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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 Packet Pg. 5 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 Packet Pg. 6 Page 2 of 2 NOTICING REQUIREMENTS/PUBLIC OUTREACH: None. ATTACHMENTS: None 3.2 Packet Pg. 7 1449.txt None. Page 1 3.2.a Packet Pg. 8 At t a c h m e n t : N o n e ( 1 1 5 3 : F i r e P r e v e n t i o n W e e k P r o c l a m a t i o n ) 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: 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 4.1 Packet Pg. 9 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 Packet Pg. 10 At t a c h m e n t : S e p t e m b e r 2 0 , 2 0 1 6 M i n u t e s 2 ( 1 1 7 8 : M i n u t e s o f t h e S e p t e m b e r 2 0 , 2 0 1 6 R e g u l a r C i t y C o u n c i l M e e t i n g ) 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 Packet Pg. 11 At t a c h m e n t : S e p t e m b e r 2 0 , 2 0 1 6 M i n u t e s 2 ( 1 1 7 8 : M i n u t e s o f t h e S e p t e m b e r 2 0 , 2 0 1 6 R e g u l a r C i t y C o u n c i l M e e t i n g ) 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 Packet Pg. 12 At t a c h m e n t : S e p t e m b e r 2 0 , 2 0 1 6 M i n u t e s 2 ( 1 1 7 8 : M i n u t e s o f t h e S e p t e m b e r 2 0 , 2 0 1 6 R e g u l a r C i t y C o u n c i l M e e t i n g ) 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 Packet Pg. 13 At t a c h m e n t : S e p t e m b e r 2 0 , 2 0 1 6 M i n u t e s 2 ( 1 1 7 8 : M i n u t e s o f t h e S e p t e m b e r 2 0 , 2 0 1 6 R e g u l a r C i t y C o u n c i l M e e t i n g ) 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 Packet Pg. 14 At t a c h m e n t : S e p t e m b e r 2 0 , 2 0 1 6 M i n u t e s 2 ( 1 1 7 8 : M i n u t e s o f t h e S e p t e m b e r 2 0 , 2 0 1 6 R e g u l a r C i t y C o u n c i l M e e t i n g ) 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: 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 Packet Pg. 15 Page 2 of 2 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 Packet Pg. 16 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 4.2.a Packet Pg. 17 At t a c h m e n t : 1 . B u d g e t C h a n g e F o r m T V 3 0 ( 1 1 6 8 : T V 3 0 A d d i t i o n a l F u n d s R e q u e s t ) 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 4.3 Packet Pg. 18 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 4.3 Packet Pg. 19 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 4.3.a Packet Pg. 20 At t a c h m e n t : 1 . S a l e A g r e e m e n t . ( 1 1 6 9 : A u t h o r i z a t i o n t o P u r c h a s e E l e c t r o n i c L o c k e r S y s t e m s f o r E m e r a l d G l e n A q u a t i c C e n t e r ) 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. 4.3.a Packet Pg. 21 At t a c h m e n t : 1 . S a l e A g r e e m e n t . ( 1 1 6 9 : A u t h o r i z a t i o n t o P u r c h a s e E l e c t r o n i c L o c k e r S y s t e m s f o r E m e r a l d G l e n A q u a t i c C e n t e r ) 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 Packet Pg. 22 At t a c h m e n t : 1 . S a l e A g r e e m e n t . ( 1 1 6 9 : A u t h o r i z a t i o n t o P u r c h a s e E l e c t r o n i c L o c k e r S y s t e m s f o r E m e r a l d G l e n A q u a t i c C e n t e r ) 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. 4.3.a Packet Pg. 23 At t a c h m e n t : 1 . S a l e A g r e e m e n t . ( 1 1 6 9 : A u t h o r i z a t i o n t o P u r c h a s e E l e c t r o n i c L o c k e r S y s t e m s f o r E m e r a l d G l e n A q u a t i c C e n t e r ) 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 Packet Pg. 24 At t a c h m e n t : 2 . L i c e n s e a n d M a i n t e n a n c e A g r e e m e n t ( 1 1 6 9 : A u t h o r i z a t i o n t o P u r c h a s e E l e c t r o n i c L o c k e r S y s t e m s f o r E m e r a l d G l e n A q u a t i c 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 Packet Pg. 25 At t a c h m e n t : 2 . L i c e n s e a n d M a i n t e n a n c e A g r e e m e n t ( 1 1 6 9 : A u t h o r i z a t i o n t o P u r c h a s e E l e c t r o n i c L o c k e r S y s t e m s f o r E m e r a l d G l e n A q u a t i c 3 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 Packet Pg. 26 At t a c h m e n t : 2 . L i c e n s e a n d M a i n t e n a n c e A g r e e m e n t ( 1 1 6 9 : A u t h o r i z a t i o n t o P u r c h a s e E l e c t r o n i c L o c k e r S y s t e m s f o r E m e r a l d G l e n A q u a t i c 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 Packet Pg. 27 At t a c h m e n t : 2 . L i c e n s e a n d M a i n t e n a n c e A g r e e m e n t ( 1 1 6 9 : A u t h o r i z a t i o n t o P u r c h a s e E l e c t r o n i c L o c k e r S y s t e m s f o r E m e r a l d G l e n A q u a t i c 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 Packet Pg. 28 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 Packet Pg. 29 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 4.4 Packet Pg. 30 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 Packet Pg. 31 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 Packet Pg. 32 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 2 of 10 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 Packet Pg. 33 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 3 of 10 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. 4.4.a Packet Pg. 34 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 4 of 10 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 4.4.a Packet Pg. 35 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 5 of 10 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 Packet Pg. 36 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 6 of 10 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 4.4.a Packet Pg. 37 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 7 of 10 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, 4.4.a Packet Pg. 38 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 8 of 10 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 4.4.a Packet Pg. 39 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 9 of 10 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 Packet Pg. 40 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 10 of 10 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 Packet Pg. 41 At t a c h m e n t : 1 . C i t y C o u n c i l S t a f f R e p o r t 9 . 2 0 . 1 6 w i t h o u t a t t a c h m e n t s ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 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 Packet Pg. 42 At t a c h m e n t : 2 . P l a n n e d D e v e l o p m e n t O r d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 2 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 Packet Pg. 43 At t a c h m e n t : 2 . P l a n n e d D e v e l o p m e n t O r d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 3 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 Packet Pg. 44 At t a c h m e n t : 2 . P l a n n e d D e v e l o p m e n t O r d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 4 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 Packet Pg. 45 At t a c h m e n t : 2 . P l a n n e d D e v e l o p m e n t O r d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 5 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 Packet Pg. 46 At t a c h m e n t : 2 . P l a n n e d D e v e l o p m e n t O r d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 6 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 Packet Pg. 47 At t a c h m e n t : 2 . P l a n n e d D e v e l o p m e n t O r d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 7 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 Packet Pg. 48 At t a c h m e n t : 2 . P l a n n e d D e v e l o p m e n t O r d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 8 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 Packet Pg. 49 At t a c h m e n t : 2 . P l a n n e d D e v e l o p m e n t O r d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 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 Packet Pg. 50 At t a c h m e n t : 3 . D e v e l o p m e n t A g r e e m e n t O d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 2 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 Packet Pg. 51 At t a c h m e n t : 3 . D e v e l o p m e n t A g r e e m e n t O d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 3 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 Packet Pg. 52 At t a c h m e n t : 3 . D e v e l o p m e n t A g r e e m e n t O d i n a n c e ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 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 Packet Pg. 53 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 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 Packet Pg. 54 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 2 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 Packet Pg. 55 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 3 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 Packet Pg. 56 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 4 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 Packet Pg. 57 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 5 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 Packet Pg. 58 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 6 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 Packet Pg. 59 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 7 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 Packet Pg. 60 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 8 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 Packet Pg. 61 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 9 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 Packet Pg. 62 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 10 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 Packet Pg. 63 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 11 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 Packet Pg. 64 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 12 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, 4.4.d Packet Pg. 65 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 13 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 Packet Pg. 66 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 14 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 Packet Pg. 67 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 15 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 Packet Pg. 68 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 16 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 Packet Pg. 69 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) Page 17 Exhibit A Legal Description of Property Real property in the County of Alameda, State of California, described as follows: [ADD] 4.4.d Packet Pg. 70 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 4.4.d Packet Pg. 71 At t a c h m e n t : 3 . E x h i b i t A - K a i s e r D e v e l o p m e n t A g r e e m e n t ( 1 1 7 3 : K a i s e r D u b l i n M e d i c a l C e n t e r P r o j e c t ) 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 Packet Pg. 72 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 Packet Pg. 73 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 Packet Pg. 74 At t a c h m e n t : 1 . R e s o l u t i o n ( 1 1 7 1 : A d d i t i o n a l C r o s s i n g G u a r d ) Page 1 of 3 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 Packet Pg. 75 At t a c h m e n t : 2 . R e i m b u r s e m e n t A g r e e m e n t C i t y o f D u b l i n a n d D U S D f o r A d d i t i o n a l C r o s s i n g G u a r d S e r v i c e s ( 1 1 7 1 : A d d i t i o n a l C r o s s i n g G u a r d ) Page 2 of 3 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 Packet Pg. 76 At t a c h m e n t : 2 . R e i m b u r s e m e n t A g r e e m e n t C i t y o f D u b l i n a n d D U S D f o r A d d i t i o n a l C r o s s i n g G u a r d S e r v i c e s ( 1 1 7 1 : A d d i t i o n a l C r o s s i n g G u a r d ) 4.5.b Packet Pg. 77 At t a c h m e n t : 2 . R e i m b u r s e m e n t A g r e e m e n t C i t y o f D u b l i n a n d D U S D f o r A d d i t i o n a l C r o s s i n g G u a r d S e r v i c e s ( 1 1 7 1 : A d d i t i o n a l C r o s s i n g G u a r d ) 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 Packet Pg. 78 Page 2 of 4 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 Packet Pg. 79 Page 3 of 4 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 Packet Pg. 80 Page 4 of 4 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 Packet Pg. 81 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 Packet Pg. 82 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 2 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 6.1.a Packet Pg. 83 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 3 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: 6.1.a Packet Pg. 84 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 4 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- 6.1.a Packet Pg. 85 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 5 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 Packet Pg. 86 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 6 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 Packet Pg. 87 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 7 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 Packet Pg. 88 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 8 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 Packet Pg. 89 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 9 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 Packet Pg. 90 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 10 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 Packet Pg. 91 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 11 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 Packet Pg. 92 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 12 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 Packet Pg. 93 At t a c h m e n t : 1 . P r o p o s e d O r d i n a n c e A m e n d i n g C h a p t e r s 5 . 5 8 , 8 . 0 8 a n d 8 . 1 2 o f t h e D u b l i n M u n i c i p a l C o d e r e l a t i n g t o N o n - M e d i c a l M a r i j u a n a 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 Packet Pg. 94 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) 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 Packet Pg. 95 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) 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 Packet Pg. 96 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) DRAFT DRAFT 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 Packet Pg. 97 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) DRAFT DRAFT 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. 6.1.b Packet Pg. 98 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) DRAFT DRAFT 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. 6.1.b Packet Pg. 99 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) DRAFT DRAFT 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 Packet Pg. 100 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) DRAFT DRAFT 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. 6.1.b Packet Pg. 101 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) DRAFT DRAFT 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 Packet Pg. 102 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) DRAFT DRAFT 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 Packet Pg. 103 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) DRAFT DRAFT 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 6.1.b Packet Pg. 104 At t a c h m e n t : 2 . P l a n n i n g C o m m i s s i o n M i n u t e s S e p t e m b e r 1 3 , 2 0 1 6 ( 1 1 7 7 : O r d i n a n c e R e g u l a t i n g N o n - M e d i c a l M a r i j u a n a ) 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 8.1 Packet Pg. 105 Page 2 of 5 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 8.1 Packet Pg. 106 Page 3 of 5 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) 8.1 Packet Pg. 107 Page 4 of 5 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 8.1 Packet Pg. 108 Page 5 of 5 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 Packet Pg. 109 8.1.a Packet Pg. 110 At t a c h m e n t : 1 . D o w n t o w n D u b l i n S p e c i f i c P l a n P r i o r i t y D e v e l o p m e n t A r e a M a p ( 1 1 7 5 : P l a n B a y A r e a 2 0 4 0 D r a f t P r e f e r r e d S c e n a r i o ) DO U G H E R T Y R O A D DO U G H E R T Y R O A D D O U G H E R T Y DUBL I N BOU L E V A R D DUBLIN BOULEVARD DUBLIN BOULEVARD R O A D MARTINELLI WAY AR N O L D R O A D GLEASON DRIVE AR N O L D R O A D CENTRAL PARKWAY SIER R A L A N E DUBLI N C O U R T S C A R L E T T C O U R T SC A R L E T T D R I V E SC A R L E T T D R I V E De M A R C U S B O U L E V A R D SCARLETT COURT IR O N H O R S E P A R K W A Y S C A R L E T T D R S U S S E X D R M O O R E P L SUS S E X C T GAT W I C K C T BRA Y C T KER R Y C T DR I V E MO N T E R E Y TRINI T Y COU R T LANE HOUSTON PLACE SIERRA DUBLIN BLVD 4TH AVE 6TH ST Dublin Transit Center/Dublin Crossing Priority Development Area 0 0.1 0.20.05 Miles 02004006008001,0001,200100 Feet Prioirty Development Area Streets Dublin Transit Center/Dublin Crossing Priority Development Area F September 2008 NOTE: The internal system of local streets shown in this figure is illustrative only. 8.1.b Packet Pg. 111 At t a c h m e n t : 2 . T r a n s i t C e n t e r / D u b l i n C r o s s i n g P r i o r i t y D e v e l o p m e n t A r e a M a p ( 1 1 7 5 : P l a n B a y A r e a 2 0 4 0 D r a f t P r e f e r r e d S c e n a r i o ) Dublin Town Center Priority Development Area WE S T B U R Y W Y SAN VICIENTE TE FINNI A N WY WOODR OSE CIWALNUT ST T U R N B E RRY DR CREEKVI E W D R S I G N A L HILL DR FAWN WY WINTERBROOK AV CASTERSON DR KOHNEN WY MADDEN WY MANGROVE DR CRESTRIDGE TE E A G L EBROOK T E AVIANO WY OAK B L U F F L A AV E L LINA D R G R A F T O N D R CHANCERY LA TA S S A J A R A R D T A L L E W Y M AGUIRE WY WHITW ORTH DR MA D I G A N A V DUBLIN BL N D U B LI N RANCH DR ANT O N E W Y R I M I N I W Y CENTRAL P W CENTRAL PW GLEASON DR FALLON RD J O H N M O N E G O C T R I D G E F I E L D W Y HACIENDA CROSSI NG I580 WB DUBLIN BL BRODER BL HARO LP S H A D OW HILL DR O'RYAN ST HAWK WY SPRINGV ALE DR HAVEN PL R O S C O M M O N W Y P I P E R G L E N T E S D U B L I N RANC H D R BENT TREE DR PERSIMMON ST GLYNNIS ROSE ST HILLBROOK P L NEWFIEL D S L A TO Y O T A D R BARNET BL BE L L E V U E C I CL ARINBRIDGE CI ASTERWOOD DR HI B E R N I A D R SUMMER GLEN DR AS P E N S T LOCKHART ST HA C I E N D A D R BR A N N I G A N S T TA S S A J A R A R D Priority Development Area Streets Parcels City of Dublin Dublin Town Center Priority Development Area 05001,0001,500250 Feet F May 2011 NOTE: The internal system of local streets shown in this figure is illustrative only. 8.1.c Packet Pg. 112 At t a c h m e n t : 3 . D u b l i n T o w n C e n t e r P r i o r i t y D e v e l o p m e n t A r e a M a p ( 1 1 7 5 : P l a n B a y A r e a 2 0 4 0 D r a f t P r e f e r r e d S c e n a r i o ) 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 Packet Pg. 113 Page 2 of 4 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 Packet Pg. 114 Page 3 of 4 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 8.2 Packet Pg. 115 Page 4 of 4 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 Packet Pg. 116 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 Packet Pg. 117 At t a c h m e n t : 1 . R e s o l u t i o n - O p p o s e P r o p o s i t i o n 5 7 ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 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 Packet Pg. 118 At t a c h m e n t : 2 . R e s o l u t i o n - S u p p o r t P r o p o s i t i o n 5 7 ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) VIOLENT AND SERIOUS ACTS ELIGIBLE FOR EARLY RELEASE UNDER THE GOVERNOR’S “PUBLIC SAFETY AND REHABILITATION” INITIATIVE 8.2.c Packet Pg. 119 At t a c h m e n t : 3 . C a l i f o r n i a D i s t r i c t A t t o r n e y s A s s o c i a t i o n , V i o l e n t a n d S e r i o u s A c t s E l i g i b l e f o r E a r l y R e l e a s e U n d e r t h e G o v e r n o r ’ s “ P u b l i c 2 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 At t a c h m e n t : 3 . C a l i f o r n i a D i s t r i c t A t t o r n e y s A s s o c i a t i o n , V i o l e n t a n d S e r i o u s A c t s E l i g i b l e f o r E a r l y R e l e a s e U n d e r t h e G o v e r n o r ’ s “ P u b l i c 3 ¥ 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 At t a c h m e n t : 3 . C a l i f o r n i a D i s t r i c t A t t o r n e y s A s s o c i a t i o n , V i o l e n t a n d S e r i o u s A c t s E l i g i b l e f o r E a r l y R e l e a s e U n d e r t h e G o v e r n o r ’ s “ P u b l i c 4 ¥ 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 At t a c h m e n t : 3 . C a l i f o r n i a D i s t r i c t A t t o r n e y s A s s o c i a t i o n , V i o l e n t a n d S e r i o u s A c t s E l i g i b l e f o r E a r l y R e l e a s e U n d e r t h e G o v e r n o r ’ s “ P u b l i c 5 ¥ 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 At t a c h m e n t : 3 . C a l i f o r n i a D i s t r i c t A t t o r n e y s A s s o c i a t i o n , V i o l e n t a n d S e r i o u s A c t s E l i g i b l e f o r E a r l y R e l e a s e U n d e r t h e G o v e r n o r ’ s “ P u b l i c 6 ¥ 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 At t a c h m e n t : 3 . C a l i f o r n i a D i s t r i c t A t t o r n e y s A s s o c i a t i o n , V i o l e n t a n d S e r i o u s A c t s E l i g i b l e f o r E a r l y R e l e a s e U n d e r t h e G o v e r n o r ’ s “ P u b l i c 7 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 At t a c h m e n t : 3 . C a l i f o r n i a D i s t r i c t A t t o r n e y s A s s o c i a t i o n , V i o l e n t a n d S e r i o u s A c t s E l i g i b l e f o r E a r l y R e l e a s e U n d e r t h e G o v e r n o r ’ s “ P u b l i c 8 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 At t a c h m e n t : 3 . C a l i f o r n i a D i s t r i c t A t t o r n e y s A s s o c i a t i o n , V i o l e n t a n d S e r i o u s A c t s E l i g i b l e f o r E a r l y R e l e a s e U n d e r t h e G o v e r n o r ’ s “ P u b l i c 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 Packet Pg. 127 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 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 Packet Pg. 128 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 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 Packet Pg. 129 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 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 Packet Pg. 130 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 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 Packet Pg. 131 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 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 Packet Pg. 132 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 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 8.2.d Packet Pg. 133 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 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 57 8.2.d Packet Pg. 134 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 144 | Text of Proposed Laws TEXT OF PROPOSED LAWS PROPOSITION 57 CONTINuED (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: 57 8.2.d Packet Pg. 135 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) Text of Proposed Laws | 145 TEXT OF PROPOSED LAWS PROPOSITION 57 CONTINuED (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. 57 8.2.d Packet Pg. 136 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 ) 146 | Text of Proposed Laws TEXT OF PROPOSED LAWS PROPOSITION 57 CONTINuED (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. 57 8.2.d Packet Pg. 137 At t a c h m e n t : 4 . C a l i f o r n i a S e c r e t a r y o f S t a t e , O f f i c i a l V o t e r I n f o r m a t i o n G u i d e ( P r o p 5 7 ) ( 1 1 7 0 : P r o p o s i t i o n 5 7 )