respect to Drugs Such as Heroin,
Cocaine, or Cocaine Base (Health & Saf. § 11352)*
¥ Employing or Using a Minor to Sell or Transport a Controlled Substance (Health & Saf. §
11353(b)*
¥ Selling, Furnishing, Administering, Giving or Offering to Sell, Furnish, Administer, or Give
Heroin or Cocaine to a Minor (Heath & Saf. § 11353)*
Human Trafficking
¥ Human Trafficking Involving Forced Labor or Services (Pen. Code § 236.1(a))
¥ Human Trafficking Involving Sex Acts, Obscene Matter, or Extortion (Pen. Code §
236.1(b))
¥ Human Trafficking Involving a Minor and Commercial Sex Acts (Pen. Code § 236.1(c))
¥ Pimping (Pen. Code § 266h)
¥ Pandering (Pen. Code § 266i)
¥ Transporting or Providing a Child Under Age 16 For the Purpose of a Lewd Act (Pen.
Code § 266j)*
¥ Abduction of a Minor For the Purpose of Prostitution (Pen. Code § 267)*
Terrorism-Related Crimes
¥ Exploding or Attempting to Explode a Destructive Device in a Specified Place (e.g.,
health facility, place of worship, bookstore, library, courthouse, judge’s home, or school
(Pen. Code § 11413)
¥ Possessing, Manufacturing, Transferring, or Acquiring a Weapon of Mass Destruction
(Pen. Code § 11418(a))
8.2.c
Packet Pg. 122
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¥ Possession of a Restricted, Biological Agent (Pen. Code § 11419)
¥ Possession of a Destructive Device or Explosion in or Near a Specified Place, Private
Habitation, or in a Public Building or Public Place (Pen. Code § 18715)
¥ Possession of a Substance or Material With Intent to Make Destructive Device or
Explosive (Pen. Code § 18720)
¥ Carrying or Placing a Destructive Device or Explosive in a Vessel, Aircraft, Vehicle, or
Baggage (Pen. Code § 18725)
¥ Selling, Offering for Sale, or Transporting a Destructive Device (Pen. Code § 18730)
¥ Carrying a Concealed Explosive Substance on the Person (Pen. Code § 19100)
¥ Assembling or Placing a Booby Trap Device (Pen. Code § 20110(a))
¥ Possession of a Device with Intent to Use it as a Booby Trap (Pen. Code § 20110(b))
¥ Mingling Poison or Harmful Substance With Any Food, Drink, or Medicine; Or, Placing a
Poison or Harmful Substance in a Spring, Well, or Water Supply (Pen. Code § 347(a))
¥ Possession of Destructive Device (Pen. Code § 18710)
¥ Exploding a Destructive Device or Explosive With Intent to Injure (Pen. Code § 18740)
Domestic-Violence-Related Crimes
¥ Violation of a Restraining Order Where Defendant Has a Prior Conviction Within Seven
Years for Violating a Restraining Order That Involves a Credible Threat of Violence (Pen.
Code § 273.6(d)*
¥ Violation of a Restraining Order Within One Year of a Restraining Order Conviction That
Resulted in Physical Injury to the Victim (Pen. Code § 273.6(e))*
¥ Domestic Violence Resulting in a Traumatic Condition (Pen. Code § 273.5)*
¥ Stalking When the Defendant Has a Prior Felony Conviction for Domestic Violence,
Violation of a Restraining Order, Criminal Threats, or Stalking (Pen. Code § 646.9(c))*
Elder/Dependent Adult Abuse
¥ False Imprisonment of an Elder or Dependent Adult by Violence, Menace, Fraud, or
Deceit (Pen. Code § 368(f))*
¥ Inflicting Physical Pain or Mental Suffering on an Elder or Dependent Adult; Or, a
Caretaker Endangering the Health of an Elder or Dependent Adult (Pen. Code §
368(b)(1))*
¥ Non-Caretaker Committing Theft, Embezzlement, Forgery, Fraud, or Identity Theft
Against an Elder or Dependent Adult Where the Loss is Over $950 (Pen. Code § 368(d))
¥ Caretaker Committing Theft, Embezzlement, Forgery, Fraud, or Identity Theft Against an
Elder or Dependent Adult Where the Loss is Over $950 (Pen. Code § 368(e)
Gang-Related Crimes
¥ Active Participation in a Criminal Street Gang (Pen. Code § 186.22(a))
¥ Supplying, Selling, or Giving a Firearm to a Person to Commit a Gang Crime, and the
Person Commits the Gang Crime and is Convicted of It (Pen. Code § 186.28)*
¥ Soliciting or Recruiting Another Person to Participate in a Criminal Street Gang (Pen.
Code § 219.2)
8.2.c
Packet Pg. 123
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¥ Carrying a Loaded Firearm on the Person or in a Vehicle Where the the Defendant Has a
Prior Felony Conviction, or the Firearm is Stolen and the Defendant Knows it, or the
Defendant Is an Active Participant in a Criminal Street Gang, or the Defendant Is in a
Class of Person Prohibited From Possessing or Acquiring a Firearm (Pen. Code § 25850)
¥ Any Felony with a Gang Enhancement Attachment (with exception of extortion and
threats to victims/witnesses) (Pen. Code § 186.22(b))
Crimes Against Victims/Witnesses
¥ Stalking When There Is a Temporary Restraining Order or Injunction in Place (Pen. Code
§ 646.9(b))
¥ Stalking When the Defendant Has a Prior Felony Conviction for Domestic Violence,
Violation of a Restraining Order, Criminal Threats, or Stalking (Pen. Code § 646.9(c))*
¥ Convicted Sex Offender in County Jail or State Prison Revealing the Name and Address
of a Sexual Assault Victim to Another Prisoner with Intent That the Victim Be Harassed
(Pen. Code § 136.7)*
¥ Credible Threat of Force or Violence Against a Witness or Victim of the Crime the
Defendant was Convicted of (Pen. Code § 139(a))
¥ Using Force or Violence Upon a Witness or Victim Because of Assistance Provided to a
Law Enforcement Officer or Prosecutor (Pen. Code § 140)*
¥ Violation of a Restraining Order Where Defendant Has a Prior Conviction Within Seven
Years for Violating a Restraining Order That Involves a Credible Threat of Violence (Pen.
Code § 273.6(d))*
¥ Violation of a Restraining Order Within One Year of a Restraining Order Conviction That
Resulted in Physical Injury to the Victim (Pen. Code § 273.6(e))*
¥ Making a Credible Threat to Cause Serious Bodily Injury and Within 30 Days Entering the
Victim’s Residence or Workplace With Intent to Carry Out the Threat (Pen. Code § 601)
Hate Crimes
¥ Hate Crime Causing Physical Injury, Property Damage Over $950, or Where the
Defendant Has a Prior Conviction for a Hate Crime (Pen. Code § 422.7)*
¥ Terrorizing the Owner of Private Property by Placing a Sign or Mark (e.g., Nazi Swastika)
on the Victim’s Property on Two or More Occasions (Pen. Code § 11411(c))
¥ Burning or Desecrating a Cross or Religious Symbol on Private Property or School
Grounds, For the Purpose of Terrorizing (Pen. Code § 11411(d))
Sex Offenders/Sexually Violent Predators
¥ Felon Failing to Register as Required as a Sex Offender; Or, Any Person Failing to
Register as Required as a Sex Offender When That Person Has Previously Been
Convicted of Failing to Register (Pen. Code § 290.018(b))
¥ Sexually Violent Predator Failing to Verify Sex Registration Every 90 Days (Pen. Code §
290.018(f))
8.2.c
Packet Pg. 124
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Arson-Related Crimes
¥ Unlawfully Causing a Fire that Causes Great Bodily Injury (Pen. Code § 452(a))*
¥ Unlawfully Causing a Fire That Causes an Inhabited Structure or Inhabited Property to
Burn (Pen. Code § 452(b))
¥ Unlawfully Causing a Fire of a Structure or Forest Land (Pen. Code § 452(c))
Crimes Related to Firearms
¥ Supplying, Selling, or Giving a Firearm to a Person to Commit a Gang Crime, and the
Person Commits the Gang Crime and is Convicted of It (Pen. Code § 186.28)*
¥ A Felon Possessing, Purchasing, or Receiving a Firearm (Pen. Code § 29800)
¥ A Person With a Prior Conviction for a Serious or Violent Felony Owning, Possessing, or
Controlling a Firearm (Pen. Code § 29900)
¥ Discharge of Firearm at Inhabited House, Occupied Building or Occupied Motor Vehicle
[“Drive-by Shooting”] (Pen. Code § 246)
Drug-Related Crimes
¥ Soliciting or Encouraging a Minor to Violate Laws With Respect to Drugs Such as Heroin,
Cocaine, or Cocaine Base (Health & Saf. § 11352(a))*
¥ Employing or Using a Minor to Sell or Transport a Controlled Substance (Health & Saf. §
11353(b)*
¥ Driving Under the Influence of Alcohol and/or Drugs and Causing Bodily Injury (Veh.
Code § 23153)*
¥ Vehicular Manslaughter While Intoxicated with Personal Infliction of Great Bodily Injury
(i.e., death) (Pen. Code § 191.5(b))*
¥ Selling, Furnishing, Administering, Giving or Offering to Sell, Furnish, Administer, or Give
Heroin or Cocaine to a Minor (Health & Saf. § 11353)*
¥ Possession of Specified Compounds With the Intent to Manufacture Methamphetamine
(Health & Saf. § 11383.5)
¥ Driving Under the Influence of Alcohol and/or a Drug Where the Defendant Has Three or
More Separate DUI Violations (Veh. Code § 23550)
Crimes Committed on School Grounds or Universities
¥ Threatening to Inflict Injury on an Officer or Employee of an Educational Institution (Pen.
Code § 71)
¥ Assault on a Peace Officer Working at a School (Pen. Code § 241.4)
¥ Battery on a School Employee Where Injury is Inflicted (Pen. Code § 243.6)
¥ Discharging a Firearm in a School Zone (Pen. Code § 626.9(d))
¥ Assault on a School Employee Involving a Deadly Weapon (Pen. Code § 245.2)
8.2.c
Packet Pg. 125
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Crimes Against Peace Officers
¥ Resisting a Peace Officer and Proximately Causing Death or Serious Bodily Injury to the
Officer (Pen. Code § 148.10)*
¥ Removing or Taking a Firearm From a Peace Officer While Resisting Arrest (Pen. Code §
148(c))
¥ Battery with Injury Inflicted on Peace Officer, Custodial Officer, Firefighter, Emergency
Medical Technician, Lifeguard, Process Server, Traffic Officer, or Animal Control Officer
(Pen. Code § 243(c))
Crimes Committed By Inmates
¥ Inciting a Riot in State Prison or County Jail That Results in Serious Bodily Injury (Pen.
Code § 404.6(c))
¥ Convicted Sex Offender in County Jail or State Prison Revealing the Name and Address
of a Sexual Assault Victim to Another Prisoner with Intent That the Victim Be Harassed
(Pen. Code § 136.7)*
¥ Assault on a Custodial Officer (Pen. Code § 241.1)
¥ Battery Against a Custodial Officer (Pen. Code § 243.1)
¥ Possessing, Carrying, or Controlling a Specified Weapon or Firearm in a State Prison or
County Jail (Pen. Code § 4502(a))
¥ Manufacturing or Attempting to Manufacture a Specific Firearm in a State Prison or
County Jail (Pen. Code § 4502(b))
¥ Possessing a Controlled Substance or Drug Paraphernalia in State Prison or County Jail
(Pen. Code § 4573.6)
¥ Sodomy While Confined in State Prison or Jail (Pen. Code § 286(e))
¥ Oral Copulation While Confined in State Prison or Jail (Pen. Code § 288a(e))
¥ State Prison Inmate Committing an Assault By Means of Force Likely to Produce Great
Bodily Injury (Pen. Code § 4501(b))
¥ Escape or Attempt to Escape From State Prison By Force or Violence (Pen. Code §
4503(a))
¥ Escape or Attempt to Escape From County Jail by Misdemeanant, Home Detainee, or
Work Furlough Program Participant, By Force or Violence (Pen. Code § 4532(a)(2))
¥ Assault With a Deadly Weapon by State Prison Inmate (Pen. Code § 4501)
¥ Holding a Hostage by State Prison Inmate (Pen. Code § 4503)
8.2.c
Packet Pg. 126
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Official Voter Information Guide
OFFICIAL TITLE AND SUMMARY PREPARED BY THE ATTORNEY GENERAL
PROP57 CRIMINAL SENTENCES. PAROLE. JUVENILE CRIMINAL PROCEEDINGS
AND SENTENCING. INITIATIVE CONSTITUTIONAL AMENDMENT AND
STATUTE.
Allows parole consideration for persons convicted of nonviolent felonies, upon completion of prison term for their
primary offense as defined.
Authorizes Department of Corrections and Rehabilitation to award sentence credits for rehabilitation, good behavior,
or educational achievements.
Requires Department of Corrections and Rehabilitation to adopt regulations to implement new parole and sentence
credit provisions and certify they enhance public safety.
Provides juvenile court judges shall make determination, upon prosecutor motion, whether juveniles age 14 and
older should be prosecuted and sentenced as adults for specified offenses.
SUMMARY OF LEGISLATIVE ANALYST'S ESTIMATE OF NET STATE AND LOCAL GOVERNMENT
FISCAL IMPACT:
Net state savings likely in the tens of millions of dollars annually, primarily due to reductions in the prison population.
Savings would depend on how certain provisions are implemented.
Net county costs of likely a few million dollars annually.
8.2.d
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Official Voter Information Guide
ARGUMENT IN FAVOR OF PROPOSITION 57
VOTE YES on PROPOSITION 57
California public safety leaders and victims of crime
support Proposition 57—the Public Safety and
Rehabilitation Act of 2016—because Prop. 57 focuses
resources on keeping dangerous criminals behind
bars, while rehabilitating juvenile and adult inmates
and saving tens of millions of taxpayer dollars.
Over the last several decades, California's prison
population exploded by 500% and prison spending
ballooned to more than $10 billion every year.
Meanwhile, too few inmates were rehabilitated and
most re‐offended after release.
Overcrowded and unconstitutional conditions led the
U.S. Supreme Court to order the state to reduce its
prison population. Now, without a common sense,
long‐term solution, we will continue to waste billions
and risk a court ‐ordered release of dangerous
prisoners. This is an unacceptable outcome that puts
Californians in danger—and this is why we need Prop.
57.
Prop. 57 is straightforward—here's what it does:
• Saves taxpayer dollars by reducing wasteful
spending on prisons. • Keeps the most dangerous
offenders locked up. • Allows parole consideration for
people with non‐violent convictions who complete the
full prison term for their primary offense. • Authorizes
a system of credits that can be earned for
rehabilitation, good behavior and education milestones
or taken away for bad behavior. • Requires the
Secretary of the Department of Corrections and
Rehabilitation to certify that these policies are
consistent with protecting and enhancing public safety.
• Requires judges instead of prosecutors to decide
whether minors should be prosecuted as adults,
emphasizing rehabilitation for minors in the juvenile
system.
We know what works. Evidence shows that the more
inmates are rehabilitated, the less likely they are to re‐
offend. Further evidence shows that minors who
remain under juvenile court supervision are less likely
to commit new crimes. Prop. 57 focuses on evidence‐
based rehabilitation and allows a juvenile court judge
to decide whether or not a minor should be prosecuted
as an adult.
No one is automatically released, or entitled to release
from prison, under Prop. 57.
• To be granted parole, all inmates, current and future,
must demonstrate that they are rehabilitated and do
not pose a danger to the public. • The Board of Parole
Hearings—made up mostly of law enforcement
ARGUMENT AGAINST PROPOSITION 57
Proposition 57 will allow criminals convicted of RAPE,
LEWD ACTS AGAINST A CHILD, GANG GUN
CRIMES and HUMAN TRAFFICKING to be released
early from prison.
That's why Proposition 57 is OPPOSED by California
Law Enforcement—District Attorneys, Sheriffs, Police,
Courtroom Prosecutors, Crime Victims and local
community leaders.
Here are the facts:
The authors of Proposition 57 claim it only applies to
"non‐violent" crimes, but their poorly drafted measure
deems the following crimes "non‐violent" and makes
the perpetrators eligible for EARLY PAROLE and
RELEASE into local communities:
• Rape by intoxication • Rape of an unconscious
person • Human Trafficking involving sex act with
minors • Drive‐by shooting • Assault with a deadly
weapon • Hostage taking • Attempting to explode a
bomb at a hospital or school • Domestic violence
involving trauma • Supplying a firearm to a gang
member • Hate crime causing physical injury • Failing
to register as a sex offender • Arson • Discharging a
firearm on school grounds • Lewd acts against a child
14 or 15 • False imprisonment of an elder through
violence. *partial list
Here are five more reasons to VOTE NO on 57:
1) 57 authorizes state government bureaucrats to
reduce many sentences for "good behavior," even for
inmates convicted of murder, rape, child molestation
and human trafficking. 2) 57 permits the worst career
criminals to be treated the same as first ‐time
offenders, discounting strong sentences imposed by a
judge. 3) "57 effectively overturns key provisions of
Marsy's Law, '3‐Strikes and You're Out,' Victims' Bill of
Rights, Californians Against Sexual Exploitation Act—
measures enacted by voters that have protected
victims and made communities safer"—Susan Fisher,
Former Chairwoman State Parole Board 4) 57 forces
victims trying to put their lives back together to re‐live
the crimes committed against them over and over
again, with every new parole hearing. 5) 57 will likely
result in higher crime rates as at least 16,000
dangerous criminals, including those previously
convicted of murder and rape, would be eligible for
early release.
Finally, Prop. 57 places all these new privileges and
rights for convicted criminals into the California
Constitution, where they cannot be changed by the
Legislature.
PROP57 CRIMINAL SENTENCES. PAROLE. JUVENILE CRIMINAL PROCEEDINGS
AND SENTENCING. INITIATIVE CONSTITUTIONAL AMENDMENT AND
STATUTE.
8.2.d
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officials—determines who is eligible for release. • Any
individuals approved for release will be subject to
mandatory supervision by law enforcement.
And as the California Supreme Court clearly stated:
parole eligibility in Prop. 57 applies "only to prisoners
convicted of non‐violent felonies."
Prop. 57 is long overdue.
Prop. 57 focuses our system on evidence‐based
rehabilitation for juveniles and adults because it is
better for public safety than our current system.
Prop. 57 saves tens of millions of taxpayer dollars.
Prop. 57 keeps the most dangerous criminals behind
bars.
VOTE YES on Prop. 57
www.Vote4Prop57.com
(http://www.Vote4Prop57.com)
EDMUND G. BROWN JR., Governor of California
MARK BONINI, President
Chief Probation Officers of California
DIONNE WILSON, widow of police officer killed in the
line of duty
REBUTTAL TO ARGUMENT IN FAVOR OF PROPOSITION
57
The authors of Prop. 57 are not telling you the truth.
IT APPLIES TO VIOLENT CRIMINALS, will increase
crime and make you less safe. Vote NO.
FACT: Prop. 57 authorizes EARLY PAROLE for a
RAPIST who drugs and rapes a victim, because its
authors call him non‐violent.
FACT: Prop. 57 AMENDS CALIFORNIA'S
CONSTITUTION to give these new early parole rights
to criminals who are convicted of many violent and
horrible crimes, including:
RAPE of an unconscious victim; HUMAN SEX
TRAFFICKING; ASSAULT with a deadly weapon;
LEWD ACTS against a 14‐year‐old; HOSTAGE
TAKING; HATE CRIMES causing injury.
More FACTS:
• Thousands of dangerous criminals have already been
released early. We are paying the price. The violent
crime rate was up 10% last year and Rape up 37%. •
Prop. 57 would authorize the IMMEDIATE RELEASE
of thousands of dangerous criminals. • Those
previously convicted of MURDER, RAPE and CHILD
MOLESTATION would be eligible for early parole. •
Releasing thousands of dangerous criminals will not
save money. In addition to the human costs of
increased crime, counties and cities will be forced to
hire more police, sheriff deputies, victim counselors
and expand courts. • Prop. 57 overturns important
provisions of the Crime Victims Bill of Rights, our 3-
Strikes Law and Marsy's Law—strong measures
enacted by voters.
The weakening of California's anti‐crime laws has
gone too far. Don't amend California's Constitution to
give even more rights to criminals.
Make no mistake. If Prop. 57 passes, every home,
every neighborhood, every school will be less safe
than it is today.
Ask yourself these questions:
Should a criminal who RAPES AN UNCONSCIOUS
PERSON be allowed early release from prison? How
about a 50‐year old child molester who preys on a
child?
Should criminals convicted of HUMAN TRAFFICKING
involving sex acts with a child, be allowed back on the
streets before serving their full sentence?
Should a criminal who attempts to EXPLODE A
BOMB at a hospital, school or place of worship, be
allowed to leave prison early?
If you answered NO to these questions, then join
District Attorneys, Courtroom Prosecutors, Police,
Sheriffs, Crime Victims, Superior Court Judges and
community leaders in voting NO on 57.
Violent crime was up 10% last year in California. Don't
allow more violent and dangerous criminals to be
released early. VOTE NO on 57.
MARTIN HALLORAN, President
San Francisco Police Officers Association
GEORGE HOFSTETTER, President
Association of Los Angeles Deputy Sheriffs
STEPHEN WAGSTAFFE, President
California District Attorneys Association
REBUTTAL TO ARGUMENT AGAINST PROPOSITION 57
YES on Proposition 57
Opponents of Prop. 57 are wrong.
Prop. 57 saves tens of millions of taxpayer dollars by
reducing wasteful prison spending, breaks the cycle of
crime by rehabilitating deserving juvenile and adult
inmates, and keeps dangerous criminals behind bars.
Don't be misled by false attacks. Prop. 57:
• Does NOT automatically release anyone from prison.
• Does NOT authorize parole for violent offenders. The
California Supreme Court clearly stated that parole
eligibility under Prop. 57 applies, "only to prisoners
convicted of non‐violent felonies." (Brown v. Superior
Court, June 6, 2016). Violent criminals as defined in
Penal Code 667.5(c) are excluded from parole. • Does
NOT and will not change the federal court order that
excludes sex offenders, as defined in Penal Code 290,
from parole. • Does NOT diminish victims' rights. •
Does NOT prevent judges from issuing tough
sentences.
Prop. 57:
• WILL focus resources on keeping dangerous
criminals behind bars. • WILL save tens of millions of
taxpayer dollars. • WILL help fix a broken system
where inmates leave prison without rehabilitation, re‐
offend and cycle back into the system. • WILL be
implemented through Department of Corrections and
Rehabilitation regulations developed with public and
victim input and certified as protecting public safety.
8.2.d
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Crime Victims, Police, Sheriffs, Judges and
Prosecutors urge a NO vote on 57.
HONORABLE JAMES ARDAIZ, Presiding Judge
5th District Court of Appeal (Ret.)
SANDRA HUTCHENS, Sheriff
Orange County
COLLENE THOMPSON CAMPBELL, Founder
Memory of Victims Everywhere
San Diego District Attorney Bonnie Dumanis—a Prop.
57 supporter—knows it is imperative to provide
inmates with tools to stop the revolving door to prison.
(Daily Journal, July 14, 2016).
And that makes our communities safer.
Join law enforcement officials, victims of crime and
religious leaders: vote YES on Prop. 57.
EDMUND G. BROWN JR., Governor of California
MARK BONINI, President
Chief Probation Officers of California
DIONNE WILSON, widow of police officer killed in the
line of duty
Arguments printed on this page are the opinions of the authors, and have not been checked for accuracy by any official agency.
8.2.d
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PROP CRIMINAL SENTENCES. PAROLE.
JUVENILE CRIMINAL PROCEEDINGS AND SENTENCING.
INITIATIVE CONSTITUTIONAL AMENDMENT AND STATUTE.57
SUMMARY
Allows parole consideration for nonviolent felons. Authorizes
sentence credits for rehabilitation, good behavior, and
education. Provides juvenile court judge decides whether
juvenile will be prosecuted as adult. Fiscal Impact: Net state
savings likely in the tens of millions of dollars annually,
depending on implementation. Net county costs of likely a
few million dollars annually.
CON Vote NO on 57
because it:
• Authorizes EARLY
RELEASE of violent
criminals, including those
who RAPE unconscious
victims.
• Authorizes immediate
release for 16,000 dangerous
criminals, even convicted
murderers.
• Amends the California
Constitution; takes rights
away from victims; grants
more rights to criminals. Vote
NO on 57.
PRO California public
safety leaders and
victims of crime support
Proposition 57—the Public
Safety and Rehabilitation Act
of 2016—because Prop. 57
focuses resources on keeping
dangerous criminals behind
bars, while rehabilitating
juvenile and adult inmates
and saving tens of millions of
taxpayer dollars. YES on
Prop. 57.
ARGUMENTS
NO A NO vote on this
measure means:
There would be no change to
the inmate release process.
The state’s prison system
could not award additional
sentencing credits to
inmates. Certain youths
could continue to be tried in
adult court without a hearing
in juvenile court.
YES A YES vote on this
measure means:
Certain state prison inmates
convicted of nonviolent felony
offenses would be considered
for release earlier than
otherwise. The state prison
system could award
additional sentencing credits
to inmates for good behavior
and approved rehabilitative or
educational achievements.
Youths must have a hearing
in juvenile court before they
could be transferred to adult
court.
WHAT YOUR VOTE MEANS
FOR ADDITIONAL INFORMATION
FOR
James Harrison
Remcho, Johansen and
Purcell, LLP
1901 Harrison Street,
Suite 1550
Oakland, CA 94612
(510) 346-6200
Info@SafetyandRehabilitation.com
www.Vote4Prop57.com
AGAINST
William Kolkey
Stop Early Release of Violent
Criminals Committee
FPPC#1386627
No on 57 Committee
921 11th Street, #300
Sacramento, CA 95814
(916) 409-7401
will@StopEarlyRelease.com
www.StopEarlyRelease.com
QUICK-REFERENCE GUIDE
Quick-Reference Guide | 11
8.2.d
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Text of Proposed Laws | 141
TEXT OF PROPOSED LAWS PROPOSITION 56 CONTINuED
PROPOSITION 57
This initiative measure is submitted to the people in
accordance with the provisions of Section 8 of Article II of
the California Constitution.
This initiative measure adds a section to the California
Constitution and amends sections of the Welfare and
Institutions Code; therefore, existing provisions proposed
to be deleted are printed in strikeout type and new
provisions proposed to be added are printed in italic type
to indicate that they are new.
PROPOSED LAW
The Public Safety and Rehabilitation Act of 2016
SECTION 1. Title.
This measure shall be known and may be cited as “The
Public Safety and Rehabilitation Act of 2016.”
SEC. 2. Purpose and Intent.
In enacting this act, it is the purpose and intent of the
people of the State of California to:
1. Protect and enhance public safety.
2. Save money by reducing wasteful spending on prisons.
3. Prevent federal courts from indiscriminately releasing
prisoners.
4. Stop the revolving door of crime by emphasizing
rehabilitation, especially for juveniles.
5. Require a judge, not a prosecutor, to decide whether
juveniles should be tried in adult court.
Sec. 3. Section 32 is added to Article I of the California
Constitution, to read:
seC. 32. (a) The following provisions are hereby enacted
to enhance public safety, improve rehabilitation, and avoid
the release of prisoners by federal court order,
notwithstanding anything in this article or any other
provision of law:
(1) Parole Consideration: Any person convicted of a
nonviolent felony offense and sentenced to state prison
shall be eligible for parole consideration after completing
the full term for his or her primary offense.
(A) For purposes of this section only, the full term for the
primary offense means the longest term of imprisonment
imposed by the court for any offense, excluding the
imposition of an enhancement, consecutive sentence, or
alternative sentence.
(2) Credit Earning: The Department of Corrections and
Rehabilitation shall have authority to award credits earned
for good behavior and approved rehabilitative or educational
achievements.
(b) The Department of Corrections and Rehabilitation
shall adopt regulations in furtherance of these provisions,
and the Secretary of the Department of Corrections and
Rehabilitation shall certify that these regulations protect
and enhance public safety.
SEC. 4. Judicial Transfer Process.
SEC. 4.1. Section 602 of the Welfare and Institutions
Code is amended to read:
602. (a) Except as provided in subdivision (b)
Section 707, any person who is under 18 years of age
when he or she violates any law of this state or of the
United States or any ordinance of any city or county of this
state defining crime other than an ordinance establishing
a curfew based solely on age, is within the jurisdiction of
the juvenile court, which may adjudge such person to be a
ward of the court.
(b) Any person who is alleged, when he or she was 14
years of age or older, to have committed one of the following
offenses shall be prosecuted under the general law in a
court of criminal jurisdiction:
(1) Murder, as described in Section 187 of the Penal
Code, if one of the circumstances enumerated in
subdivision (a) of Section 190.2 of the Penal Code is
57
8.2.d
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142 | Text of Proposed Laws
TEXT OF PROPOSED LAWS PROPOSITION 57 CONTINuED
alleged by the prosecutor, and the prosecutor alleges that
the minor personally killed the victim.
(2) The following sex offenses, if the prosecutor alleges
that the minor personally committed the offense, and if
the prosecutor alleges one of the circumstances enumerated
in the One Strike law, subdivision (d) or (e) of Section
667.61 of the Penal Code, applies:
(A) Rape, as described in paragraph (2) of subdivision (a)
of Section 261 of the Penal Code.
(B) Spousal rape, as described in paragraph (1) of
subdivision (a) of Section 262 of the Penal Code.
(C) Forcible sex offenses in concert with another, as
described in Section 264.1 of the Penal Code.
(D) Forcible lewd and lascivious acts on a child under 14
years of age, as described in subdivision (b) of Section
288 of the Penal Code.
(E) Forcible sexual penetration, as described in subdivision
(a) of Section 289 of the Penal Code.
(F) Sodomy or oral copulation in violation of Section 286
or 288a of the Penal Code, by force, violence, duress,
menace, or fear of immediate and unlawful bodily injury on
the victim or another person.
(G) Lewd and lascivious acts on a child under 14 years of
age, as defined in subdivision (a) of Section 288, unless
the defendant qualifies for probation under subdivision (d)
of Section 1203.066 of the Penal Code.
SEC. 4.2. Section 707 of the Welfare and Institutions
Code is amended to read:
707. (a) (1) In any case in which a minor is alleged to
be a person described in subdivision (a) of Section 602 by
reason of the violation, when he or she was 16 years of age
or older, of any felony criminal statute, or ordinance except
those listed in subdivision (b), or of an offense listed in
subdivision (b) when he or she was 14 or 15 years of age,
the district attorney or other appropriate prosecuting officer
may make a motion to transfer the minor from juvenile
court to a court of criminal jurisdiction. upon The motion
of the petitioner must be made prior to the attachment of
jeopardy. Upon such motion, the juvenile court shall cause
order the probation officer to investigate and submit a
report on the behavioral patterns and social history of the
minor. being considered for a determination of unfitness.
The report shall include any written or oral statement
offered by the victim pursuant to Section 656.2.
(2) Following submission and consideration of the report,
and of any other relevant evidence that the petitioner or
the minor may wish to submit, the juvenile court shall
decide whether the minor should be transferred to a court
of criminal jurisdiction. In making its decision, the court
shall consider the criteria specified in subparagraphs
(A) to (E). If the court orders a transfer of jurisdiction, the
court shall recite the basis for its decision in an order
entered upon the minutes. In any case in which a hearing
has been noticed pursuant to this section, the court shall
postpone the taking of a plea to the petition until the
conclusion of the transfer hearing, and no plea that may
have been entered already shall constitute evidence at the
hearing. may find that the minor is not a fit and proper
subject to be dealt with under the juvenile court law if it
concludes that the minor would not be amenable to the
care, treatment, and training program available through
the facilities of the juvenile court, based upon an evaluation
of the criteria specified in clause (i) of subparagraphs (A)
to (E), inclusive:
(A) (i) The degree of criminal sophistication exhibited by
the minor.
(ii) When evaluating the criterion specified in clause (i),
the juvenile court may give weight to any relevant factor,
including, but not limited to, the minor’s age, maturity,
intellectual capacity, and physical, mental, and emotional
health at the time of the alleged offense, the minor’s
impetuosity or failure to appreciate risks and consequences
of criminal behavior, the effect of familial, adult, or peer
pressure on the minor’s actions, and the effect of the
minor’s family and community environment and childhood
trauma on the minor’s criminal sophistication.
(B) (i) Whether the minor can be rehabilitated prior to the
expiration of the juvenile court’s jurisdiction.
(ii) When evaluating the criterion specified in clause (i),
the juvenile court may give weight to any relevant factor,
including, but not limited to, the minor’s potential to grow
and mature.
(C) (i) The minor’s previous delinquent history.
(ii) When evaluating the criterion specified in clause (i),
the juvenile court may give weight to any relevant factor,
including, but not limited to, the seriousness of the minor’s
previous delinquent history and the effect of the minor’s
family and community environment and childhood trauma
on the minor’s previous delinquent behavior.
(D) (i) Success of previous attempts by the juvenile court
to rehabilitate the minor.
(ii) When evaluating the criterion specified in clause (i),
the juvenile court may give weight to any relevant factor,
including, but not limited to, the adequacy of the services
previously provided to address the minor’s needs.
(E) (i) The circumstances and gravity of the offense
alleged in the petition to have been committed by the
minor.
(ii) When evaluating the criterion specified in clause (i),
the juvenile court may give weight to any relevant factor,
including but not limited to, the actual behavior of the
person, the mental state of the person, the person’s degree
of involvement in the crime, the level of harm actually
caused by the person, and the person’s mental and
emotional development.
A determination that the minor is not a fit and proper
subject to be dealt with under the juvenile court law may
be based on any one or a combination of the factors set
forth in clause (i) of subparagraphs (A) to (E), inclusive,
which shall be recited in the order of unfitness. In any case
in which a hearing has been noticed pursuant to this
section, the court shall postpone the taking of a plea to the
petition until the conclusion of the fitness hearing, and no
plea that may have been entered already shall constitute
evidence at the hearing.
(2) (A) This paragraph shall apply to a minor alleged to be
a person described in Section 602 by reason of the
violation, when he or she has attained 16 years of age, of
any felony offense when the minor has been declared to be
a ward of the court pursuant to Section 602 on one or
more prior occasions if both of the following apply:
(i) The minor has previously been found to have committed
two or more felony offenses.
(ii) The offenses upon which the prior petition or petitions
were based were committed when the minor had attained
14 years of age.
57
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Text of Proposed Laws | 143
TEXT OF PROPOSED LAWS PROPOSITION 57 CONTINuED
each and every one of those criteria. In making a finding of
fitness, the court may consider extenuating and mitigating
circumstances in evaluating each of those criteria. In any
case in which the hearing has been noticed pursuant to
this section, the court shall postpone the taking of a plea
to the petition until the conclusion of the fitness hearing
and no plea that may have been entered already shall
constitute evidence at the hearing. If the minor is found to
be a fit and proper subject to be dealt with under the
juvenile court law pursuant to this subdivision, the minor
shall be committed to placement in a juvenile hall, ranch
camp, forestry camp, boot camp, or secure juvenile home
pursuant to Section 730, or in any institution operated by
the Department of Corrections and Rehabilitation, Division
of Juvenile Facilities.
(3) If, pursuant to this subdivision, the minor is found to
be not a fit and proper subject for juvenile court treatment
and is tried in a court of criminal jurisdiction and found
guilty by the trier of fact, the judge may commit the minor
to the Department of Corrections and Rehabilitation,
Division of Juvenile Facilities, in lieu of sentencing the
minor to the state prison, unless the limitations specified
in Section 1732.6 apply.
(b) Subdivision (c) (a) shall be applicable in any case in
which a minor is alleged to be a person described in
Section 602 by reason of the violation of one of the
following offenses when he or she was 14 or 15 years of
age:
(1) Murder.
(2) Arson, as provided in subdivision (a) or (b) of
Section 451 of the Penal Code.
(3) Robbery.
(4) Rape with force, violence, or threat of great bodily
harm.
(5) Sodomy by force, violence, duress, menace, or threat
of great bodily harm.
(6) A lewd or lascivious act as provided in subdivision (b)
of Section 288 of the Penal Code.
(7) Oral copulation by force, violence, duress, menace, or
threat of great bodily harm.
(8) An offense specified in subdivision (a) of Section 289
of the Penal Code.
(9) Kidnapping for ransom.
(10) Kidnapping for purposes of robbery.
(11) Kidnapping with bodily harm.
(12) Attempted murder.
(13) Assault with a firearm or destructive device.
(14) Assault by any means of force likely to produce great
bodily injury.
(15) Discharge of a firearm into an inhabited or occupied
building.
(16) An offense described in Section 1203.09 of the
Penal Code.
(17) An offense described in Section 12022.5 or
12022.53 of the Penal Code.
(18) A felony offense in which the minor personally used
a weapon described in any provision listed in Section 16590
of the Penal Code.
(19) A felony offense described in Section 136.1 or 137
of the Penal Code.
(B) Upon motion of the petitioner made prior to the
attachment of jeopardy the court shall cause the probation
officer to investigate and submit a report on the behavioral
patterns and social history of the minor being considered
for a determination of unfitness. Following submission and
consideration of the report, and of any other relevant
evidence that the petitioner or the minor may wish to
submit, the minor shall be presumed to be not a fit and
proper subject to be dealt with under the juvenile court law
unless the juvenile court concludes, based upon evidence,
which evidence may be of extenuating or mitigating
circumstances, that the minor would be amenable to the
care, treatment, and training program available through
the facilities of the juvenile court based upon an evaluation
of the criteria specified in subclause (I) of clauses (i) to (v),
inclusive:
(i) (I) The degree of criminal sophistication exhibited by
the minor.
(II) When evaluating the criterion specified in subclause
(I), the juvenile court may give weight to any relevant
factor, including, but not limited to, the minor’s age,
maturity, intellectual capacity, and physical, mental, and
emotional health at the time of the alleged offense, the
minor’s impetuosity or failure to appreciate risks and
consequences of criminal behavior, the effect of familial,
adult, or peer pressure on the minor’s actions, and the
effect of the minor’s family and community environment
and childhood trauma on the minor’s criminal
sophistication.
(ii) (I) Whether the minor can be rehabilitated prior to the
expiration of the juvenile court’s jurisdiction.
(II) When evaluating the criterion specified in subclause
(I), the juvenile court may give weight to any relevant
factor, including, but not limited to, the minor’s potential
to grow and mature.
(iii) (I) The minor’s previous delinquent history.
(II) When evaluating the criterion specified in subclause
(I), the juvenile court may give weight to any relevant
factor, including, but not limited to, the seriousness of the
minor’s previous delinquent history and the effect of the
minor’s family and community environment and childhood
trauma on the minor’s previous delinquent behavior.
(iv) (I) Success of previous attempts by the juvenile court
to rehabilitate the minor.
(II) When evaluating the criterion specified in subclause
(I), the juvenile court may give weight to any relevant
factor, including, but not limited to, the adequacy of the
services previously provided to address the minor’s needs.
(v) (I) The circumstances and gravity of the offense
alleged in the petition to have been committed by the
minor.
(II) When evaluating the criterion specified in subclause
(I), the juvenile court may give weight to any relevant
factor, including, but not limited to, the actual behavior of
the person, the mental state of the person, the person’s
degree of involvement in the crime, the level of harm
actually caused by the person, and the person’s mental
and emotional development.
A determination that the minor is a fit and proper subject
to be dealt with under the juvenile court law shall be based
on a finding of amenability after consideration of the
criteria set forth in subclause (I) of clauses (i) to (v),
inclusive, and findings therefore recited in the order as to
each of those criteria that the minor is fit and proper under
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(20) Manufacturing, compounding, or selling one-half
ounce or more of a salt or solution of a controlled substance
specified in subdivision (e) of Section 11055 of the Health
and Safety Code.
(21) A violent felony, as defined in subdivision (c) of
Section 667.5 of the Penal Code, which also would
constitute a felony violation of subdivision (b) of
Section 186.22 of the Penal Code.
(22) Escape, by the use of force or violence, from a county
juvenile hall, home, ranch, camp, or forestry camp in
violation of subdivision (b) of Section 871 if great bodily
injury is intentionally inflicted upon an employee of the
juvenile facility during the commission of the escape.
(23) Torture as described in Sections 206 and 206.1 of
the Penal Code.
(24) Aggravated mayhem, as described in Section 205 of
the Penal Code.
(25) Carjacking, as described in Section 215 of the Penal
Code, while armed with a dangerous or deadly weapon.
(26) Kidnapping for purposes of sexual assault, as
punishable in subdivision (b) of Section 209 of the Penal
Code.
(27) Kidnapping as punishable in Section 209.5 of the
Penal Code.
(28) The offense described in subdivision (c) of
Section 26100 of the Penal Code.
(29) The offense described in Section 18745 of the Penal
Code.
(30) Voluntary manslaughter, as described in subdivision
(a) of Section 192 of the Penal Code.
(c) With regard to a minor alleged to be a person described
in Section 602 by reason of the violation, when he or she
was 14 years of age or older, of any of the offenses listed
in subdivision (b), upon motion of the petitioner made
prior to the attachment of jeopardy the court shall cause
the probation officer to investigate and submit a report on
the behavioral patterns and social history of the minor
being considered for a determination of unfitness.
Following submission and consideration of the report, and
of any other relevant evidence that the petitioner or the
minor may wish to submit, the minor shall be presumed to
be not a fit and proper subject to be dealt with under the
juvenile court law unless the juvenile court concludes,
based upon evidence, which evidence may be of extenuating
or mitigating circumstances, that the minor would be
amenable to the care, treatment, and training program
available through the facilities of the juvenile court based
upon an evaluation of each of the criteria specified in
subparagraph (A) of paragraphs (1) to (5), inclusive:
(1) (A) The degree of criminal sophistication exhibited by
the minor.
(B) When evaluating the criterion specified in subparagraph
(A), the juvenile court may give weight to any relevant
factor, including, but not limited to, the minor’s age,
maturity, intellectual capacity, and physical, mental, and
emotional health at the time of the alleged offense, the
minor’s impetuosity or failure to appreciate risks and
consequences of criminal behavior, the effect of familial,
adult, or peer pressure on the minor’s actions, and the
effect of the minor’s family and community environment
and childhood trauma on the minor’s criminal
sophistication.
(2) (A) Whether the minor can be rehabilitated prior to
the expiration of the juvenile court’s jurisdiction.
(B) When evaluating the criterion specified in subparagraph
(A), the juvenile court may give weight to any relevant
factor, including, but not limited to, the minor’s potential
to grow and mature.
(3) (A) The minor’s previous delinquent history.
(B) When evaluating the criterion specified in subparagraph
(A), the juvenile court may give weight to any relevant
factor, including, but not limited to, the seriousness of the
minor’s previous delinquent history and the effect of the
minor’s family and community environment and childhood
trauma on the minor’s previous delinquent behavior.
(4) (A) Success of previous attempts by the juvenile court
to rehabilitate the minor.
(B) When evaluating the criterion specified in subparagraph
(A), the juvenile court may give weight to any relevant
factor, including, but not limited to, the adequacy of the
services previously provided to address the minor’s needs.
(5) (A) The circumstances and gravity of the offenses
alleged in the petition to have been committed by the
minor.
(B) When evaluating the criterion specified in subparagraph
(A), the juvenile court may give weight to any relevant
factor, including, but not limited to, the actual behavior of
the person, the mental state of the person, the person’s
degree of involvement in the crime, the level of harm
actually caused by the person, and the person’s mental
and emotional development.
A determination that the minor is a fit and proper subject
to be dealt with under the juvenile court law shall be based
on a finding of amenability after consideration of the
criteria set forth in subparagraph (A) of paragraphs (1) to
(5), inclusive, and findings therefore recited in the order as
to each of those criteria that the minor is fit and proper
under each and every one of those criteria. In making a
finding of fitness, the court may consider extenuating or
mitigating circumstances in evaluating each of those
criteria. In any case in which a hearing has been noticed
pursuant to this section, the court shall postpone the
taking of a plea to the petition until the conclusion of the
fitness hearing and no plea which may have been entered
already shall constitute evidence at the hearing. If,
pursuant to this subdivision, the minor is found to be not
a fit and proper subject for juvenile court treatment and is
tried in a court of criminal jurisdiction and found guilty by
the trier of fact, the judge may commit the minor to the
Department of Corrections and Rehabilitation, Division of
Juvenile Facilities, in lieu of sentencing the minor to the
state prison, unless the limitations specified in Section
1732.6 apply.
(d) (1) Except as provided in subdivision (b) of Section
602, the district attorney or other appropriate prosecuting
officer may file an accusatory pleading in a court of criminal
jurisdiction against any minor 16 years of age or older who
is accused of committing an offense enumerated in
subdivision (b).
(2) Except as provided in subdivision (b) of Section 602,
the district attorney or other appropriate prosecuting officer
may file an accusatory pleading against a minor 14 years
of age or older in a court of criminal jurisdiction in any
case in which any one or more of the following circumstances
apply:
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(4) In any case in which the district attorney or other
appropriate prosecuting officer has filed an accusatory
pleading against a minor in a court of criminal jurisdiction
pursuant to this subdivision, the case shall then proceed
according to the laws applicable to a criminal case. In
conjunction with the preliminary hearing as provided in
Section 738 of the Penal Code, the magistrate shall make
a finding that reasonable cause exists to believe that the
minor comes within this subdivision. If reasonable cause is
not established, the criminal court shall transfer the case
to the juvenile court having jurisdiction over the matter.
(5) For an offense for which the prosecutor may file the
accusatory pleading in a court of criminal jurisdiction
pursuant to this subdivision, but elects instead to file a
petition in the juvenile court, if the minor is subsequently
found to be a person described in subdivision (a) of
Section 602, the minor shall be committed to placement
in a juvenile hall, ranch camp, forestry camp, boot camp,
or secure juvenile home pursuant to Section 730, or in any
institution operated by the Department of Corrections and
Rehabilitation, Division of Juvenile Facilities.
(6) If, pursuant to this subdivision, the minor is found to
be not a fit and proper subject for juvenile court treatment
and is tried in a court of criminal jurisdiction and found
guilty by the trier of fact, the judge may commit the minor
to the Department of Corrections and Rehabilitation,
Division of Juvenile Facilities, in lieu of sentencing the
minor to the state prison, unless the limitations specified
in Section 1732.6 apply.
(e) A report submitted by a probation officer pursuant to
this section regarding the behavioral patterns and social
history of the minor being considered for a determination
of unfitness shall include any written or oral statement
offered by the victim, the victim’s parent or guardian if the
victim is a minor, or if the victim has died, the victim’s
next of kin, as authorized by subdivision (b) of
Section 656.2. Victims’ statements shall be considered by
the court to the extent they are relevant to the court’s
determination of unfitness.
SEC. 5. Amendment.
This act shall be broadly construed to accomplish its
purposes. The provisions of Sections 4.1 and 4.2 of this
act may be amended so long as such amendments are
consistent with and further the intent of this act by a
statute that is passed by a majority vote of the members of
each house of the Legislature and signed by the Governor.
SEC. 6. Severability.
If any provision of this act, or part of this act, or the
application of any provision or part to any person or
circumstances, is for any reason held to be invalid, the
remaining provisions, or applications of provisions, shall
not be affected, but shall remain in full force and effect,
and to this end the provisions of this act are severable.
SEC. 7. Conflicting Initiatives.
(a) In the event that this act and another act addressing
credits and parole eligibility for state prisoners or adult
court prosecution for juvenile defendants shall appear on
the same statewide ballot, the provisions of the other act
or acts shall be deemed to be in conflict with this act. In
the event that this act receives a greater number of
affirmative votes than an act deemed to be in conflict with
it, the provisions of this act shall prevail in their entirety,
and the other act or acts shall be null and void.
(A) The minor is alleged to have committed an offense
that if committed by an adult would be punishable by
death or imprisonment in the state prison for life.
(B) The minor is alleged to have personally used a firearm
during the commission or attempted commission of a
felony, as described in Section 12022.5 or 12022.53 of
the Penal Code.
(C) The minor is alleged to have committed an offense
listed in subdivision (b) in which any one or more of the
following circumstances apply:
(i) The minor has previously been found to be a person
described in Section 602 by reason of the commission of
an offense listed in subdivision (b).
(ii) The offense was committed for the benefit of, at the
direction of, or in association with any criminal street gang,
as defined in subdivision (f) of Section 186.22 of the
Penal Code, with the specific intent to promote, further, or
assist in criminal conduct by gang members.
(iii) The offense was committed for the purpose of
intimidating or interfering with any other person’s free
exercise or enjoyment of a right secured to him or her by
the Constitution or laws of this state or by the Constitution
or laws of the United States and because of the other
person’s race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation, or because the
minor perceives that the other person has one or more of
those characteristics, as described in Title 11.6
(commencing with Section 422.55) of Part 1 of the Penal
Code.
(iv) The victim of the offense was 65 years of age or older,
or blind, deaf, quadriplegic, paraplegic, developmentally
disabled, or confined to a wheelchair, and that disability
was known or reasonably should have been known to the
minor at the time of the commission of the offense.
(3) Except as provided in subdivision (b) of Section 602,
the district attorney or other appropriate prosecuting officer
may file an accusatory pleading in a court of criminal
jurisdiction against any minor 16 years of age or older who
is accused of committing one or more of the following
offenses, if the minor has previously been found to be a
person described in Section 602 by reason of the violation
of a felony offense, when he or she was 14 years of age or
older:
(A) A felony offense in which it is alleged that the victim
of the offense was 65 years of age or older, or blind, deaf,
quadriplegic, paraplegic, developmentally disabled, or
confined to a wheelchair, and that disability was known or
reasonably should have been known to the minor at the
time of the commission of the offense.
(B) A felony offense committed for the purposes of
intimidating or interfering with any other person’s free
exercise or enjoyment of a right secured to him or her by
the Constitution or laws of this state or by the Constitution
or laws of the United States and because of the other
person’s race, color, religion, ancestry, national origin,
disability, gender, or sexual orientation, or because the
minor perceived that the other person had one or more of
those characteristics, as described in Title 11.6
(commencing with Section 422.55) of Part 1 of the Penal
Code.
(C) The offense was committed for the benefit of, at the
direction of, or in association with any criminal street gang
as prohibited by Section 186.22 of the Penal Code.
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(b) If this act is approved by voters but superseded by law
by any other conflicting act approved by voters at the same
election, and the conflicting ballot act is later held invalid,
this act shall be self-executing and given full force and
effect.
SEC. 8. Proponent Standing.
Notwithstanding any other provision of law, if the State,
government agency, or any of its officials fail to defend the
constitutionality of this act, following its approval by the
voters, any other government employer, the proponent, or
in their absence, any citizen of this State shall have the
authority to intervene in any court action challenging the
constitutionality of this act for the purpose of defending its
constitutionality, whether such action is in any trial court,
on appeal, or on discretionary review by the Supreme Court
of California or the Supreme Court of the United States.
The reasonable fees and costs of defending the action
shall be a charge on funds appropriated to the Department
of Justice, which shall be satisfied promptly.
SEC. 9. Liberal Construction.
This act shall be liberally construed to effectuate its
purposes.
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