Dublin City Council
August 15, 2023

STRATEGIC PLAN INITIATIVE:

None.

NOTICING REQUIREMENTS/PUBLIC OUTREACH:

The City Council Agenda was posted.

ATTACHMENTS:
1) Resolution Approving the First Amendment to the Agreement with Civica Law Group, APC for Special Counsel Legal Services
2) Exhibit A to the Resolution - First Amendment to the Agreement Between Civica Law Group, APC and the City of Dublin for Special Counsel Legal Services 764
Attachment 1
Reso. No. XX-23, Item X.X, Adopted XX/XX/2023 Page 1 of 1 RESOLUTION NO. XX – 23

A RESOLUTION OF THE CITY COUNCIL

OF THE CITY OF DUBLIN

APPROVING THE FIRST AMENDMENT TO THE AGREEMENT WITH CIVICA LAW GROUP,

APC FOR SPECIAL COUNSEL LEGAL SERVICES
WHEREAS, the City of Dublin has an existing agreement with Civica Law Group for special counsel legal services, representation and assistance related to code enforcement matters; and WHEREAS, the current contract has a not to exceed amount of $44,999; and WHEREAS, the City has a continued need for special counsel legal services which exceeds the current contract limit due to active code enforcement activity; and WHEREAS, the amendment to the agreement will increase the not-to-exceed amount by $140,000; and
WHEREAS, with the amendment, the new not-to-exceed amount for the agreement with Civica Law Group would be $184,999.

NOW, THEREFORE, BE IT RESOLVED that the Dublin City Council does hereby approve the amendment to the agreement with Civica Law Group, attached hereto as Exhibit A, and authorizes the City Manager to execute the agreement.

BE IT FURTHER RESOLVED that the City Manager is authorized to make any nonsubstantive changes to the agreement to carry out the intent of this Resolution.

PASSED, APPROVED AND ADOPTED this 15th day of August 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
765
1 FIRST AMENDMENT TO AGREEMENT BETWEEN CIVICA LAW GROUP, APC

AND THE CITY OF DUBLIN

FOR SPECIAL COUNSEL LEGAL SERVICES

1. PARTIES AND DATE.

This First Amendment to the agreement for services (“Amendment”) by and between the CITY OF DUBLIN (“City”), and CIVICA LAW GROUP, APC, a California Professional Corporation engaged in the practice of law in the State of California (“Law Firm”) is effective as of _______________, 2023. Law Firm and the City are sometimes individually referred to herein as “Party” and collectively as “Parties.” In consideration of the mutual promises set forth herein, the parties agree to the terms of this Agreement as set forth herein.

2. RECITALS.

2.1 The City and Law Firm entered into an Agreement on March 1, 2023 (“Agreement”), whereby, Law Firm agreed to provide legal services to the City.

2.2 The City and Law Firm now desire to amend the Agreement.

3. TERMS.

3.1 Contract Changes. The Agreement is amended as provided herein. a. Section 3.3 is hereby amended in its entirety to read as follows: For all legal services provided in this Agreement, the City will compensate Law Firm at the blended rate of $285 per hour for attorney representation and $175 per hour for paralegals and law clerks, which fees shall increase by three percent annually on January 1 to offset rising costs. Compensation shall not exceed $140,000 without approval of the City.

3.2 Continuing Effect of Agreement. Except as amended by this Amendment, all provisions of the Agreement on March 1, 2023 shall remain unchanged and in full force and effect.

From and after the date of this Amendment, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement, as amended by this Amendment to the Agreement. Said Agreement is and remains an effective, valid and binding obligation.

CITY OF DUBLIN,
a Municipal Corporation
By: ____________________________ Dated: August _____, 2023 Linda Smith
City Manager
[Signatures continue on following page.]
Attachment 2
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Approved as to form:

MEYERS NAVE
a Professional Corporation
By: ____________________________ Dated: August _____, 2023 John Bakker, Esq.

City Attorney

CIVICA LAW GROUP, APC
By: ____________________________ Dated: August _____, 2023 Matthew Silver, Esq.

Managing Partner
767

STAFF REPORT

CITY COUNCIL

Agenda Item 4.17
DATE: August 15, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Linda Smith, City Manager
SUBJECT: East Ranch Affordable Housing Agreement (PLPA-2020-00028) Prepared by: Jason Earl, Senior Management Analyst and Amy Million, Principal Planner
EXECUTIVE SUMMARY:

The City Council will consider approval of an Affordable Housing Agreement with TH East Ranch Dublin, LLC, an affiliate of Trumark Homes, LLC, associated with the development of the East Ranch project. The East Ranch project is the development of a 165.5-acre site with a 573-unit residential project consisting of six neighborhoods, two neighborhood parks totaling 11.5 acres, and a two-acre Public/Semi-Public site reserved for affordable housing located on Croak Road east of Fallon Road.

STAFF RECOMMENDATION:

Adopt the Resolution Approving an Affordable Housing Agreement Between the City of Dublin and TH East Ranch Dublin, LLC, for the East Ranch Project.

FINANCIAL IMPACT:

The costs associated with processing this request is borne by the Applicant. The Applicant’s inclusionary housing proposal includes the payment of in-lieu fees for 25 units based on the then current Affordable Housing In-Lieu Fee amount at the time of payment. The Applicant will also make an additional $500,000 contribution to the Affordable Housing Fund in consideration for other regulatory benefits granted by the City to the project. Based on the current in-lieu fee of $241,131/unit, this payment would be $6,028,275, and the additional $500,000 brings the total payment to $6,528,275.

DESCRIPTION:

Background
The 165.5-acre East Ranch project site is an undeveloped parcel located within the Fallon Village area of the Eastern Dublin Specific Plan. The site is located north of Interstate 580, east of Fallon Road and the Jordan Ranch development, south of the Positano development, and adjacent to the City’s eastern city limit as shown in Figure 1 below. The Applicant has approvals to construct a 768

573-unit residential project consisting of six neighborhoods (including 459 conventional singlefamily homes, 14 zero-lot-line single-family duet homes, and 100 townhomes) two neighborhood parks totaling 11.5 acres, and a two-acre Public/Semi-Public site. Please refer to Attachment 3 for a summary of the entitlement history.

Figure 1. Vicinity Map
The project is subject to the City’s Inclusionary Zoning Regulations (DMC Chapter 8.68). These regulations allow for an alternative method of compliance at the discretion of the City Council (DMC 8.68.040.E).

On April 18, 2023, the City Council received a presentation from the Applicant and provided feedback regarding their proposal to address the Inclusionary Zoning Regulations through an alternative method of compliance, and formation of a Community Facilities District (CFD) (Attachment 3). The City Council expressed general support of the affordable housing proposal and the formation of a services CFD but requested additional information regarding the facilities CFD. On June 20, 2023, the City Council further considered the request for a facilities CFD. During that meeting, the Applicant agreed to contribute an additional $500,000 payment as part of their affordable housing proposal.

Analysis
The following is a summary of the Applicant’s proposal to satisfy the Inclusionary Zoning Regulation:
 Payment of in-lieu fees for 25 units (to satisfy 35% of the affordable requirement). Based on the current in-lieu fee of $241,131/unit (the in-lieu fee is adjusted annually on July 1 769

based on an inflation factor, and the amount owed is calculated at the time of building permit issuance), this payment would be $6,028,275;
 Construction of 18 deed-restricted units at the “moderate income” level. These units would consist of 14 zero-lot single-family homes (i.e., duets) and four townhomes (to satisfy 25% of the affordable requirement);
 Dedication of the two-acre Semi-Public site for a future affordable housing project to satisfy the requirement for 36 units (to satisfy 40% of the affordable requirement);  Construction of 50 deed-restricted, attached accessory dwelling units with projected rents at low income; and
 An additional contribution of $500,000 into the City’s Affordable Housing Fund, bringing the total payment to the City’s Affordable Housing Fund to $6,528,275.

An Affordable Housing Agreement has been prepared for the project, which sets forth the terms and the affordable housing requirements for the project. The Resolution approving the Affordable Housing Agreement is included as Attachment 1 with the agreement included as Attachment 2.

ENVIRONMENTAL REVIEW:

Government Code Section 65457 and California Environmental Quality Act (CEQA) Guidelines Section 15182(c) exempt from further environmental review certain residential projects that are consistent with a specific plan for which an environmental impact report (EIR) has been certified.

Prior CEQA analysis for the project area includes: 1) the Eastern Dublin General Plan Amendment and Specific Plan EIR (1993); 2) the East Dublin Properties Stage 1 Development Plan and Annexation Supplemental EIR (2002); and 3) the Fallon Village Supplemental EIR (2005).

Collectively, these three documents are referred to as the “EDSP EIRs.” Pursuant to the requirements of the CEQA, the City determined that the East Ranch project qualifies for an exemption under Government Code Section 65457 and CEQA Guidelines Section 15182(c). The proposed project and Affordable Housing Agreement are consistent with the EDSP EIRs and the General Plan and EDSP land use designations for the project site. The CEQA Analysis in Support of Specific Plan Exemption prepared for the East Ranch Project dated November 4, 2021 determined that there is no part of the proposed Project that triggers the need to prepare a subsequent EIR or negative declaration pursuant to CEQA Guidelines Section 15162 or Public Resources Code section 21166. Therefore, the Affordable Housing Agreement qualifies for a specific plan exemption and does not require subsequent environmental review or the preparation of an additional CEQA document (EIR or MND).

STRATEGIC PLAN INITIATIVE:

Strategy 2: Housing Opportunities
Objective B: Facilitate production of affordable housing for lower income seniors, workforce, and special needs households.
770

NOTICING REQUIREMENTS/PUBLIC OUTREACH:

The City Council Agenda was posted.

ATTACHMENTS:
1) Resolution Approving an Affordable Housing Agreement between the City of Dublin and TH East Ranch Dublin, LLC.
2) Exhibit A to the Resolution –Affordable Housing Agreement 3) City Council Staff Report dated April 18, 2023 (without attachments) 771
Attachment 1
Reso. No. XX-23, Item X.X, Adopted XX/XX/2023 Page 1 of 2 RESOLUTION NO. XX – 23

A RESOLUTION OF THE CITY COUNCIL

OF THE CITY OF DUBLIN

APPROVING AN AFFORDABLE HOUSING AGREEMENT BETWEEN THE CITY OF DUBLIN

AND TH EAST RANCH DUBLIN, LLC, FOR THE EAST RANCH PROJECT APN 905 -0002-002-00 and 905 -0002-001-01
WHEREAS, TH East Ranch Dublin, LLC (“Applicant’) is seeking approval of an Affordable Housing Agreement for the 573-unit East Ranch Residential Project, on a 165.5-acre site consisting of six neighborhoods, two neighborhood parks totaling 11.5 acres, and a two-acre Public/Semi-Public site reserved for affordable housing located on Croak Road east of Fallon Road; and
WHEREAS, the 165.5-acre Project site is located in eastern Dublin, directly east of the Jordan Ranch development and south of Positano development, straddling the existing Croak Road; and
WHEREAS, on March 14, 2023, the Planning Commission approved the Site Development Review Permit (PLPA-2022-00018) for six neighborhoods that includes the construction of 459 conventional single-family homes, 14 zero lot line single-family homes, and 100 townhomes, and a landscape master plan; and
WHEREAS, Condition of Approval #18 requires the Applicant to enter into an Affordable Housing Agreement pursuant to Dublin Municipal Code Section 8.68 “Inclusionary Zoning Regulations”; and
WHEREAS, the City’s Inclusionary Zoning Regulations require all new residential projects of 20 units or more to construct 12.5% of the total number of units as affordable units. Pursuant to Dublin Municipal Code Section 8.68.040.E a developer may request an alternative method of compliance with the requirements of the Inclusionary Zoning Regulations at the discretion of the City Council; and
WHEREAS, on April 18, 2023, the City Council received a presentation from the Applicant regarding their proposed alternative method of compliance with the Inclusionary Zoning Regulations and expressed general support for the proposal; and WHEREAS, an Affordable Housing Agreement has been prepared for the project which sets forth the method of compliance with the Inclusionary Zoning Regulations; and WHEREAS, pursuant to the requirements of the California Environmental Quality Act (CEQA), the City determined that the East Ranch project qualifies for an exemption under Government Code Section 65457 and CEQA Guidelines Section 15182(c). The Affordable Housing Agreement is consistent with Eastern Dublin Specific Plan EIRs and the General Plan and EDSP land use designations for the project and qualifies for a specific plan exemption and does not require subsequent environmental review.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin herby approves the Affordable Housing Agreement between the City of Dublin and TH East Ranch Dublin, LLC, for the East Ranch project attached as Exhibit A to this Resolution. 772
Reso. No. XX-23, Item X.X, Adopted XX/XX/2023 Page 2 of 2 BE IT FURTHER RESOLVED that the City Manager is authorized to execute the agreement, attached hereto as Exhibit A, and make any necessary, non-substantive changes to carry out the intent of this Resolution.

PASSED, APPROVED AND ADOPTED this 15th day of August 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
773

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: Community Development Director
________________________________________________________________________ No fee for recording pursuant to
Government code Section 27383

AFFORDABLE HOUSING AGREEMENT
(East Ranch)
THIS AFFORDABLE HOUSING AGREEMENT is hereby entered into as of _________________, 2023, by and between the City of Dublin, a California municipal corporation (the “City”), and TH East Ranch Dublin, LLC, a California limited liability company (the “Developer”).

RECITALS
A. Developer is the owner of 165.5 acres of undeveloped real property in the City of Dublin located within the Fallon Village area of the Eastern Dublin Specific Plan, known as the “East Ranch” (the “Development Site”). The Development Site is located north of Interstate 580, east of Fallon Road and the Jordan Ranch development, south of the Positano development, and adjacent to the City’s eastern boundary. The Development Site is legally described in Exhibit A attached hereto.

B. Developer has proposed to develop a housing development on the Development Site which will include approximately 459 conventional single family homes (“Single Family Homes”), 14 zero-lot-line single family homes (“Zero Lot Line Homes”), 100 townhomes (“Townhomes”), and 50 accessory dwelling units (“ADUs”) (together, the “East Ranch Project”).

C. The City has adopted inclusionary housing requirements pursuant to Chapter 8.68 of the Dublin Municipal Code (the “Inclusionary Housing Requirements”). The purpose of the Inclusionary Housing Requirements is to create affordable housing opportunities in the City for low- and moderate-income households. The City adopted the Inclusionary Housing Requirements recognizing that the cost of new housing is so high that persons with very low-, low- and moderateincomes are increasingly unable to locate affordable housing in the City. Through the Inclusionary Housing Requirements the City intends to achieve a balanced community with housing available at all income levels.

D. The Inclusionary Housing Requirements require that residential projects with twenty or more for sale units contain at least 12.5% low- and moderate-income units. The Inclusionary Housing Requirements require that 40% of the affordable for sale units be sold at an affordable housing cost to low-income households, and 60% of the affordable for sale units be sold at an affordable housing cost to moderate income households. The Inclusionary Housing 






 








Attachment 2
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Requirements permit alternate methods of compliance, allowing the developer to satisfy 40% of the Inclusionary Housing Requirements through payment of an in lieu fee in accordance with the City’s impact fee schedule, and allowing the developer to provide some or all of the remaining units through land donation and other alternative means.

E. The Inclusionary Housing Requirements for the East Ranch Project require the Developer to provide seventy-two (72) affordable units. The Developer has proposed, and the City Council has approved, an alternate method of satisfying the Inclusionary Housing Requirements which requires the Developer to (i) pay an in lieu fee based upon the City in lieu fee in effect as of the date of this Agreement (currently $241,131 per unit), as annually adjusted by inflation, in lieu of constructing twenty-five (25) inclusionary units (for a total in lieu fee of $6,224,860.50), (ii) construct and sell fourteen (14) Zero-Lot-Line Homes and four (4) Townhomes to Moderate Income Households at an Affordable Housing Cost, (iii) donate a two acre site within the Development Site to the City or its designee to be used for the construction of an affordable housing project, (iv) construct and sell fifty (50) accessory dwelling units which, if rented, may only be rented to low income households at an affordable rent, and (v) pay an additional fee of $500,000 to the City’s Affordable Housing Fund.

F. By this Agreement, the parties desire to set forth the manner by which Developer shall satisfy the obligations applicable to the East Ranch Project under the Inclusionary Housing Requirements.

NOW, THEREFORE, Developer and City hereby agree as follows:

1. Definitions and Interpretations. Terms used in this Agreement shall be defined as set forth in Chapter 8.68 of the Dublin Municipal Code.

2. Payment of Fees.
(a) In Lieu Fees. Section 8.68.040.A of the Inclusionary Housing Requirements provides that developers may satisfy up to forty percent of the Inclusionary Housing Requirements through payment of an in lieu fee in accordance with the City’s impact fee schedule.

Developer shall satisfy its obligation under the Inclusionary Housing Requirements for twentyfive (25) Inclusionary Units by paying fees to the City in lieu of constructing such units, equal to the in lieu fee adopted by the City which is in effect as of the date of July 1, 2023 ($241,131 per Inclusionary Unit), as such fee is annually adjusted for inflation as provided below (“In Lieu Fees”). The foregoing adjustment for inflation shall be calculated as follows: the In Lieu Fees payable hereunder shall be adjusted annually as of July 1 of each year based upon the greater of the percentage change in the U.S. Department of Housing and Urban Development (HUD) Fair Market Rent Limits for the Oakland-Fremont Metropolitan Area (Alameda County), or the percentage change in the U.S. Bureau of Labor Statistics Consumer Price Index, All Urban Consumers, for San Francisco-Oakland-Hayward. The foregoing In Lieu Fees shall be applicable notwithstanding City’s adoption of a new fee structure for the Affordable Housing In Lieu fee after July 1, 2023.
(b) Supplemental Fee. In addition to the In Lieu Fees, Developer shall pay City a fee of $500,000 to be deposited into City’s Affordable Housing Fund (the “Supplemental Fee”). 






 








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(c) Payment of Fees. The entirety of the In Lieu Fees and Supplemental Fee shall be paid at the time of the issuance of the first building permits for the East Ranch Project (excluding building permits issued for model homes). If the Developer fails to pay the In Lieu Fees when due, the City may withhold any further City approvals for the East Ranch Project, including without limitation building permits and certificates of occupancy.

3. Moderate Income Homes. Developer shall satisfy its obligation under the Inclusionary Housing Requirements for eighteen (18) Inclusionary Units through the construction and sale of fourteen (14) Zero Lot Line Homes and four (4) Townhomes to Moderate Income Households (the “Moderate Income Inclusionary Units”) in accordance with the following requirements:
(a) Exterior Materials and Exterior Architectural Design. Section 8.68.030.E of the Inclusionary Housing Requirements provides that Inclusionary Units shall not be distinguished by exterior design, construction, or materials. The exterior materials and exterior architectural design of the Inclusionary Units shall be consistent with the market-rate units within the East Ranch Project as reviewed and approved through the Site Development Review by the Planning Commission’s approval of Resolution No. 23-02 on March 14, 2023; provided, however, that minor changes to unit size may be approved by the Community Development Director through a Site Development Review waiver. The City Council, in approving this Agreement, hereby finds that the Moderate Income Inclusionary Units, in accordance with the design approved by the Site Development Review, are not distinguished by exterior design, construction, or materials. (b) Unit Location. Section 8.68.030 of the Inclusionary Housing Requirements requires that Inclusionary Units be dispersed throughout the individual phase in which they are constructed. A map that shows the location of the Inclusionary Units as proposed by the Developer is attached hereto as Exhibit B (the “Inclusionary Unit Map”). Developer shall construct the Moderate Income Inclusionary Units in the locations identified in the approved Inclusionary Unit Map, which will satisfy Section 8.68.030 of the Inclusionary Housing Requirements. The Community Development Director may administratively approve changes in the location of the Moderate Income Inclusionary Units provided that he or she finds that the units are reasonably dispersed as required by Section 8.68.030.E.
(c) Unit Bedrooms and Size. Section 8.68.030.E requires that the Inclusionary Units reflect the range of numbers of bedrooms provided in the project as a whole. Each of the fourteen (14) Moderate Income Inclusionary Units which are Zero Lot Line Homes shall have at least three (3) bedrooms, and shall be at least 1,700 square feet in size consistent with the approved Site Development Review. Each of the four (4) Moderate Income Inclusionary Units which are Townhomes shall each have at least four (4) bedrooms, and shall be at least 1,900 square feet in size consistent with the approved Site Development Review. The City Council, in approving this agreement, hereby finds that the Moderate Income Inclusionary Units which meet the foregoing requirements satisfy the unit size requirements of Section 8.68.030.E of the Inclusionary Housing Requirements.
(d) Sales Price and Marketing. Developer shall sell the Inclusionary Units to Moderate Income Households at sales prices that are Affordable Sales Prices, as defined in the Inclusionary Housing Requirements, and are not greater than the maximum sales prices which are 






 








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approved by the City. All units shall be marketed and sold in a manner that is consistent with the Inclusionary Housing Requirements and Guidelines to the Inclusionary Zoning Ordinance. (e) Marketing Plan. Developer shall prepare and receive City approval of a Marketing Plan as required by Section 4.4 of the Guidelines to the Inclusionary Zoning Ordinance prior to issuance of the first building permit in the Project (excluding building permits issued for model homes).
(f) Resale Agreements. Prior to transferring ownership of a Moderate Income Inclusionary Unit to a buyer, Developer shall require that the initial buyer and the City execute a Resale Restriction and Option to Purchase Agreement (the “Resale Agreement”) in substantially the form attached hereto as Exhibit C. The Resale Agreement shall serve as the agreement required by Section 8.68.050.C of the Inclusionary Housing Requirements. Upon (i) the sale of a Moderate Income Inclusionary Unit as a completed home in accordance with the terms of this Agreement and (ii) the recordation of the Resale Agreement against such Moderate Income Inclusionary Unit, Developer shall have no further obligations or liabilities with respect to such Moderate Income Inclusionary Unit, including but not limited to, monitoring the compliance with this Agreement or the Resale Agreement of the buyer of a Moderate Income Inclusionary Unit or any successor, and responsibility for compliance with the Resale Agreement as to that Moderate Income Inclusionary Unit shall thereafter be the burden of the then owner. Developer shall remain responsible for compliance with this Agreement as to all other Moderate Income Inclusionary Units not yet sold.

The City and Developer agree that a breach of the Resale Agreement by a purchaser of a Moderate Income Inclusionary Unit shall not constitute a default or breach by Developer. (g) City Administrative Fee. Prior to the City’s execution of each Resale Agreement with the initial buyer of a Moderate Income Inclusionary Unit, Developer shall pay the City a City Administrative Fee, in an amount to be established from time to time by the City Council. The City Administrative Fee is currently set at $1,708 per transaction and is subject to periodic adjustment.

4. Donation of Affordable Housing Site. Section 8.68.040.C of the Inclusionary Housing Requirements provides that developers may satisfy a portion of their Inclusionary Housing Requirements through dedication of land to the City or a City-designated local non-profit housing developer in lieu of construction of some or all of the required affordable units, if the City Council finds that (1) dedication of land in lieu of constructing units is consistent with the goal of creating, preserving, maintaining, and protecting housing for very-low, low- and moderate-income households, (2) the dedicated land is useable for its intended purpose, is free of toxic substances and contaminated soils, and is fully improved, with infrastructure, adjacent utilities, grading, and all development-impact fees paid, excluding any inclusionary zoning ordinance fees, (3) the proposed land dedication is of sufficient size to construct the number of Inclusionary Units that the applicant would otherwise be required to construct, based on the size of lots in the subdivision for which the applicant is meeting its obligation; and the market value of the land is equal to or exceeds the difference between the value of a market-rate, 1200-square foot unit and the price at which such a unit could be sold as an Affordable Unit (which amount shall be set forth in a resolution adopted from time to time by the City Council) times the number of units required.

Developer shall satisfy its obligation under the Inclusionary Housing Requirements for thirty-six (36) Inclusionary Units by conveying to City, or City’s designee (“City Designee”), fee title to that 






 








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certain approximately 2.0 acre parcel of real property located on Croak Road east of Fallon Road and further described in Exhibit D hereof (the “Donation Parcel”). Developer, City and City Designee shall enter into an agreement for the donation and conveyance of the Donation Parcel, substantially in the form of Exhibit E hereof, concurrently with the date of this Agreement (the “Donation Agreement”). The Donation Agreement shall provide City with an option to acquire the Donation Parcel if the City Designee fails to timely develop the Donation Parcel as an affordable housing development. In the event that neither the City nor the City Designee elects to acquire the Donation Parcel on or prior to the date set forth therefor in the Donation Agreement, then Developer shall satisfy its Inclusionary Housing Requirements for thirty-six (36) Inclusionary Units by other methods as permitted under the Inclusionary Housing Requirements. In such event the City and the Developer shall meet and confer with respect to mutually acceptable alternative methods of compliance with the Inclusionary Housing Requirements, which may include, without limitation, the assignment of the City Designee’s rights under the Donation Agreement to another mutually acceptable affordable housing developer.

5. Low Income Accessory Dwelling Units. In addition to the Developer’s obligations pursuant to Sections 2 to 4 hereof, Developer shall provide for the construction of fifty (50) attached accessory dwelling units which shall, if rented, be available and restricted to Lower Income Households (the “Low Income ADU Inclusionary Units”) in accordance with the following requirements:
(a) Unit Location. Developer shall construct the Low Income ADU Inclusionary Units in the locations identified in the approved Inclusionary Unit Map (Exhibit B), which will satisfy Section 8.68.030 of the Inclusionary Housing Requirements. The Community Development Director may administratively approve changes in the location of the Low Income ADU Inclusionary Units provided that he or she finds that the units are reasonably dispersed as required by Section 8.68.030.E.
(b) Unit Bedrooms and Size. Each of the fifty (50) Low Income ADU Inclusionary Units shall be at least 500 square feet in size consistent with the approved Site Development Review, and shall have kitchen and bathroom facilities separate from the main housing unit. The City Council, in approving this agreement, hereby finds that the Low Income ADU Inclusionary Units which meet the foregoing requirements satisfy the unit size requirements of Section 8.68.030.E of the Inclusionary Housing Requirements. (c) Regulatory Agreements. Prior to transferring ownership to a buyer of a single family home which includes a Low Income ADU Inclusionary Unit, Developer shall require that the initial buyer and the City execute a Secondary Unit Regulatory Agreement and Declaration of Restrictive Covenants (the “Regulatory Agreement”) in substantially the form attached hereto as Exhibit F. The Regulatory Agreement shall serve as the agreement required by Section

8.68.050.C of the Inclusionary Housing Requirements. Upon the initial sale of a single family home with a Low Income ADU Inclusionary Unit and the recordation of the Regulatory Agreement against such home, Developer shall have no further obligations or liabilities with respect to such Low Income ADU Inclusionary Unit, including but not limited to, monitoring the compliance with this Agreement or the Regulatory Agreement by the owner of the home or any successor, and responsibility for compliance with the Regulatory Agreement as to that Low Income ADU Inclusionary Unit shall thereafter be the burden of the then owner. Developer shall 






 








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remain responsible for compliance with this Agreement as to all other Low Income ADU Inclusionary Units not yet sold. The City and Developer agree that a breach of the Regulatory Agreement by a purchaser of a home with a Low Income ADU Inclusionary Unit shall not constitute a default or breach by Developer. The Low Income ADU Inclusionary Units shall not require owner-occupancy consistent with Section 8.80.030(M). (d) City Administrative Fee. Prior to the City’s execution of each Regulatory Agreement with the initial buyer of a single family home which includes a Low Income ADU Inclusionary Unit, Developer shall pay the City a City Administrative Fee, in an amount to be established from time to time by the City Council. The City Administrative Fee is currently set at $1,708 per transaction and is subject to periodic adjustment.

6. Attorneys’ Fees. If legal action is necessary to enforce any provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and legal costs.

7. Amendments. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in interest. If Developer proposes a change to this Agreement, Developer shall pay the City its reasonable costs, including attorneys’ fees, incurred in negotiating such changes, and Developer shall, if requested by the City, provide the City with a reasonable deposit to cover the City’s reasonable costs, upon Developer initiating such negotiations.

8. Assignments and Transfers.
(a) Right to Assign. Developer may wish to sell, transfer or assign all or portions of the Development Site 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, Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations of Developer arising hereunder and that pertain to the portion of the Development Site being sold or transferred, to such Transferee, provided, however, that no such transfer, sale or assignment of Developer'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.
(b) Approval and Notice of Sale, Transfer or Assignment. The City Manager shall consider and decide on any transfer, sale or assignment within thirty (30) days after Developer’s notice thereof, 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 the Developer’s obligations hereunder. Nothing herein shall be deemed to limit the right of Developer to freely alienate or transfer all or any portion of the Development Site, provided however, Developer shall not be released from liability under this Agreement unless and until the approved Transferee shall have agreed in writing to be bound by and to comply with the requirements of this Agreement and any documents executed hereunder and the City Manager has approved of such Transferee in accordance with this Section 8(b). 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 Developer) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently 






 








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with such sale, transfer or assignment. In the event the City Manager fails to make such determination within such thirty (30) day period, City shall be deemed to have approved the assignment and assumption of this Agreement by the proposed Transferee and Developer shall be released pursuant to Section 8(c) below.
(c) Effect of Sale, Transfer or Assignment. Developer shall be released from any obligations and liability hereunder sold, transferred or assigned to a Transferee pursuant to Section 8(a) of this Agreement, provided that: (a) such sale, transfer or assignment has been approved by the City Manager pursuant to Sections 8(a) and 8(b); and (b) such obligations are expressly assumed by Transferee and provided that such Transferee shall be subject to all the provisions hereof.

9. Successors. Except as specifically provided in this Agreement, this Agreement shall bind and inure to the benefit of all successors and assigns of the parties. Developer shall provide notice to the City of the names and mailing addresses of any such successors or assigns.

10. Hold Harmless. Developer shall hold City, its elective and appointive boards, commissions, officers, employees and agents harmless from and against any or all loss, liability, expense, claim, costs, suits, damages of every kind, nature and description, to the extent caused by Developer’s performance of or failure to perform its obligations pursuant to this Agreement.

Developer shall defend City and its elective and appointive boards, commissions, officers, employees and agents from and against any suits or actions at law or in equity for damages caused or alleged to have been caused, by Developer’s performance of or failure to perform its obligations pursuant to this Agreement.

11. Enforcement. If the Developer defaults in the performance or observance of any covenant, condition, restriction or obligation of the Developer as set forth in this Agreement, and such default remains uncured for a period of thirty (30) days after notice thereof is given by the City (or such longer period as may be necessary to cure the default, provided that Developer commence the cure within the thirty (30) day period and diligently prosecutes the cure to completion), the City may take any one or more of the following steps:
(a) By specific performance or other action or proceeding at law or in equity, require the Developer to perform its obligations under this Agreement or enjoin any acts or things which may be unlawful or in violation of the rights of the City hereunder. (b) Take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants, conditions and restrictions of the Developer under this Agreement.

If Developer transfers any portion of the project in bulk and a Transferee defaults under this Agreement, the City shall exercise the foregoing remedies only with respect to the defaulting Transferee and its portion of the project; and so long as Developer has not otherwise defaulted hereunder, the City shall not seek to exercise any rights and remedies against Developer.

12. Corporate Authority. If Developer is a corporation, each individual signing this Agreement on behalf of that corporation represents and warrants that each of them is duly 






 








780
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authorized to execute and deliver this Agreement on behalf of the corporation and that the Agreement is binding on the corporation in accordance with its terms.

13. Notices, Demands and Communications Between the Parties. Any and all notices, demands or communications submitted by any Party to another Party pursuant to or as required by this Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or by a reputable overnight courier such as FedEx, to the address of City and Developer, as applicable, as set forth below. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, two (2) calendar days after it is placed in the United States mail as heretofore provided, or one (1) calendar day after it is submitted to a reputable overnight courier.

If to Developer: TH East Ranch Dublin, LLC
3001 Bishop Drive, Suite 100
San Ramon, CA 94583
Attention: Tony Bosowski, Division President
And a copy to: TH East Ranch Dublin, LLC
3001 Bishop Drive, Suite 100
San Ramon, CA 94583
Attention: Legal Department
And a copy to: Jackson Tidus
2030 Main Street, 12th Floor
Irvine, CA 92614
Attention: Sonia Lister, Esq.

If to City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager

14. Entire Agreement. This Agreement contains the entire understanding between the parties relating to the transaction contemplated hereby, and all prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect. No provision of this Agreement may be amended, waived, or added except by an instrument in writing signed by the Parties hereto.

15. Incorporation of Exhibits. All exhibits referred in this Agreement are incorporated herein by reference.







 








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16. Counterparts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all parties had executed the same page.







 








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-10-
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:

Linda Smith, City Manager
Attest
Marsha Moore, City Clerk
Approved as to Form
John Bakker, City Attorney
TH EAST RANCH DUBLIN, LLC, a
California limited liability company
By:

Its:







 








783
-11-

STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
______________________________________
Name: _______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 






 








784

EXHIBIT A
Development Site Legal Description
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08-03-2023 5:54pm Eddie Perez P:\ 19343-T\DES\OVERALL EXHIBITS\D-EXH-P SP SITE PLAN.DWG 786 -1-

EXHIBIT B
Inclusionary Unit Map
Attached







 








787
1000 SP NEIGHBORHOOD PARK NEIGHBORHOOD PARK OPEN SPACE (BASIN) OPEN SPACE (WETLAND) OPEN SPACE (WETLAND) OPEN SPACE (BASIN) BASIN SERIES OF BASINS SERIES OF BASINS EAST RANCH DUBLIN, CA 05/16/2023 AFFORDABLE UNIT LOCATIONS - DEED RESTRICTED ADU NEIGHBORHOOD SUMMARY NEIGHBORHOOD TYPICAL LOT SIZE UNITS GROSS ACREAGE (±) DENSITY 1 65'x100' 99 30.1 3.3 DU/AC 2 55'x95' 96 23.4 4.1 DU/AC 3 50'x110' 85 19.5 4.5 DU/AC 4 49.5'x80' 85 16.8 5.1 DU/AC 5 48'x70' Cluster 94 17.6 5.4 DU/AC 6 Attached Multi-Family 100 (Includes 4 Affordable Units) 10.4 9.6 DU/AC 1, 2, 3, & 5 Zero-Lot Single Family Units (Affordable) 14 (2) Croak Rd and Central Pkwy Extension 8.0 TOTAL 573 125.8 4.5 du/ac NOTE: 1) UNIT MIX SHOWN IS PRELIMINARY. FINAL NEIGHBORHOOD UNIT COUNT WILL BE DETERMINED DURING SDR PROCESS, BUT THE TOTAL NUMBER OF UNITS WILL NOT EXCEED 573. 2) ZERO-LOT LINE AFFORDABLE UNITS ARE TO BE DISPERSED THROUGHOUT SITE PLAN AND INCLUDED IN THE TOTAL LOT COUNT 788

EXHIBIT C
Resale Restrictions and Option to Purchase Agreement
Attached







 








-1-
789
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Clerk

OPTION AGREEMENT
This Option Agreement ("Agreement") is entered into as of ____________, by and between the City of Dublin, a municipal corporation ("City"), and [Eden Housing, Inc., a California nonprofit public benefit corporation] ("Owner").

RECITALS
A. Owner is concurrently with this Agreement acquiring fee title to that certain real property located on Croak Road east of Fallon Road in the City of Dublin, California, as more particularly described in Exhibit A attached to this Agreement ("Property").

B. The Property is located within the East Ranch project which is being developed by TH East Ranch Dublin, LLC, a California limited liability company ("Market Rate Developer”). Market Rate Developer and City have entered into an “Affordable Housing Agreement,” dated as of ________________, 2023, which requires that Market Rate Developer convey the Property to City or its designee to satisfy a portion of its inclusionary housing requirements applicable to the East Ranch project pursuant to Chapter 8.68 of the Dublin Municipal Code (the “Inclusionary Housing Requirements”).

C. Pursuant to the Affordable Housing Agreement, Owner, City and Market Rate Developer have entered into a certain “Donation Agreement” dated _______________, 2023, which provides for the Market Rate Developer to donate the Property to Owner.

D. Owner intends to construct an affordable housing project on the Property consisting of approximately ____ affordable rental housing units for very low and low income families, and related improvements (the “Development”).

E. This Agreement gives the City an exclusive right and option to purchase the Property from Owner, which may be exercised by the City if the Owner fails to commence construction of the Development and record a Regulatory Agreement against the Property on or before _________________.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:
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Section 1. Grant of Option. Owner grants to the City the exclusive right and option to purchase the Property for the consideration and under the terms and conditions set forth in this Agreement (the "Option").

Section 2. Term and Exercise of Option.
a. Option Term. The term of the Option ("Option Term") shall be for a period commencing on the date this Agreement is recorded and ending on the earlier of the following events: (i) the closing of Owner’s construction loans necessary for Owner to commence construction of the Development (“Construction Loans”); and (ii) the date this Option is terminated in writing by the City. Owner shall provide City with thirty (30) days’ prior written notice of the closing of the Construction Loans.
b. Exercise of Option. The City may exercise the Option only in the event that (i) the Owner fails or refuses to record a Regulatory Agreement (as defined in the Donation Agreement) against the Property in the form acceptable to the City on or before _______________________________, (ii) the Owner attempts to affect a “Transfer” (as defined below) at any time prior to the recordation of the Regulatory Agreement; or (iii) the Owner fails to close on the Construction Loans for the Development necessary for Owner to commence construction of Development on or before _______________________________. The foregoing periods in this subsection may be extended in writing by the City in its sole discretion. “Transfer” is defined as (i) directly or indirectly, voluntarily, involuntarily or by operation of law making or attempting any total or partial sale, transfer, conveyance, assignment or lease of the whole or any part of the Property or the improvements located on the Property; or (ii) a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the ownership and /or control of Owner at time of entering into this Agreement, taking all transfers into account on a cumulative basis; provided however, neither the admission of an investor limited partner, nor the transfer by the investor limited partner to subsequent limited partners shall be restricted by this provision. Owner shall give the City thirty (30) days’ written notice prior to any Transfer. The City may exercise the Option by giving written notice to Owner of its exercise of the Option ("Option Notice").
c. Termination. Upon termination of the Option at the end of the Option Term, the City Manager shall sign and deliver in recordable form a quitclaim deed or such other document as may be reasonably required by the Owner to evidence the termination of the Option. The parties acknowledge that the quitclaim deed or other such document must be recorded concurrently with the close of escrow for the Construction Loans.

Section 3. Purchase of the Property.
a. Purchase Price. On the date specified in the Option Notice (which shall not be earlier than thirty (30) days after the date of the Option Notice), the Owner shall sell the Property to the City for the following consideration: the actual and reasonable amount paid by Owner to third parties for Development-related drawings, plans, specifications, studies, reports and other instruments (collectively, “Plans”). The Owner’s rights with respect to all Plans relating to the 791
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development of the Property shall be assigned to the City pursuant to the Assignment of Agreements executed by Owner in favor of the City at the time of the closing of the sale of the Property by Owner to the City.
b. Execution of Deed. As soon as practicable, but in no event later than the date specified in the Option Notice for the purchase and sale of the Property, the Owner shall execute a grant deed (the "Deed") conveying to the City the Property and all improvements located on the Property which shall be recorded in the Official Records of the County of Alameda (the "Official Records").
c. Expenses. All city and county documentary transfer tax and conveyance taxes to the extent they are not exempt pursuant to the Revenue and Taxation Code, and recording charges for the Deed (if any) shall be borne by Owner. The cost of the Title Policy (as defined below) shall be borne by the City. All other expenses, fees or costs (except for attorneys' fees and costs) incurred in close of escrow for the purchase and sale of the Property pursuant to this Agreement shall be borne by the City. Each party shall bear its own attorneys' fees and costs. d. Proration of Taxes. Real property taxes, if any, on the Property shall be prorated as of the date of recordation of the Deed. Mello-Roos and other like assessments on the Property shall be similarly prorated and Owner's share shall be fully paid prior to recordation of the Deed. e. Title Insurance. Should the City exercise the Option, no later than the time of the recording of the Deed pursuant to subsection (b) above, the City shall cause a title company of the City's choice to issue a CLTA or ALTA policy of title insurance (the "Title Policy") insuring fee title to the Property to be vested in the City, subject only to those encumbrances, conditions, or exceptions acceptable to the City in its reasonable discretion (“Permitted Exceptions”).

Permitted Exceptions shall include all encumbrances, conditions and exceptions approved by the City under Section 20 below, any regulatory agreements and other deeds of trust or other security instruments securing debt on the Property approved by the City, or any other instruments recording with the prior written approval by the City. Owner shall be responsible for removing from the Property title any encumbrances, conditions, or exceptions other than Permitted Exceptions prior to the closing of the conveyance of the Property to the City.

Section 4. Assignment of Option. Neither the Owner nor City may assign its rights or obligations under this Agreement without the prior written consent of the other party. The City hereby consents to an assignment by Owner that complies with Permitted Transfers as defined in the Regulatory Agreement. Any assignment of this Agreement not authorized under this section shall be null and void.

Section 5. Further Documents. Upon the reasonable request of the other party, each party will execute, acknowledge and deliver or cause to be executed, acknowledged and delivered, such further instruments and documents as may be reasonably necessary in order to carry out the intent and purpose of this Agreement, including escrow instructions. 792
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Section 6. Notices. All notices or other communications made pursuant to this Agreement shall be in writing and shall be deemed properly delivered, given or served to the parties at the following addresses when (a) mailed by certified mail, postage prepaid, return receipt requested; (b) sent by express delivery service, charges prepaid with a delivery receipt; or (c) personally delivered when a delivery receipt is obtained:

City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
Owner: Eden Housing, Inc.
22645 Grand Street
Hayward, California 94541-5031
Attention: President
All notices so delivered, mailed or sent shall be deemed received as of the date shown on the delivery receipt as the date of delivery or the date delivery was refused. Either party may change its address for the purposes of this paragraph by giving prior written notice of the change to the other party in the manner provided in this paragraph.

Section 7. Binding Effect. This Agreement and its terms and conditions shall be binding upon and inure to the benefit of the parties to this Agreement and their respective permitted successors and assigns.

Section 8. Time. Time is of the essence of this Agreement.

Section 9. Attorneys' Fees. In any action between the City and Owner to enforce or interpret any of the terms of this Agreement, the prevailing party shall be entitled to recover costs of suit and expenses, including, without limitation, reasonable attorneys' fees.

Section 10. Eminent Domain. Notwithstanding any other provision of this Agreement, if at any time prior to execution and recordation of the Deed, any portion of the Property shall be taken by eminent domain or is the subject of eminent domain proceedings (either threatened in writing or commenced), and regardless of whether the City has exercised the Option, then the City shall have the right to terminate this Agreement upon written notice to Owner, whereupon the parties shall have no further obligations under this Agreement.

Section 11. Exhibits. All exhibits attached to this Agreement and referred to in this Agreement are incorporated into this Agreement by this reference as though they were fully set forth in this Agreement.

Section 12. Captions. The captions of the paragraphs of this Agreement are for convenience and reference only, and the words contained in the captions shall in no way be held to explain, 793
-6-
modify, amplify or aid in the interpretations, constructions or meaning of the provisions of this Agreement.

Section 13. Entire Agreement; Counterparts. This Agreement contains the entire agreement between the parties respecting the matters set forth, and supersedes all prior agreements between the parties respecting such matters. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same Agreement.

Section 14. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer to any person, other than the parties and their permitted successors and assigns, any rights or remedies under or by reason of this Agreement.

Section 15. Waiver. No provision of this Agreement shall be deemed waived by a party unless such waiver is in writing and signed by the party making the waiver. Failure of either party at any time to require performance of any provision of this Agreement shall not limit that party’s right to enforce the provision unless the waiver is made in writing. Waiver of any breach of a provision shall not be a waiver of any succeeding breach of the provision or a waiver of the provisions itself or of any other provision.

Section 16. Authority of Signatories. Each of the parties to this Agreement represents and warrants to the other party that the persons who have executed this Agreement have been authorized to do so by the party on whose behalf the party is signing. All documents to be delivered under this Agreement will be executed by an authorized person. Each party has a good an legal right to enter into this Agreement and to perform all covenants of that party contained in this Agreement.

Section 17. Governing Law. This Agreement shall be governed and constructed in accordance with California law.

Section 18. Amendments. This Agreement may only be amended in writing signed by all parties.

Section 19. Brokers. Each party will defend, indemnify, and hold the other party harmless from any claim, loss, or liability made or imposed by any other party claiming a commission or fee in connection with this transaction and arising out of that party’s own conduct.

Section 20. Title Report and Owner’s Representations and Warranties. Prior to entering into this Agreement, Owner shall provide City with a copy of a current title report for the Property (“Title Report”). The City’s entering into this Agreement is subject to its approval of the Title Report and any exceptions shown in the Title Report.

Owner represents and warrants that (a) except for the matters shown in the Title Report, no leases, occupancies, tenancies, or licenses exist that affect the Property; (b) to the best of Owner’s knowledge, there are not presently any actions, suits, or proceedings pending or, threatened against or affecting the Property or the interest of Owner in the Property or its use or 794
-7-
that would affect Owner’s ability to consummate the transaction contemplated in this Agreement; (c) there are not any outstanding and unpaid arbitration awards or judgments affecting title to any portion of the Property, and Owner shall promptly notify City of any of these matters arising during the term of this Agreement; and (d) to the best of Owner’s knowledge, there are not presently any pending or threatened condemnation, eminent domain, or similar proceedings affecting the Property.

Section 21. Owner’s Conduct During Term of Agreement. During the term of this Agreement, Owner shall comply with the following terms relating to the Property: (a) Owner shall pay for all labor and work performed and all material furnished at Owner’s request or on Owner’s behalf, and there shall be no claim for which a mechanic’s, materialman’s, or similar lien can be claimed by any person or firm against the Property as a result of any act of Owner; (b) Owner shall not affirmatively take any actions constituting waste of the Property, and shall not excavate, mine, or otherwise materially alter the Property; (c) Owner shall not enter into any lease, occupancy, tenancy, or license agreement affecting the Property, without City’s prior written consent; and (d) Owner shall not incur any obligations or liabilities or enter into any transactions that will affect the Property without the prior written consent of City which consent shall not be unreasonably withheld.

Section 22. Owner Indemnity of City. Owner shall indemnify, defend and hold harmless the City, any City agencies, and their respective elected and appointed councils, boards, commissions, officers, agents, employees, volunteers and representatives from any and all loss, liability, fines, penalties, forfeitures, costs and damages and from any and all claims, demands and actions in law or equity (including attorneys' fees and litigation expenses) by any person or entity, directly or indirectly arising or alleged to have arisen out of or in any way relating to the Property during the term of this Agreement. This indemnity provision shall survive termination of this Agreement.

Section 23. Hazardous Substances. Prior to entering into this Agreement, Owner shall provide City with a copy of a Phase 1 Environmental Assessment Report for the Property. The City’s entering into this Agreement is subject to its approval of the environmental condition of the Property. Owner warrants to City that, except as provided in the Hazards Report, to the best of Owner’s actual knowledge, no Hazardous Substances have been disposed of or released into, on, or under the Property; provided however said warranty is subject to the following limitations:

Owner has not made or purported to have made any independent investigations or testing for Hazardous Substances on the Property, has not been present on the Property at all times, and shall only be accountable under this Agreement for any misrepresentation as to actual, not constructive, knowledge of the Hazardous Substances on the Property.

Section 24. City Remedies for Breach. The City shall have the right to exercise all remedies available under law and equity for any breach of this Agreement by Owner. 795
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IN WITNESS WHEREOF, the City and Owner have executed this Agreement as of the date first written above.

OWNER:

By: ______________________
CITY:

CITY OF DUBLIN, a municipal corporation
By: ____________________________
Linda Smith, City Manager
796

EXHIBIT A
Property Description
797
A notary public or other officer completing
this certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.

State of California )
) ss.

County of _____________ )
On_____________________, 20____ before me, _____________________, a Notary Public, in and for said State and County, personally appeared _______________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
_______________________________

NOTARY PUBLIC
5428388.3
798

EXHIBIT D
Legal Description of Donation Parcel
[To Be Inserted]







 








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799

EXHIBIT E
Donation Agreement
Attached







 








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800
1 REAL PROPERTY DONATION AGREEMENT
This Real Property Donation Agreement (this “Agreement”) is entered into as of ______________, 2023 (the “Effective Date”), by and among TH East Ranch Dublin, LLC, a California limited liability company (the “Developer”), the City of Dublin, a California municipal corporation (the “City”), and [Eden Housing, a California nonprofit public benefit corporation] (the “the Nonprofit”). Developer, City and the Nonprofit are individually referred to herein as a “Party,” and collectively referred to herein as the “Parties.”

RECITALS
A. Developer is the owner of 165.5 acres of undeveloped real property in the City of Dublin located within the Fallon Village area of the Eastern Dublin Specific Plan, known as the “East Ranch.” Developer has proposed to develop a master planned community on the East Ranch that will include approximately 573 housing units and associated amenities and infrastructure (the “East Ranch Project”).

B. In connection with Developer’s proposed development of the East Ranch Project, Developer has entered into an “Affordable Housing Agreement” with City, dated ______________, 2023, which sets forth the manner by which Developer shall satisfy the City’s inclusionary housing requirements applicable to the East Ranch Project. Section 4 of the Affordable Housing Agreement requires Developer to donate a two acre parcel of land to City or City’s designee, to be used as the site of an affordable housing project.

C. Developer desires to satisfy its obligations under Section 4 of the Affordable Housing Agreement by agreeing to donate a certain approximately 2.0 acre parcel of real property located on Croak Road east of Fallon Road, and further described in Exhibit A hereof (the “Property”).

D. City desires to designate the Nonprofit as the entity to acquire the Property from Developer in accordance with Section 4 of the Affordable Housing Agreement. In the event that the Nonprofit elects not to acquire the Property, or do not satisfy the requirements hereunder for the acquisition of the Property, the City intends to retain the right to acquire the Property from Developer itself.

NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the Parties, Developer, City and the Nonprofit hereby agree as follows:

1. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set forth above and the Exhibits attached to this Agreement are each incorporated into the body of this Agreement.
801
2 2. DONATION.

2.1 Donation of Property. Subject to the terms and conditions set forth herein, Developer hereby agreesto donate the Property to the Nonprofit, and the Nonprofit hereby agreesto acquire the Property from Developer. The Property shall include the following:
(a) All of Developer’s right, title and interest, if any, in and to all rights, privileges, tenements, hereditaments, rights-of-way, easements, licenses, appurtenances, water, oil, gas and mineral rights, subsurface rights, development rights, permits, approvals, air rights, and water and riparian rights belonging or appertaining to the Property or any improvements thereon.
(b) All improvements on the Property, if any.
(c) All of Developer’s interests, if any, in and to all personal property, tangible or intangible (including, without limitation, trade names, trademarks or intellectual property, warranties, guarantees, plans, specifications, architects’, engineers’, and all other consultants’ contracts, reports and all governmental approvals obtained or applied for as of the date of this Agreement relating to the Property or any improvements thereon, located on or relating to the Property and/or any improvements thereon.

2.2 Fee Interest. Upon the Closing Date (as hereinafter defined), Developer shall convey, assign and transfer itsfee interest in the Property to the Nonprofit, free and clear of all liens, encumbrances, easements, leases (recorded or unrecorded), bonds, assessments, and taxes, except for (i) liens for non-delinquent property taxes and assessments, and (ii) the exceptions approved in the Nonprofit’s Title Notice (as set forth in Section 3.1).

2.3 Consideration. Developer agrees to donate the Property to the Nonprofit for no monetary consideration.

3. DUE DILIGENCE AND PRE-CLOSING REQUIREMENTS.

3.1 Condition of Title/Preliminary Title Report.
_________________________ Title Insurance Company (the “Title Agent”) shall deliver to the Nonprofit a Preliminary Title Report for the Property (the “Preliminary Report”). The Nonprofit shall have thirty (30) days from the date of receipt of the Preliminary Report to approve the Preliminary Report in writing (the “Nonprofit’s Title Notice”), provided that all existing deeds of trust, mechanic’s liens and other financial liens and encumbrances shall be paid off and removed from title concurrently with or prior to the Closing. If there are any changes to the Preliminary Report prior to Closing, the Nonprofit shall have fifteen (15) days after receipt of the revised Preliminary Report to approve such changes. If Developer does not remedy any defect discovered by the Preliminary Title Report, the Nonprofit shall have the right to terminate this Agreement or continue with the escrow and consummate the transaction without Developer remedying the defect.

3.2 Due Diligence Contingency Period. The Nonprofit will have ___________ (__) days from the Effective Date (the “Due Diligence Contingency Period”) to 802
3 complete physical inspections of the Property and due diligence related to the acquisition of the Property. Within three (3) days after the Effective Date, Developer shall provide to the Nonprofit copies of all plans, studies, records, reports, governmental notices and approvals, all written disclosures required by applicable law, and other written materials related to the use, occupancy or condition of the Property that Developer has in its possession, including without limitation environmental, geotechnical, engineering and land surveys.

3.3 Inspection of Property. During the Due Diligence Contingency Period, the Nonprofit, and its agents, contractors and employees,shall have the right to enter upon the Property for the purpose of making inspections, surveying the Property, or to perform environmental testing, at the Nonprofit’s sole risk, cost and expense. All of such entries upon the Property shall be at reasonable times during normal business hours and after at least twenty-four (24) hours’ prior notice to Developer, and Developer or Developer’s agentsshall have the right to accompany the Nonprofit and its agents during any activities performed by the Nonprofit on the Property. The Nonprofitshall bear the costs of all such inspections or tests. At Developer’s request, the Nonprofit shall provide Developer with a copy of the results of any environmental tests and inspections made by the Nonprofit, at no cost to Developer. If any inspection or test disturbs the Property, the Nonprofit will restore the Property to substantially the same condition as existed before the inspection or test. The Nonprofitshall defend, indemnify and hold Developer harmless from and against any and all losses, costs, damages, claims or liabilities, including but not limited to, mechanic’s and materialmen’s liens, arising out of or in connection with the Nonprofit’s inspection of the Property as allowed pursuant to this Section 3.3. The provisions of this Section 3.3 shall survive the Closing or any earlier termination of this Agreement.

3.4 Survey. The Nonprofit may obtain a survey of the Property before the Closing to assure that there are no defects, encroachments, overlaps, boundary line or acreage disputes, or other such matters, that would be disclosed by a survey (“Survey Issues”). The cost of the survey shall be paid solely by the Nonprofit. The Nonprofit shall notify Developer of any Survey Issues which shall be deemed to be a defect in the title to the Property prior to the end of the Due Diligence Contingency Period. Developer may agree to, but shall not be required to agree to, remedy such defects, with all such defects cured prior to Closing. If Developer does not agree to or cannot remedy any such defect, the Nonprofit shall have the right to terminate this Agreement or continue the consummation of the transaction with Developer not remedying the defect.

3.5 Satisfaction of Due Diligence Contingency. Except as otherwise provided herein, if the Nonprofit is not, in good faith, satisfied with the condition of the Property after any inspection thereof, the Nonprofit shall deliver to Developer a written request that Developer fix or remedy any unsatisfactory conditions prior to the end of Due Diligence Contingency Period.

Developer may, but shall not be required to, remedy such conditions prior to Closing. If Developer does not or cannot remedy any such condition, the Nonprofit shall have the right to terminate this Agreement or continue the consummation of the transaction with Developer not remedying the conditions. If the Nonprofit does not timely give a due diligence notice to Developer, this Agreement shall continue in full force and effect and the Nonprofit shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 3.5. 803
4 4. CLOSING AND REQUIRED PAYMENTS.

4.1 Escrow Account. The Parties shall open an escrow account (the “Escrow”) with ______________________ Escrow (the “Escrow Holder”). Escrow Holder shall perform all Escrow and title services in connection with this Agreement.

4.2 Deposit of Agreement. Within five (5) days after the Effective Date, the Parties will deposit into Escrow a fully executed copy of this Agreement, or executed counterparts thereto. The date such fully executed Agreement is received by Escrow Holder will be deemed the “Opening of Escrow” and Escrow Holder will give written notice to the Parties of such occurrence.

4.3 Closing. The closing (“Closing”) will occur no later than _________________________ (“Outside Closing Date”). Any extension of the Closing must be agreed upon in writing by the Nonprofit and Developer.

4.4 Nonprofit’s Conditions to Closing. The Nonprofit’s acquisition of the Property is subject to the satisfaction of all of the following conditions or the Nonprofit’s written waiver (in the Nonprofit’ssole discretion) of such conditions on or before the Outside Closing Date:
(a) Expiration of the Due Diligence Contingency Period with no exercise by the Nonprofit of its rights under this Agreement to terminate this Agreement. (b) The Nonprofit has determined that the Property is useable for its intended purpose, is free of toxic substances and contaminated soils, and is fully improved, with infrastructure, adjacent utilities, grading, and all development-impact fees paid, excluding any inclusionary zoning ordinance fees.
(c) The Nonprofit has determined that the Property is of sufficient size to construct the number of Inclusionary Units that the Developer would otherwise be required to construct, based on the size of lots in the East Ranch project. (d) The Nonprofit has determined that the market value of the Property is equal to or exceeds the difference between the value of a market-rate, 1200-square foot unit and the price at which such a unit could be sold as an Affordable Unit (which amount shall be set forth in a resolution adopted from time to time by the City Council) times the number of Inclusionary Units required (36).
(e) Developer shall have delivered to Escrow a fully executed “Grant Deed” (as defined in Section 4.7(a) below) and “Option Agreement”) (as defined in Section __ below), and all other documents to be submitted by Developer pursuant to this Agreement, all duly executed by Developer.
(f) Developer shall have paid into the Escrow all amounts due from the Developer under Section 4.7 hereof.
(g) The Title Company is irrevocably committed to issue a CLTA or ALTA Extended Owner’s Title Policy to the Nonprofit, as requested by the Nonprofit, together with 804
5 any endorsements requested by the Nonprofit, effective as of the Closing Date, insuring title to the Nonprofit with a policy amount equal to the fair market value of the Property, subject only to the Permitted Exceptions.
(h) Possession of the Property will be delivered to the Nonprofit immediately upon the Closing, free and clear of all uses, leases and occupancies, and free of tenants and occupants, except as otherwise set forth herein.

(i) There shall be no litigation or administrative proceeding pending with respect to the Property as of the Closing, and there shall be no moratoria which would adversely impact the use or value of the Property.
(j) Developer’s representations and warranties herein are true and correct in all material respects as of the Closing Date.

4.5 Developer’s Conditions to Closing. The Closing and Developer’s obligation to grant the Property to the Nonprofit are subject to the satisfaction of the following conditions or Developer’s written waiver (in Developer’s sole discretion) of such conditions on or before the Outside Closing Date:
(a) The Nonprofit has executed and submitted into Escrow all documents pursuant to this Agreement, all duly executed by the Nonprofit. (b) The Nonprofit’srepresentations and warranties set forth herein are true and correct in all material respects as of the Closing Date. (c) The Nonprofit has performed all obligations to be performed by the Nonprofit pursuant to this Agreement on or before the Closing Date.

4.6 Conveyance of Title. Developer shall deliver fee simple title to the Property to the Nonprofit at the Closing, subject only to items approved in the Nonprofit’s Title Notice. The Property shall be conveyed by Developer to the Nonprofit in an “as is” condition, with no warranty, express or implied, by Developer as to the physical condition of the Property including, but not limited to, the soil, its geology, or the presence of known or unknown faults or hazardous materials, Hazardous Substances on, in, under and adjacent to the Property, the air, soil, and groundwater.

4.7 Deliveries at Closing.
(a) Deliveries by Developer. Developer shall deliver to Escrow for recordation a grant deed, substantially in the form of Exhibit “B” attached hereto and incorporated herein (the “Grant Deed”), and an “Option Agreement” between Nonprofit and City, substantially in the form of Exhibit “C” hereto and incorporated herein. Developer shall deposit all costs of Closing required to be paid by Developer pursuant to this Agreement, into Escrow at least one day prior to Closing.
805
6 (b) Closing. Upon Closing, Escrow shall: (i) record the Grant Deed; (ii) record the Option Agreement; and (iii) pay any expenses payable with respect to the Closing. (c) Closing Costs. Developershall pay the full amount of all escrow fees, recording fees, documentary transfer taxes, and title fees. (d) Prorations. At the Closing, Developer shall be responsible for all property taxes and assessments due through the Closing.

5. REPRESENTATIONS, WARRANTIES AND COVENANTS.

5.1 Developer’s Representations, Warranties and Covenants. In addition to the representations, warranties and covenants of Developer contained in other sections of this Agreement, Developer hereby represents, warrants and covenants to the Nonprofit that the statements below in this Section 5.1 are each true and correct as of the Closing Date; provided however, if to Developer’s actual knowledge any such statement becomes untrue prior to Closing, Developer will notify the Nonprofit in writing and the Nonprofit will have ten (10) days thereafter to determine if the Nonprofit wishes to proceed with Closing. (a) Authority. Developer has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. This Agreement has been duly executed by Developer, and upon delivery to and execution by the Nonprofit and City is a valid and binding agreement of Developer. All the instruments, agreements and other documents executed by Developer that are to be delivered to the Nonprofit at Closing are and at the time of Closing will be duly authorized, executed and delivered by Developer, and will be the valid and binding agreements and obligations of Developer enforceable in accordance with their respective terms. (b) Encumbrances. Developer has not alienated, encumbered, transferred, mortgaged, assigned, pledged, or otherwise conveyed its interest in the Property or any portion thereof, nor entered into any agreement to do so, and there are no liens, encumbrances, mortgages, covenants, conditions, reservations, restrictions, easements or other matters affecting the Property, except as disclosed in the Preliminary Report or in this Agreement. Developer will not, directly or indirectly, alienate, encumber, transfer, mortgage, assign, pledge, or otherwise convey itsinterest in the Property or any portion thereof prior to the Closing, as long as this Agreement is in force. (c) Other Agreements. There are no agreements affecting the Property except those which have been disclosed by Developer to the Nonprofit. There are no agreements which will be binding on the Nonprofit or the Property after the Closing which cannot be terminated on thirty (30) days prior written notice.
(d) No Leases. Between the Effective Date and the earlier of the Closing or the termination of this Agreement, Developer shall not enter into any new leases or extend the term of any existing leases of any portion of the Property. (e) Environmental. Other than those disclosures made pursuant to Section

6.1 hereof, Developer makes no other representations or warranties concerning the environmental condition of the Property. The Nonprofit will satisfy itself concerning the environmental condition of the Property, including but not limited to whether the Property or any portion thereof, including 806
7 but not limited to the air, soil, or groundwater in, on, beneath, or adjacent to the Property is contaminated with Hazardous Substances.
(f) Title. Except as disclosed herein, and in the Preliminary Report, Developer has no actual knowledge of any unrecorded or undisclosed legal or equitable interest in the Property owned or claimed by anyone other than Developer. (g) Litigation and Administrative Proceedings. There is no pending, or, to Developer’s actual knowledge, threatened litigation, administrative proceeding or other legal or governmental action with respect to the Property. (h) Disclosure. Developer has disclosed all material facts with respect to the Property of which Developer has actual knowledge, and Developer further represents that it has performed a reasonably diligent search for non-privileged documents relevant and material to the condition of the Property and provided a copy of such documents to the Nonprofit. (i) Non-Foreign Person. Developer is not a foreign person as defined in Internal Revenue Code section 1445(f)(3).
(j) Bankruptcy and Insolvency. Developer is not bankrupt or insolvent under any applicable federal or state standard, has not filed for protection or relief under any applicable bankruptcy or creditor protection statute, and has not been threatened by creditors with an involuntary application of any applicable bankruptcy or creditor protection statute.

The truth and accuracy of each of the representations and warranties, and the performance of all covenants of Developer contained in this Agreement are conditions precedent to the Nonprofit’s obligation to proceed with the Closing hereunder. The foregoing representations and warranties shall survive the expiration or termination of this Agreement and the Closing and shall not be deemed merged into the deed upon the Closing.

5.2 Nonprofit’s Representations and Warranties. In addition to the representations, warranties and covenants of the Nonprofit contained in other sections of this Agreement, the Nonprofit hereby represents, warrants and covenants to Developer that the statements below in this Section 5.2 are each true as of the Effective Date, and, if to the Nonprofit’s actual knowledge any such statement becomes untrue prior to Closing, the Nonprofitshall so notify Developer in writing and Developer shall have ten (10) days thereafter to determine if Developer wishes to proceed with Closing.
(a) The Nonprofit is a California nonprofit corporation, in good standing under the laws of the State of California. The Nonprofit has the full right, capacity, power and authority to enter into and carry out the terms of this Agreement. This Agreement has been duly executed by the Nonprofit, and upon delivery to and execution by Developer shall be a valid and binding agreement of the Nonprofit.
(b) The Nonprofit is not bankrupt or insolvent under any applicable federal or state standard, have not filed for protection or relief under any applicable bankruptcy or 807
8 creditor protection statute, and have not been threatened by creditors with an involuntary application of any applicable bankruptcy or creditor protection statute.

The truth and accuracy of each of the representations and warranties, and the performance of all covenants of the Nonprofit contained in this Agreement are conditions precedent to Developer’s obligation to proceed with the Closing hereunder.

6. ENVIRONMENTAL OBLIGATIONS.

6.1 Developer’s Responsibilities. California Health & Safety Code Section 25359.7 requires owners of real property who know, or have reasonable cause to believe, that any release of Hazardous Substances are located on or beneath the real property to provide written notice of same to the buyer of real property. Other applicable laws require Developer to provide certain disclosures regarding natural hazards affecting the Property. Developer shall disclose to the Nonprofit the actual knowledge Developer has with respect to the deposit of Hazardous Substances on the Property, if any. Developer agrees to make all disclosures required by law within thirty (30) days after the Effective Date. Developer’s responsibility and obligations of this Section 6.1 are solely limited to Developer’s knowledge of, or Developer’sreasonable cause to believe, Hazardous Substances that have been stored upon or released upon or under the Property.

6.2 As Is Sale. Except as otherwise stated in this Agreement and except for Developer’s representations and warranties in Section 5.1 hereof (“Developer’s Warranties”), this sale is made and will be made without representation, covenant, or warranty of any kind by Developer. As a material part of the consideration for this Agreement, the Nonprofit agrees to accept the Property on an “as is” and “where is” basis, with all faults, and without any representation or warranty, all of which Developer hereby disclaim, except for Developer’s Warranties. Except for Developer’s Warranties, no warranty or representation is made by Developer as to fitness for any particular purpose, merchantability, design, quality, condition, operation or income, compliance with drawings or specifications, absence of defects, absence of hazardous or toxic substances, hazardous materials, hazardous wastes, absence of faults, flooding, or compliance with laws and regulations including, without limitation, those relating to health, safety, and the environment. The Nonprofit acknowledges that it has entered into this Agreement with the intention of making and relying upon its own investigation of the physical, environmental, economic use, compliance, and legal condition of the Property and that the Nonprofit is now relying, and will not later rely, upon any representations and warranties made by Developer or anyone acting or claiming to act, by, through or under or on Developer’s behalf concerning the Property, except for Developer’s Warranties. The provisions of this Section 6.2 shall survive indefinitely any closing or termination of this Agreement.

6.3 Hazardous Substances. For purposes of this Agreement, “Hazardous Substances” means all of the following:
(a) Any substance, product, waste or other material of any nature whatsoever which is or becomes defined, listed or regulated as a “hazardous substance”, “hazardous material”, “hazardous waste”, “toxic substance”, “solid waste” or similarly defined substance, product, waste or other material pursuant to any Environmental Law (which Environmental Law shall include any and all regulations in the Code of Federal Regulations or any other regulations implemented under the authority of such Environmental Law), including all of the following and 808
9 their state equivalents or implementing laws: (i) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601, et seq. (“CERCLA”); (ii) the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et. seq.; (iii) those substances listed on the United States Department of Transportation Table (49 C.F.R. 172.01 and amendments thereto); (iv) The Resource Conservation and Recovery Act, 42 U.S.C. §6901 et. seq. (“RCRA”); (v) the Toxic Substances Control Act, 15 U.S.C. §2601 et. seq.; (vi) the Clean Water Act, 33 U.S.C. §1251 et. seq.; (vii) the Clean Air Act, 42 U.S.C. §7401 et. seq.; and (viii) any other Federal, state or local law, regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; or any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above laws or under any statutory or common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported decisions of a state or Federal court. (b) any petroleum, any petroleum by-products, waste oil, crude oil or natural gas;
(c) Any material, waste or substance that is or contains asbestos or polychlorinated biphenyls, or is radioactive, flammable or explosive; (d) Lead based paint and other forms of lead and heavy metals, mold, grease tanks, waste storage areas, batteries, light bulbs, refrigerators, freezers, appliances, heating and cooling systems, thermostats, electronic devices, electrical switches, gauges, thermometers, aerosol cans, cleaning products, formaldehyde, polyurethane, PCE, PFAs, pressure treated wood containing arsenic, and building materials containing PCBs or volatile organic compounds, and (e) Any other substance, product, waste or material defined or to be treated or handled as a Hazardous Substance pursuant to the provisions of this Agreement.

6.4 Environmental Law(s). For purposes of this Agreement, “Environmental Law” means any federal, state, or local laws, ordinances, rules, regulations, requirements, orders, formal guidelines, or permit conditions, in existence as of the Effective Date of this Agreement or as later enacted, promulgated, issued, modified or adopted, regulating or relating to Hazardous Substances, and all applicable judicial, administrative and regulatory judgments and orders and common law, including those relating to industrial hygiene, public safety, human health, or protection of the environment, or the reporting, licensing, permitting, use, presence, transfer, treatment, analysis, generation, manufacture, storage, discharge, release, disposal, transportation, investigation or remediation of Hazardous Substances. Environmental Laws shall include, without limitation, all of the laws listed under the definition of Hazardous Substances.

7. BROKERS. The Nonprofit and Developer each represent that no real estate broker has been retained by it in the donation of the Property or the negotiation of this Agreement. Each Party shall indemnify, hold harmless and defend the other Party from any and all claims, actions and liability for any breach of the preceding sentence, and any commission, finder’s fee, or similar charges arising out of the indemnifying Party’s conduct. 809
10 8. MISCELLANEOUS.

8.1 Interpretation. This Agreement has been negotiated at arm’s length, and each Party has had an opportunity to be represented by independent legal counsel in this transaction.

Accordingly, each Party hereby waives any benefit under any rule of law (including Section 1654 of the California Civil Code) or legal decision that would require interpretation of any ambiguities in this Agreement against the drafting Party.

8.2 Survival. All indemnities, covenants, representations and warranties contained in this Agreement shall survive the Closing.

8.3 Assignment. Except as provided below, neither Developer nor the Nonprofit may assign its rights or delegate its duties under this Agreement without the express written consent of the other, which consent may be withheld for any reason. No permitted assignment of any of the rights or obligations under this Agreement shall result in a novation or in any other way release the Developer from their obligations under this Agreement. a. The Nonprofit may transfer its interests hereunder, without the approval of City or Developer, to a limited partnership in which the managing general partner is an entity under the direct control of or under common control with the Nonprofit. b. The Nonprofit may transfer its interests hereunder to City at any time, without the approval of Developer. If (i) the Nonprofit elects not to acquire the Property, or (ii) the Nonprofit has not closed escrow on the acquisition of the Property on or before the Outside Closing Date, then the Nonprofit’s interests hereunder shall automatically be assigned to City, the Due Diligence Contingency Period shall be extended to [sixty (60)] days after the date of such assignment, and the Outside Closing Date shall be extended to [thirty (30)] days after the end of the revised Due Diligence Contingency Period. City shall not be liable for any obligations of the Nonprofit which arose prior to the date of assignment.

8.4 Successors. Except as provided to the contrary in this Agreement, this Agreement shall be binding on and inure to the benefit of the Parties and their successors and assigns.

8.5 Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. Venue for any dispute arising hereunder shall be in the Superior Court of Alameda County.

8.6 Integrated Agreement; Modifications. This Agreement contains all the agreements of the Parties concerning the subject hereof and cannot be amended or modified except by a written instrument executed and delivered by the Parties. There are no representations, agreements, arrangements or understandings, either oral or written, between or among the Parties hereto relating to the subject matter of this Agreement that are not fully expressed herein. In addition there are no representations, agreements, arrangements or understandings, either oral or written, between or among the Parties upon which any Party is relying upon in entering this Agreement that are not fully expressed herein. Any modifications to this Agreement must be in writing and signed by Developer, City and the Nonprofit. 810
11 8.7 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and the remainder of this Agreement shall remain in full force and effect unless the invalidated provision materially alters the consideration being exchanged between Developer and the Nonprofit. However, if any provision or part thereof of this Agreement is stricken in accordance with the provisions of this Section, but the stricken provision can be replaced with a legal, enforceable and valid provision in keeping with the intent of the Parties as expressed herein and which fairly restores the consideration lost as a result of the stricken provision or stricken part thereof, then this Agreement shall remain in full force and effect.

8.8 Notices. Any delivery of this Agreement, notice, modification of this Agreement, collateral or additional agreement, demand, disclosure, request, consent, approval, waiver, declaration or other communication that either Party desires or is required to give to the other Party or any other person shall be in writing. Any such communication may be served personally, or by nationally recognized overnight delivery service (i.e., FedEx) which provides a receipt of delivery, or sent by prepaid, first class mail, return receipt requested to the Party’s address as set forth below:

If to Nonprofit: Eden Housing
22645 Grand Street
Hayward, California 94541-5031
Attention:

If to Developer: TH East Ranch Dublin, LLC
3001 Bishop Drive, Suite 100
San Ramon, CA 94583
Attention: Tony Bosowski, Division President
And a copy to: TH East Ranch Dublin, LLC
3001 Bishop Drive, Suite 100
San Ramon, CA 94583
Attention: Legal Department
And a copy to: Jackson Tidus
2030 Main Street, 12th Floor
Irvine, CA 92614
Attention: Sonia Lister, Esq.

If to City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
Copy to City Attorney
Any such communication shall be deemed effective upon personal delivery or on the date of first refusal to accept delivery as reflected on the receipt of delivery or return receipt, as applicable. 811
12 Any Party may change its address by notice to the other Party. Each Party shall make a good faith effort to ensure that it will accept or receive notices that are given in accordance with this section and that any person to be given notice actually receives such notice.

8.9 Time. Time is of the essence to the performance of each and every obligation under this Agreement.

8.10 Reasonable Consent and Approval. Except as otherwise provided in this Agreement, whenever a Party is required or permitted to give its consent or approval under this Agreement, such consent or approval shall not be unreasonably withheld or delayed. If a Party is required or permitted to give its consent or approval in its sole and absolute discretion or if such consent or approval may be unreasonably withheld, such consent or approval may be unreasonably withheld but shall not be unreasonably delayed.

8.11 Further Assurances. The Parties shall at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to carry out the intent and purposes of this Agreement.

8.12 Waivers. Any waiver by any Party shall be in writing and shall not be construed as a continuing waiver. No waiver will be implied from any delay or failure to take action on account of any default by any Party. Consent by any Party to any act or omission by another Party shall not be construed to be a consent to any other subsequent act or omission or to waive the requirement for consent to be obtained in any future or other instance.

8.13 Signatures/Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any one of such completely executed counterparts shall be sufficient proof of this Agreement.

8.14 Date and Delivery of Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Parties intend that this Agreement shall be deemed effective, and delivered for all purposes under this Agreement, and for the calculation of any statutory time periods based on the date an agreement between Parties is effective, executed, or delivered, as of the Effective Date.

8.15 Representation on Authority of Parties. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each Party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such Party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms.

8.16 No Return of Property. Notwithstanding any other provision of this Agreement or any other agreement between any of the Parties hereto, once the Property is conveyed to and accepted by the Nonprofit, the Nonprofit shall have no right or obligation to return the Property to Developer under any circumstances. 812
13 8.17 Fees and Expenses. Except as otherwise provided herein, all expenses incurred as part of the transaction, including legal, professional, due diligence, advisory support, negotiation, etc., shall be borne by the party which incurred the fee or expense.

8.18 No Continued Marketing. From and after the execution of this Agreement, Developer shall not market or solicit offers for the Property from any third parties (including “backup” offers).
813
14 IN WITNESS WHEREOF, this Agreement is executed by the Parties as of the Effective Date.

Nonprofit:

By:___________________________________
By:___________________________________
Developer:

By:___________________________________
City:

By:___________________________________

814
Exhibit A

EXHIBIT A

LEGAL DESCRIPTION
That real property located in the City of Dublin, County of Alameda, State of California, described as follows:

815
Exhibit B

EXHIBIT B
Recording Requested by
and When Recorded, Return to:

APN 163-361-11
Exempt from Documentary Transfer Tax
Per Rev. & Tax. Code § 11911(a)
Consideration less than $100

GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, TH East Ranch Dublin, LLC, a California limited liability company (“Grantor”), hereby grants to ________________________________________ (“Grantee”), all that certain real property, together with any and all improvements and fixtures situated thereon and appurtenances thereto (collectively, the “Property”), located in the City of Dublin, County of Alameda, State of California and more particularly described in Attachment No. 1 hereto and incorporated in this Grant Deed by this reference.

1. Grantee agrees that the Property shall be bound by the following Restrictions and acknowledges that the failure to comply with any of the foregoing shall constitute a violation of the Restrictions:
(a) ____________________.
(b) ____________________.
(c) ____________________.

2. This Deed and the Restrictions shall run with the land and shall be binding upon Grantee and inure to the benefit of Grantor. References herein to “Grantor” shall include all successors, assigns and transferees of Grantor’s rights and remedies hereunder and at law or in equity for a breach of the Restrictions, and references herein to “Grantee” shall include all successors, assigns and transferees of Grantee’s right, title and interest in the Property and this Deed (including, without limitation, the Restrictions). This Deed and the Restrictions shall be enforceable by the rights and remedies set forth in Paragraph 2 hereof. 816
Exhibit B

3. The City of Dublin, a California municipal corporation (the “City”), is an intended third party beneficiary of the Restrictions, with rights to enforce the Restrictions.

4. Neither this Deed nor the Restrictions may be rescinded, modified or amended, in whole or in part, without the written consent of Grantor and City.

5. Whenever in this Deed a notice is to be given to Grantor or Grantee, it shall be in writing and delivered personally, by certified mail, or by reputable courier service which provides written evidence of delivery, addressed as follows: (i) as to Grantee, to the then current fee owner of the Property at the address to which real property tax statements for the Property are then currently to be mailed by the applicable governmental taxing authority, and (ii) as to Grantor, to___________________________________________, or (B) to such other address for Grantor that is identified as Grantor’s notice address in any instrument delivered to the then Grantee.
.

IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of ________________, 202__.

GRANTOR:

TH East Ranch Dublin, LLC,
a California limited liability company
By:___________________________________

GRANTEE:

By:__________________________________
By:__________________________________
CITY:

By:___________________________________
By:___________________________________
817
Exhibit B
Attachment No. 1 to Grant Deed

LEGAL DESCRIPTION
That real property located in the County of Alameda, State of California, described as follows:

818
Exhibit B
A notary public or other officer completing
this certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.

State of California )
) ss.

County of _____________ )
On_____________________, 20____ before me, _____________________, a Notary Public, in and for said State and County, personally appeared _______________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
_______________________________

NOTARY PUBLIC
819
Exhibit C
EXHIBIT “C”

OPTION AGREEMENT
[To Be Attached]
5428396.2
820
-1-

EXHIBIT F
ADU Regulatory Agreement
Attached
5405636.4







 








821
Second Unit Reg Agmt / Name / Date 1 Rev 12/2017
requested by and when
recorded mail to:

City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Clerk

EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s Use
City Clerk Department\Agreements/Contracts\0600-25
Development: East Ranch
Owner:

APN:

SECONDARY UNIT REGULATORY AGREEMENT AND

DECLARATION OF RESTRICTIVE COVENANTS
Owner: Name
Property Address: Address, Lot #
Dublin, CA 94568
Name of Development: East Ranch
This Secondary Unit Regulatory Agreement and Declaration of Restrictive Covenants (this "Agreement”) is entered into effective as of Date (“Effective Date”) by and between the City of Dublin, a public body, corporate and politic (“City”) and Name (the “Owner”). City and Owner are hereinafter collectively referred to as the “Parties.” Recitals
A. Owner is the owner of certain real property that contains a secondary dwelling unit, which is located in the City of Dublin, County of Alameda, State of California and more particularly described in Exhibit A attached hereto and incorporated herein by reference (the “Property”). The Property is located within a residential development project area (the “Project”) that was subject to the City’s Inclusionary Zoning Regulations (Chapter 8.68 of the Dublin Municipal Code), which requires that developments consisting of 20 or more residential units must include a specified percentage of units that are subject to affordability restrictions set forth in a binding agreement recorded against the property.

B. The developer of the Project chose to satisfy its obligations through among other things the construction of secondary units on some of the residential lots in the Project, including on the Property, and requiring the purchasers to enter into regulatory 822
Second Unit Reg Agmt / Name / Date 2 Rev 12/2017
agreements restricting the rents charges for the secondary units to affordable rents, in accordance with the Inclusionary Zoning Regulations.

C. The Parties have agreed to enter into and record this Agreement in order to satisfy the requirements described in the foregoing Recitals. The purpose of this Agreement is to regulate and restrict the occupancy and rents of the Property’s Restricted Unit (defined below) for the benefit of the occupants. The covenants in this Agreement are intended to run with the land and be binding on Owner and its successors and assigns for the full term of this Agreement.

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the Parties hereby agree as follows:

1. Definitions. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits. “Applicable Income Level” means the annual gross income level specified below:
 Low-income: 50% to 80% of Area Median Income.
"Area Median Income" or "AMI" means the area median income for Alameda County, California, adjusted for household size, published periodically by the California Department of Housing and Community Development (“HCD”) in Section 6932 of Title 25 of the California Code of Regulations (“Regulations”) or successor provision published. "Eligible Household" means a household whose gross income does not exceed the Applicable Income Level and that is otherwise eligible to rent a Restricted Unit. "Qualifying Rent" means a monthly rent which does not exceed one-twelfth of thirty percent (30%) of the Applicable Income Level adjusted for household size, less a utility allowance as specified by the Housing Authority of Alameda County. "Restricted Unit" means the secondary dwelling unit on the Property that is depicted in Exhibit B and that is reserved for occupancy at a Qualifying Rent in accordance with and as set forth in Section 2.

2. Use and Affordability Restrictions. Owner represents and warrants that it has not entered into any agreement that would restrict or compromise its ability to comply with the occupancy and affordability restrictions set forth in this Agreement, and Owner covenants that it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City.

2.1 Affordability Requirements. The Restricted Unit, if it is rented, shall be rented at not more than Qualifying Rent and occupied by Eligible Households. Owner shall ensure that language is contained in all leases and contracts with tenants executed by Owner that prohibits subleasing of the Restricted Unit. 823
Second Unit Reg Agmt / Name / Date 3 Rev 12/2017

2.2 Rents for Restricted Units. Rent charged to, and paid by, a tenant for Restricted Units shall be not more than Qualifying Rent. Notwithstanding the foregoing, no tenant qualifying for a Restricted Unit shall be denied continued occupancy of the Restricted Unit because, after admission, such tenant’s adjusted income increases to exceed the qualifying limit for such Restricted Unit.

2.3 Non-Discrimination; Compliance with Fair Housing Laws. Owner shall not discriminate against persons or groups of persons on account of race, color, religion, creed, sex, sexual orientation, marital status, familial status, ancestry or national origin in the lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Owner or any person claiming under or through Owner establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Property. Owner shall each ensure that language prohibiting such discrimination shall be included in all deeds, leases and contracts executed by Owner or its successors and assigns with respect to the Property. Owner shall comply with state and federal fair housing laws in the marketing and rental of the units in the Property.

3. Reporting Requirements.

3.1 Tenant Verification. Owner or its authorized agent shall obtain from each household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter, written documentation verifying each tenant’s eligibility containing all of the following, including additional documentation as City may reasonably require (collectively hereinafter “Written Verification”):
(a) Number of people in the household; and
(b) Total household income.

Owner or its authorized agent shall retain Written Verification for not less than three (3) years, and upon City’s request, shall make the Written Verification available for inspection by City and shall provide copies of the Written Verification to City. Owner or its authorized agent may require each Eligible Household to certify the Written Verification.

3.2 Annual Report; Inspections. Owner shall submit an annual report (“Annual Report”) to the City in conformity with the requirements of Section 8.68.050.B of the Inclusionary Zoning Regulations, together with a certification that the Property is in compliance with the requirements of this Agreement. The Annual Report shall, at a minimum, include the following information: (i) identification of the Restricted Unit by address; (ii) the monthly rents charged and proposed to be charged; (v) the number of people residing in the unit; and (vi) the total household income of residents. Depicted in Exhibit C. Upon City’s request, Owner shall include with the Annual Report, a copy of the Written Verification Owner obtained pursuant to Section 3.1 above, and such additional information as City may reasonably request from time to time in order to show compliance with this Agreement. Owner shall permit representatives of City to enter and inspect the 824
Second Unit Reg Agmt / Name / Date 4 Rev 12/2017
Property during reasonable business hours in order to monitor compliance with this Agreement upon 24 hours advance notice of such visit to Owner.

4. Term of Agreement.

4.1 Term of Restrictions. This Agreement shall remain in effect for 55 years from the original owner’s date of signing, hereby understood by the Parties to be DATE.

4.2 Effectiveness Succeeds Conveyance of Property. This Agreement shall remain effective and fully binding for the full term hereof regardless of any sale, assignment, transfer, or conveyance of the Property, unless this Agreement is terminated earlier by City in a recorded writing.

4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to execute and record appropriate instruments to release and discharge the terms of this Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Agreement in accordance with its terms.

5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby subjects its interest in the Property to the covenants and restrictions set forth in this Agreement. The City and Owner hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Owner and City, regardless of any sale, assignment, conveyance or transfer of the Property or any part thereof or interest therein. Each reference in this Agreement to a specifically named party shall be deemed to mean a reference to the successor of each such Party. Any successor-in-interest to Owner, including without limitation any purchaser, transferee or lessee of the Property (other than the tenants of the individual dwelling units within the Property) shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement.

Each and every contract, deed, ground lease or other instrument affecting or conveying the Property or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease or other instrument. If any such contract, deed, ground lease or other instrument has been executed prior to the date hereof, Owner hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby.

Owner agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property in favor of City.

6. Property Management; Repair and Maintenance; Marketing. 825
Second Unit Reg Agmt / Name / Date 5 Rev 12/2017

6.1 Management Responsibilities. Owner shall be responsible for all management functions with respect to the Property, including without limitation the selection of tenants, certification and recertification of household income and eligibility, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. Except as City may otherwise agree in writing, City shall have no responsibility for management or maintenance of the Property. The contracting of management services to a management entity shall not relieve Owner of its primary responsibility for proper performance of management duties.

6.2 Intentionally Omitted.

6.3 Repair, Maintenance and Security. Throughout the term of this Agreement, Owner shall at its own expense, maintain the Property in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations. Without limiting the foregoing, Owner agrees to maintain the Property (including without limitation, the residential units, common areas, landscaping, driveways and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property.

Owner shall prevent and/or rectify any physical deterioration of the Property and shall make all repairs, renewals and replacements necessary to keep the Property and the improvements located thereon in good condition and repair.

6.4 Intentionally omitted.

6.5 Intentionally omitted.

6.6 Intentionally omitted.

6.7 Intentionally omitted.

6.8 Property Damage or Destruction. If any part of the Property is damaged or destroyed, Owner shall repair or restore the same as soon as practicable, consistent with the occupancy and rent restriction requirements set forth in this Agreement.

7. Recordation; No Subordination. This Agreement shall be recorded in the Official Records of Alameda County. Concurrently with the execution and recordation of this Agreement, Owner and City shall further execute and record a Performance Deed of Trust, Assignment of Rents, Fixture Filing and Security Agreement, in the form provided by City (the “Performance Deed of Trust”). Owner hereby represents, warrants and covenants that with the exception of easements and restrictions of record, absent the written consent of City, this Agreement and the Performance Deed of Trust shall not be subordinated in priority to any lien (other than those pertaining to taxes or assessments), encumbrance, or other interest in the Property. If at the time this Agreement and the Performance Deed of Trust are recorded, any interest, lien, or encumbrance has been recorded against the Property in position superior to this Agreement and the Performance 826
Second Unit Reg Agmt / Name / Date 6 Rev 12/2017
Deed of Trust, upon the request of City, Owner hereby covenants and agrees to promptly undertake all action necessary to clear such matter from title or to subordinate such interest to this Agreement consistent with the intent of and in accordance with this Section, and to provide such evidence thereof as City may reasonably request. Subordination of this Agreement and the Performance Deed of Trust shall require a fee to be paid to the City at the close of escrow. Fee amounts may adjust annually.

8. Transfer and Encumbrance.

8.1 Restrictions on Transfer. During the term of this Agreement, except as permitted pursuant to this Agreement, Owner shall not make or permit the occurrence of any conveyance, sale or lease (except as to individual dwelling units) of the Property without the prior written consent of the City; provided however City shall not withhold its consent to the sale, transfer or other disposition of the Property, in whole or in part, provided that (i) the transferee expressly assumes all obligations of Owner imposed by this Agreement; (ii) the transferee executes all documents reasonably requested by the City with respect to the assumption of the Owner’s obligations under this Agreement; and (iii) the Owner has paid the City an Affordable Home Ownership Fee to cover the City’s costs associated with the transaction. The amount of the Affordable Home Ownership Fee amount shall be as established from time to time by the City Council.

8.2 Encumbrances. Owner agrees to use best efforts to ensure that any deed of trust secured by the Property shall contain each of the following provisions: (i) the holder of such deed of trust shall use its best efforts to provide to City a copy of any notice of default issued to Owner concurrently with provision of such notice to Owner (provided however, the failure to do so shall not impair such holder’s rights and remedies); and (ii) City shall have the reasonable right, but not the obligation, to cure any default by Owner within the same period of time provided to Owner for such cure, extended by an additional thirty (30) days.

8.3 Mortgagee Protection. No violation of any provision contained herein shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon all or any portion of the Property, and the purchaser at any trustee’s sale or foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this Agreement from and after such trustee’s sale or foreclosure sale. Promptly upon determining that a violation of this Agreement has occurred, City shall give written notice to the holders of record of any mortgages or deeds of trust encumbering the Property that such violation has occurred.

9. Default and Remedies.

9.1 Events of Default. Owner’s failure to cure any default in performance of Owner’s obligations under this Agreement within thirty (30) days following City’s delivery of a notice of default shall constitute an Event of Default hereunder and shall entitle the City to proceed with any of the remedies described below. Notwithstanding the foregoing, if the default is such that it is not reasonably capable of being cured within thirty (30) days, 827
Second Unit Reg Agmt / Name / Date 7 Rev 12/2017
an Event of Default shall not arise hereunder if Owner commences to cure the default within 30 days and thereafter prosecutes the curing of such default to completion with due diligence and in good faith, but in no event later than ninety (90) days after receipt of City’s notice of default or such longer period as City may agree to in writing. (a) Bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory relief; (b) For violations of obligations with respect to rents for Restricted Units, impose as liquidated damages a charge in an amount equal to the actual amount collected in excess of the Qualifying Rent;
(c) Pursue any other remedy allowed at law or in equity.

9.2 Remedies Cumulative. Each of the remedies provided herein is cumulative and not exclusive. The City may exercise from time to time any rights and remedies available to it under applicable law or in equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this Agreement.

10. Indemnification. Owner shall defend (with counsel approved by City), indemnify and hold the City and its officials, officers, directors, employees, and agents (collectively, the "Indemnified Parties") harmless from and against any and all losses, damages, liabilities, claims, demands, judgments, actions, court costs, and legal or other expenses (including reasonable attorneys' fees) arising from or in connection with or in any way related to: (i) Owner’s performance or failure to perform any obligation required by this Agreement; or (ii) any act or omission by Owner, or any of Owner’s contractors, subcontractors, agents, employees, licensees or suppliers related to the Property, except to the extent arising from the gross negligence or willful misconduct of such Indemnified Party. The provisions of this Section shall survive the expiration or earlier termination of this Agreement.

11. Miscellaneous.

11.1 Amendments. This Agreement may be amended or modified only by a written instrument signed by both Parties.

11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay by City at any time to require strict performance by Owner of any provision of this Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election.

11.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their 828
Second Unit Reg Agmt / Name / Date 8 Rev 12/2017
respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by:
(a) personal delivery, in which case notice is effective upon delivery; (b) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt; (c) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service;
(d) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient’s time or on a nonbusiness day.

City:

City of Dublin
Attn: City Clerk
100 Civic Plaza
Dublin, CA 94568
[email protected]
Owner:

Buyers
Address
Dublin, CA 94568

11.4 Further Assurances. The Parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be necessary to carry out the intent of this Agreement.

11.5 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another.

11.6 Action by the City. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City Manager or by any person who shall have been designated by the City Manager, without further approval by the City Council.

11.7 Non-Liability of City and City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Owner or any successor in interest, in the event of any default or breach by the City, or for any amount of money 829
Second Unit Reg Agmt / Name / Date 9 Rev 12/2017
which may become due to Owner or its successor or for any obligation of City under this Agreement.

11.8 Headings; Construction. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party.

11.9 Time is of the Essence. Time is of the essence in the performance of this Agreement.

11.10 Governing Law. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law.

11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action.

11.12 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.

11.13 Entire Agreement; Exhibits. This Agreement contains the entire agreement of Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements between the Parties with respect thereto. The exhibits attached hereto are incorporated herein by this reference.

11.14 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.

SIGNATURES ON FOLLOWING PAGE.
830
Second Unit Reg Agmt / Name / Date 10 Rev 12/2017
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above.

OWNER
______________________________
Buyer
______________________________
Buyer

CITY OF DUBLIN
_______________________________
Linda Smith, City Manager
ATTEST:
___________________________________
City Clerk
SIGNATURES MUST BE NOTARIZED.
831
Notary Acknowledgement
[Insert Here]
832
Exhibit A

LEGAL DESCRIPTION
833
Exhibit B
MAP
834

EXHIBIT C

ANNUAL SURVEY SAMPLE
835
5431268.2
836

STAFF REPORT

CITY COUNCIL

Agenda Item 8.3
DATE: April 18, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Linda Smith, City Manager
SUBJECT: East Ranch Inclusionary Housing and Community Facilities District Proposals Prepared by: Amy Million, Principal Planner and Kan Xu, Senior Civil Engineer
EXECUTIVE SUMMARY:

The Applicant, TH East Ranch Dublin, LLC (Trumark Homes), submitted a request for the City Council’s consideration of an alternative method of complying with the Inclusionary Zoning Regulations and the formation of a Facilities Community Facilities District (CFD) to finance the construction of public improvements within the East Ranch development project. The City Council will receive a presentation from the Applicant and provide feedback regarding the affordable housing proposal and formation of a Facilities CFD for improvements. No formal action will be taken, nor will approvals be granted, for the project at this meeting.

STAFF RECOMMENDATION:

Receive the presentation and provide feedback on the Applicant’s proposal to satisfy the requirements of the Inclusionary Zoning Regulations and formation of a Community Facilities District to fund the construction of public facilities.

FINANCIAL IMPACT:

All costs associated with preparing this report are borne by the Applicant. The Applicant’s inclusionary housing proposal includes the payment of in-lieu fees for 25 units to satisfy 35% of the affordable requirement. Based on the current in-lieu fee of $228,994.42/unit this payment would be $5,724,860.50. In addition, as a part of the implementation of the East Ranch development project, a Facilities Community Facilities District (CFD) is proposed for the purpose of financing the acquisition and construction of public improvements within the development, including two neighborhood parks.

Attachment 3
837

DESCRIPTION:

Background
The 165.5-acre East Ranch development project site is an undeveloped parcel located within the Fallon Village area of the Eastern Dublin Specific Plan (EDSP). The site is located north of Interstate 580, east of Fallon Road and the Jordan Ranch development, south of the Positano development, and adjacent to the City’s eastern boundary, as shown in Figure 1 below. The project site generally increases in elevation from south to north with knolls and hilly terrain in the northeastern portion of the site.

Figure 1. Vicinity Map
On December 7, 2021, the City Council introduced a Planned Development Ordinance, approved Vesting Tentative Tract Map No. 8563, and approved a Heritage Tree Removal Permit (Resolution No. 140-21). On December 21, 2021, the City Council approved a Planned Development Zoning Stage 2 Development Plan (Ordinance No. 11-21).

On December 23, 2021, pursuant to Elections Code Section 9238, subd. (b)(2)(B), a proposed summary of a referendum against Planned Development Zoning Ordinance No. 11-21 was submitted. To qualify, the referendum petition needed to contain signatures of at least 10% of the registered Dublin voters or a minimum of 3,439 signatures. The referendum petition was determined to be sufficient for filing and was delivered to the Alameda County Registrar of Voters on January 27, 2022 for signature examination. The Registrar of Voters determined that the petition contained the minimum number of valid signatures necessary to qualify the referendum for consideration by the City Council.
838

On March 1, 2022, the City Council accepted the City Clerk’s Certificate of Petition certifying the sufficiency of the referendum petition. At the request of TH East Ranch Dublin, LLC, the Applicant, the City Council also repealed Ordinance No. 11-21 (Ordinance No. 02-22). The City Council took this action instead of asking the voters to consider Ordinance No. 11-21.

The Applicant has correctly pointed out that the Housing Accountability Act (HAA) (Government Code Section 65589.5) expressly precludes the City from requiring a rezone when a project is consistent with the General Plan. This rule applies even when the existing zoning is inconsistent with the General Plan, as is the case here.

The Vesting Tentative Tract Map No. 8563 was not subject to the referendum and, therefore, remains in effect. On May 3, 2022, the City Council approved modifications to Condition of Approval Nos. 6 and 7 of the Vesting Tentative Map (Resolution No. 40-22). The request was submitted by the Applicant pursuant to the HAA and amended the two conditions of approval to comply with the objective standards of the City’s Inclusionary Zoning Regulations. As a result, the applicant is able to pursue a project that fully complies with all objective City standards to be processed under the HAA.

On March 14, 2023, the Planning Commission approved the Site Development Review Permit for six neighborhoods that includes the construction of 459 conventional single-family homes, 14 zero-lot-line single-family homes, 100 townhomes, and a landscape master plan.

Project’s Relationship to State Housing Laws and Policy The Applicant designed the project under state housing laws which limit the City’s discretion on the project. The HAA, the Housing Crisis Act of 2019 (Senate Bill 330), and various other state laws prevent or restrict the ability to deny projects that are consistent with applicable, objective standards in effect at the time when the application is deemed complete. The Applicant designed the East Ranch development project to be consistent with the applicable objective standards of the General Plan and Eastern Dublin Specific Plan, the existing Planned Development Zoning Stage 1 Development Plan (Ordinance No. 32-05 and Ordinance No. 45-08), and other policies, as a means of limiting the City’s discretion.

The HAA prohibits the City from denying applications for such projects absent an immediate threat to public health or safety that cannot be mitigated, as determined by objective standards that were in place when the application was submitted. In essence, the HAA provides that once a city designates a site for housing in its General Plan, it must allow that housing to be developed except in very limited circumstances involving immediate threats to public health and safety.

Current Request
The Applicant requests the City Council consider an alternative method of compliance with the Inclusionary Zoning Regulations and the formation of a Community Facilities District (CFD) for the purpose of financing the acquisition and construction of public improvements within the development (Attachment 1). The Applicant’s requests are exceptions to the objective standards of the City and therefore do not have to be approved under the HAA. These requests are subject to discretion of the City Council.
839

Analysis
Inclusionary Zoning
The City’s Inclusionary Zoning Regulations (DMC Chapter 8.68) require all new residential projects of 20 units or more to construct 12.5% of the total number of units as affordable units.

The units shall reflect the range of number of bedrooms provided in the project as a whole but may be smaller in size. The proposed East Ranch project generates a requirement to provide 72 affordable units (i.e., 573 units x 12.5% = 72 units).

The East Ranch project is currently required to comply with the Inclusionary Zoning Regulations by conforming to the objective standards in that Ordinance summarized as follows:
 In-Lieu Fee: 40% of the total number of affordable units within the development (29 units) may be satisfied via payment of an “In-Lieu Fee” as provided by the City’s Impact Fee Schedule.
 On-site Below-Market-Rate Units: 60% of the total number of affordable units within the development (43 units) shall be developed on site, with 40% of those (17 units) for lowincome households and 60% of those (26 units) for moderate-income households.  Below-Market-Rate Units shall be dispersed throughout all the neighborhoods, in rough proportion to the number of market rate units in each neighborhood and constructed concurrently with the market rate units in the same neighborhood.  Execution of an agreement imposing appropriate resale controls and/or rental restrictions on the affordable units shall be required in accordance with DMC Chapter 8.68.  The Applicant/Developer shall implement and conform to all objective requirements of DMC Chapter 8.68.

Pursuant to DMC Section 8.68.040.E, a developer may request an exception to the construction of

12.5% of the total number of dwelling units as affordable units. All exceptions require City Council approval, which shall be obtained at or prior to the last discretionary approval for the project, in this case the formation of a CFD.

The Applicant has proposed an alternate method of compliance with the Inclusionary Zoning Regulations. This alternate approach to affordable housing is an exception to the objective standards of the Inclusionary Zoning Regulations, and thus the HAA does not restrict the City Council’s discretion when considering this exception. The proposed alternate affordable housing approach is similar to the alternate method of compliance previously reviewed and approved by the City Council with the adoption of Ordinance No. 11-21 in December 2021. The Applicant affordable housing proposal is summarized as follows:
 Payment of in-lieu fees for 18 units (to satisfy 35% of the affordable requirement). Based on the current in-lieu fee of $228,994.42/unit, this payment would be $5,724,860.50.  Construction of 18 deed-restricted units at the moderate-income level. These units would consist of 14 zero-lot-line single-family units and 4 townhomes (to satisfy 25% of the affordable requirement).
 Dedication of the two-acre Semi-Public site for a future affordable housing project to satisfy the requirement for 36 units (to satisfy 40% of the affordable requirement). 840

 Construction of 50 deed-restricted accessory dwelling units at the low-income level.

Staff had recommended approval of the similar proposal in December 2021.

Community Facilities District
A CFD is a special financing district that provides a mechanism for funding specific facilities and services as authorized through the Mello-Roos Community Facilities Act of 1982 (Gov. Code, Section 53311 et seq.). The Act allows any county, city, special district, school district, or joint powers authority to establish a CFD in order to levy special taxes for the purpose of financing public facilities and services. The special taxes can then be used to pay off any bonds issued to fund facilities and improvements, or as an ongoing revenue source to pay for certain services.

A “Facilities CFD” can be used to fund a range of public facilities and is generally applicable for any real or other tangible property with an expected useful life of five or more years that will be owned and operated by the local agency. Examples of authorized improvements include but are not limited to parks, roads, bridges, and utility systems. A Facilities CFD is typically financed through the issuance of bonds, which are repaid over time by the property owners within the district.

A “Services CFD” can be used (even in conjunction with a Facilities CFD) to fund certain ongoing services like police protection, fire protection and suppression, ambulance and paramedics, maintenance and lighting of parks, parkways, roads, and open space, flood and storm protection, and environmental cleanup and remediation. The creation of both CFDs requires approval of the local agency. Revenue to operate a Services CFD is generated through assessments levied on the properties within the district.

The Vesting Tentative Tract Map Condition of Approval No. 127 (Resolution No. 140-21) notes that the Applicant cannot object to the formation of any CFD. The Applicant is now seeking approval of the first final map and has started the Services CFD formation process by providing an initial financing proposal for Staff review. The Services CFD will fund maintenance of the public streets, two public parks, and the storm drain systems within the East Ranch development. Based on the City’s current maintenance costs for similar items throughout the City, a contingency, and administration costs, the proposed assessment on each unit within the district is approximately $1,119 per year for maintenance of public infrastructure (Attachment 2). The adjusted property tax to include the Services CFD will equal approximately 1.43% of the estimated home price.

The Applicant is requesting the City Council’s consideration of the formation of a Facilities CFD to fund construction of certain public infrastructure and development impact fees associated with the project, including grading, street improvements, storm drain, water, and sewer facilities. The inclusion of water and sewer facilities within the Facilities CFD will require a separate Joint Community Facilities Agreement between the Applicant, the City, and Dublin San Ramon Services District. The Applicant’s proposed annual CFD special tax rate (Services CFD and Facilities CFD), when combined with all other property taxes would, on average, equal approximately 1.70% of the estimated home price. The bonding capacity of the Facilities CFD is estimated to yield approximately $38.5 million in net proceeds based on the special tax rate, assuming annual escalation of 2% per year and an interest rate on the bonds of 5.50% (net of typical costs for underwriter discount, reserve funds, capitalized interest, and incidental expenses). The proposed 841

Facilities CFD would be structured to consist of six special tax zones, one for each of the various lot/product types, as shown in the following table.

Zone # Product Type Annual Special Tax (per unit)
Zone 1 65’ x 100’ lots $7,955
Zone 2 55’ x 95’ lots $6,039
Zone 3 50’ x 110’ lots $6,388
Zone 4 49.5’ x 80’ lots $4,776
Zone 5 Cluster lots $3,959
Zone 6 Townhome units $1,904
For additional context, the City of Dublin currently has two CFDs, Dublin Crossing CFD No. 2015-1 and Dublin Crossing CFD No. 2017-1, which were established as part of the Boulevard development to fund the acquisition and construction of infrastructure and to fund the maintenance of a portion of the infrastructure costs constructed in the development. The Dublin Crossing Facilities CFD (No. 2015-1) is funding eligible improvements constructed by the developer, including backbone street improvements, storm drain improvements, sewer and water improvements, landscaping, fencing, as signage, as well as various development-related fees. The Dublin Crossing Services CFD (No. 2017-1), on the other hand, is limited to only maintenance of landscaping within public street medians and maintenance of streetlights within the public street rights-of-way in the Boulevard development. Typical per-unit assessments for Fiscal Year 2022-23 for the Dublin Crossing Facilities CFD range from $3,760 to $5,603, and for the Dublin Crossing Services CFD range from $46.24 to $69.34, depending on product type and unit square footage. It is difficult to compare CFD tax rates between projects as a variety of factors can impact this rate, such as property value, property type, use of property, number of units within the district boundary, capital improvement scope, maintenance scope, duration of tax, and changes to tax rates over time, which all come together to determine assessment rates within a district.

Conclusion
The City Council is asked to receive a presentation and provide feedback regarding the Applicant’s proposal for an alternative method to satisfy the requirements of the Inclusionary Zoning Regulations and the formation of a Facilities Community Facilities District for the construction and acquisition of improvements.

ENVIRONMENTAL REVIEW:

The City Council is receiving a presentation and providing feedback on the Applicant’s affordable housing proposal and the formation of a Facilities CFD and no formal action will be taken at this time. This discussion is not subject to the requirements of the California Environmental Quality Act (CEQA) as it does not have the potential to result in a direct physical change in the environment or a reasonably foreseeable indirect change in the environment and, thus, does not meet the definition of a project under CEQA Guidelines Section 15378.

STRATEGIC PLAN INITIATIVE:

None.
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NOTICING REQUIREMENTS/PUBLIC OUTREACH:

A copy of this Staff Report was provided to the Applicant and the City Council Agenda was posted.

ATTACHMENTS:
1) Trumark Letter dated March 31, 2023
2) Maintenance Cost Estimate
843

STAFF REPORT

CITY COUNCIL

Agenda Item 6.1
DATE: August 15, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Linda Smith, City Manager
SUBJECT: Dublin Municipal Code Amendment to Section 8.84.140.I “Real Estate Directional Signs” (PLPA-2023-00017)
Prepared by: Crystal De Castro, Senior Planner
EXECUTIVE SUMMARY:

The City Council will consider City-initiated amendments to the Dublin Municipal Code in response to complaints related to Real Estate Directional Signs (aka “open house signs”). The City Council will consider adopting amendments to Dublin Municipal Code Section 8.84.140.I “Real Estate Directional Signs” to increase the number of open house signs allowed for each property, modify the minimum sidewalk clearance in conformance with the Building Code, require signs to be removed by 5:30 p.m., and clarify the City’s enforcement authority.

STAFF RECOMMENDATION:

Conduct the public hearing, deliberate, and waive the reading and INTRODUCE the Ordinance Approving Amendments to Dublin Municipal Code Section 8.84.140.I “Real Estate Directional Signs.”
FINANCIAL IMPACT:

None.

DESCRIPTION:

Background
Pursuant to the Dublin Municipal Code (DMC) Chapter 8.84, a Real Estate Directional Sign is a “temporary sign advertising an open house for a property listed for sale, lease, or rent.” State and federal law grants property owners, or their agents, rights to reasonably display Real Estate Directional Signs (California Civil Code Section 713 and 712). The City has exercised its right to regulate these signs to implement its interest in community aesthetics and public safety per DMC Section 8.84.140.I, as it relates to the number of signs, display times, sign size, placement, and manner of placement. The current ordinance allows four open house signs per property which are 844

permitted on holidays, Saturdays, Sundays, and one agent tour day each week from 10:00 a.m. through sunset. The regulations also allow no more than eight open house signs at any intersection and no more than one sign per property being advertised.

Over the past year, Staff has received complaints from several real estate agents related to code violations. Complaints are generally received from agents reporting fellow agents, stating their non-compliant competitors are gaining unfair business advantage over the law-abiding agents.

Other agents have expressed concern that the DMC does not allow enough signs to direct buyers to an open house that is difficult to find. Violations arise when real estate agents either do not know the details of the City regulations or choose to ignore the requirements. A vast majority of complaints are concentrated within eastern Dublin where extra signs are displayed on occasion to direct potential buyers to an open house. In addition, realtors also occasionally fail to remove signs after the allowed timeframe.

The City has made a concerted effort over the past year to bring greater awareness to Real Estate Directional Sign regulations. This has included proactive, regular enforcement on weekends, as well as education and outreach to real estate agents working within the City of Dublin. Staff has found that education and enforcement resulted in fewer violations when realtors were contacted directly. Staff has also reached out to the Bay East Association of Realtors to further education efforts. The Association provides educational programs and summarizes and publishes the City’s open house sign regulations (along with over thirty other local municipalities) on its website to serve as a resource to its members. The website can be viewed by visiting https://bayeast.org/community-info-statistics/.

The proposed amendments to the DMC are intended to further address these concerns while balancing economic development and aesthetic interests of the community. Staff did outreach to the Bay East Association of Realtors for feedback regarding the proposed amendments. The Association was in support of these amendments.

Analysis
Staff recommends the following amendments to Section 8.84.140.I where underlined text is proposed to be added and text with a strikethrough is proposed to be deleted. The draft Ordinance with the proposed amendments is included as Attachment 1 to this Staff Report.

Proposed Amendment: Increase the number of signs allowed from four signs to six signs.

A Real Estate Directional Sign Comparison Table (Attachment 2) shows the number of open house signs allowed by each of the surrounding Tri-Valley cities vary while most of the jurisdictions require sign removal by sunset. Based on code enforcement information for Dublin, an average of six signs are typically provided by realtors when a property is difficult to find. Therefore, Staff recommends an increase to the maximum number of allowed signs. Section 8.84.140.I.1 is proposed to be amended as follows:

1. Be limited to a maximum of four six (4) (6) open house signs for each property being advertised for sale.

Proposed Amendment: Modify public access width allowed to 36 inches and clarify signs are not 845

allowed in the medians.

The minimum sidewalk clearance is changed from 32 inches to 36 inches in accordance with the Building Code. Additional text is added to clarify signs are not allowed in medians. Section

8.84.140.I.2 is proposed to be amended as follows:

2. Not be located within the public right-of-way where such signs endanger the safety of persons or property, disrupt the normal flow of vehicle or pedestrian traffic, block views of such traffic, block ingress into or egress from any residence or place of business, or restrict a sidewalk width to less than thirty-two (32) thirty-six (36) inches. Notwithstanding the above, signs may be placed in a landscaping strip between the roadway and the sidewalk. Signs are not allowed in medians.

Proposed Amendment: Clarify City authority to issue fines to enforce violation of the ordinance.

Text is added to include the City’s authority to issue fines for violations. Section 8.84.140.I.9 is proposed to be amended as follows:

9. Be subject to the City’s authority to issue fines and to assess all necessary costs for the time spent by City personnel, or its authorized agents, to remove and enforce illegally located open house signs in violation of Section 8.84.140.I. In cases of repeated violations of requirements dealing with open house signs, rights to locate new open house signs in the City shall be forfeited.

Proposed Amendment: Modify the removal time for open house signs.

At the Planning Commission meeting on July 11, 2023, public comments were raised regarding concerns with open house signs left out after the allowed timeframe. After further review and discussions with the Bay East Association of Realtors, Staff found that open houses typically end by 4:00 p.m.; therefore, Staff proposes the removal time be changed from sunset to 5:30 p.m.

Section 8.84.140.I.8 is proposed to be amended as follows:

8. Be permitted on holidays, Saturdays, Sundays, and one agent tour day each week from 10:00 a.m. through sunset to 5:30 p.m.

Upon approval of the ordinance, Staff will enhance the amount of education materials/brochure on various media platforms. Staff will also provide an educational brochure along with a written warning to first time offenders, efficiently combining education and enforcement actions.

Consistency with General Plan, Specific Plans, and Zoning Ordinance The proposed amendments to the Dublin Municipal Code are consistent with the Dublin General Plan and all applicable Specific Plans and the Zoning Ordinance as the amendments bring greater clarity and consistency to existing zoning regulations which implement the General Plan and Specific Plans. Specifically, General Plan Goal 11.6.1 identifies that the City maintain smallbusiness-friendly development services and Implementation Measure 11.6.1.B.3 to “implement permit/inspection process refinements: improve City procedures, as appropriate.” 846

Planning Commission Review
On July 11, 2023, the Planning Commission held a public hearing to consider the proposed amendments and make a recommendation to the City Council. As part of the public hearing, three members of the public provided comments, including two real estate agents and a representative from the Bay East Association of Realtors. Following the public hearing, the Planning Commission adopted Resolution No. 23-04 (Attachment 3), recommending the City Council approve the proposed amendments. The Planning Commission further recommended adding a provision to differentiate the number of signs permitted for major and residential intersections. The Sign Regulations (Section 8.84.140.I.5) currently permits no more than eight (8) open house signs at any intersection. The Planning Commission recommended modifying this provision to further limit the number of open house signs residential intersections to four signs.

The number of open house signs at intersections has not previously presented any complaints or enforcement issues and the number of signs that can be displayed at any given intersection is also preempted by requirements to provide an accessible path of travel and motorist visibility. Staff resources to enforce open house signs on weekends is limited. The proposed amendment would require additional Staff time dedicated to monitoring intersections, as well as time required to prepare maps identifying intersection types and to educate the real estate agent community about the different intersection types. Therefore, Staff does not recommend this amendment to the Sign Regulations. However, if the City Council determines this amendment is necessary, the City Council can direct Staff to include this provision in the Ordinance amending the Sign Regulations.

ENVIRONMENTAL DETERMINATION:

The California Environmental Quality Act (CEQA), together with State Guidelines and City of Dublin CEQA Guidelines and Procedures require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. The proposed Zoning Ordinance Amendments are exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that the amendments will not have a significant effect on the environment and are not subject to CEQA review.

STRATEGIC PLAN INITIATIVE:

None.

NOTICING REQUIREMENTS/PUBLIC OUTREACH:

In accordance with State law, a public notice was published in the East Bay Times and posted at several locations throughout the City. The City Council Agenda was posted.

ATTACHMENTS:
1) Ordinance Approving Amendments to Dublin Municipal Code Section 8.84.140.I Real Estate Directional Signs
2) Real Estate Directional Sign Comparison Table
847

3) Planning Commission Resolution No. 23-04
4) Letter from David Stark, Bay East Association of Realtors 848
Attachment 1
Ord. No. XX-23, Item X.X, Adopted XX/XX/23 Page 1 of 3
ORDINANCE NO. XX-23

AN ORDINANCE OF THE CITY COUNCIL

OF THE CITY OF DUBLIN
APPROVING AMENDMENTS TO DUBLIN MUNICIPAL CODE SECTION 8.84.140.I (REAL ESTATE DIRECTIONAL SIGNS) EFFECTIVE CITY-WIDE
PLPA-2023-00017
The Dublin City Council does ordain as follows:

SECTION 1. RECITALS
A. The City occasionally initiates amendments to the Zoning Ordinance to clarify, add, or amend certain provisions to ensure that the Zoning Ordinance remains current with federal and state law, internally consistent, simple to understand and implement, and relevant to changes occurring in the community.

B. The City has initiated amendments to the Zoning Ordinance to clarify, add, or amend certain provisions to ensure that the Dublin Municipal Code complies with State law and remains internally consistent and relevant to changes occurring in the community.

C. The proposed amendments are consistent with California Civil Code Section 713 and 712.

D. The proposed Zoning Ordinance Amendments include modifications to Dublin Municipal Code Section 8.84.140.I (Real Estate Directional Signs) to increase the number of real estate directional signs allowed, modify the allowable sidewalk clearance in conformance with the Building Code, and clarify the City’s enforcement authority.

E. The Planning Commission held a duly noticed public hearing on July 11, 2023, during which all interested persons were heard, and adopted Resolution No. 23-04 recommending City Council adoption of the proposed Zoning Ordinance Amendments.

F. A Staff Report was submitted to the Dublin City Council recommending approval of the proposed Zoning Ordinance Amendments.

G. The City Council held a public hearing on the proposed Zoning Ordinance Amendments on August 15, 2023, at which time all interested parties had the opportunity to be heard.

H. Proper notice of said hearing was given in all respects as required by law.

I. The City Council did hear and consider all said reports, recommendations and testimony herein above set forth and used its independent judgment to evaluate the project. 849
Attachment 1
Ord. No. XX-23, Item X.X, Adopted XX/XX/23 Page 2 of 3
SECTION 2. FINDINGS
Pursuant to Section 8.120.050.B of the Dublin Municipal Code, the City Council hereby finds that the Zoning Ordinance Amendments are consistent with the General Plan and any applicable Specific Plan in that the amendments are necessary to comply with federal and state laws and are consistent with applicable land use regulations and development policies. Specifically, General Plan Implementation Measure 10.7.4.A calls for an “update the City’s Sign Ordinance.”
SECTION 3. CEQA
A. The California Environmental Quality Act (CEQA), together with State Guidelines and City of Dublin CEQA Guidelines and Procedures, require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. The City Council hereby finds the amendments to Title 8 of the Dublin Municipal Code (Zoning Ordinance) are exempt from the requirements of CEQA pursuant to CEQA Guidelines Section 15061(b)(3) because it can be seen with certainty that the amendments will not have a significant effect on the environment and are not subject to CEQA review.

SECTION 4.

A. The Dublin Municipal Code is amended as follows:

Section 8.84.140.I (Real Estate Directional Signs) of Title 8 of the Dublin Municipal Code is hereby amended to modify subsections 1, 2, and 9 to read as follows:

1. Be limited to a maximum of six (6) open house signs for each property being advertised for sale.

2. Not be located within the public right-of-way where such signs endanger the safety of persons or property, disrupt the normal flow of vehicle or pedestrian traffic, block views of such traffic, block ingress into or egress from any residence or place of business, or restrict a sidewalk width to less than thirty-six (36) inches. Notwithstanding the above, signs may be placed in a landscaping strip between the roadway and the sidewalk. Signs are not allowed in medians.

8. Be permitted on holidays, Saturdays, Sundays, and one agent tour day each week from 10:00 a.m. to 5:30 p.m.

9. Be subject to the City’s authority to issue fines and to assess all necessary costs for the time spent by City personnel, or its authorized agents, to remove and enforce open house signs in violation of Section 8.84.140 I. In cases of repeated violations of requirements dealing with open house signs, rights to locate new open house signs in the City shall be forfeited.
850
Attachment 1
Ord. No. XX-23, Item X.X, Adopted XX/XX/23 Page 3 of 3
SECTION 5. Effective Date.

This Ordinance shall take effect and be enforced thirty (30) days following its final adoption.

SECTION 6. 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 circumstance, 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 7. Posting.

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.

PASSED, APPROVED AND ADOPTED this __th day of _______ 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

______________________________
Mayor
ATTEST:
_________________________________
City Clerk
851
Attachment 2
Real Estate Directional Sign Comparison Table- Tri-Valley Cities Jurisdiction
Maximum
Off-Site Real
Estate
Directional
Signs per
Property
Maximum Number
of Real Estate
Directional Signs
Allowed per
Intersection
Placement in Public Right
of Way (PROW) Allowed Display Times
Enforcement
(Repeated
Violations)
Dublin
(current
ordinance)
4 8 (no more than 1
sign per property)
Prohibited within the PROW
if it endangers public safety,
is within 5 ft of a call box, fire
hydrant, or mailbox. Must
provide a minimum 32-inch
clearance for the path of
travel.

Holidays, Saturdays and Sundays
and one agent weekday tour each
week from 10:00 am to sunset.

Removal of signs,
City's authority to
assess costs and
time for
enforcement to
remove signs, and
rights forfeited
Pleasanton 4 -
Prohibited within medians
and allowed within the rightof-way.

Monday - Sunday 10:00 am –
6:00 pm PST and Monday -
Sunday 10:00 am – 8:00 pm PST
Daylight Savings Time
Removal of signs,
removal fee and
fines
Livermore No limit on
private
property
No limit on private
property
Prohibited within PROW of
residential, commercial, and
industrial zones other than
the Downtown Specific Plan
area.

Thursday, Saturday, and Sunday
during daylight hours Removal of signs
San Ramon
1 per
intersection
leading to the
site
8 (major
intersection)
4 (residential street)
Prohibited within the PROW
and must be placed 6’ from
the back of sidewalk.

Weekends and removed no later
than Sunday at sunset. Agent
tours on Thursdays and Fridays
between the hours of 9:30 am and
2:00 pm
Removal of signs,
City's authority to
assess costs and
time for
enforcement, and
rights forfeited
Danville
1 per
intersection
leading to the
site
8 (major
intersection)
4 (residential street)
Prohibited from blocking the
path of travel or line of sight.

Saturdays, Sundays, and holidays
and one agent weekday tour from
10:00 am to sunset.

Removal of signs,
City's authority to
assess costs and
time for
enforcement
852
853
854
7021 Koll Center Parkway, Pleasanton, CA 94566
925.730.4060 | www.bayeast.org
August 7, 2023
Mayor Hernandez and members of the Dublin City Council, I am writing on behalf of the Bay East Association of REALTORS® in support of amendments to the Dublin Municipal Code Section 8.84.140.I (Real Estate Directional Signs) recommended by the Dublin Planning Commission and City staff.

We understand the desire of the City of Dublin to allow real estate professionals to help their clients market homes for sale and guide potential buyers to open houses while also ensuring that real estate directional signs are displayed responsibly and do not create unsafe or unsightly conditions.

We appreciate the City of Dublin including our perspective on the development of the amendments you will be considering during your August 15 meeting. We support each of these amendments:
• Signs may be displayed Saturdays, Sundays, holidays, and one tour day per week, from 10am to 5:30pm;
• Up to six (6) signs may be displayed per property, and a total of eight (8) open house signs will be permitted at major intersections and four (4) signs at other intersections; • Signs will be allowed on sidewalks if they do not impede pedestrians, block the view of traffic, or restrict the sidewalk width to less than 36 inches;
• Enforcement rules to allow city staff to issue fines and confiscate illegally-placed signs.

Should the City Council approve these amendments, the Bay East Association of REALTORS® will immediately share the new sign requirements with our members via a variety of communication channels.

Please contact me directly if you have any questions about our support for these amendments; our plans to share this information with our members; or the important role these signs play in residential real estate transactions. My direct telephone number is: (510)599-1682 or you may reach me via email at [email protected].

Sincerely,
Steve Medeiros, 2023 President
Bay East Association of REALTORS®
Attachment 4
855
Real Estate Directional Signs
Municipal Code Amendment
City Council Meeting
August 15, 2023
856
Background
• Real Estate Directional Signs
– Temporary signs that advertise an
open house for property listed for
sale, lease, or rent
• California Civil Code 712 and 713
– Allows City to regulate the number
of signs, time of display, placement,
and manner of placement
857
Real Estate Directional Signs
Dublin Municipal Code Section 8.84.140.I
• Maximum of 4 open house signs per property
• Permitted on Holidays, Saturdays, Sundays and
one agent tour per week from 10 AM to Sunset
• Maximum of 8 open house signs at any
intersection and no more than 1 sign per
property
858
Code Enforcement
• Concerns
• Excessive signage
• Signs left out after allowed timeframe
• Proactive enforcement on weekends
• Courtesy notices
• Outreach with Bay East Association of
Realtors®
859
Proposed Amendments
Allows for 6 directional signs per property
Requires a 36” minimum sidewalk clearance
Clarify signs are prohibited in the medians
Requires signs to be removed by 5:30 PM
Clarify City’s code enforcement authority
860
Planning Commission
• Recommended the City Council adopt the
proposed amendments
• Recommended adding a provision for the
number of signs on a major intersection and
on residential street intersections
861
Recommendation
Introduce the ordinance approving amendments
to the Dublin Municipal Code Section 8.84.140.I
(Real Estate Directional Signs)
862

STAFF REPORT

CITY COUNCIL

Agenda Item 7.1
DATE: August 15, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Linda Smith, City Manager
SUBJECT: Inclusionary Zoning and In-Lieu Fee Feasibility Study and Commercial Linkage Fee Nexus Study
Prepared by: Jason Earl, Senior Management Analyst
EXECUTIVE SUMMARY:

The City Council will receive a report on the Inclusionary Zoning and Affordable Housing In-Lieu Fee Feasibility Study and the Commercial Linkage Fee Nexus Study. The City Council will be requested to provide feedback and direction on key policy decisions. This feedback will be used to prepare updates to the Inclusionary Zoning Regulations, Affordable Housing In-Lieu Fee, and Commercial Linkage Fee programs in accordance with the City’s Two-Year Strategic Plan. The updates to these programs will be considered for adoption at a future meeting.

STAFF RECOMMENDATION:

Receive the report and provide feedback and direction.

FINANCIAL IMPACT:

The cost for this project will be charged to the City’s Affordable Housing Fund. There are sufficient funds allocated in the Fiscal Year 2023-24 Adopted Budget for this purpose.

DESCRIPTION:

Background
The City of Dublin Two-Year Strategic Plan includes Strategy 2: Housing Affordability, with the following two specific objectives:
 Objective 2.b: Ensure the City’s inclusionary zoning regulations incentivize targeted housing production; and
 Objective 2.c: Prepare a nexus study to evaluate the affordable housing commercial linkage fee and affordable housing in-lieu fee for for-sale and rental housing. 863

The consulting firm Economic and Planning Systems (EPS) was selected through a competitive process to assist Staff with addressing these Strategic Plan Objectives.

The City’s current Inclusionary Zoning Regulations (DMC Chapter 8.68) and Affordable Housing In-Lieu Fee were adopted by the City Council on May 21, 2002 (Ordinance 08-02 and Resolution 56-02 respectively). The Inclusionary Zoning Regulations (IZR) has been amended from time to time, while the In-Lieu Fee is adjusted annually on July 1 based on an inflationary index. The IZR apply to projects with 20 or more units. The City’s current inclusionary requirement is 12.5%, meaning that 12.5% of the units in a market-rate residential project are to be set aside as affordable to lower-income households. A developer may satisfy 40% of this obligation through the payment of in-lieu fees. The current Affordable Housing In-Lieu Fee is $241,131 per affordable unit.

The Commercial Linkage Fee was adopted by the City Council on May 03, 2005 (Resolution 70-05) and is adjusted each year by an inflationary index. The current fees are shown in Table 1 below.

The Commercial Linkage Fee serves to increase funding for affordable housing due to the nexus between non-residential development and the need it generates for affordable housing.

Table 1: Commercial Linkage Fee
Land Use Category Commercial Linkage Fee
Industrial $0.65
Office $1.68
Research & Development $1.09
Retail $1.35
Services & Accommodations $0.57
Staff and the consultant team have reviewed these programs, interviewed market-rate and affordable housing developers who are active in the City and the region, and conducted a survey of the inclusionary requirements, In-Lieu Fees, and Commercial Linkage Fees in other jurisdictions to provide context. Market conditions have changed, and development costs have increased since these programs were initially adopted. As a result, it appears that the inclusionary requirements and the in-lieu fee levels are no longer aligned, and the commercial linkage fees are below what other cities are charging.

The City Council will receive a presentation that outlines the findings from this review. The presentation will also highlight how the inclusionary requirement and in-lieu fee programs work from a market and economic perspective, and the implications and tradeoffs of updating these programs. Additionally, the results of the Commercial Linkage Fee nexus analysis, current land use categories, and potential changes to the land use categories will be discussed. This will include a review of the maximum fees that the City could charge, a comparison of fees in peer cities, and a discussion of potential approaches to setting these fees since the nexus-based maximums often exceed what most cities want to charge.

The City Council will be requested to provide feedback and direction on key policy decisions. This feedback will be used to prepare updates to the Inclusionary Zoning Regulations, Affordable 864

Housing In-Lieu Fee, and Commercial Linkage Fee programs for future consideration and adoption.

ENVIRONMENTAL REVIEW:

Receiving this informational report and providing direction is not subject to the requirements of the California Environmental Quality Act (CEQA), pursuant to CEQA Guidelines Section 15306 (Information Collection).

STRATEGIC PLAN INITIATIVE:

Strategy 2: Housing Affordability.

Objective 2B: Ensure the City’s inclusionary zoning regulations incentivize targeted housing production.

Objective 2C: Prepare a nexus study to evaluate the affordable housing commercial linkage fee and affordable housing in-lieu fee for for-sale and rental housing.

NOTICING REQUIREMENTS/PUBLIC OUTREACH:

The City Council Agenda was posted.

ATTACHMENTS:

None.
865
Economic & Planning Systems, Inc.

The Economics of Land Use
1330 Broadway, Suite 450  Oakland, CA 94612
510.841.9190  www.epsys.com

COMMERCIAL LINKAGE FEE

NEXUS STUDY UPDATE
AND

INCLUSIONARY HOUSING

PROGRAM UPDATE
Prepared for the City of Dublin
City Council
August 15, 2023
866
Economic & Planning Systems City of Dublin | 1
AGENDA
1) Commercial Linkage Fee
– Nexus Overview and Logic
– Land Use Categories and Key Assumptions
– Maximum Nexus-Based Fee Calculation
– Fee Survey
– Feedback Requested: Potential Approaches to Setting Fees 2) Inclusionary Housing Requirements and In-Lieu Fee
– Changing Market Conditions
– Current Inclusionary Program (Ownership & Rental)
• Gap Analysis
• Developer Subsidy Calculation and Feasibility Assessment • Fee Survey Comparison with Other Jurisdictions
– Program Observations
– Implications for Update
– Feedback Requested: Potential Approaches to Updating Requirements and Tradeoffs
867

COMMERCIAL LINKAGE FEE
868
Economic & Planning Systems City of Dublin | 3

1. How many jobs are generated
from the new development?

2. How much do these new
employees earn?

3. How many units of employee
housing are needed?

4. What is the gap between
housing development costs and
workforce purchasing power?

5. What commercial linkage fee
will fill this gap?
COMMERCIAL LINKAGE FEE: KEY QUESTIONS
What is the impact of new commercial development on the need for workforce housing?
To answer this, we need to know…
869
Economic & Planning Systems City of Dublin | 4
% of Workers Total
Employment Sq.Ft. per Total Workers Forming Households per Category Worker per 100k Sq.Ft. Households 100k Sq. Ft.

Commercial 472 212 92.3% 115
Lodging 3,000 33 98.0% 19
Office/R&D 307 326 98.0% 188
Industrial 862 116 98.0% 67

COMMERCIAL EMPLOYMENT AND HH GENERATION
Workers per
household with
earnings is 1.70
(2017-2021
Census ACS)
Household formation
rates exclude workers
aged 16 – 19
(Bureau of Labor
Statistics)
870
Economic & Planning Systems City of Dublin | 5

INCOME DISTRIBUTION OF WORKER HOUSEHOLDS
Every occupation in an employment/land use category is assigned an income level and the number of jobs for each occupation in the industry is used to estimate the proportion of worker households in each income category.

For example, 87% of worker households in Lodging are classified as Low Income.

Very Low Low Moderate Above Moderate
50% AMI 80% AMI 120% AMI >120% AMI
Commercial 0.0% 90.4% 3.5% 6.0%
Lodging 0.5% 87.1% 3.0% 9.4%
Office/R&D 0.0% 26.3% 14.0% 59.7%
Industrial 0.0% 43.4% 36.2% 20.4%
Income Level
[1] Designation of household income assumes a 3-person household and 1.7 w orkers per household, based on American Community Survey data.

Employment
Category1
Sources: JobsEQ, 2022; California Housing and Community Development (HCD); Economic & Planning Systems, Inc.
871
Economic & Planning Systems City of Dublin | 6
$170,280
$249,840
$329,700
$599,140
$521,558
$441,998
$362,138
$92,698
$0
$100,000
$200,000
$300,000
$400,000
$500,000
$600,000
$700,000
$800,000
Very Low Income
(50% AMI)
Lower Income
(60% AMI)
Low Income
(70% AMI)
Moderate Income
(110% AMI)
Total Supportable Unit Value Affordability Gap
Affordability gaps for each income level graphed. The total cost of development is $691,800.

GAP ANALYSIS FOR AFFORDABLE UNITS
85 DU/ACRE (1,000 SQ. FT. UNITS), WRAPPED PARKING
872
Economic & Planning Systems City of Dublin | 7

COMMERCIAL MAXIMUM FEE CALCULATION
The number of households in each income category is multiplied by the corresponding affordability gap to arrive at the total required subsidy. The total subsidy is divided by the prototypical building square footage (100,000 sq. ft. of development) to calculate the maximum fee per square foot.

Adjusted to exclude
the 9.4% of workers
who both work and live
in Dublin (2020 LEHD)
Maximum Fee Adjusted Maximum
per sq. ft. per sq. ft.

Commercial 115 108 $38,033,090 $380 $344
Lodging 19 18 $6,249,035 $62 $57
Office/R&D 188 75 $20,154,873 $202 $183
Industrial 67 53 $12,726,728 $127 $115
Employment
Category
Total Required
Subsidy
Total
Households
Total Households
(Up to 120% AMI)
873
Economic & Planning Systems City of Dublin | 8

NEXUS-BASED MAXIMUM VS FEASIBLE FEE LEVELS
 Nexus results indicate maximum-justifiable fee levels.  BUT the nexus results typically cannot reasonably be absorbed by new development.
 i.e., the maximum-justifiable fee levels would likely render new nonresidential development infeasible 874
Economic & Planning Systems City of Dublin | 9

EXAMPLES OF COMMERCIAL LINKAGE FEES IN OTHER CITIES
Commercial (Retail) Lodging Office/R&D Industrial
Dublin $1.35 $0.57 $1.09-1.68 $0.65
San Ramon $4.32 $4.32 $4.32 $3.24
Danville
Pleasanton $5.21 $3.59 $8.68 $14.42
Livermore $2.38 $3.34 $1.53 $0.21-1.52
Fremont $11.33 $11.33 $11.33 $5.67
Hayward
Walnut Creek $5.00 $5.00 $5.00 $5.00
Concord
no commercial linkage fee program
no commercial linkage fee program
no commercial linkage fee program
Commercial Linkage Fee per Sq. Ft.
 In Dublin, the current fee represents 4 to 7 percent of the total impact fee burden.
– In other Tri-Valley cities, the affordable housing fee burden ranges from 0 (Danville, which has no program) to 46 percent (Pleasanton Industrial). 875
Economic & Planning Systems City of Dublin | 10

POTENTIAL APPROACHES TO SETTING FEES
Recommended fee levels are well below supportable maximums.

Category Option 1 Option 2 Option 3
$10, level High of $10,
tier proportionally
Economic
development lens
Commercial $1.35 $344 $10.00 $10.00 $5.00
Lodging $0.57 $57 $10.00 $1.50 $5.00
Office/R&D $1.09-1.68 $183 $10.00 $5.00 $10.00
Industrial $0.65 $115 $10.00 $3.00 $10.00
Adjusted
Maximum Fee
per Sq. Ft.

Current Fee per
Sq. Ft.
876

INCLUSIONARY HOUSING
877
Economic & Planning Systems City of Dublin | 12

CURRENT INCLUSIONARY PROGRAM
A developer is seeking to build a 100-unit project in Dublin.

12.5% overall inclusionary requirement
• 60% Moderate
• 40% Low
OR pay in-lieu fee for up to 40% of
inclusionary requirement
• Remaining 60% must build

12.5% overall inclusionary requirement
• 50% Moderate
• 30% Low
• 20% Very Low
OR pay in-lieu fee for up to 40% of
inclusionary requirement
• Remaining 60% must build

OWNERSHIP
(assume single-family detached)
RENTAL
(assume multi-family)
The in-lieu fee as of July 2023 is $241,131 per inclusionary unit. 878
Economic & Planning Systems City of Dublin | 13

MARKET CONDITIONS CHANGE OVER TIME
This chart demonstrating price index since 2002 offers a partial explanation as to why in today’s market:
(1) higher inclusionary requirements are difficult to meet; (2) in-lieu fees fail to align with the requirement despite inflationary adjustments. -30
-10
10 30
50 70
90 110
130
150
2000 2005 2010 2015 2020
Price Index
Price Index - Construction Costs, Multifamily Rents, Single Family Home Sales Construction Cost Index (ENR) Multi-family Market-Rate/Affordable Rents (Costar) Single Family Home Sales (Zillow) 879
Economic & Planning Systems City of Dublin | 14
The total cost of development is $1,137,288.

GAP ANALYSIS FOR MARKET-RATE SINGLE-FAMILY DETACHED
10 DU/ACRE (2,400 SQ. FT. UNITS), 4-BEDROOM
$217,100
$353,500
$558,300 $626,600
$920,188
$783,788
$578,988 $510,688
$0
$200,000
$400,000
$600,000
$800,000
$1,000,000
$1,200,000
Very Low
Income
(50% AMI)
Low
Income
(70% AMI)
Median
Income
(100% AMI)
Moderate
Income
(110% AMI)
Supportable Home Price Affordability Gap
880
Economic & Planning Systems City of Dublin | 15

DEVELOPER OPTIONS

SINGLE FAMILY DETACHED (OWNERSHIP)
Outcome: The total subsidy for Option 2 is less, and therefore preferred by developers.

Option 1
Comply with
inclusionary
requirement
Build 12 inclusionary units
5 Low x $783,788 per unit = $3,918,940
7 Moderate x $510,688 per unit = $3,574,816
Total Subsidy $7,493,756
Option 2
Pay in-lieu
fee and
build
minimum
inclusionary
Build 7 inclusionary units
3 Low x $783,788 per unit = $2,351,364
4 Moderate x $510,688 per unit = $2,042,752
$4,394,116
Pay in-lieu fee on 5 units
5 Units x $241,131 per unit = $1,205,655
Total Subsidy $5,599,771
881
Economic & Planning Systems City of Dublin | 16
The total cost of development is $613,295.

GAP ANALYSIS FOR MARKET-RATE MULTI-FAMILY RENTAL
65 DU/ACRE (1,100 SQ. FT. UNITS), 3 TO 5-STORY WRAPPED PARKING $170,280
$376,380
$569,280 $599,140
$443,015
$236,915
$44,015 $14,155
$0
$100,000
$200,000
$300,000
$400,000
$500,000
$600,000
$700,000
Very Low
Income
(50% AMI)
Low
Income
(80% AMI)
Median
Income
(100% AMI)
Moderate
Income
(110% AMI)
Total Supportable Unit Value Affordability Gap
882
Economic & Planning Systems City of Dublin | 17

DEVELOPER OPTIONS

MULTIFAMILY (RENTAL)
Outcome: The requirement and fee align, but is it feasible? Option 1
Comply with
inclusionary
requirement
Build 12 inclusionary units
4 Very Low x $443,015 per unit = $1,772,060
2 Low x $236,915 per unit = $473,830
6 Moderate x $14,155 per unit = $84,930
Total Subsidy $2,330,820
Option 2
Pay in-lieu
fee and
build
minimum
inclusionary
Build 7 inclusionary units
2 Very Low x $443,015 per unit = $886,030
1 Low x $236,915 per unit = $236,915
4 Moderate x $14,155 per unit = $56,620
$1,179,565
Pay in-lieu fee on 5 units
5 Units x $241,131 per unit = $1,205,655
Total Subsidy $2,385,220
883
Economic & Planning Systems City of Dublin | 18

FEE SURVEY OF LOCAL JURISDICTIONS

SINGLE FAMILY DETACHED (OWNERSHIP)
City
Overall
Inclusionary
Requirement Income Targets
Project Size
Threshold
Last
Ordinance
Update
Dublin 12.5% 60% Moderate
40% Low
20 units $241,131 per inclusionary unit 2002
Fremont 15% 66% Low
33% Moderate
All units $44.00 per sq. ft. 2021
Concord 10%
6%
Moderate
Low
5 units $9.00 per sq. ft. 2017
San Ramon 10% Moderate 10 units $15.70 per sq. ft. 2019 Hayward 10% Moderate 2 units $23.46 per sq. ft. 2018
Walnut Creek 10%
7%
6%
Moderate
Low
Very Low
All units $21.86 per sq. ft. 2017
Livermore 15% 50% Moderate
50% Low
11 units $39.94 per sq. ft. (under 11
units)
11+ units must build
2015
Danville 10% Moderate 10 units 2014
Pleasanton 20% Moderate
Low
Very Low
15 units $50,480 per dwelling unit 2000*
In-Lieu Fee
market gap calculation
884
Economic & Planning Systems City of Dublin | 19

FEE SURVEY OF LOCAL JURISDICTIONS

SINGLE-FAMILY DETACHED (OWNERSHIP)
$241,131 *
$44
$9
$15.70 $23.46
$21.86
$39.94
$50,480 †
0%
5%
10%
15%
20%
25%
Option 1 Option 2 Option 1 Option 2 Option 3
Dublin Fremont Concord San
Ramon
Hayward Walnut Creek Livermore Danville Pleasanton
Moderate Low Very Low
* Fee is provided on a per inclusionary unit basis
† Fee is provided on a per dwelling unit basis
885
Economic & Planning Systems City of Dublin | 20

FEE SURVEY OF LOCAL JURISDICTIONS

MULTIFAMILY (RENTAL)
City
Overall
Inclusionary
Requirement Income Targets
Project Size
Threshold
Last
Ordinance
Update
Dublin 12.5% 50% Moderate
20% Low
30% Very Low
20 units $241,131 per inclusionary unit 2002
Fremont 10% Low All units $17.50 per sq. ft. 2021
Concord 10%
6%
Low
Very Low
15 units $0.00 per sq. ft. 2021
San Ramon 15% 50% Low
50% Very Low
5 units $14.63 per sq. ft. (under 10
units)
10+ units must build
2019
Hayward 6% 50% Low
50% Very Low
2 units $23.46 per sq. ft. 2018
Walnut Creek 10%
6%
Low
Very Low
All units $21.86 per sq. ft. 2017
Livermore 15% 50% Low
50% Very Low
11 units 2015
Danville 15% Moderate 10 units 2014
Pleasanton 15% Low
Very Low
10 units $50,480 per dwelling unit 2000*
In-Lieu Fee
market gap calculation
In-lieu fee N/A; must build
886
Economic & Planning Systems City of Dublin | 21

FEE SURVEY OF LOCAL JURISDICTIONS

MULTIFAMILY (RENTAL)
$17.50
$0 $21.86
N/A $50,480 †
$241,131 *
$14.63
$23.46
0%
2%
4%
6%
8%
10%
12%
14%
16%
Option 1 Option 2 Option 1 Option 2
Dublin Fremont Concord San Ramon Hayward Walnut Creek Livermore Danville Pleasanton Moderate Low Very Low
* Fee is provided on a per inclusionary unit basis
† Fee is provided on a per dwelling unit basis
887
Economic & Planning Systems City of Dublin | 22

PROGRAM OBSERVATIONS
Working Well Needs Consideration
• Clear inclusionary guidelines for
developers
• Must-build component means
that some inclusionary units are
still built – no lag or erosion of
effectiveness
• Program is no longer aligned
with market conditions
• Current on-site inclusionary for
rental product may not
demonstrate feasibility
888
Economic & Planning Systems City of Dublin | 23

IMPLICATIONS FOR UPDATE
 To align the inclusionary program with current market conditions, the City may:
 Example considerations / tradeoffs:

Do nothing
Update
requirement Raise fee
Alter income
targets Combination
Stick with 12.5% overall on-site 
Raise the fee or lean towards more Moderate
housing; may still pose feasibility challenges on
rental side
Incorporate Low and Very Low  Lower overall on-site requirement Maintain lower in-lieu fee  Lower overall on-site requirement Consider which options achieve the City’s affordable housing goals. 889
Economic & Planning Systems City of Dublin | 24
FEEDBACK REQUESTED – COMMERCIAL LINKAGE FEE
Potential Approaches to Setting Fees

1. What are the City’s primary objectives for this update? a) Meet Housing Element goals of creating housing for different income levels
b) Generate fee revenue to put towards affordable housing c) Encourage nonresidential development in Dublin
d) Other?

2. Acknowledging that the nexus-based fee is too high, is there a policy-based “high” fee we can begin to target?
• Current fees represent 4 to 7 percent of aggregate fee burden • A “high” of $10 would increase aggregate fee burden share to 27 to 45 percent

3. Is there a preferred approach (e.g., level across land use categories, proportional to nexus, “economic development” lens, other?)
890
Economic & Planning Systems City of Dublin | 25
FEEDBACK REQUESTED – INCLUSIONARY HOUSING/IN-LIEU FEE
Potential Approaches to Updating Requirements and Tradeoffs

1. What are the City’s primary objectives for this update? a) Ensure affordable housing is built
b) Generate fee revenue to put towards affordable housing c) Ensure feasibility even if it means reducing requirements d) Keep requirements low to encourage market rate development and limit need for negotiated agreements
e) Other?

2. Does the current inclusionary requirement (12.5 percent) need modification? a) Ownership?
b) Rental?

3. Which income targets should the requirements include? a) Ownership: Low and Mod, all Mod? (Very Low is not recommended) b) Rental: Very Low, Low, and Mod? Some other combination?

4. Does the in-lieu fee need modification?
a) Ownership?
b) Rental?

5. At what project size should inclusionary requirements kick in? a) Current program = 20 units; commonly observed = 5 to 10 units 891
Economic & Planning Systems City of Dublin | 26

NEXT STEPS
 Commercial Linkage Fee
– Finalize Commercial Linkage Fee Recommendations
– Prepare Draft Nexus Study report
– Bring back to Council for review (September/October)
– Revise Ordinance and bring to Council for adoption (December)  Inclusionary Housing
– Prepare Draft Feasibility Evaluation
– Prepare preliminary Inclusionary Housing Requirement Recommendations and bring back to Council (September/October)
– Finalize Inclusionary Housing Requirement Recommendations and update Ordinance and take to Planning Commission for recommendation (October/November)
– Bring final recommendations and updated Ordinance to Council for adoption (December)
892

STAFF REPORT

CITY COUNCIL

Agenda Item 8.1
DATE: August 15, 2023
TO: Honorable Mayor and City Councilmembers
FROM: Linda Smith, City Manager
SUBJECT: Introduction of an Ordinance Amending Section 4.20 (Massage Establishments and Massage Services) of the Dublin Municipal Code Prepared by: Felicia Escover, Special Projects Manager
EXECUTIVE SUMMARY:

The City Council will consider introducing an Ordinance amending the Dublin Municipal Code to reflect new requirements for Massage Establishments operating within the City and to update the Code for clarity and enhanced public safety.

STAFF RECOMMENDATION:

Waive the reading and INTRODUCE the Ordinance Amending Section 4.20 (Massage Establishments and Massage Services) of the Dublin Municipal Code.

FINANCIAL IMPACT:

None.

DESCRIPTION:

City staff and Dublin Police Services (DPS) have worked collaboratively to identify updates to the Dublin Municipal Code Section 4.20 (Massage Establishments and Massage Services) that will create safer massage establishments in the city. The original ordinance was introduced in 1987 and was last updated in 2015 to incorporate new standards such as recognizing the State’s new definition of “certified massage practitioner” pursuant to Section 10.5 (Section 4600 et seq.) of the California Business Professions Code.

In recent years, the California Massage Therapy Council (CAMTC), a non-profit responsible for overseeing a state-sanctioned program of certification for massage therapy practitioners, has been working with local government agencies to review local massage establishment ordinances and recommend updates to a city’s municipal code that will help deter human trafficking. 893

The proposed changes to Dublin Municipal Code 4.20 aim to achieve several intended outcomes, including preventing illicit sexual activities, supporting survivors of human trafficking, and ensuring alignment with CAMTC standards and other local government agencies for improved regulation and public safety. Furthermore, these updates intend to support legitimate business owners and practitioners, prevent illicit massage businesses from entering the City, and provide the public with access to healthy and safe massage services while ensuring practitioners are properly trained and certified.

The City has worked with CAMTC on a review of the current code and has proposed updates to various sections of Chapter 4.20. These changes can be classified as administrative, minor, and substantial and are outlined below.

Proposed Administrative Changes

1. Inclusion of additional definitions of terms referenced in the code.

2. Removal of outdated references and terms.

Proposed Minor Changes

1. Inclusion of reference to the City's administrative citations outlined in Section 1.06.

2. Addition of a business license requirement.

3. Inclusion of language to suspend establishments in violation of California Business and Professional Code Section 4609.

4. Replacement of "and" with "or" to allow recourse for any "private" touching.

5. Ability to revoke or suspend establishments for labor law violations.

6. Requirement for businesses to post a list of services and costs.

7. Addition of a provision mandating an active employee roster onsite at all times.

8. Clarification that windows cannot be obstructed, even by open blinds.

9. Additional details regarding certification requirements, posting, and recertification.

10. Mandate to post an original certification certificate.

11. Addition of "current" to the photo requirement.

12. Clarification of the need to renew massage therapist certificates before expiration, as opposed to every two years.

13. Prohibition of false advertising by massage establishments.

14. Deletion of the continuing registration requirements in the massage therapist since those are now the owner's responsibility.

15. Alignment of the appeals procedure to be consistent with the City’s general appeals procedure.

16. Clarification of the hearing procedure for massage establishment permit revocation.

Proposed Substantial Changes

1. Removal of exemption allowing students to perform massage services.

2. Removal of section allowing students to perform services on the public.

3. Introduction of a new section holding owners responsible for violations of the municipal code, including those committed by massage therapists and employees.

4. Ability to withhold amendments and renewal until fees are paid and violations are corrected.

5. Ability to impose a three-year moratorium on a location where a massage establishment 894

permit was revoked.

6. Requirement to amend permit within three business days if information in the application changes.

7. Prohibition of reapplications for three years after a permit is revoked.

8. Mandatory notification to DPS within three business days in case of A. business closure, B. owner or employee arrests, C. staff resignations, D. violations of laws, and E. suspension of CAMTC certificate.

9. Deletion of a section to eliminate certification exemptions.

10. Inclusion of a section to hold employees, agents, etc., responsible for meeting the requirements of 4.20 at the discretion of the permit administrator.

11. Addition of more specific language to include a wide range of offenses that would render someone ineligible for a permit and denial reasons for massage establishments with revoked or suspended licenses in the past three years.

12. Addition of additional application requirements, including a current photo, list of employees, space diagram, owner's CAMTC information, and the need for owners to report and renew massage therapist records.

On July 12, 2023, City staff sent a letter to all active massage establishments in Dublin, providing them with information about the proposed changes. The letter included the objectives behind the proposed changes, a summary of the proposed updates, and the date on which the City Council would be considering the item. As of the time of this staff report, Staff had not received any comments.

The proposed changes to Dublin Municipal Code 4.20 aim to address various aspects of massage establishment and services regulation. These revisions intend to support legitimate businesses, prevent illicit activities, ensure public safety, and align the code with industry standards and other local agencies.

STRATEGIC PLAN INITIATIVE:

Strategy 5: Safe and Accessible Community
Objective E: Support existing and innovative public safety efforts NOTICING REQUIREMENTS/PUBLIC OUTREACH:

The City Council Agenda was posted and courtesy notices were mailed to active massage establishments notifying them of the proposed changes.

ATTACHMENTS:
1) Ordinance Amending Chapter 4.20 (Massage Establishments and Massage Services) of the Dublin Municipal Code
2) Exhibit A to the Ordinance – Chapter 4.20 (Massage Establishments and Massage Services) – Redline Version
3) Chapter 4.20 (Massage Establishments and Massage Services) – Clean Version 895

896
Attachment 1
Ord. No. XX-23, Item X.X, Adopted XX/XX/2023 Page 1 of 2 ORDINANCE NO. XX – 23

AN ORDINANCE OF THE CITY COUNCIL

OF THE CITY OF DUBLIN
AMENDING CHAPTER 4.20 (MASSAGE ESTABLISHMENTS AND MASSAGE SERVICES)

OF THE DUBLIN MUNICIPAL CODE
WHEREAS, City Staff and Dublin Police Services have worked collaboratively to identify updates to the Dublin Municipal Code Section 4.20 (Massage Establishments and Massage Services) that will create safer massage establishments in the city; and WHEREAS, the original ordinance was introduced in 1987 and was last updated in 2015 to incorporate new standards such as recognizing the State’s new definition of “certified massage practitioner” pursuant to Section 10.5 (Section 4600 et seq.) of the California Business Professions Code; and
WHEREAS, the California Massage Therapy Council (CAMTC), a non-profit responsible for overseeing a state-sanctioned program of certification for massage therapy practitioners, has been working with local government agencies to review local massage establishment ordinances and recommend updates to a city’s municipal code that will help deter human trafficking; and WHEREAS, the proposed changes to Dublin Municipal Code 4.20 aim to achieve several intended outcomes, including preventing illicit sexual activities, supporting survivors of human trafficking, and ensuring alignment with CAMTC standards and other local government agencies for improved regulation and public safety; and
WHEREAS, these updates further intend to support legitimate business owners and practitioners, prevent illicit massage businesses from entering the City, and provide the public with access to healthy and safe massage services while ensuring practitioners are properly trained and certified; and
WHEREAS, the City has worked with CAMTC to review the current code and has developed proposed updates to various sections of Chapter 4.20 to promote clarity and public safety; and
WHEREAS, the proposed updates to Chapter 4.20 are aligned with the City of Dublin’s Strategic Plan Initiative to support existing public safety efforts.

NOW, THEREFORE, the City Council of the City of Dublin does ordain the changes attached hereto as Exhibit A.

Section 2. Effective Date. This Ordinance shall take effect and be enforced 30 days following its final adoption.

Section 3. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three public places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California.
897
Ord. No. XX-23, Item X.X, Adopted XX/XX/2023 Page 2 of 2 PASSED, APPROVED AND ADOPTED this ___ day of _____ 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
898
Dublin Municipal Code
Chapter 4.20 MASSAGE ESTABLISHMENTS AND

MASSAGE SERVICES

The Dublin Municipal Code is current through Ordinance 17-22, passed December 6, 2022.

Chapter 4.20

MASSAGE ESTABLISHMENTS AND MASSAGE SERVICES
Sections:

Article I. General Provisions

4.20.010 Definitions.

4.20.020 Exemptions.

4.20.030 Massage performed by students to members of the public.

4.20.030 Owner responsibility.

4.20.040 Violations a misdemeanor and a nuisance.

4.20.041 Violations – Renewal and citation compliance

4.20.045 Violations – moratorium.

Article II. Massage Establishments

4.20.050 Permit—Required.

4.20.060 Application procedure and requirements.

4.20.065 Amendments to permit.

4.20.070 City massage establishment permit fee required.

4.20.080 Permit—Issuance or denial.

4.20.090 Permit—Grounds for denial.

4.20.100 Permit—Display requirements.

4.20.110 Revocation or suspension—Reasons.

4.20.120 Revocation or suspension of city massage establishment permit—Hearing procedure.

4.20.125 Denial, suspension and revocation of registration certificates.

4.20.130 Permit nontransferable.

4.20.140 Appeal procedure.

4.20.150 Requirements—Massage establishments.

4.20.160 CAMTC certification required.

4.20.170 Employees—Age requirement.

4.20.180 Daily register required.

4.20.190 Advertising restrictions.

4.20.200 Massage establishment inspections.

4.20.210 Massage by customer prohibited.

4.20.220 Outcall massage services prohibited.

4.20.225 Notifications.

Article III. Massage Therapists

4.20.230 City massage therapist registration—Required.

4.20.240 Registration procedure and requirements.

4.20.250 Massage Therapist responsibility.

4.20.250 CAMTC certification—Exceptions.

4.20.260 Continuing registration requirements.
* Prior ordinance history: Ords. 2-87, 2-93.

Article I. General Provisions

4.20.010 Definitions.

Unless the provision or context otherwise requires, the definitions contained herein shall govern the construction of this chapter.

Attachment 2
Exhibit A to the Ordinance
899
Dublin Municipal Code
Chapter 4.20 MASSAGE ESTABLISHMENTS AND

MASSAGE SERVICES

The Dublin Municipal Code is current through Ordinance 17-22, passed December 6, 2022. “Applicant” means any person who applies for a permit as required by this chapter. “California Massage Therapy Council” or “CAMTC” means the massage therapy organization created pursuant to Section 4600.5 of the California Business and Professions Code and further defined in Section 4600 of that code. “Certified massage therapist” means a massage therapist certified by the CAMTC as a certified massage practitioner or as a certified massage therapist pursuant to Section 4601(b) or 4601(c) of the California Business and Professions Code.
“City massage establishment permit” means a permit issued to a massage establishment by the Permit Administrator in accordance with this chapter.
“Compensation” means the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value.
“Employee” means any person, other than a massage therapist, who renders any service to the permittee, who receives compensation directly from the permittee, and who has no physical contact with the customers and clients. “Fully clothed” means clothes are worn in such a manner that an individual’s genitals, buttocks, and chest is not exposed and all outer garments are of a fully opaque, nontransparent material and provide complete covering from at least the mid-thigh to two (2) inches below the collarbone. The midriff may not be exposed. “Massage” means any method of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or with the aid of any mechanical or electrical apparatus or appliance, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparation commonly used in this practice. “Massage establishment” means any establishment having a fixed place of business where any person engages in or carries on or permits to be engaged in or carried on any of the activities described in the definition of “massage” set out in this section.
“Massage therapist” means any person who, for any consideration whatsoever, engages in the practice of massage as herein defined.
“Operator” or “massage establishment operator” means any person who is an owner or manager of a massage establishment.
“Outcall massage service” means engaging in or carrying on the practice of massage, not at a fixed location licensed such as a massage establishment, but at a location designated by the permittee, massage therapist, customer or client. “Owner” or “massage establishment owner” means any of the following persons:
(1) The sole proprietor of a sole proprietorship operating a massage establishment. (2) Any general partner of a general or limited partnership that owns a massage establishment. (3) Any person who has a ten percent or greater ownership interest in a corporation that owns a massage establishment.
(4) Any person who is a member of a limited liability company that owns a massage establishment. (5) All owners of any other type of business association that owns a massage establishment. “Patron” means an individual on the premises of a massage establishment for the purpose of receiving massage therapy.
“Permit Administrator” means the Chief of Police or his/her designee. 900
Dublin Municipal Code
Chapter 4.20 MASSAGE ESTABLISHMENTS AND

MASSAGE SERVICES

The Dublin Municipal Code is current through Ordinance 17-22, passed December 6, 2022. “Permittee” means any person operating or maintaining a massage establishment. (Ord. 4-15 § 4 (part)) “School of Massage” means any school or institution of learning that is recognized as an approved school pursuant to Business and Professions Code Division 2.
“Visitor” means any individual not retained or employed by the massage establishment and not receiving or waiting to receive massage therapy services, but excluding law enforcement personnel or governmental officials performing governmental business.

4.20.020 Exemptions.

This chapter shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions:

A. Physicians, surgeons, chiropractors, osteopaths, podiatrists, physical therapists, nurses, or any other person licensed to practice any healing art under the provisions of Division 2 (commencing with Section 500) of the Business and Professions Code when engaging in such practice within the scope of his or her license.

B. Trainers of any amateur, semi-professional, or professional athlete or athletic team, so long as such persons do not practice massage as their primary occupation at any location where they provide such services in the city.

C. Barbers, estheticians and cosmetologists who are duly licensed under the laws of the state of California, while engaging in practices within the scope of their licenses.

D. Individuals in the city temporarily for educational events.

E. Individuals administering massages or health treatments involving massage to persons participating in road races, track meets, triathlons, educational events, conferences or similar single-occurrence athletic, recreational, or educational events.

F. Enrolled students of a school of massage when they are performing massage within the city as part of a formal supervised internship or training program operated by the school, without compensation other than school credit, on the premises of a massage establishment duly authorized to operate pursuant to the terms of this chapter; and provided, that the permittee has first notified the Permit Administrator in writing of the name, residence address, and school of the students and the dates of the trainings. If, however, massage is provided for a fee to members of the public by students enrolled in a school of massage, services must be performed in accordance with Section 4.20.030. (Ord. 4-15 § 4 (part))

4.20.030 Massage performed by students to members of the public.

Any student of a school of massage who performs massage on members of the public for a fee must perform services under the direct supervision of a certified massage therapist. (Ord. 4-15 § 4 (part))

4.20.030 Owner responsibility.

For the purpose of enforcing the requirements of this chapter, the massage establishment owner shall be responsible for the conduct of all massage establishment employees, agents, independent contractors, or other representatives while such persons are providing services on behalf of the massage establishment. Pursuant to California Business and Professions Code 4607, the Permit Administrator may discipline an owner or operator of a massage business or establishment ,or an applicant for certification, pursuant to this chapter for the conduct of all individuals providing massage for compensation on the business premises.

4.20.040 Violations a misdemeanor and a nuisance.

Any massage provided or massage establishment operated, conducted, or maintained contrary to the provisions of this chapter shall be, and the same is hereby declared to be, a misdemeanor and a public nuisance, and the City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in the manner provided by law. Such remedies shall be in addition to any other judicial and administrative penalties and remedies available to the city under this code or state or federal law. (Ord. 4-15 § 4 (part)) Upon determination by the certification officer or any 901
Dublin Municipal Code
Chapter 4.20 MASSAGE ESTABLISHMENTS AND

MASSAGE SERVICES

The Dublin Municipal Code is current through Ordinance 17-22, passed December 6, 2022. other city enforcement officer that a violation of this chapter has taken place, the officer is authorized to issue an administrative citation that may result in administrative fines in accordance with Chapter 1.06.

4.20.041 Violations – Renewal and citation compliance.

In addition to any other remedy available to the city under applicable law, a massage establishment permit may not be renewed or amended unless and until all due and unpaid citations issued pursuant to this chapter are paid in full, and all outstanding violations have been corrected.

4.20.045 Violations – Moratorium.

A. In addition to any other remedy available to the city under applicable law, a massage establishment permit may be suspended or revoked as provided in Section 4.20.110. Upon issuance of a final order by the Permit Administrator to revoke the massage permit, the massage establishment shall immediately cease operation, and, if so, ordered by the hearing officer, no other massage establishment shall be permitted to operate at that location by any person for a period of not less than three years (“the moratorium period”). If the operator is not also the legal owner of the real property on which the massage establishment is situated, notice of such revocation and the three-year moratorium period shall be provided by the permit authority to the owner of record of the property as shown on the latest county assessment roll.

A.B. Notwithstanding any other provision of this chapter, where a Notice of Revocation or Suspension has been issued to the operator of a massage establishment pursuant to Section 4.20.110 of this chapter, the Permit Administrator shall not process or grant an application for a massage establishment permit for a new massage establishment at the same premises unless and until such Notice of Revocation or Suspension is dismissed; or a final determination is made pursuant to that section that the current operator’s massage establishment permit is not or should not be revoked; or any moratorium period imposed pursuant to this chapter has expired.

Article II. Massage Establishments

4.20.050 Permit—Required.

A. No establishment shall offer massage services without having first obtained a city business license and a city massage establishment permit in accordance with the provisions of this chapter.

B. A separate city massage establishment permit must be obtained for each branch location where massage services are carried out.

C. The massage establishment permit shall be renewed every two (2) years. (Ord. 4-15 § 4 (part))

4.20.060 Application procedure and requirements.

An application for a massage establishment permit shall be submitted to the Permit Administrator on forms provided by the Permit Administrator. Such forms shall require submission of the following information:

A. The proposed name, address, and telephone number of the massage establishment.

B. The name and street address and telephone number of the owner(s) on which the massage establishment is operated. In the event the applicant is not the legal owner of the property on which the massage establishment is located, the application shall be accompanied by a copy of the lease and an acknowledgement from the owner of the property that a massage establishment is located on the property; C. The exact nature of the massage to be administered;
D. The massage establishment’s hours of operation;
E. A detailed diagram showing the interior floor plan and configuration of the premises; F. The name of each individual who the massage establishment employs or retains to perform massage therapy for compensation;
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G. The name of each individual who is regularly employed or retained by the massage establishment to perform services on the premises other than massage therapy, and the nature of their services.

H. For each owner of the massage establishment who is a CAMTC-certified massage professional, a copy of his or her current certification from the CAMTC as a certified massage practitioner or as a certified massage therapist and a copy of his or her current CAMTC-issued identification card and:
a. All disciplinary action against, suspension, denial, or revocation of a permit or certificate to practice massage, including the agency, date, and reason associated with the action.

I. For each owner of the massage establishment, the following information:
a. The business, occupation, employment, and residency history of each owner of the massage establishment for five years preceding the date of application, and the inclusive dates of same; b. Height, weight, color of eyes and hair;
c. Written proof that the owner(s) is at least eighteen (18) years of age; d. Driver’s license number of the owner, including a copy of a driver’s license or other state issued identification card;
e. Two current (2) color portrait photographs of the applicant at least two (2) inches by two (2) inches;
f. The massage or similar business license history of the owner; whether such person, in previously operating in this or another city, county or state under license, has had such license revoked or suspended, the reason therefor, and the business activity or occupation subsequent to such action of suspension or revocation;
g. All criminal convictions except minor traffic violations and any criminal charges pending against the applicant at the time of submission of the application, other than misdemeanor traffic citations, including the name and address of the court in which the charge is pending and any applicable case numbers;
h. A statement whether the owner has failed to pay any judgment arising from or connected with the activities that would be authorized by the permit;
J. Proof of an unexpired business license or proof of current application for business license in the city; K. Fingerprints of the owner (this is waived for CAMTC-certified owners per Government Code Section 51034 (c));
L. Such other identification and information as deemed necessary by the Permit Administrator; and M. All massage establishments must demonstrate practitioner’s liability insurance coverage in the amount of a minimum of two million dollars ($2,000,000) per event at all times when performing massage activities.

The coverage must be held in the name of the massage establishment or each massage therapist authorized to perform massage. (Ord. 4-15 § 4 (part))
A. The exact nature of the massage to be administered, the proposed place of business and facilities therefor, and the name and address of the applicant. The application shall include the name and street address of the owner and 903
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B. The two (2) previous addresses immediately prior to the present address of the applicant; C. Written proof that the applicant is at least eighteen (18) years of age; D. Applicant’s height, weight, color of eyes and hair;
E. Two (2) color portrait photographs of the applicant at least two (2) inches by two (2) inches; F. Business, occupation, or employment of the applicant for the three (3) years immediately preceding the date of application;
G. The massage or similar business license history of the applicant; whether such person, in previously operating in this or another city, county or state under license, has had such license revoked or suspended, the reason therefor, and the business activity or occupation subsequent to such action of suspension or revocation; H. Proof of an unexpired business license or proof of current application for business license in the city; I. All criminal convictions except minor traffic violations and any criminal charges pending against the applicant at the time of submission of the application, other than misdemeanor traffic citations, including the name and address of the court in which the charge is pending and any applicable case numbers; J. Fingerprints of the applicant;
K. The driver’s license number of the applicant, including a copy of a driver’s license or other state issued identification card;
L. A statement whether the applicant has failed to pay any judgment arising from or connected with the activities that would be authorized by the permit;
M. Such other identification and information as deemed necessary by the Permit Administrator; and N. All massage establishments must demonstrate practitioner’s liability insurance coverage in the amount of a minimum of two million dollars ($2,000,000) per event at all times when performing massage activities. The coverage must be held in the name of the massage establishment or massage therapist authorized to perform massage. (Ord. 4-15 § 4 (part))

4.20.065 Amendments to permit.

A. Whenever the information provided in the application for a massage establishment on file with the city changes, the operator shall file an application, provided by the Permit Administrator or his or her designee, to amend the permit to reflect such change within three business days of occurrence. The application shall be accompanied by the fee established by the city’s fee schedule.

B. An amendment shall not be used to change the location or owners of a massage establishment. Instead, a new permit application is required.

C. A denial of an application to amend a massage establishment permit may be appealed in the same manner as a denial of an application for a permit under Section 4.20.140.

4.20.070 City massage establishment permit fee required.

No city massage establishment permit shall be issued hereunder until the appropriate fee has been paid. The fee for a city massage establishment shall be as established by the City Council by resolution. (Ord. 4-15 § 4 (part))

4.20.080 Permit—Issuance or denial.

The Permit Administrator shall, within thirty (30) days after receipt of an application complying with all the provisions of this chapter, issue a permit or deliver to the applicant, personally or by mail, written notice of denial of the permit, setting forth the reason or reasons therefor, in accordance with the provisions of Section 4.20.090. (Ord. 4-15 § 4 (part))

4.20.090 Permit—Grounds for denial.

The Permit Administrator shall deny the permit if he/she finds:

A. That any information contained in or submitted with the application is not true, contains material misrepresentations, or if relevant or material information is omitted from the application; or 904
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B. That the operation as proposed by the applicant would not comply with any provision of this chapter or any other ordinance or regulation of the city or any statute or regulation of the state of California; or C. That any person who would be directly engaged in the management and operation of the massage establishment has been convicted of any of the following offenses, found in violation of any of the following codes, or convicted of an offense outside of the state of California that would have constituted any of the following offenses if committed within the state of California:

1. An offense involving the use of force and violence upon the person of another that amounts to a felony.

2. An offense involving sexual misconduct or an offense involving conduct which requires registration under California Penal Code Section 290.

3. An offense as defined in California Penal Code Section 266I, 315, 316, 318 or, 647(b) or 647b 653.23.

4. An offense involving and as said statutes may be amended in the future, theft or fraud related offenses.

5. A conviction , convictions under California Penal Code Section 11225 et seq.-11235 (Red Light Abatement Law)

6. A conviction of a crime , or crimes that are designated in California Government Code Section 51032(b).

7. A conviction of and as that statute may be amended in the future or conviction of any other state or federal offense involving dishonesty, fraud, deceit, violence or moral turpitude or conspiracy to commit any of the offenses designated above.

8. Any offense involving the violation of California Health and Safety Code Sections 11570-11587 (Controlled Substance Abatement).

9. Any violation of California Civil Code Sections 3479 and 3480 (Public Nuisance).

Convictions that have been expunged shall also be reported.; or D. That, for any other reason, the operation as proposed would be detrimental to the public peace, health, safety, morals or welfare or to neighboring property; or
E. That the proposed name of the business for the establishment suggests that the establishment will offer or practice any service or activities proscribed under the provisions of this chapter. (Ord. 4-15 § 4 (part)) F. The proposed business has had a massage establishment revoked or suspension in the past three years pursuant to Section 4.20.045.

4.20.100 Permit—Display requirements.

Every massage establishment permit issued pursuant to the provisions of this chapter shall at all times be displayed in a conspicuous place within the massage establishment. (Ord. 4-15 § 4 (part))

4.20.110 Revocation or suspension—Reasons.

Any city massage establishment permit issued pursuant to this chapter may be suspended or revoked by the Permit Administrator after a hearing, where it is found by clear and convincing evidence that any of the following have occurred:

A. Finding of Violation. The person(s) to whom the city massage establishment permit has been issued, or any person employed or retained by the massage establishment, has been found to have violated any provision of this chapter; or California Business and Professional Code Section 4609; or B. Prohibited Conduct. The permittee, or any person employed or retained by the massage establishment, has been convicted in a court of competent jurisdiction of having violated, or has engaged in conduct constituting a violation of, any of the following: California Penal Code Section 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 905
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D. Nuisance Injunction. The permittee has been subject to a permanent injunction against the conducting or maintaining of a nuisance pursuant to this code, or Sections 11225 through 11235 of the California Penal Code, or any similar provision of law in any jurisdiction outside the state of California; or E. Fraud or Misrepresentation. The permittee or any employee has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact while working in or for the massage establishment; or F. Operation during Suspension. The permittee has continued to operate the massage establishment after the city massage establishment permit or establishment registration certificate has been suspended; or G. Massage without Certification. Massage has been performed on the premises, with or without the permittee’s actual knowledge, by any person who is not a duly authorized certified massage therapist; or H. Prohibited Acts. There have been one (1) or more acts prohibited under California Penal Code Section 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, or 647(b), or 653.22 taking place on the premises, whether or not any criminal prosecution has been pursued or conviction obtained for such acts, and whether or not they occurred with or without the actual knowledge of the permittee; or I. Sexual Touching. The permittee or any person employed or retained by the massage establishment or any other person on the premises of the massage establishment has engaged in conduct or committed acts that a reasonable person in a patron’s position would understand as an offer to perform on or engage in with the patron acts that are sexual in nature or that involve touching of the patron’s genitals, pubic area, anus, and or areola; or J. Negligent Supervision. The permittee failed to provide adequate supervision of the massage establishment, resulting in a pattern of at least three (3) violations of this code or state or federal law; or. (Ord. 4-15 § 4 (part)) K. Labor Violations. The owner or operator failed to comply with a final court order or administrative action of an investigatory agency finding a violation of applicable federal, state and local wage and hour laws, including, but not limited to, the Federal Fair Labor Standards Act, the California Labor Code, and any local minimum wage ordinance or prevailing wage requirements. For purposes of this subsection, a final court order or administrative action is one as to which there is no pending appeal and the time for filing an appeal has passed.

4.20.120 Revocation or suspension of city massage establishment permit—Hearing procedure.

A. Written Notice Required. The Permit Administrator, before revoking or suspending any establishment registration certificate, shall give the permittee at least ten (10) business days’ written notice of the alleged grounds for revocation or suspension and shall conduct a hearing in the matter ofto determine whether the permit or certificate shall be revoked or suspended. The permittee shall be notified of the date of the hearing, and the hearing date shall be conducted at least no sooner than ten (10) business days from the date of the written notice. The written notice which shall be provided in the following manner:

1. Service of Notice and Order. All notices shall be posted on the property and also served upon the record owner and any tenant. A copy of the notice shall also be served on each of the following if known to the Permit Administrator or disclosed from official public records: the holder of any mortgage or deed of trust or other lien or encumbrance; the owner or holder of any lease; and the holder of any other estate or legal interest of record in or to the building or the land on which it is located. The failure of the Permit Administrator to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served to relieve any such person from any duty or obligation imposed by the provisions of this section. 906
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2. Method of Service. Service shall be made upon all persons entitled thereto either personally or by mailing a copy by first class U.S. mail to each such person at their address as it appears on the last equalized assessment roll of the county or as known to the Permit Administrator. If no address of any such person appears or is known to the Permit Administrator, then a copy shall be mailed to the address of the parcel of land involved in the proceedings. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this section. Service shall be effective on the date of the mailing.

3. Proof of Service. At the time of service, each person affecting service shall complete a written declaration under penalty of perjury, which declares the time, date and manner in which service was made. The declaration shall be affixed to the copy of the notice and order retained by the Permit Administrator.

B. Hearing. The Permit Administrator may establish reasonable rules and procedures for the conduct of the hearing, provided that such rules satisfy the permittee’s due process rights under the United States and California Constitutions, and such rules need not provide the permittee an opportunity to appear before the Permit Administrator or require an in-person hearing. At the hearing, the Permit Administrator shall consider all evidence submitted at the hearing. The hearing may, after being commenced within the time specified pursuant to subsection A of this section, be continued for good cause by the Permit Administrator from time to time. The Permit Administrator shall, at the conclusion of the hearing, make findings of fact based upon the evidence submitted and shall decide whether or not the permit or certificate shall be revoked or suspended.

C. Notice of Decision. The Permit Administrator’s written notice of decision shall be served on the permittee, within thirty (30) business days of the conclusion of the hearing, in the manner provided in subsection (A)(2) of this section, and, in the case of a revocation or suspension, such notice of decision shall indicate the appeal procedures as set forth hereinafter. (Ord. 4-15 § 4 (part))

4.20.125 Denial, suspension and revocation of registration certificates.

No reapplication will be accepted within three years after a certificate is revoked.

4.20.130 Permit nontransferable.

No permit issued pursuant to the provisions of this chapter is transferable to any other person or location. (Ord. 4-15 § 4 (part))

4.20.140 Appeal procedure.

An applicant or permittee may appeal any written action or determination of the Permit Administrator under the provisions of this chapter to the City Manager pursuant to the provisions of Section 1.04.050 by filing written notice thereof with the City Clerk not later than ninety-six (96) hours after the delivery of any written notice given by the Permit Administrator.. The effect of revocation of a permit shall be suspended by the filing of a notice of appeal until the determination of the appeal by the City Manager. (Ord. 4-15 § 4 (part))

4.20.150 Requirements—Massage establishments.

A. Operational Requirements. Except as otherwise specifically provided in this chapter, the following operational requirements shall be applicable to all massage establishments located within the city:

1. No massage establishment shall be open for business between the hours of ten p.m. (10:00 p.m.) of one (1) day and seven a.m. (7:00 a.m.) of the following day. Massage begun any time before ten p.m. (10:00 p.m.) must nevertheless terminate at ten p.m. (10:00 p.m.). The hours of operation shall be displayed in a conspicuous public place in the reception area and in any front window clearly visible from outside of the massage establishment.

2. Patrons and visitors shall be permitted in the massage establishment only during the hours of operation.

3. Except for a patron who is inside a room for the purpose of receiving a massage, no patrons or visitors shall be permitted in or on the massage establishment premises at any time who are less thanunless they are fully clothed in outer garments of nontransparent material., or who display or expose themselves in underclothing or similar intimate apparel.
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4. During the hours of operation, visitors shall not be permitted in massage rooms except as follows: (a) the parents or guardian of a patron who is a minor child may be present in the room with that minor child; (b) the minor child of a patron may be present in the room with the patron when necessary for the supervision of the child; and (c) the conservator, aid, or other caretaker of a patron who is elderly or disabled may be present in the room with that elderly or disabled person.

5. During the hours of operation, patrons shall be permitted in massage rooms only if at least one (1) duly authorized certified massage therapist is present on the premises of the massage establishment.

6. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises, or provided to patrons before services are rendered. The services shall be described in English and may also be described in such other languages as may be convenient. No person employed or retained by the massage establishment shall offer to perform any services or fees other than those posted.

7. For all employees employed or retained by the certified massage establishment who provide massage, the following document shall be available to city staff upon inspection pursuant to Section 4.20.200: a valid permit certificate from the CAMTC.

8. The massage establishment shall keep on the premises a complete and current roster of all owners, operators, and managing employees of the massage establishment and all massage professionals and other persons employed or retained by the massage establishment. The roster shall include the name, residence address, and phone number of each individual. The roster shall be available for inspection by city officials charged with the enforcement of this chapter.

B. Physical Facility and Building and Fire Code Requirements. Except as otherwise specifically provided in this chapter, the following physical facility and building code requirements shall be applicable to all massage establishments located within the city:

1. Front Door and Reception Area. One (1) front door shall be provided for patron entry, which shall open to an interior patron reception and waiting area immediately inside the front door. All patrons and any persons other than individuals employed or retained by the massage establishment shall be required to enter and exit through the front door.

2. Visibility. No massage establishment located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area shall block visibility into the interior reception and waiting area through the use of curtains, open or closed blinds, tints, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises.

3. Locks. All interior doors, including rooms or cubicles in which massage occurs, but excluding individual dressing rooms and toilet rooms, shall be incapable of being locked and shall not be blocked to prevent opening. Draw drapes, curtain enclosures, or accordion-pleated closures in lieu of doors are acceptable on all inner rooms or cubicles.

4. Lighting. Minimum lighting equivalent to at least one (1) forty (40) watt light shall be provided in each room or cubicle in which massage is provided.

5. Tables, Mats, and Beds. A massage table shall be used for all massage, with the exception of “Thai,” “Shiatsu,” and similar forms of therapy, which may be provided on a padded mat on the floor, provided the patron is fully attired in loose clothing, pajamas, scrubs, or similar style of garment. Massage tables shall have a minimum height of eighteen (18) inches. Beds, floor mattresses, and waterbeds are not permitted on the premises of the massage establishment, and no massage establishment shall be used for residential or sleeping purposes.

6. Lockers. All locker facilities that are provided for the use of patrons shall be fully secured for the protection of the patrons’ valuables, and each patron shall be given control of the key or other means of access. 908
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7. Building and Fire Codes. The massage establishment shall comply with all applicable state and local building standards (as adopted in Title 7) and the fire code (as adopted in Title 5).

C. Health and Safety Requirements. Except as otherwise specifically provided in this chapter, the following health and safety requirements shall be applicable to all massage establishments located within the city:

1. Towels and Linens. The massage establishment shall at all times be equipped with an adequate supply of clean sanitary towels, coverings, and linens, and all massage tables shall be covered with a clean sheet or other clean covering for each patron. After a towel, covering, or linen has been used once, it shall be deposited in a closed receptacle and not used again until properly laundered and sanitized. Towels, coverings, and linens shall be laundered either by regular commercial laundering, or by a noncommercial laundering process that includes immersion in water at least one hundred forty (140) degrees Fahrenheit for not less than fifteen (15) minutes during the washing or rinsing operation. Clean towels, coverings, and linens shall be stored in closed, clean cabinets when not in use.

2. Cleaning and Disinfecting. All rooms or cubicles, wet and dry heat rooms, toilet rooms, shower compartments, hot tubs, and pools shall be thoroughly cleaned and disinfected as needed, and at least once each business day when the premises are open and such facilities are in use. All bathtubs shall be thoroughly cleaned and disinfected after each use.

3. Liquids, Creams, and Powders. All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. Powders may be kept in clean shakers. All bottles and containers shall be distinctly and correctly labeled to disclose their contents. When only a portion of a liquid, cream, or other preparation is to be used on or made available to a patron, it shall be removed from the container in such a way as not to contaminate the remaining portion.

4. Invasive Procedures. No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to: (a) application of electricity that contracts the muscle; (b) penetration of the skin by metal needles; (c) abrasion of the skin below the nonliving, epidermal layers; (d) removal of skin by means of any razor-edged instrument or other device or tool; (e) use of any needle-like instrument for the purpose of extracting skin blemishes; and (f) other similar procedures.

5. Garments Provided to Patrons. All bathrobes, bathing suits, and/or other garments that are provided for the use of patrons shall be either fully disposable and not used by more than one (1) patron, or shall be laundered after each use pursuant to subsection (C)(1) of this section.

6. Combs and Brushes. All combs, brushes, and/or other personal items of grooming or hygiene that are provided for the use of patrons shall be either fully disposable and not used by more than one (1) patron, or shall be fully disinfected after each use.

7. Footwear. No patrons shall be allowed to use any shower facilities of the massage establishment unless such patrons are wearing slip-resistant sandals or flip-flops while in the shower compartment. All footwear such as sandals or flip-flops that are provided for the use of patrons either shall be fully disposable and not used by more than one (1) patron, or shall be fully disinfected after each use.

8. Draping and Contact with Genitals. The patron’s genitals, pubic area, anus, and female patron’s breasts below a point immediately above the top of the areola must be fully draped at all times while any employee of the massage establishment is in the massage therapy room or cubicle with the patron. No massage shall be provided to a patron that results in intentional contact, or occasional and repetitive contact, with the genitals, anus, or areola of a patron.

9. Alcohol. No alcoholic beverages shall be sold, served, or furnished to any patron; nor shall any alcoholic beverages be kept or possessed on the premises of a massage establishment.

D. Attire and Hygiene. The following attire and physical hygiene requirements shall be applicable to all employees, and any other persons who work permanently or temporarily on the premises of a massage establishment within the city, including, but not limited to, all persons who are employed or retained to practice massage:
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1. Garments. All persons shall wear clean and sanitary outer garments at all times. All outer garments shall be of a fully opaque, nontransparent material and provide complete covering from at least the mid-thigh to two (2) inches below the collarbone. The midriff may not be exposed.

2. Exposure. No operator, employee, or visitor shall, while on the premises of a massage establishment, and while in the presence of any patron, customer, employee or visitor, expose his or her genitals, buttocks, or chest.

3. Clean Skin. All persons shall thoroughly wash their hands with soap and water or any equally effective cleansing agent immediately before providing massage. No massage shall be provided upon a surface of the skin or scalp of a patron where such skin is inflamed, broken (e.g., abraded or cut), or where a skin infection or eruption is present.

E. Display of Permits and Certifications. Each person employed or retained to perform massage in or on the premises shall display on his or her person a copy of the valid photograph-bearing identification card issued to that employee by the CAMTC. A copy of each such identification card shall also be displayed in an open and conspicuous place visible from the entrance and/or reception and waiting area of the massage establishment. The home address of any employee need not be displayed. (Ord. 4-15 § 4 (part))

4.20.160 CAMTC certification required.

A. Massage establishments within the city shall only employ CAMTC certified massage therapists.

B. An original copy of Ccertification as a certified massage therapist must be conspicuously posted within the massage establishment and the certification must be current for all massage therapists. The certificate holder shall have his or her identification card in his or her possession while providing massage services for compensation.

C. The certificate holder shall provide his or her full name and certificate number upon the request of a member of the public, a representative of the city, or a local government agency charged with regulating massage or massage establishments, at the location where he or she is providing massage services for compensation. (Ord. 4-15 § 4 (part))
D. The massage establishment owner/operator shall complete all registration forms provided to him/her by the Permit Administrator for each massage therapist. The owner/operator shall complete applicable forms and submit to the Permit Administrator prior to the expiration of the certification expiration, to demonstrate that the massage therapists providing service on the massage establishment’s behalf have recertified their CAMTC certification.

Such forms shall require submission of the following information:

1. The name and residence address of the massage therapist;

2. A copy of their CAMTC ID Card and CAMTC certification;

3. Height, weight, color of eyes and hair;

4. Written proof that the owner(s) is at least eighteen (18) years of age;

5. Two (2) current color portrait photographs of the applicant at least two (2) inches by two (2) inches;

6. The driver’s license number of the owner, including a copy of a driver’s license or other state issued identification card;

7. The full name, street address, and telephone number of all other business premises in which the massage therapist administers massage;

8. If applicable, any other name(s) or nicknames used by the massage therapist; 910
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9. Primary language(s), if other than English; and (Ord. 4-15 § 4 (part))

10. Such other identification and information as deemed necessary by the Permit Administrator.
. (Ord. 4-15 § 4 (part))

4.20.170 Employees—Age requirement.

No permittee shall employ either as a massage therapist or other employee any person under the age of eighteen (18) years. (Ord. 4-15 § 4 (part))

4.20.180 Daily register required.

Every permittee shall keep a daily register, approved as to form by the Permit Administrator, of all patrons, with names, addresses and hours of arrival and the rooms or cubicles assigned, if any. The daily register shall at all times during business hours be subject to inspection by the Permit Administrator, and shall be kept on file for one (1) year. (Ord. 4-15 § 4 (part))

4.20.190 4.20.190 Advertising restrictions.

No massage establishment granted a permit under the provisions of this chapter shall place, publish or distribute or cause to be placed, published or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective patrons that any service is available other than those services described in Section 4.20.010 (“massage”), nor shall any massage establishment indicate in the text of such advertising that any service is available other than those services described in Section 4.20.010 (“massage”). (Ord. 4-15 § 4 (part)) No massage establishment shall falsely state or advertise or put out any sign or card or other device, or to falsely represent to the public through any print or electronic media, that he or she or any other individual is licensed, certified, or registered by a governmental agency as a massage therapist or massage practitioner.

4.20.200 Massage establishment inspections.

A. The Permit Administrator shall have the right to enter any massage establishment during regular business hours, without a search or inspection warrant, to make reasonable inspection to ascertain whether there is compliance with provisions of this chapter.

B. The massage establishment shall take immediate action to correct each violation noted by the Permit Administrator. A re-inspection will be performed within thirty (30) business days to ensure that each violation noted by the Permit Administrator has been corrected. (Ord. 4-15 § 4 (part))

4.20.210 Massage by customer prohibited.

No customer or client of a massage establishment shall massage a massage therapist, or any other person within a massage establishment. (Ord. 4-15 § 4 (part))

4.20.220 Outcall massage services prohibited.

No person shall engage in outcall massage services. Outcall massage shall not include massage provided by any person licensed under Business and Professions Code Sections 2135 through 2139 (medicine), 2630 or 2639 (physical therapy), 2732.1, 2733 or 2742 (nursing), or under the Chiropractic Initiative Act of 1922. (Ord. 4-15 § 4 (part))

4.20.225 Notifications.

A massage establishment shall notify the Permit Administrator of any of the following within three business days of the instance:

A. Cessation of business as a massage business or massage therapist practicing in the City of Dublin; B. Arrest of any massage establishment owner, therapist, or employee for an offense other than a misdemeanor traffic offense;
C. Resignation, termination, or transfer of any massage practitioners employed or hired by the massage establishment;
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D. Any matter or event involving the massage establishment or massage therapists, employed or working for the massage business that constitutes a violation of this chapter, state or federal law or a violation of any law which would be grounds for denial, suspension, or revocation of a massage establishment permit; E. The denial, suspension, or revocation of a massage business’s employee’s or independent contractor’s certificate issued by CAMTC.

Article III. Massage Therapists

4.20.230 City massage therapist registration—Required.

Except for any person licensed under Business and Professions Code Sections 2135 through 2139 (medicine), 2630 or 2639 (physical therapy), 2732.1, 2733 or 2742 (nursing) or under the Chiropractic Initiative Act of 1922, no person shall, in or upon any premises in the city, act in the capacity of a massage therapist without first having registered with the Permit Administrator in accordance with the provisions of this chapter. (Ord. 4-15 § 4 (part))

4.20.240 Registration procedure and requirements.

Each massage therapist will adhere to the certification rules and regulations set forth by the CAMTC.

Massage therapists must complete all registration forms provided to him/her by the Permit Administrator. Massage therapists shall come into the city every two (2) years to demonstrate that they have recertified their state certification.

Such forms shall require submission of the following information:

A. The name and residence address of the massage therapist; B. The name and address of the CAMTC certified school attended, the dates attended and a copy of the diploma or certificate of graduation awarded the applicant showing the applicant has completed coursework necessary to achieve CAMTC certification;
C. All the information required by Sections 4.20.060(B) through (M) or as set forth on city registration documents;
D. The full name, street address, and telephone number of all other business premises in which the massage therapist administers massage;
E. If applicable, any other name(s) or nicknames used by the massage therapist; and F. Primary language(s), if other than English. (Ord. 4-15 § 4 (part))

4.20.250 CAMTC certification—Exceptions.

As set forth in Sections 4.20.160 and 4.20.240, only CAMTC certified massage therapists are permitted to register with the city and work at massage establishments.

In limited circumstances, a massage therapist without CAMTC certification may practice massage in the city, but only if he or she obtains written permission from the Permit Administrator. Requests must be made in writing and clearly set forth the circumstances surrounding the request.

A letter approving or denying such request will be made in writing within thirty (30) days. Decisions are made at the sole discretion of the Permit Administrator, are final, and are not subject to appeal. (Ord. 4-15 § 4 (part))

4.20.260 Continuing registration requirements.

Upon a change in location or premises or addition of premises in which the massage therapist administers massage, the certified therapist shall update his or her registration with the Permit Administrator. (Ord. 4-15 § 4 (part)) 912
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4.20.250 Massage Therapist responsibility.

Individual massage establishment employees, agents, independent contractors, or other representatives providing services on behalf of the massage establishment may also be cited for violations pursuant to this chapter at the discretion of the Permit Administrator.
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Chapter 4.20

MASSAGE ESTABLISHMENTS AND MASSAGE SERVICES
Sections:

Article I. General Provisions

4.20.010 Definitions.

4.20.020 Exemptions.

4.20.030 Owner responsibility.

4.20.040 Violations a misdemeanor and a nuisance.

4.20.041 Violations – Renewal and citation compliance

4.20.045 Violations – moratorium.

Article II. Massage Establishments

4.20.050 Permit—Required.

4.20.060 Application procedure and requirements.

4.20.065 Amendments to permit.

4.20.070 City massage establishment permit fee required.

4.20.080 Permit—Issuance or denial.

4.20.090 Permit—Grounds for denial.

4.20.100 Permit—Display requirements.

4.20.110 Revocation or suspension—Reasons.

4.20.120 Revocation or suspension of city massage establishment permit—Hearing procedure.

4.20.125 Denial, suspension and revocation of registration certificates.

4.20.130 Permit nontransferable.

4.20.140 Appeal procedure.

4.20.150 Requirements—Massage establishments.

4.20.160 CAMTC certification required.

4.20.170 Employees—Age requirement.

4.20.180 Daily register required.

4.20.190 Advertising restrictions.

4.20.200 Massage establishment inspections.

4.20.210 Massage by customer prohibited.

4.20.220 Outcall massage services prohibited.

4.20.225 Notifications.

Article III. Massage Therapists

4.20.230 City massage therapist registration—Required.

4.20.240 Registration procedure and requirements.

4.20.250Massage Therapist responsibility.* Prior ordinance history: Ords. 2-87, 2-93.

Article I. General Provisions

4.20.010 Definitions.

Unless the provision or context otherwise requires, the definitions contained herein shall govern the construction of this chapter.
“Applicant” means any person who applies for a permit as required by this chapter. “California Massage Therapy Council” or “CAMTC” means the massage therapy organization created pursuant to Section 4600.5 of the California Business and Professions Code and further defined in Section 4600 of that code.

Attachment 3
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The Dublin Municipal Code is current through Ordinance 17-22, passed December 6, 2022. “Certified massage therapist” means a massage therapist certified by the CAMTC as a certified massage practitioner or as a certified massage therapist pursuant to Section 4601(b) or 4601(c) of the California Business and Professions Code.
“City massage establishment permit” means a permit issued to a massage establishment by the Permit Administrator in accordance with this chapter.
“Compensation” means the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value.
“Employee” means any person, other than a massage therapist, who renders any service to the permittee, who receives compensation directly from the permittee, and who has no physical contact with the customers and clients. “Fully clothed” means clothes are worn in such a manner that an individual’s genitals, buttocks, and chest is not exposed and all outer garments are of a fully opaque, nontransparent material and provide complete covering from at least the mid-thigh to two (2) inches below the collarbone. The midriff may not be exposed. “Massage” means any method of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or with the aid of any mechanical or electrical apparatus or appliance, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparation commonly used in this practice. “Massage establishment” means any establishment having a fixed place of business where any person engages in or carries on or permits to be engaged in or carried on any of the activities described in the definition of “massage” set out in this section.
“Massage therapist” means any person who, for any consideration whatsoever, engages in the practice of massage as herein defined.
“Operator” or “massage establishment operator” means any person who is an owner or manager of a massage establishment.
“Outcall massage service” means engaging in or carrying on the practice of massage, not at a fixed location licensed such as a massage establishment, but at a location designated by the permittee, massage therapist, customer or client. “Owner” or “massage establishment owner” means any of the following persons:
(1) The sole proprietor of a sole proprietorship operating a massage establishment. (2) Any general partner of a general or limited partnership that owns a massage establishment. (3) Any person who has a ten percent or greater ownership interest in a corporation that owns a massage establishment.
(4) Any person who is a member of a limited liability company that owns a massage establishment. (5) All owners of any other type of business association that owns a massage establishment. “Patron” means an individual on the premises of a massage establishment for the purpose of receiving massage therapy.
“Permit Administrator” means the Chief of Police or his/her designee. “Permittee” means any person operating or maintaining a massage establishment. (Ord. 4-15 § 4 (part)) “School of Massage” means any school or institution of learning that is recognized as an approved school pursuant to Business and Professions Code Division 2.
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The Dublin Municipal Code is current through Ordinance 17-22, passed December 6, 2022. “Visitor” means any individual not retained or employed by the massage establishment and not receiving or waiting to receive massage therapy services, but excluding law enforcement personnel or governmental officials performing governmental business.

4.20.020 Exemptions.

This chapter shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions:

A. Physicians, surgeons, chiropractors, osteopaths, podiatrists, physical therapists, nurses, or any other person licensed to practice any healing art under the provisions of Division 2 (commencing with Section 500) of the Business and Professions Code when engaging in such practice within the scope of his or her license.

B. Trainers of any amateur, semi-professional, or professional athlete or athletic team, so long as such persons do not practice massage as their primary occupation at any location where they provide such services in the city.

C. Barbers, estheticians and cosmetologists who are duly licensed under the laws of the state of California, while engaging in practices within the scope of their licenses.

D. Individuals in the city temporarily for educational events.

E. Individuals administering massages or health treatments involving massage to persons participating in road races, track meets, triathlons, educational events, conferences or similar single-occurrence athletic, recreational, or educational events.
(Ord. 4-15 § 4 (part))

4.20.030 Owner responsibility.

For the purpose of enforcing the requirements of this chapter, the massage establishment owner shall be responsible for the conduct of all massage establishment employees, agents, independent contractors, or other representatives while such persons are providing services on behalf of the massage establishment. Pursuant to California Business and Professions Code 4607, the Permit Administrator may discipline an owner or operator of a massage business or establishment ,or an applicant for certification, pursuant to this chapter for the conduct of all individuals providing massage for compensation on the business premises.

4.20.040 Violations a misdemeanor and a nuisance.

Any massage provided or massage establishment operated, conducted, or maintained contrary to the provisions of this chapter shall be, and the same is hereby declared to be, a misdemeanor and a public nuisance, and the City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in the manner provided by law. Such remedies shall be in addition to any other judicial and administrative penalties and remedies available to the city under this code or state or federal law. (Ord. 4-15 § 4 (part)) Upon determination by the certification officer or any other city enforcement officer that a violation of this chapter has taken place, the officer is authorized to issue an administrative citation that may result in administrative fines in accordance with Chapter 1.06.

4.20.041 Violations – Renewal and citation compliance.

In addition to any other remedy available to the city under applicable law, a massage establishment permit may not be renewed or amended unless and until all due and unpaid citations issued pursuant to this chapter are paid in full, and all outstanding violations have been corrected.

4.20.045 Violations – Moratorium.

A. In addition to any other remedy available to the city under applicable law, a massage establishment permit may be suspended or revoked as provided in Section 4.20.110. Upon issuance of a final order by the Permit Administrator to revoke the massage permit, the massage establishment shall immediately cease operation, and, if so, ordered by the hearing officer, no other massage establishment shall be permitted to operate at that location by any person for a period of not less than three years (“the moratorium period”). If the 916
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B. Notwithstanding any other provision of this chapter, where a Notice of Revocation or Suspension has been issued to the operator of a massage establishment pursuant to Section 4.20.110 of this chapter, the Permit Administrator shall not process or grant an application for a massage establishment permit for a new massage establishment at the same premises unless and until such Notice of Revocation or Suspension is dismissed; or a final determination is made pursuant to that section that the current operator’s massage establishment permit is not or should not be revoked; or any moratorium period imposed pursuant to this chapter has expired.

Article II. Massage Establishments

4.20.050 Permit—Required.

A. No establishment shall offer massage services without having first obtained a city business license and city massage establishment permit in accordance with the provisions of this chapter.

B. A separate city massage establishment permit must be obtained for each branch location where massage services are carried out.

C. The massage establishment permit shall be renewed every two (2) years. (Ord. 4-15 § 4 (part))

4.20.060 Application procedure and requirements.

An application for a massage establishment permit shall be submitted to the Permit Administrator on forms provided by the Permit Administrator. Such forms shall require submission of the following information:

A. The proposed name, address, and telephone number of the massage establishment.

B. The name and street address and telephone number of the owner(s) on which the massage establishment is operated. In the event the applicant is not the legal owner of the property on which the massage establishment is located, the application shall be accompanied by a copy of the lease and an acknowledgement from the owner of the property that a massage establishment is located on the property; C. The exact nature of the massage to be administered;
D. The massage establishment’s hours of operation;
E. A detailed diagram showing the interior floor plan and configuration of the premises; F. The name of each individual who the massage establishment employs or retains to perform massage therapy for compensation;
a. For each individual who the massage establishment does or will employ or retain to perform massage therapy for compensation, a copy of that individual’s current certification from the CAMTC as a certified massage practitioner or certified massage therapist, and a copy of his or her current CAMTC-issued identification card.

G. The name of each individual who is regularly employed or retained by the massage establishment to perform services on the premises other than massage therapy, and the nature of their services.

H. For each owner of the massage establishment who is a CAMTC-certified massage professional, a copy of his or her current certification from the CAMTC as a certified massage practitioner or as a certified massage therapist and a copy of his or her current CAMTC-issued identification card and:
a. All disciplinary action against, suspension, denial, or revocation of a permit or certificate to practice massage, including the agency, date, and reason associated with the action. 917
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I. For each owner of the massage establishment, the following information:
a. The business, occupation, employment, and residency history of each owner of the massage establishment for five years preceding the date of application, and the inclusive dates of same; b. Height, weight, color of eyes and hair;
c. Written proof that the owner(s) is at least eighteen (18) years of age; d. Driver’s license number of the owner, including a copy of a driver’s license or other state issued identification card;
e. Two current (2) color portrait photographs of the applicant at least two (2) inches by two (2) inches;
f. The massage or similar business license history of the owner; whether such person, in previously operating in this or another city, county or state under license, has had such license revoked or suspended, the reason therefor, and the business activity or occupation subsequent to such action of suspension or revocation;
g. All criminal convictions except minor traffic violations and any criminal charges pending against the applicant at the time of submission of the application, other than misdemeanor traffic citations, including the name and address of the court in which the charge is pending and any applicable case numbers;
h. A statement whether the owner has failed to pay any judgment arising from or connected with the activities that would be authorized by the permit;
J. Proof of an unexpired business license or proof of current application for business license in the city; K. Fingerprints of the owner (this is waived for CAMTC-certified owners per Government Code Section 51034 (c));
L. Such other identification and information as deemed necessary by the Permit Administrator; and M. All massage establishments must demonstrate practitioner’s liability insurance coverage in the amount of a minimum of two million dollars ($2,000,000) per event at all times when performing massage activities.

The coverage must be held in the name of the massage establishment or each massage therapist authorized to perform massage. (Ord. 4-15 § 4 (part))

4.20.065 Amendments to permit.

A. Whenever the information provided in the application for a massage establishment on file with the city changes, the operator shall file an application, provided by the Permit Administrator or his or her designee, to amend the permit to reflect such change within three business days of occurrence. The application shall be accompanied by the fee established by the city’s fee schedule.

B. An amendment shall not be used to change the location or owners of a massage establishment. Instead, a new permit application is required.

C. A denial of an application to amend a massage establishment permit may be appealed in the same manner as a denial of an application for a permit under Section 4.20.140.

4.20.070 City massage establishment permit fee required.

No city massage establishment permit shall be issued hereunder until the appropriate fee has been paid. The fee for a city massage establishment shall be as established by the City Council by resolution. (Ord. 4-15 § 4 (part)) 918
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4.20.080 Permit—Issuance or denial.

The Permit Administrator shall, within thirty (30) days after receipt of an application complying with all the provisions of this chapter, issue a permit or deliver to the applicant, personally or by mail, written notice of denial of the permit, setting forth the reason or reasons therefor, in accordance with the provisions of Section 4.20.090. (Ord. 4-15 § 4 (part))

4.20.090 Permit—Grounds for denial.

The Permit Administrator shall deny the permit if he/she finds:

A. That any information contained in or submitted with the application is not true, contains material misrepresentations, or if relevant or material information is omitted from the application; or B. That the operation as proposed by the applicant would not comply with any provision of this chapter or any other ordinance or regulation of the city or any statute or regulation of the state of California; or C. That any person who would be directly engaged in the management and operation of the massage establishment has been convicted of any of the following offenses, found in violation of any of the following codes, or convicted of an offense outside of the state of California that would have constituted any of the following offenses if committed within the state of California:

1. An offense involving the use of force and violence upon the person of another that amounts to a felony.

2. An offense involving sexual misconduct or an offense involving conduct which requires registration under California Penal Code Section 290.

3. An offense as defined in California Penal Code Section 266I, 315, 316, 318, 647(b) or 653.23.

4. An offense involving theft or fraud related offenses.

5. A conviction under California Penal Code Section 11225 -11235 (Red Light Abatement Law)

6. A conviction of a crime designated in California Government Code Section 51032(b).

7. A conviction of any other state or federal offense involving dishonesty, fraud, deceit, violence or moral turpitude or conspiracy to commit any of the offenses designated above.

8. Any offense involving the violation of California Health and Safety Code Sections 11570-11587 (Controlled Substance Abatement).

9. Any violation of California Civil Code Sections 3479 and 3480 (Public Nuisance).

Convictions that have been expunged shall also be reported.

D. That, for any other reason, the operation as proposed would be detrimental to the public peace, health, safety, morals or welfare or to neighboring property; or
E. That the proposed name of the business for the establishment suggests that the establishment will offer or practice any service or activities proscribed under the provisions of this chapter. (Ord. 4-15 § 4 (part)) F. The proposed business has had a massage establishment revoked or suspension in the past three years pursuant to Section 4.20.045.

4.20.100 Permit—Display requirements.

Every massage establishment permit issued pursuant to the provisions of this chapter shall at all times be displayed in a conspicuous place within the massage establishment. (Ord. 4-15 § 4 (part)) 919
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4.20.110 Revocation or suspension—Reasons.

Any city massage establishment permit issued pursuant to this chapter may be suspended or revoked by the Permit Administrator after a hearing, where it is found by clear and convincing evidence that any of the following have occurred:

A. Finding of Violation. The person(s) to whom the city massage establishment permit has been issued, or any person employed or retained by the massage establishment, has been found to have violated any provision of this chapter; or California Business and Professional Code Section 4609; or B. Prohibited Conduct. The permittee, or any person employed or retained by the massage establishment, has been convicted in a court of competent jurisdiction of having violated, or has engaged in conduct constituting a violation of, any of the following: California Penal Code Section 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, or 647(b), or conspiracy or attempt to commit any such offense, or any offense in a jurisdiction outside of the state of California that is the equivalent of any of the aforesaid offenses; or C. Registration under Penal Code Section 290. The permittee or any person employed or retained by the massage establishment is required to register under Section 290 of the California Penal Code as a result of conduct while working in or for the massage establishment; or
D. Nuisance Injunction. The permittee has been subject to a permanent injunction against the conducting or maintaining of a nuisance pursuant to this code, or Sections 11225 through 11235 of the California Penal Code, or any similar provision of law in any jurisdiction outside the state of California; or E. Fraud or Misrepresentation. The permittee or any employee has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact while working in or for the massage establishment; or F. Operation during Suspension. The permittee has continued to operate the massage establishment after the city massage establishment permit or establishment registration certificate has been suspended; or G. Massage without Certification. Massage has been performed on the premises, with or without the permittee’s actual knowledge, by any person who is not a duly authorized certified massage therapist; or H. Prohibited Acts. There have been one (1) or more acts prohibited under California Penal Code Section 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, or 647(b) taking place on the premises, whether or not any criminal prosecution has been pursued or conviction obtained for such acts, and whether or not they occurred with or without the actual knowledge of the permittee; or
I. Sexual Touching. The permittee or any person employed or retained by the massage establishment or any other person on the premises of the massage establishment has engaged in conduct or committed acts that a reasonable person in a patron’s position would understand as an offer to perform on or engage in with the patron acts that are sexual in nature or that involve touching of the patron’s genitals, pubic area, anus, or areola; or J. Negligent Supervision. The permittee failed to provide adequate supervision of the massage establishment, resulting in a pattern of at least three (3) violations of this code or state or federal law; or(Ord. 4-15 § 4 (part)) K. Labor Violations. The owner or operator failed to comply with a final court order or administrative action of an investigatory agency finding a violation of applicable federal, state and local wage and hour laws, including, but not limited to, the Federal Fair Labor Standards Act, the California Labor Code, and any local minimum wage ordinance or prevailing wage requirements. For purposes of this subsection, a final court order or administrative action is one as to which there is no pending appeal and the time for filing an appeal has passed.

4.20.120 Revocation or suspension of city massage establishment permit—Hearing procedure.

A. Written Notice Required. The Permit Administrator, before revoking or suspending any establishment registration certificate, shall conduct a hearing to determine whether the permit or certificate shall be revoked or suspended. The permittee shall be notified of the date of the hearing, and the hearing date shall be no sooner than ten (10) business days from the date of the written notice. The written notice shall be provided in the following manner:
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1. Service of Notice and Order. All notices shall be posted on the property and also served upon the record owner and any tenant. A copy of the notice shall also be served on each of the following if known to the Permit Administrator or disclosed from official public records: the holder of any mortgage or deed of trust or other lien or encumbrance; the owner or holder of any lease; and the holder of any other estate or legal interest of record in or to the building or the land on which it is located. The failure of the Permit Administrator to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served to relieve any such person from any duty or obligation imposed by the provisions of this section.

2. Method of Service. Service shall be made upon all persons entitled thereto either personally or by mailing a copy by first class U.S. mail to each such person at their address as it appears on the last equalized assessment roll of the county or as known to the Permit Administrator. If no address of any such person appears or is known to the Permit Administrator, then a copy shall be mailed to the address of the parcel of land involved in the proceedings. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this section. Service shall be effective on the date of the mailing.

3. Proof of Service. At the time of service, each person affecting service shall complete a written declaration under penalty of perjury, which declares the time, date and manner in which service was made. The declaration shall be affixed to the copy of the notice and order retained by the Permit Administrator.

B. Hearing. The Permit Administrator may establish reasonable rules and procedures for the conduct of the hearing, provided that such rules satisfy the permittee’s due process rights under the United States and California Constitutions, and such rules need not provide the permittee an opportunity to appear before the Permit Administrator or require an in-person hearing. At the hearing, the Permit Administrator shall consider all evidence submitted. The hearing may, after being commenced within the time specified pursuant to subsection A of this section, be continued for good cause by the Permit Administrator from time to time. The Permit Administrator shall, at the conclusion of the hearing, make findings of fact based upon the evidence submitted and shall decide whether or not the permit or certificate shall be revoked or suspended.

C. Notice of Decision. The Permit Administrator’s written notice of decision shall be served on the permittee, within thirty (30) business days of the conclusion of the hearing, in the manner provided in subsection (A)(2) of this section, and, in the case of a revocation or suspension, such notice of decision shall indicate the appeal procedures as set forth hereinafter. (Ord. 4-15 § 4 (part))

4.20.125 Denial, suspension and revocation of registration certificates.

No reapplication will be accepted within three years after a certificate is revoked.

4.20.130 Permit nontransferable.

No permit issued pursuant to the provisions of this chapter is transferable to any other person or location. (Ord. 4-15 § 4 (part))

4.20.140 Appeal procedure.

An applicant or permittee may appeal any written action or determination of the Permit Administrator under the provisions of this chapter to the City Manager pursuant to the provisions of Section 1.04.050. The effect of revocation of a permit shall be suspended by the filing of a notice of appeal until the determination of the appeal by the City Manager. (Ord. 4-15 § 4 (part))

4.20.150 Requirements—Massage establishments.

A. Operational Requirements. Except as otherwise specifically provided in this chapter, the following operational requirements shall be applicable to all massage establishments located within the city:

1. No massage establishment shall be open for business between the hours of ten p.m. (10:00 p.m.) of one (1) day and seven a.m. (7:00 a.m.) of the following day. Massage begun any time before ten p.m. (10:00 p.m.) must nevertheless terminate at ten p.m. (10:00 p.m.). The hours of operation shall be displayed in a conspicuous public place in the reception area and in any front window clearly visible from outside of the massage establishment.
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2. Patrons and visitors shall be permitted in the massage establishment only during the hours of operation.

3. Except for a patron who is inside a room for the purpose of receiving a massage, no patrons or visitors shall be permitted in or on the massage establishment premises at any time unless they are fully clothed in garments of nontransparent material.

4. During the hours of operation, visitors shall not be permitted in massage rooms except as follows: (a) the parents or guardian of a patron who is a minor child may be present in the room with that minor child; (b) the minor child of a patron may be present in the room with the patron when necessary for the supervision of the child; and (c) the conservator, aid, or other caretaker of a patron who is elderly or disabled may be present in the room with that elderly or disabled person.

5. During the hours of operation, patrons shall be permitted in massage rooms only if at least one (1) duly authorized certified massage therapist is present on the premises of the massage establishment.

6. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises. The services shall be described in English and may also be described in such other languages as may be convenient. No person employed or retained by the massage establishment shall offer to perform any services or fees other than those posted.

7. For all employees employed or retained by the massage establishment who provide massage, the following document shall be available to city staff upon inspection pursuant to Section 4.20.200: a valid certificate from the CAMTC.

8. The massage establishment shall keep on the premises a complete and current roster of all owners, operators, and managing employees of the massage establishment and all massage professionals and other persons employed or retained by the massage establishment. The roster shall include the name, residence address, and phone number of each individual. The roster shall be available for inspection by city officials charged with the enforcement of this chapter.B. Physical Facility and Building and Fire Code Requirements. Except as otherwise specifically provided in this chapter, the following physical facility and building code requirements shall be applicable to all massage establishments located within the city:

1. Front Door and Reception Area. One (1) front door shall be provided for patron entry, which shall open to an interior patron reception and waiting area immediately inside the front door. All patrons and any persons other than individuals employed or retained by the massage establishment shall be required to enter and exit through the front door.

2. Visibility. No massage establishment located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area shall block visibility into the interior reception and waiting area through the use of curtains, open or closed blinds, tints, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises.

3. Locks. All interior doors, including rooms or cubicles in which massage occurs, but excluding individual dressing rooms and toilet rooms, shall be incapable of being locked and shall not be blocked to prevent opening. Draw drapes, curtain enclosures, or accordion-pleated closures in lieu of doors are acceptable on all inner rooms or cubicles.

4. Lighting. Minimum lighting equivalent to at least one (1) forty (40) watt light shall be provided in each room or cubicle in which massage is provided.

5. Tables, Mats, and Beds. A massage table shall be used for all massage, with the exception of “Thai,” “Shiatsu,” and similar forms of therapy, which may be provided on a padded mat on the floor, provided the patron is fully attired in loose clothing, pajamas, scrubs, or similar style of garment. Massage tables shall have a minimum height of eighteen (18) inches. Beds, floor mattresses, and waterbeds are not permitted on the premises of the massage establishment, and no massage establishment shall be used for residential or sleeping purposes.
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MASSAGE SERVICES

The Dublin Municipal Code is current through Ordinance 17-22, passed December 6, 2022.

6. Lockers. All locker facilities that are provided for the use of patrons shall be fully secured for the protection of the patrons’ valuables, and each patron shall be given control of the key or other means of access.

7. Building and Fire Codes. The massage establishment shall comply with all applicable state and local building standards (as adopted in Title 7) and the fire code (as adopted in Title 5).

C. Health and Safety Requirements. Except as otherwise specifically provided in this chapter, the following health and safety requirements shall be applicable to all massage establishments located within the city:

1. Towels and Linens. The massage establishment shall at all times be equipped with an adequate supply of clean sanitary towels, coverings, and linens, and all massage tables shall be covered with a clean sheet or other clean covering for each patron. After a towel, covering, or linen has been used once, it shall be deposited in a closed receptacle and not used again until properly laundered and sanitized. Towels, coverings, and linens shall be laundered either by regular commercial laundering, or by a noncommercial laundering process that includes immersion in water at least one hundred forty (140) degrees Fahrenheit for not less than fifteen (15) minutes during the washing or rinsing operation. Clean towels, coverings, and linens shall be stored in closed, clean cabinets when not in use.

2. Cleaning and Disinfecting. All rooms or cubicles, wet and dry heat rooms, toilet rooms, shower compartments, hot tubs, and pools shall be thoroughly cleaned and disinfected as needed, and at least once each business day when the premises are open and such facilities are in use. All bathtubs shall be thoroughly cleaned and disinfected after each use.

3. Liquids, Creams, and Powders. All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. Powders may be kept in clean shakers. All bottles and containers shall be distinctly and correctly labeled to disclose their contents. When only a portion of a liquid, cream, or other preparation is to be used on or made available to a patron, it shall be removed from the container in such a way as not to contaminate the remaining portion.

4. Invasive Procedures. No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to: (a) application of electricity that contracts the muscle; (b) penetration of the skin by metal needles; (c) abrasion of the skin below the nonliving, epidermal layers; (d) removal of skin by means of any razor-edged instrument or other device or tool; (e) use of any needle-like instrument for the purpose of extracting skin blemishes; and (f) other similar procedures.

5. Garments Provided to Patrons. All bathrobes, bathing suits, and/or other garments that are provided for the use of patrons shall be either fully disposable and not used by more than one (1) patron, or shall be laundered after each use pursuant to subsection (C)(1) of this section.

6. Combs and Brushes. All combs, brushes, and/or other personal items of grooming or hygiene that are provided for the use of patrons shall be either fully disposable and not used by more than one (1) patron, or shall be fully disinfected after each use.

7. Footwear. No patrons shall be allowed to use any shower facilities of the massage establishment unless such patrons are wearing slip-resistant sandals or flip-flops while in the shower compartment. All footwear such as sandals or flip-flops that are provided for the use of patrons either shall be fully disposable and not used by more than one (1) patron, or shall be fully disinfected after each use.

8. Draping and Contact with Genitals. The patron’s genitals, pubic area, anus, and female patron’s breasts below a point immediately above the top of the areola must be fully draped at all times while any employee of the massage establishment is in the massage therapy room or cubicle with the patron. No massage shall be provided to a patron that results in intentional contact, or occasional and repetitive contact, with the genitals, anus, or areola of a patron.

9. Alcohol. No alcoholic beverages shall be sold, served, or furnished to any patron; nor shall any alcoholic beverages be kept or possessed on the premises of a massage establishment. 923
Dublin Municipal Code
Chapter 4.20 MASSAGE ESTABLISHMENTS AND

MASSAGE SERVICES