Agenda packet — Los Gatos City Council, December 3, 2024 (part 2 of 6)

ITEM NO. 12.

DocuSign DocuSign Envelope Envelope ID: 3B7E9204 18FC5912-15B5 040-4C96A22-B5DB A09D--47324E424C98 C1E5F4DF969B Americans with Disabilities Act (ADA) Transition Plan Project CIP No. 812-0129

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IN WITNESS WHEREOF, the LOCAL AGENCY and CONSULTANT have executed this Amendment.

Town of Los Gatos, by: CONSULTANT, by:

Laurel Prevetti
Town Manager
Recommended by:

Tim Mahoney
Name/Title
Tim Mahoney - Manag
Timm Borden
Interim Director of Parks and Public Works
Approved as to Form:

Robert Schultz, Town Attorney
Attest:

Shelley Neis, MMC, CPMC, Town Clerk
Disability Access Consultants – First Amendment to Agreement for Consultant Services 4/17/2022
4/19/2022 4/17/2022
4/19/2022
4/19/2022

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ITEM NO. 12.

AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is made and entered into on April 1, 2021) by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Disability Access Consultants, LLC, (“Consultant”), whose address is 2862 Olive Highway, Suite D, Oroville, CA 95966. This Agreement is made with reference to the following facts.

I. RECITALS

1.1 The Town desires to engage Consultant to provide an ADA Transition Plan.

1.2 The Consultant represents and affirms that it is willing to perform the desired work pursuant to this Agreement.

1.3 Consultant warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement.

Consultant acknowledges Town has relied upon these warranties to retain Consultant.

II. AGREEMENTS

2.1 Scope of Services. Consultant shall provide services as described in that certain Proposal sent to the Town on March 8, 2021, which is hereby incorporated by reference and attached as Exhibit A.

2.2 Term and Time of Performance. This contract will remain in effect from April 12, 2021 to December 31, 2022. Consultant shall perform the services described in this agreement as follows: (refer to Exhibit A in Scope of Services).

2.3 Compliance with Laws. The Consultant shall comply with all applicable laws, codes, ordinances, and regulations of governing federal, state and local laws. Consultant represents and warrants to Town that it has all licenses, permits, qualifications and approvals of whatsoever nature which are legally required for Consultant to practice its profession. Consultant shall maintain a Town of Los Gatos business license pursuant to Chapter 14 of the Code of the Town of Los Gatos.

2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement.

2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits prepared or assembled by Consultant in connection with the performance of its services EXHIBIT A Page 164
ITEM NO. 12.

DocuSign DocuSign DocuSign Envelope Envelope Envelope ID: 3B7E9204 F69534DD 18FC5912--15B5 040 FEB6-4C96A22 -4826--B5DB A09D 9634---EF90244C0E63 47324E424C98 C1E5F4DF969B Agreement for Consultant Services
Disability Access Consultants, LLC Page 2 of 7
pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the these documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant.

2.6 Compensation. Compensation for Consultant's professional services shall not exceed $130,000 inclusive of all costs. Payment shall be based upon Town approval of each task.

2.7 Billing. Billing shall be monthly by invoice within thirty (30) days of the rendering of the service and shall be accompanied by a detailed explanation of the work performed by whom at what rate and on what date. Also, plans, specifications, documents or other pertinent materials shall be submitted for Town review, even if only in partial or draft form.

Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows:

Invoices:

Town of Los Gatos
Attn: Accounts Payable
P.O. Box 655
Los Gatos, CA 95031-0655

2.8 Availability of Records. Consultant shall maintain the records supporting this billing for not less than three years following completion of the work under this Agreement. Consultant shall make these records available to authorized personnel of the Town at the Consultant's offices during business hours upon written request of the Town.

2.9 Assignability and Subcontracting. The services to be performed under this Agreement are unique and personal to the Consultant. No portion of these services shall be assigned or subcontracted without the written consent of the Town.

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ITEM NO. 12.

DocuSign DocuSign DocuSign Envelope Envelope Envelope ID: 3B7E9204 F69534DD 18FC5912--15B5 040 FEB6-4C96A22 -4826--B5DB A09D 9634---EF90244C0E63 47324E424C98 C1E5F4DF969B Agreement for Consultant Services
Disability Access Consultants, LLC Page 3 of 7
testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing.

2.11 Conflict of Interest. Consultant understands that its professional responsibilities are solely to the Town. The Consultant has and shall not obtain any holding or interest within the Town of Los Gatos. Consultant has no business holdings or agreements with any individual member of the Staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements. In addition, Consultant warrants that it does not presently and shall not acquire any direct or indirect interest adverse to those of the Town in the subject of this Agreement, and it shall immediately disassociate itself from such an interest, should it discover it has done so and shall, at the Town's sole discretion, divest itself of such interest. Consultant shall not knowingly and shall take reasonable steps to ensure that it does not employ a person having such an interest in this performance of this Agreement. If after employment of a person, Consultant discovers it has employed a person with a direct or indirect interest that would conflict with its performance of this Agreement, Consultant shall promptly notify Town of this employment relationship, and shall, at the Town's sole discretion, sever any such employment relationship.

2.12 Equal Employment Opportunity. Consultant warrants that it is an equal opportunity employer and shall comply with applicable regulations governing equal employment opportunity. Neither Consultant nor its subcontractors do and neither shall discriminate against persons employed or seeking employment with them on the basis of age, sex, color, race, marital status, sexual orientation, ancestry, physical or mental disability, national origin, religion, or medical condition, unless based upon a bona fide occupational qualification pursuant to the California Fair Employment & Housing Act.

III. INSURANCE AND INDEMNIFICATION

3.1 Minimum Scope of Insurance:
i. Consultant agrees to have and maintain, for the duration of the contract, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. ii. Consultant agrees to have and maintain for the duration of the contract, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage.

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ITEM NO. 12.

DocuSign DocuSign DocuSign Envelope Envelope Envelope ID: 3B7E9204 F69534DD 18FC5912--15B5 040 FEB6-4C96A22 -4826--B5DB A09D 9634---EF90244C0E63 47324E424C98 C1E5F4DF969B Agreement for Consultant Services
Disability Access Consultants, LLC Page 4 of 7
iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences.
iv. Consultant agrees to have and maintain, for the duration of the contract, professional liability insurance in amounts not less than $1,000,000 which is sufficient to insure Consultant for professional errors or omissions in the performance of the particular scope of work under this agreement.

General Liability:
i. The Town, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of the Consultant; products and completed operations of Consultant, premises owned or used by the Consultant. This requirement does not apply to the professional liability insurance required for professional errors and omissions.
ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self-insurances maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers.
iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability.

3.2 All Coverages. Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk.

3.3 Workers’ Compensation. In addition to these policies, Consultant shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the Town before beginning services under this Agreement. Further, Consultant shall ensure that all subcontractors employed by Consultant provide the required Workers' Compensation insurance for their respective employees.

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ITEM NO. 12.

3.4 Indemnification. The Consultant shall save, keep, hold harmless and indemnify and defend the Town its officers, agent, employees and volunteers from all damages, liabilities, penalties, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property or personal injury received by reason of, or in the course of performing work which may be occasioned by a willful or negligent act or omissions of the Consultant, or any of the Consultant's officers, employees, or agents or any subconsultant.

IV. GENERAL TERMS

4.1 Waiver. No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement.

4.2 Governing Law. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Santa Clara.

4.3 Termination of Agreement. The Town and the Consultant shall have the right to terminate this agreement with or without cause by giving not less than fifteen days (15) written notice of termination. In the event of termination, the Consultant shall deliver to the Town all plans, files, documents, reports, performed to date by the Consultant. In the event of such termination, Town shall pay Consultant an amount that bears the same ratio to the maximum contract price as the work delivered to the Town bears to completed services contemplated under this Agreement, unless such termination is made for cause, in which event, compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination.

4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant.

4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal.

4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to:

Town of Los Gatos
Attn: Town Clerk
110 E. Main Street
Los Gatos, CA 95030
Disability Access Consultants, LLC
Attn: Barbara Thorpe
2862 Olive Highway, Suite D
Oroville, CA 95966

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ITEM NO. 12.

DocuSign DocuSign DocuSign Envelope Envelope Envelope ID: 3B7E9204 F69534DD 18FC5912--15B5 040 FEB6-4C96A22 -4826--B5DB A09D 9634---EF90244C0E63 47324E424C98 C1E5F4DF969B Agreement for Consultant Services
Disability Access Consultants, LLC Page 6 of 7
or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town.

4.7 Order of Precedence. In the event of any conflict, contradiction, or ambiguity between the terms and conditions of this Agreement in respect of the Products or Services and any attachments to this Agreement, then the terms and conditions of this Agreement shall prevail over attachments or other writings.

4.8 Entire Agreement. This Agreement, including all Exhibits, constitutes the complete and exclusive statement of the Agreement between the Town and Consultant. No terms, conditions, understandings or agreements purporting to modify or vary this Agreement, unless hereafter made in writing and signed by the party to be bound, shall be binding on either party.

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ITEM NO. 12.

DocuSign DocuSign DocuSign Envelope Envelope Envelope ID: 3B7E9204 F69534DD 18FC5912--15B5 040 FEB6-4C96A22 -4826--B5DB A09D 9634---EF90244C0E63 47324E424C98 C1E5F4DF969B Agreement for Consultant Services
Disability Access Consultants, LLC Page 7 of 7
Matt Morle
4/26/2021
Laurel Prevetti, Town Manager
4/14/2021
4/24/2021
Robert Schultz, Town Attorney
4/26/2021
IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement.

Town of Los Gatos by: Consultant, by:

Recommended by:

Works
4/14/2021
y, Director of Parks and Public
Timothy J Mahoney, General Manager
Printed Name and Title
Approved as to Form:

Attest:

Shelley Neis, MMC, CPMC, Town Clerk

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ITEM NO. 12.

DocuSign DocuSign DocuSign Envelope Envelope Envelope ID: 3B7E9204 F69534DD 18FC5912--15B5 040 FEB6-4C96A22 -4826--B5DB A09D 9634---EF90244C0E63 47324E424C98 C1E5F4DF969B Scope of Services
Americans with Disabilities Act (ADA) Transition Plan
Town of Los Gatos
(CIP No. 812-0129)
Town of Los Gatos
Parks and Public Works Department
41 Miles Avenue
Los Gatos, CA 95030

EXHIBIT A

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ITEM NO. 12.

EXHIBIT A

PROJECT
Americans with Disabilities Act (ADA) Transition Plan
CIP No. 812-0129

PROJECT CONTACTS
Town of Los Gatos Disability Access Consultants, LLC (DAC) Janice Chin Barbara Thorpe, Project Manager
Parks and Public Works Department 2862 Olive Highway
41 Miles Avenue Suite D
Los Gatos, CA 95030 Oroville, CA 95965
[email protected] [email protected]
408.395.3460 800.743.7067

SCOPE OF SERVICES
The scope of services includes seven (7) tasks:

Task A: Project Management and Coordination
Task B: Self‐Evaluation of Town Policies and Standards
Task C: Self‐Evaluation of Town Facilities
Task D: Self‐Evaluation of Town’s Key Right‐Of-Way Assets and Trails Task E: Public Outreach
Task F: Develop the Transition Plan
Task G: Additional Activities

PROJECT TASKS, SCHEDULE, TIMELINE, STAFF ALLOCATIONS AND BILLING RATES The Scope of Services are outlined and described in Tasks A, B, C, D, E, F and G.

A project schedule and activities are included in Table 1: Task, Activities and Timelines. The project will be completed in seven (7) months or sooner from the notice to proceed.

Tasks, allocated staff and billing rates are included in Table 2: Tasks, Staff and Billing Rates.

TASK A: PROJECT MANAGEMENT AND COORDINATION
DAC shall provide the necessary project coordination, administration, management throughout the project.

DAC will organize planning and orientation meetingsto be held via teleconference or virtual video conferencing when appropriate.

DAC will conduct an initial project kickoff meeting or virtual conference call with selected Town staff to clarify roles and lines of communication, refine project goals, review the overall project schedule, schedule surveys of Town facilities and identify key Town personnel related to the project scope. DAC will send a draft agenda prior to the initial kickoff meeting to the designated Town contact for review. A suggested list of attendees will be developed in collaboration with DAC and the Town.

Notes will be collected during the initial meeting and adjustments made to the project work plan as indicated by the Town. A formal kickoff meeting willsubsequently be scheduled with the confirmed list of attendees with oversight responsibilities for project activities.

The project methodology is designed to develop a comprehensive plan without placing additional activities and impact upon Town staff. The initial orientation meeting will include an assessment of previous compliance activities and areas of current or potential litigation. The review of compliance activities and high priority areas will assist with the development of an overall project plan.

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ITEM NO. 12.

Related documents will be reviewed and may include, but are not limited to the facility master plans, strategic plans and other related documents.

Progress reports will be issued by DAC in accordance with Town requirements. Invoice requirements and frequency of invoices will be confirmed as directed by the Town.

Deliverables: progressreports, meeting notes and recommendations and action plans.

TASK B: SELF‐EVALUATION OF TOWN POLICIES AND STANDARDS
DAC will work with designated Town contacts to gain access to the Town’s regulations, policies, standards, programs, and activities for evaluation according to ADA standards and California accessibility requirements.

The self-evaluation will include factors for eligibility requirements and participation for persons with disabilities, methods for providing accommodations, effective communication and grievance procedures. The self-evaluation results will also include recommendations for acceptable terminology, and updates to policies that may be inadequate or not established.

As the Town’s website has a large repository of documents publicly available, DAC will begin with an extensive review of information offered directly on the Town’s website pages, within the Los Gatos Town Codes, and in the Town’s online “Document Center” catalogue of folders. The review will first determine if the required information is available, and if so, the review will also include suggested updates or modifications to ensure the policy is compliant and inclusive when needed. If specific policies or regulations are not found, DAC will inquire with Town staff to confirm. When necessary, recommendations will be made to establish compliant policies, procedures, statements and notices.

For example, DAC will evaluate Town policies, procedures and related documents including, but not limited to:
• Grievance procedures and tracking
• Service animals
• Accommodation statements and procedures
• Other power-driven mobility devices
• Accessible seating and ticketing
• Emergency procedures
• Policies for use or lease of Town facilities
• Contracted services
• Construction standards, specifications and details
• Lease and facility use agreements
• Eligibility criteria
• Maintenance of accessible features
• Effective communication
• Auxiliary aids and services
• Social media
• New employee and volunteer training
• Planning and budgeting
• Accessto programs, services, activities and events
DAC will review the provision of Town programs, services and activities to determine if there are any discriminatory practices that may deny access for persons with disabilities.

DAC will also evaluate if the Town provides required notices and postings, including but not limited to:
• Identification and contact information for the ADA and/or 504 Coordinator

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ITEM NO. 12.

As part of the requirements for effective communication, DAC will also perform a comprehensive website accessibility review for compliance with Web Content Accessibility Guidelines (WCAG) 2.0 Level AA, which is the current level of accessibility required for Title II public entities. The evaluation will yield results for the following at minimum:
• Accessibility and compliance with WCAG 2.0 AA and Section 508 • Compatibility with all major web browsers, including Chrome, Firefox, Edge and Safari • Search engine optimization per Google and Bing guidelines • Broken links and spelling errors in links
• Usability with assistive technology.
• Missing alternative text in graphics and PDF documents • Small, difficult to read text fonts
Referencesto WCAG evaluation success criteria are included with noncompliant or incompatibility findings.

Deliverables: Executive summary of findings and recommendations for the self-evaluation; accessibility website review
TASK C: SELF‐EVALUATION OF TOWN FACILITIES
DAC will survey and assess the Town buildings, facilities, parking areas, parks and open spaces, public rightsof-way to document accessibility barriers. Data and reports will be reviewed by a CASp certified DAC team member prior to being presented to the Town. The CASp designated team member that will coordinate the inspection team during the facility reviews and conduct quality control reviews will be Michael Boga (CASp152). Candice Pursch will be the designated Team Leader for the collection of data in the field and will coordinate scheduling and monitoring of DAC team members. Weekly, or as-needed, progress updates will be confirmed and scheduled.

As required by the ADA, the 2010 ADA Standards will be compared with state codes (Title 24 of the California Building Code) and the standard that provides the greater level of accessibility utilized. The accessibility compliance standards and regulations will be applied as appropriate and may include the ADA Standards, Title 24 of the California Building Code, Public Rights-of-Way Accessibility Guidelines, California Manual on Uniform Traffic Control Devices, Caltrans Standards and other applicable federal or state accessibility codes. Cost estimates will be provided as available.

As DAC collects actual measurements of as-is field conditions and records all information, data can be reprocessed if codes change without conducting a re-inspection, thus resulting in a significant savings when codes change and the plan needs to be updated.

Reports will be provided to the Town through DACTrak, an online accessibility management program developed by DAC. Assessments and reports will include a high degree of detail with photographs, code references, cost estimates and GIS information for available exterior areas. The DACTrak software providesthe user with the capability to generate reports in multiple formats such as photo and progress reports, summary and chart reports, and compliant items reports. In addition to numerous standard reporting features, DACTrak also offers the user the capability of generating custom reports. The inclusion of photographs showing the asis condition has proven to be valuable assistance to clients in the formulation of the decisionsregarding barrier removal priorities. Photographs will be taken for each finding and GIS coordinates for public rights-of-way.

The DACTrak software provides an easy-to-use accessibility management platform that exceeds the ability to

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ITEM NO. 12.

Deliverables: Facility inspections incorporated into DACTrak. DACTrak training will be provided to designated Town staff.

TASK D: SELF‐EVALUATION OF TOWN’S KEY RIGHT‐OF-WAY ASSETS AND TRAILS DAC will assess the Town’s public trails and selected assets in the Town’s public rights-of-way (PROW) for compliance with the ADA and related accessibility standards. DAC will consult with the Town to recommend and determine the areas to be assessed.

DAC uses a comprehensive approach to inspecting accessibility of pedestrian access routes in the public rightsof-way (PROW) and trails. To conduct PROW and trail field assessments, DAC accessibility specialists walk sidewalks and trails to record manual measurements, take photographs and capture GIS coordinates (as applicable for exterior measurements) of the field conditions and enterthe information into our DACTrak tablet in the field. Information captured in the field will be uploaded into the DACTrak accessibility management system.

The field survey teams are supervised by a qualified Certified Access Specialist (CASp). Data and reports are also reviewed by a CASp certified team member prior to being presented to the Town.

A facility report for each PROW area and trail surveyed will include detailed areas of deficiency in addition to corrective recommendations and cost estimates. The reports will be presented through DACTrak in an initial priority sort order that can be customized for implementation by the Town. The assessment will include cost estimates to correct deficiencies in accordance with the ADA, Title 24 of the California Building Code, Public Rights of Way Accessibility Guidelines, California Manual on Uniform Traffic Control Devices, or other applicable federal or state accessibility codes such as Outdoor Developed Recreational Standards.

General areas of the PROW inspectionsfor pedestrian routesinclude but are not limited to the following areas:
sidewalks, curb ramps, intersections, crosswalks,street furniture, busstops and shelters, on-street parking and related items in the pedestrian access route. The following items are included:
▪ Sidewalks
o Sidewalk starting and ending points and length
o GIS location and street markers
o Width
o Running and cross slope
o Changes in elevation
o Obstructions-into the path of travel and overhead obstructions o Utilities and mailboxes that may interfere with the pedestrian route o Gratings
▪ Curb Ramps
o Location including GIS
o Curb ramp type
o Curb ramp material
o Ramp run
o Ramp width
o Side flares
o Slope and cross slope
o Finish
o Contained in crosswalk
o Detectable warnings
o Top & bottom ramp
o Gutter
o Changes in elevation to bottom ramp
o Contains water

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ITEM NO. 12.

DocuSign DocuSign DocuSign Envelope Envelope Envelope ID: 3B7E9204 F69534DD 18FC5912--15B5 040 FEB6-4C96A22 -4826--B5DB A09D 9634---EF90244C0E63 47324E424C98 C1E5F4DF969B Exhibit A -Scope of Services by Disability Access Consultants, LLC for an ADA Self-evaluation and Transition Plan ▪ Crosswalks and Mid-block crossings
o Width
o Slope
o Detectable warnings
o Pedestrian head
▪ Intersections
o GIS location and cross streets
o Pedestrian signal controls and indicators
▪ Medians and Islands
▪ Roundabouts
▪ Trails
▪ Parks
▪ Open Space
▪ Bus stops and shelters
o Type
o Length and width
o Boarding pad-length, width, slope and vertical clearance o Accessible route to shelter-slope, cross slope, width o Clear floor space-length, width, slope, located in shelter o Signage
o Amenities accessible-trash cans, literature, information ▪ Benches and Street Furniture
Deliverables: Deliverables: Facility inspectionsincorporated into DACTrak. DACTrak training will be provided to designated Town staff.

TASK E: PUBLIC OUTREACH
DAC will advise the Town on methods to advertise for public input and solicit input into the transition plan.

DAC will lead a process for interested persons, including individuals with disabilities and organizations representing individuals with disabilities, to participate in the self-evaluation process by submitting comments.

The process may include hard copy and online surveys, community workshops, or other outreach methods as appropriate for the Town. Since a public outreach meeting is not required by the ADA, DAC can suggest public outreach activities that will satisfy the opportunities for public input requirements of the ADA and encourage community response, such as online and hard copy surveys. Two (2) virtual meetings for the Town council and two (2) public virtual meetings.

The process of providing opportunity for public input is designed to help ensure that the Town is successful in receiving information that will assist the Town to implement the transition plan, ensuring that the needs of the community are incorporated. Surveys will be developed for the Town to collect input from members of the community and visitors to the Town, area organizations that provide services to residents with disabilities, and from Town staff.

Surveys will be made available in multiple formats including online surveys, fillable PDF, Word documents and hard copies. The methods used for advertising the opportunities for public input will be customized for the Town to ensure that established procedures for collecting public input are followed at a minimum. Methods of advertising may include news banners on the Town’s website, posts on the Town’s social media accounts, an advertisement place in a local newspaper, and hard copies of the public notice displayed in public areas, such as Town Hall, community centers and libraries.

As public input is received, DAC will compile the results and include the comments in the Executive Summary provided to the Town. Input that is appropriate for the provision of programs, services and activities will be integrated into the plan. Public and staff input regarding access to facilities and barriers will assist in the development of the transition plan by assisting with the priorities and schedule for the removal of barriers.

Deliverables: Hard copy and digital surveys, notices, announcements, and a summary of public and staff comments.

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ITEM NO. 12.

There are no maintenance or storage fees associated with use of the DACTrak software.

The transition plan reports provided through DACTrak will include an initial prioritization, however using the toolsin DACTrak, the Town users will have the ability to customize the transition plan implementation schedule and priorities, using multiple options and criteria for mitigating barriers. The tools in DACTrak will allow the Town to create a schedule for repair, that can be adjusted as often as needed.

DACTrak is an online software program that is accessed through a web browser. There are no files or programs to download or install on the Town’s computers or servers. DAC performs all maintenance and updates to the software, so there is no burden on the Town’s IT staff to provide support to the DACTrak users. All support is provided by DAC.

Using DACTrak, Town staff will have the ability to view and generate multiple styles of reports for all buildings, facilities, parks, trails and public rights-of-way assessed, as well as export reportsin several file types, including PDF, Excel, KML and Shapefiles. DACTrak reportstylesinclude very detailed reports as well assummary reports by facility or category to help identify and prioritize barriers, establish solutions that may apply to many locations Town-wide to assist with purchasing, and estimate probable costs for corrections.

For reports that contain exterior findings where GIS coordinates can be captured, such as sidewalks and curb ramps, the DACTrak online accessibility management software provides the Town with several ways to view the resulting reports on a map following the processing of the data collected during the field inspections. As DAC collects GIS location information for each element in the public right-of-way, data can be viewed in a map directly in the DACTrak software, as well as exported to popular map file types, including KML for viewing and managing on Google Earth and ESRI Shapefile for viewing and managing with ArcMap or other ESRI program.

DACTrak provides users with several map style options and customizations, including maps that simply identify the location of each noncompliant finding, to “heat maps” that identify clusters of noncompliant findings for specific areas with color coded icons that indicate the number of noncompliant findings at a specific location.

When exporting public right-of-way data from DACTrak into a KML or Shapefile from any map style, all information associated with the finding is included, such as the reason the item is not compliant, the recommended method to remove the barrier, state and federal code references applicable to the barrier, a photograph of the item and any notes that are recorded about the element and implementation for the transition plan. Reports for public rights-of-way can also be viewed in PDF and Excel file formats, in addition to KML and ESRI Shapefile.

While the Town may present the completed ADA self-evaluation and transition plan to Town Council as an informational update on the project, it is not required or recommended that the plan be approved or adopted by Council as projected dates of barrier may need to change to align with future projects or Town priorities.

Additionally, since the data in the field is collected using our DACTrak software and exported daily for processing by our DACTrak server engines, the report data is available for editing by our Quality Control team as soon as each facility survey is completed each day. This ensures a very prompt turnaround time for the deliverables to be available to the Town. Since deliverables are provided to Town staff via logins to the DACTrak online software, there is no additional wait time for printing, binding, packaging and shipping hard copies of reports. Project deliverables are available instantly upon logging in to DACTrak. Because of the preplanning and flexible scheduling for our projects as well as our DACTrak software to collect data and provide reports, we can provide of our clients with deliverables within established project deadlines.

Staff training and support regarding the use of the DACTrak Accessibility Management System is currently included in Task F and Task G at no cost.

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ITEM NO. 12.

DocuSign DocuSign DocuSign Envelope Envelope Envelope ID: 3B7E9204 F69534DD 18FC5912--15B5 040 FEB6-4C96A22 -4826--B5DB A09D 9634---EF90244C0E63 47324E424C98 C1E5F4DF969B Exhibit A -Scope of Services by Disability Access Consultants, LLC for an ADA Self-evaluation and Transition Plan The DACTrak software and reports will provide the Town with the remaining three requirements:
• Identification of physical barriers in the Town’s surveyed facilities that limit access to its programs or activities for individuals with disabilities;
• Detailed descriptions of the recommended methods and estimated costs to make the facilities accessible. The DACTrak management tools can also be used to identify the responsible party for structural modifications in the case of leased sites;
• The required schedule for removing the barriers is completed in collaboration with the Town. It is reasonable to assume that the Town’s schedule of barrier removal will include work to be performed over multiple years, therefore the transition plan should include an estimated annual projection for barrier removal activities. The DACTrak software tools will offer the Town an ongoing method to manage and adjust the implementation plans.

Deliverables: Transition plan of physical barriers with noncompliant findings and recommendations for barrier removal.

TASK G: ADDITIONAL ACTIVITIES
As the Town has noted it the RFQ, additional services (TASK G) may be requested by the Town in addition to Task A, B, C, D, E and F and may include staff training, plan reviews, additional consultation and other activities as requested by the Town and agreed to by DAC.

Training activities for managers, supervisors, administrative staff and supportstaff may include:
• Roles and Responsibilities of the ADA Coordinator
• ADA Roles and Responsibilities for Front Line Staff
• ADA Roles and Responsibilities for Executive and Management Staff • Maintenance of Accessible Facilities
• Maintenance of Accessible Public Rights-of-Way
• Using and maintaining the database
• Using and maintaining the project map
• Monitoring and updating the ADA self-evaluation and transition plan; • Development of internal procedures for granting exemptions for Town projects.

Several of the optional training topics noted that the Town may are included in the scope of services and will be provided at no additional cost. Training at no cost includes:
• Using and maintaining the database – included with the DACTrak training • Using and maintaining the project map - included with the DACTrak training • Monitoring and updating the ADA self-evaluation and transition plan isincluded with DACTrak training Training Topic Course Description and Notes Cost
Accessibility
standards and
regulations
• Requirements for ADA and Section 504 compliance, including programmatic and facility accessibility requirements.
• 4-to-6-hour course $1,000
Performing field
inspections
• Training regarding data collection in the field
• Includes classroom and field training.
• 2 days depending on staff backgrounds and prior experience $2,400
per day
Procedures for
granting
exemptionsfor
Town projects
• Course would be interactive and include an examination of existing processes and procedures to refine current system and recommend or develop enhanced processes.
• 2-to 3-hour course. $500
Deliverables: deliverables may vary depending upon the additional activities selected by the Town. Curriculum and training materials would be included with staff training.

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ITEM NO. 12.

TOWN STAFF TIME
DAC’s methodology for the Town’s ADA Self-evaluation and Transition Plan is designed to require minimal Town staff time and resources. DAC does not require any office space, equipment or supplies. Based on experience and knowledge of the accessibility field and best practices, DAC continues to develop innovative methodologies, easy to use ADA management tools, and proven,successfulstrategiesfor evaluating programs, services, activities, events, facilities, parks and public rights-of-way.

Project Coordination
The methodology for scheduling, coordination of project, policy reviews and the analysis of programs, services and activities will be confirmed at the kickoff and planning meeting with DAC and Town staff. Involvement of Town staff will be needed to review the draft agenda for the initial start-up meeting, recommend any changes and participate in the start-up meeting.

Policies, Procedures, Programs and Services
DAC will need access to the Town’s policies, procedures, ordinances, memorandums of understanding, planning and budgeting documents and related items that pertain to the administration of programs, services and activities and may require minimal staff time.

Field Surveys
As is the case with most public entities, due to the limited Town staff availability it is the intent of DAC to conduct the surveys as minimal impact on Town staff as possible. Surveysrequiring Town staff assistance,such as secure, locked or alarmed areas, will be coordinated through the Town’s designated contacts, and will be scheduled in a way that minimizes the impact to the regular workloads of the applicable staff members. The flexible scheduling also allows for continued efficiency of the survey process, so that there is no delay between the completion of one facility survey and the start of the next survey and allows for the anticipated survey plans to be altered quickly when unforeseen circumstances arise, such as rain prohibiting the planned survey of a park. In these situations, our survey staff would proceed to an available facility.

Data Collection and Management
DACTrak, an online accessibility management program was developed by DAC for the purpose of easy and useful importing and management of the accessibility data collected in the field. DACTrak is interactive online software and is not an enhanced excelspread sheet. The ability to collect, compile, analyze and use report data in a practical format was one of the driving forces to develop the DACTrak intake and management software.

Town staff will be provided training by DAC regarding the use of DACTrak to manage, update and implement the Town’stransition plan.

During the DACTrak training, selected Town staff will be instructed regarding the methods to manage the Town’s ADA Transition Plan. The transition plan data and reports provided through DACTrak will identify structural accessibility barriers, to help the Town prioritize and schedule the removal of identified barriers to develop a manageable transition plan.

Town staff will need to provide input into the timelines and estimated dates to be entered into the Transition Plan as DAC cannot unilaterally enter the dates that the Town plans to remediate the barriers without collaboration.

Public Outreach and Staff Input
DAC will provide the Town with proposed methodologies for review and comments regarding public outreach activities that may include surveys for the public and organizations that assist persons with disabilities. Staff input and approval will be needed regarding the proposed methods and sample documents provided by DAC.

Assistance will be needed regarding the dissemination of information regarding the notices to be placed on the website and posted selected Town publications and newsletters or in the local newspaper.

DAC compiles the surveys and the information collected during the public outreach portion of the project and staff surveys and input. The information is integrated into the Town of Los Gatos ADA/504 Self-evaluation and Transition Plan Executive Summary.

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ITEM NO. 12.

As indicated the project timeframe is 7 months or less.

TASK MONTH 1 2 3 4 5 6 7
A Project Management and Coordination
Initial planning, orientation meeting,schedules
Review documents, prior activities
Overall progress reports, coordination activities
B Self-evaluation of Town Policies and Standards
Evaluation of Town policies, programs and services
Review of related documents and plans
C Self-evaluation of Town Facilities
Inspections by DAC of Town facilities
Town review ofsample of draft reports completed
Report comments integrated as indicated
Inspections completed
D Self-evaluation of Key Rights-of-Way and Trails
Inspections by DAC of public rights-of-ways and trails
Reports issued in DACTrak
E Public Outreach
Methods for public outreach and staff input confirmed
Staff input
Public outreach conducted
Outreach and input comments compiled
Commentsintegrated into executive summary
F Develop Transition Plan
Priority methodology confirmed
Estimated dates of barrier removal into DACTrak
Draft of Transition Plan
Final Transition Plan
G Additional Activities (as requested throughout project) TABLE 2: TASKS, STAFF AND BILLING RATES
Tasks, allocated staff and billing rates are included in Table 2: Task and Budget Worksheet (attached).

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ITEM NO. 12.

DocuSign DocuSign Envelope Envelope ID: 3B7E9204 18FC5912-15B5 040-4C96A22-B5DB A09D--47324E424C98 C1E5F4DF969B Scope of Services
Americans with Disabilities Act (ADA) Transition Plan
Town of Los Gatos
Additional Services Proposal
(CIP No. 812-0129)
Town of Los Gatos
Parks and Public Works Department
41 Miles Avenue
Los Gatos, CA 95030
March 17, 2022

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ITEM NO. 12.

DocuSign DocuSign Envelope Envelope ID: ID: 3B7E9204 18FC5912--15B5 04B0--4C96 4A22- -B5DB A09D--47324E424C98 C1E5F4DF969B

EXHIBIT B
Town of Los Gatos ADA Additional Services Amendment Proposal Page 2 of 4 Additional Services Amendment Proposal
March 17, 2022

PROJECT
Americans with Disabilities Act (ADA) Transition Plan
CIP No. 812-0129

SCOPE OF SERVICES
The scope of services includes additional services to be added two (2) tasks from the original proposal and agreement:

Task D: Self‐Evaluation of Town’s Key Right‐Of-Way Assets and Trails Task G: Additional Activities/On-Call Services
TASK D: SELF‐EVALUATION OF TOWN’S KEY RIGHT‐OF-WAY ASSETS The original RFQ data provided by the Town estimated the total linear miles of sidewalk at approximately 94 linear miles. Currently DAC has completed approximately 110 linear miles and estimates the total linear miles of sidewalk at closer to 160 linear miles.

The cost to complete the additional estimated 50 linear miles of Town owned sidewalk, is proposed at $25,000.

As presented in the agreement, DAC uses a comprehensive approach to inspecting accessibility of pedestrian access routes in the public rights-of-way (PROW). To conduct PROW and trail field assessments, DAC accessibility specialists walk sidewalks and trails to record manual measurements, take photographs and capture GIS coordinates (as applicable for exterior measurements) of the field conditions and enter the information into our DACTrak tablet in the field. Information captured in the field will be uploaded into the DACTrak accessibility management system.

The field survey teams are supervised by a qualified Certified Access Specialist (CASp). Data and reports are also reviewed by a CASp certified team member prior to being presented to the Town. A facility report for each PROW area and trail surveyed will include detailed areas of deficiency in addition to corrective recommendations and cost estimates. The reports will be presented through DACTrak in an initial priority sort order that can be customized for implementation by the Town.

The assessment will include cost estimates to correct deficiencies in accordance with the ADA, Title 24 of the California Building Code, Public Rights of Way Accessibility Guidelines, California Manual on Uniform Traffic Control Devices, or other applicable federal or state accessibility codes.

General areas of the PROW inspections for pedestrian routes include but are not limited to sidewalks, curb ramps, intersections, crosswalks, street furniture, on-street parking and related items in the pedestrian access route.

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ITEM NO. 12.

DocuSign DocuSign Envelope Envelope ID: 3B7E9204 18FC5912-15B5 040-4C96A22-B5DB A09D--47324E424C98 C1E5F4DF969B Town of Los Gatos ADA Additional Services Amendment Proposal Page 3 of 4 The following items are included:
▪ Sidewalks
o Sidewalk starting and ending points and length
o GIS location and street markers
o Width
o Running and cross slope
o Changes in elevation
o Obstructions-into the path of travel and overhead obstructions o Utilities and mailboxes that may interfere with the pedestrian route o Gratings
▪ Curb Ramps
o Location including GIS
o Curb ramp type
o Curb ramp material
o Ramp run
o Ramp width
o Side flares
o Slope and cross slope
o Finish
o Contained in crosswalk
o Detectable warnings
o Top & bottom ramp
o Gutter
o Changes in elevation to bottom ramp
o Contains water
▪ Crosswalks and Mid-block crossings
o Width
o Slope
o Detectable warnings
o Pedestrian head
▪ Intersections
o GIS location and cross streets
o Pedestrian signal controls and indicators
▪ Medians and Islands
▪ Roundabouts
▪ Trails
▪ Parks
▪ Open Space
▪ Benches and Street Furniture
Deliverables: Completion of surveys for an additional 50 linear miles of Town owned sidewalk Estimated Budget for additional 50 linear miles of Town owned sidewalk: $25,000 TASK G: ADDITIONAL ACTIVITIES/ON-CALL SERVICES
Town may request additional “on-call” and as needed services from DAC that may include, but not limited to:
• General ADA consulting
• Assistance for the ADA Coordinator
• Code interpretation/application

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ITEM NO. 12.

DocuSign DocuSign Envelope Envelope ID: 3B7E9204 18FC5912-15B5 040-4C96A22-B5DB A09D--47324E424C98 C1E5F4DF969B Town of Los Gatos ADA Additional Services Amendment Proposal Page 4 of 4 • Accessibility Plan Reviews
• Annual Plan update
• Legal/claim expertise
• Data entry into DACTrak
• Transition Plan Implementation re-training
• Supplemental DACTrak training and services
• Staff Training
Estimated Budget for On-Call Services: $15,000

DAC STAFF AND BILLING RATES

TITLE NAME HOURLY RATE
Project Manager Barbara Thorpe $110
CASp Mike Boga $100
Assistant Project Manager Tim Mahoney $90
Director of Administrative Services Jennie Grover $65
Field Team Leader Candice Pursch $90
Accessibility Specialists Various $75
Director of IT Srikant Talasila $0
Expenses: Rates do not include travel expenses, travel time, airfare, meals, hotel, rental car Note: If expenses are applicable, DAC will obtain authorization from the Town prior to travel.

PROPOSAL FOR ADDITIONAL SERVICES – BUDGET SUMMARY
Task D: Additional Sidewalk Inspections $25,000
Task G: On-Call/As-needed Services $15,000
Total $40,000

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ITEM NO. 12.

DISABILITY ACCESS CONSULTANTS LLC
Accessibility and ADA Support Services Proposal - Monthly Fixed and On-Call DocuSign Envelope ID: 3B7E9204-15B5-4C96-A09D-47324E424C98

STAFF POSITIONS AND BILLING RATES
TASKS
Project
Manager
Senior
Director of
Accessibilit
y Services -
CASp
General
Manager
Director of
Administrative
Services
Director of
Accessibility
Services
Accessibility
Specialists
IT
Director
Annual
Cost
Monthly
Cost
$170 $170 $120 $110 $100 $85 $0 ($) ($)

1. Fixed Fee Services
A. ADA program and policy support tasks
Public Accommodation requests and review 8 8 8 $ 3,200
Accommodation Solutions 8 8 8 $ 3,200
ADA Grievance review and Response 8 4 8 $ 2,720
Review and Update Notices and Postings 6 4 10 $ 2,600
Review and update of Town's Accessibility Policies.

Procedures and practices 12 6 12 $ 4,080
Review and update accessibility training policies 8 4 8 $ 2,720 Review of Town's website and report of compliance 4 4 6 $ 1,820 Total 1.A ADA Support 54 38 60 $ 20,340 $ 1,695
B. ADA Self Evaluation and Transition Plan documentation, planning and update services tasks Transition Plan Implementation Strategies and Review 18 16 22 $ 7,400 Quarterly Report and Review 2 2 8 $ 1,460
DACTrak Data Entry 2 40 $ 4,740
Annual Report 6 8 8 $ 2,860
Annual Planning 12 12 14 $ 5,020

1.B ADA SETP Documentation 40 0 38 92 0 0 0 $ 21,480 $ 1,790 Annual Monthly
Total 1.A. and 1.B Fixed Services Cost 94 0 76 152 0 0 0 $ 41,820 $ 3,485

2. On-Call/As needed
1 Accessibility Plan Reviews
2 Staff Training

3. Review of construction and design standards

4. On-site inspections

5. Other ADA and accessibility related consulting
services, as requested

2. On-Call/As Needed 0 0 0 0 0 0 0 $ 8,180 $ -
ANNUAL TOTAL 1.A, 1.B and 2 $ 50,000
Notes Detail
1 Fixed Services Tasks: Town and DAC will have set monthly meetings to collaborate on tasks, determine deliverables and priorities each month. 2 Fixed Services Costs (1.A. and 1.B): Monthly cost for 1.A will be $1,695. Monthly cost for 1.B will be $1,790. Total monthly cost for both will be $3,485. Total aggregate cost for one year will be $41,820
3 On-Call/As Needed Cost: Total of $8,180 is available to Town for on-call or as needed services. 4 Total Annual Cost: $50,000
5 Term: Twelve (12) month, annual agreement: Monthly cost is based on a twelve month agreement. May be renewed each year.

EXHIBIT B

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ITEM NO. 12.

Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov

TOWN OF LOS GATOS

COUNCIL AGENDA REPORT
MEETING DATE: 12/03/2024
ITEM NO: 13
DATE: November 20, 2024
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Authorize the Town Manager to Execute a Second Amendment to the Contract for Legal Services with the Law Firm of Atchison, Barisone & Condotti to Increase the Contract Amount by $100,000 in an Amount Not to Exceed $250,000 until December 31, 2025
RECOMMENDATION:

Authorize the Town Manager to execute a second amendment to the contract for legal services with the law firm of Atchison, Barisone & Condotti to increase the contract amount by $100,000 in an amount not to exceed $250,000 until December 31, 2025.

BACKGROUND:

In December 2022, the Town Attorney's Office entered into an agreement with the law firm of Atchison, Barisone and Condotti to provide on-call legal services for a total contract not to exceed $10,000.

In March 2024, the Town Attorney's Office entered into a first amendment to the agreement with the law firm of Atchison, Barisone and Condotti for a total contract not to exceed $150,000.

The Town Attorney’s Office is seeking Town Council approval of a second amendment to the existing contract in the amount of $100,000, for a total amount not to exceed $250,000 until December 31, 2025. This is a “single source” procurement, because this firm specializes in municipal law issues, is based locally, and is familiar with current legal issues in Santa Clara County including the development of ordinances regulating telecommunications facilities, which is a current project.

Page 186 ends

ITEM NO. 13.

PAGE 2 OF 2
SUBJECT: Second Amendment to the Atchison Barisone and Condotti Agreement DATE: November 20, 2024
DISCUSSION:

The proposed contract amendment will fund additional legal services, which will include work on updates to certain Town ordinances, as well as assistance with contract review and Public Records Act requests.

CONCLUSION:

The Town Attorney’s Office recommends approval of the contract amendment because the additional legal support will support staff work on a variety of time-sensitive projects.

FISCAL IMPACT:

Funds have been budgeted for these services in account 111-1301-6321, and sufficient funds are available for this increase.

ENVIRONMENTAL ASSESSMENT:

This is not a project defined under CEQA, and no further action is required.

Attachments:

1. Second Amendment to Agreement

2. First Amendment to Agreement and Original Agreement

Page 187 ends

ITEM NO. 13.

Second Amendment to Consultant Services Agreement with Atchison, Barisone & Condotti, APC

Page 1 ends

ATTACHMENT 1

SECOND AMENDMENT TO CONSULTANT SERVICES AGREEMENT

BETWEEN TOWN OF LOS GATOS AND ATCHISON, BARISONE & CONDOTTI, APC THIS SECOND AMENDMENT (“Second Amendment”), effective as of _______________, 2024, (“effective date”) to the AGREEMENT FOR CONSULTANT SERVICES dated December 7, 2022, is made by and between the TOWN OF LOS GATOS (“Town”) and ATCHISON, BARISONE, & CONDOTTI, APC (“Consultant”). Town and Consultant may be referred to individually as a “Party” and collectively, as the “Parties.”

RECITALS
WHEREAS, Town and Consultant have previously entered into that certain Consultant Services Agreement (“Agreement”) dated December 7, 2022, incorporated herein by this reference; and WHEREAS, on March 1, 2024, Town and Consultant entered into a First Amendment to the Agreement to specify that services would not exceed the cost of $150,000 during the term of the Agreement, which expires on December 31, 2025, and to amend the conflict of interest clause.

WHEREAS, Town and Consultant agree to enter into this Second Amendment to the Agreement to revise the budget for legal services to add another $100,000 to the prior budget amount, as specified herein.

AGREEMENT
NOW, THEREFORE, it is agreed between the Parties to incorporate the above Recitals hereto, and the Parties agree to the following:

1. Section 2.6 “Compensation” of the Agreement is hereby amended to replace the last sentence in this section from the First Amendment, with the following:
“Payment for legal services shall not exceed an additional $100,000 for a total budget of $250,000 for Consultant’s on-call legal services until December 31, 2025.”

2. Except as amended by this Second Amendment, all other applicable terms and conditions of the original and First Amendment to the Agreement, and annual fee adjustments shall remain in full force and effect. The terms of this Second Amendment shall control if any conflict exists.

3. Each party acknowledges that it has reviewed this Second Amendment and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Second Amendment.

4. The unenforceability, invalidity or illegality of any provision(s) of this Second Amendment shall not render the other provisions unenforceable, invalid or illegal.

5. The Parties may execute this Second Amendment in two or more counterparts, which shall, in the aggregate, be deemed an original but all of which, together, shall constitute one and the same instrument. A scanned, electronic, facsimile or other copy of a party’s signature shall be accepted and valid as an original.

Page 188 ends

ITEM NO. 13.

Page 2 ends

6. The signatories to this Second Amendment warrant and represent that each is authorized to execute this Second Amendment and that their respective signatures serve to legally obligate their respective representatives, agents, successors and assigns to comply with the provisions of this Second Amendment.

IN WITNESS WHEREOF, the Town and the Consultant have executed this Second Amendment effective as of the date first written above.

Approved As To Form:

By: _____________________________ Date: _______________________ Gabrielle Whelan, Town Attorney
CONSULTANT – ATCHISON, BARISONE & CONDOTTI, APC
By: _____________________________ Date: _________________________ Anthony P. Condotti, President
By: _____________________________ Date: _________________________ Barbara H. Choi, Treasurer

TOWN OF LOS GATOS
By: _____________________________ Date: _________________________ Chris Constantin, Town Manager

Page 189 ends

ITEM NO. 13.

Page 3 ends

DATE: November 26, 2024
TO: Gabrielle Whelan, Town Attorney
FROM: Bridgette Falconio, Administrative Technician
SUBJECT: Single Source for Approval by Town Attorney: Atchison Barisone & Condotti BACKROUND:

This contract is a “single source” purchase in conformance with the Town’s purchasing policy in that there are compelling reasons to hire this firm. The Town is seeking a second amendment to a contract with Atchison Barisone & Condotti for General Legal Services in the Town. This includes work on updates to certain Town ordinances, as well as assistance with contract review and Public Records Act requests They represent other local Towns and Cities like Santa Cruz and Campbell making them familiar with our local issues, such as the development of telecommunication ordinances. Atchison Barisone & Condotti specializes in municipal law and is located locally.

Recommended By: Approved By:
____________________________________ ______________________________________ Bridgette Falconio, Admin Tech Date Gabrielle Whelan, Town Attorney Date

MEMORANDUM

Page 190 ends

ITEM NO. 13.

First Amendment to Consultant Services Agreement with Atchison, Barisone & Condotti, APC First Amendment to Atchison Barisone & Condotti On-Call Municipal Law Services Agreement Page 1

FIRST AMENDMENT TO CONSULTANT SERVICES AGREEMENT

BETWEEN TOWN OF LOS GATOS AND ATCHISON, BARISONE & CONDOTTI,APC THIS FIRST AMENDMENT (“First Amendment”), effective as of March 1, 2024, (“effective date”) to the AGREEMENT FOR CONSULTANT SERVICES dated December 7, 2022, is made by and between the TOWN OF LOS GATOS (“Town”) and ATCHISON, BARISONE, & CONDOTTI, APC (“Consultant”). Town and Consultant may be referred to individually as a “Party” and collectively, as the “Parties.”

AGREEMENT
NOW, THEREFORE, it is agreed between the Parties to incorporate the above Recitals hereto, and that the Agreement is hereby amended as follows:

1. Section 2.6 “Compensation” of the Agreement is hereby amended to add at the end of the this section, the following:
“Payment for legal services shall not exceed $150,000 in total.”

2. Section 2.11 of the Agreement is hereby deleted and replaced by the following:
“2.11 Conflict of Interest. Consultant has no business holdings or agreements with any individual member of the staff or management of the Town or its representatives nor shall it enter into any such holdings or agreements which may create conflicts of interest between Consultant and the Town. Should any such conflict develop, despite efforts to avoid conflicts between Town and any of Consultant’s other clients, then Consultant and its attorneys will immediately notify the Town and appropriate measures will be agreed upon, consistent with Consultant’s attorneys’ professional ethical obligations. The Town acknowledges that in the event of a conflict of interest, the Town will agree to allow Consultant to withdraw from representing the Town in the matter which poses a conflict of interest, such that Consultant may continue its legal representation of Consultant’s other clients, in accordance with applicable code of ethics rules.” Except as amended by this First Amendment, all other applicable terms and conditions of the original Agreement and annual fee adjustments shall remain in full force and effect. The terms of this First Amendment shall control if any conflict exists.

DocuSign Envelope ID: 573935B0-CD74-4B73-AF1F-887F894FE50E ATTACHMENT 2

Page 191 ends

ITEM NO. 13.

First Amendment to Consultant Services Agreement with Atchison, Barisone & Condotti, APC First Amendment to Atchison Barisone & Condotti On-Call Municipal Law Services Agreement Page 2 Each party acknowledges that it has reviewed this First Amendment and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this First Amendment.

The unenforceability, invalidity or illegality of any provision(s) of this First Amendment shall not render the other provisions unenforceable, invalid or illegal.

The Parties may execute this First Amendment in two or more counterparts, which shall, in the aggregate, be deemed an original but all of which, together, shall constitute one and the same instrument. A scanned, electronic, facsimile or other copy of a party’s signature shall be accepted and valid as an original.

The signatories to this First Amendment warrant and represent that each is authorized to execute this First Amendment and that their respective signatures serve to legally obligate their respective representatives, agents, successors and assigns to comply with the provisions of this First Amendment.

IN WITNESS WHEREOF, the Town and the Consultant have executed this First Amendment effective as of the date first written above.

Approved As To Form:

TOWN OF LOS GATOS
By: _____________________________ Date: _________________________ Laurel Prevetti, Town Manager
DocuSign Envelope ID: 573935B0-CD74-4B73-AF1F-887F894FE50E 4/9/2024
4/9/2024
4/15/2024
4/15/2024

Page 192 ends

ITEM NO. 13.

Atchison, Barisone and Condotti APC - On-Call Municipal Law Services Agreement Page 1 of 7

AGREEMENT FOR CONSULTANT SERVICES
THIS AGREEMENT is made and entered into on December 7, 2022 by and between TOWN OF LOS GATOS, a California municipal corporation, (“Town”) and Atchison, Barisone and Condotti , a Professional Corporation (“Consultant”), whose address is P.O Box 481, Santa Cruz, CA 95061.

This Agreement is made with reference to the following facts.

I. RECITALS

1.1 The Town desire to engage Consultant to review the Town’s existing Independent Police Auditor Function Policy, recommend updates, and provide services to be performed for on-call municipal law services.

1.2 The Consultant represents and affirms that it is willing to perform the desired work pursuant to this Agreement.

1.3 Consultant warrants it possesses the distinct professional skills, qualifications, experience, and resources necessary to timely perform the services described in this Agreement.

Consultant acknowledges Town has relied upon these warranties to retain Consultant.

II. AGREEMENTS

2.1 Scope of Services. Consultant shall provide the services described as on-call municipal law services. All direction and approval of Consultant’s work for Town shall be by the Office of the Town Attorney.

2.2 Term and Time of Performance. This Agreement will remain in effect from December 7, 2022 to December 31, 2025. Town also agrees to pay Consultant for services performed by Consultant at the request of the Town prior to the effective date of this Agreement.

2.4 Sole Responsibility. Consultant shall be responsible for employing or engaging all persons necessary to perform the services under this Agreement.

2.5 Information/Report Handling. All documents furnished to Consultant by the Town and all reports and supportive data prepared by the Consultant under this Agreement are the Town’s property and shall be delivered to the Town upon the completion of Consultant's services or at the Town's written request. All reports, information, data, and exhibits DocuSign Envelope ID: 8E7A0FD0-B866-458C-AB20-94B2B325A0E4 DocuSign Envelope ID: 573935B0-CD74-4B73-AF1F-887F894FE50E Attachment 1

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ITEM NO. 13.

Atchison, Barisone and Condotti APC - On-Call Municipal Law Services Agreement Page 2 of 7 prepared or assembled by Consultant in connection with the performance of its services pursuant to this Agreement are confidential until released by the Town to the public, and the Consultant shall not make any of the documents or information available to any individual or organization not employed by the Consultant or the Town without the written consent of the Town before such release. The Town acknowledges that the reports to be prepared by the Consultant pursuant to this Agreement are for the purpose of evaluating a defined project, and Town's use of the information contained in the reports prepared by the Consultant in connection with other projects shall be solely at Town's risk, unless Consultant expressly consents to such use in writing. Town further agrees that it will not appropriate any methodology or technique of Consultant which is and has been confirmed in writing by Consultant to be a trade secret of Consultant.

2.6 Compensation. Compensation for Consultant's professional services shall not exceed $325/hr for shareholders/senior associates, $300/hr for midlevel associates, $275/hr for junior associates, $200/hr for paralegal/law clerk, $125/hr for admin staff, inclusive of all costs. Payment shall be based upon Town approval of each task.

Legal services shall be charged in increments of 1/10 of an hour (i.e., six-minute units).

On or after January 1 of each year commencing in 2024, Consultant may adjust the rates and fees specified herein in accordance with the change in the San Francisco Bay Area Consumer Price Index for All Urban Consumers (CPI-U) for the prior twelve month period provided, however, that Consultant shall provide Town with no less than thirty (30) days advance written notice prior to the effective date of such adjustment.

In addition to paying legal fees, Town shall reimburse Consultant for all costs and expenses incurred relating to the legal services, including but not limited to fees fixed by law or assessed by public agencies, long distance telephone calls, messenger and other delivery fees, postage, in-office photocopying (noncolor at $0.25 per page; color at $.50 per page), scans at $0.20 per page, fax services at $1.00 per page, investigation expenses, third-party consultant fees, parking, mileage (IRS rates), and other similar items. Town authorizes Consultant to incur all reasonable costs and to hire any investigators or third-party consultants, reasonably necessary in Consultant’s judgment, except that Consultant shall obtain Town’s consent before doing so, which will not be unreasonably withheld.

Payment shall be net thirty (30) days. All invoices and statements to the Town shall be addressed as follows:

DocuSign Envelope ID: 8E7A0FD0-B866-458C-AB20-94B2B325A0E4 DocuSign Envelope ID: 573935B0-CD74-4B73-AF1F-887F894FE50E

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ITEM NO. 13.

Atchison, Barisone and Condotti APC - On-Call Municipal Law Services Agreement Page 3 of 7 Invoices:

Town of Los Gatos
Attn: Town Attorney
110 E. Main Street
Los Gatos, CA 95030

2.10 Independent Contractor. It is understood that the Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and not an agent or employee of the Town. As an independent contractor he/she shall not obtain any rights to retirement benefits or other benefits which accrue to Town employee(s). With prior written consent, the Consultant may perform some obligations under this Agreement by subcontracting, but may not delegate ultimate responsibility for performance or assign or transfer interests under this Agreement. Consultant agrees to testify in any litigation brought regarding the subject of the work to be performed under this Agreement. Consultant shall be compensated for its costs and expenses in preparing for, traveling to, and testifying in such matters at its then current hourly rates of compensation, unless such litigation is brought by Consultant or is based on allegations of Consultant's negligent performance or wrongdoing.

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2.13 Business License. Consultant agrees to have and maintain, for the duration of the Agreement, a valid, Town issued business license.

III. INSURANCE AND INDEMNIFICATION

3.1 Minimum Scope of Insurance:
i. Consultant agrees to have and maintain, for the duration of the Agreement, General Liability insurance policies insuring him/her and his/her firm to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. ii. Consultant agrees to have and maintain for the duration of the Agreement, an Automobile Liability insurance policy ensuring him/her and his/her staff to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. iii. Consultant shall provide to the Town all certificates of insurance, with original endorsements effecting coverage. Consultant agrees that all certificates and endorsements are to be received and approved by the Town before work commences.
iv. Consultant agrees to have and maintain, for the duration of the Agreement, professional liability insurance in amounts not less than $2,000,000 which is sufficient to insure Consultant for professional errors or omissions in the performance of the particular scope of work under this agreement.

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Atchison, Barisone and Condotti APC - On-Call Municipal Law Services Agreement Page 5 of 7 ii. The Consultant's insurance coverage shall be primary insurance as respects the Town, its officers, officials, employees and volunteers. Any insurance or self-insurances maintained by the Town, its officers, officials, employees or volunteers shall be excess of the Consultant's insurance and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officers, officials, employees or volunteers.
iv. The Consultant's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability.

IV. GENERAL TERMS

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4.4 Amendment. No modification, waiver, mutual termination, or amendment of this Agreement is effective unless made in writing and signed by the Town and the Consultant.

4.5 Disputes. In any dispute over any aspect of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, including costs of appeal.

4.6 Notices. Any notice required to be given shall be deemed to be duly and properly given if mailed postage prepaid, and addressed to:

Town of Los Gatos Atchison, Barisone and Condotti APC
Attn: Town Clerk Attn: Jennifer Quek
110 E. Main Street P.O. Box 481
Los Gatos, CA 95030 Santa Cruz, CA 95061
or personally delivered to Consultant to such address or such other address as Consultant designates in writing to Town.

4.9 Counterparts. The parties may execute this Agreement in counterparts, which, together, shall constitute one and the same instrument. Electronic, scanned pdf, and facsimile signatures shall be accepted as an original. A copy of this Agreement is valid as the original.

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Atchison, Barisone and Condotti APC - On-Call Municipal Law Services Agreement Page 7 of 7 IN WITNESS WHEREOF, the Town and Consultant have executed this Agreement.

Anthony P. Condotti, President
Atchison, Barisone & Condotti
Barbara H. Choi, Treasurer
Atchison, Barisone & Condotti
Approved:

TOWN OF LOS GATOS
Laurel Prevetti, Town Manager
Approved as to Form:

Gabrielle Whelan, Town Attorney
Attest:

Wendy Wood, CMC, Town Clerk
______________________________
Date
______________________________
Date
DocuSign Envelope ID: 8E7A0FD0-B866-458C-AB20-94B2B325A0E4 12/9/2022
12/9/2022
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ITEM NO. 13.

Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov

TOWN OF LOS GATOS

COUNCIL AGENDA REPORT
MEETING DATE: 12/03/2024
ITEM NO: 14
DATE: November 21, 2024
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Authorize the Town Manager to Execute a Contract Amendment to the Contract for Legal Services with the Law Firm of Goldfarb & Lipman to Increase the Contract Amount in an Amount Not to Exceed $165,000 RECOMMENDATION:

Authorize the Town Manager to execute a contract amendment to the contract for legal services with the law firm of Goldfarb & Lipman to increase the contract amount in an amount not to exceed $165,000.

BACKGROUND:

In July 2022, the Town Attorney's Office entered into an agreement with the law firm of Goldfarb & Lipman LLP to provide general land use assistance. The Town Attorney’s Office is seeking Town Council approval of an amendment to the existing contract in the amount not to exceed $165,000. Since 2022, the Town Attorney’s office has spent a total of $95,061.16 in consultation with Goldfarb & Lipman, primarily on Housing Element matters. In accordance with the Town’s purchasing policy, this is a “single source” contract in that this firm is recognized as a statewide expert in Housing Element law.

DISCUSSION:

The proposed contract amendment will fund additional legal services, which will include work on general land use matters including housing element implementation and the processing of SB 330 planning applications. The Town anticipates requiring additional funds for upcoming land use matters. As such, this item is being brought to Council for authorization in accordance with the Town’s purchasing policy, which requires Council approval for services totaling over $100,000.

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ITEM NO. 14.

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SUBJECT: 1st Amendment to the Goldfarb & Lipman LLP Agreement DATE: November 21, 2024
CONCLUSION:

The Town Attorney’s Office recommends approval of the contract amendment not to exceed $165,000 because the additional legal support will support staff work on a variety of land use matters.

FISCAL IMPACT:

Funds have been budgeted for these services.

ENVIRONMENTAL ASSESSMENT:

This is not a project defined under CEQA, and no further action is required.

Attachments:

1. Amendment to Agreement with Exhibit A - Original Agreement

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ITEM NO. 14.
1 of 1
Legal Services – Town of Los Gatos – Land Use Assistance

AMENDMENT TO AGREEMENT
This AMENDMENT TO AGREEMENT is dated for identification this 20 day of November, 2024 and amends that certain agreement for Goldfarb and Lipman Land Use Agreement dated July 21, 2022, made by and between the Town of Los Gatos, ("Town,") and Goldfarb & Lipman LLP.(“Consultant.”)

RECITALS
A. Town and Consultant entered into a Land Use Agreement on July 21, 2022, (“Agreement”), a copy of which is attached hereto and incorporated by reference as Exhibit A to this Amendment.

AMENDMENT

1. The compensation is amended not to exceed $165,000.

2. All other terms and conditions of the Agreement remain in full force and effect.

Town of Los Gatos Approved as to Consent:

By: _______________________________ By:______________________________ Chris Constantin, Town Manager Barbara Kautz, Goldfarb & Lipman Department Approval:
_______________________________________
Gabrielle Whelan, Town Attorney
Approved as to Form: Attest:
______________________________ ______________________________ Gabrielle Whelan, Town Attorney Wendy Wood, CMC, Town Clerk ATTACHMENT 1

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ITEM NO. 14.
2 DATE: November 26, 2024
TO: Gabrielle Whelan, Town Attorney
FROM: Bridgette Falconio, Administrative Technician
SUBJECT: Single Source for Approval by Town Attorney: Goldfarb & Lipman LLP BACKROUND:

This contract is a “single source” purchase in conformance with the Town’s purchasing policy in that there are compelling reasons to hire this firm. The Town is seeking an amendment to a contract with Goldfarb & Lipman LLP for General Land Use Assistance in the Town. This includes work on general land use matters including housing element implementation and the processing of SB 330 planning applications. Goldfarb & Lipman LLP are statewide experts in Builders Remedy.

Recommended By: Approved By:
____________________________________ ______________________________________ Bridgette Falconio, Admin Tech Date Gabrielle Whelan, Town Attorney Date

MEMORANDUM

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ITEM NO. 14.

DocuSign Envelope ID: FEBF3DF7-FCBA-4C22-835B-0AF196407C37 goldfarb
Ii pma n
attorneys
M David Krool
Lyn n Hutchins
Karen M. Ti edema nn
Thomas H. Webber
Dian ne Jackson Mcleon
Michel le D. Brewer
Robert C. Mills
Isobel L. Brown
James T. Diamond, Jr.

Margaret F. Jung
Heather J. Gould
Wil liam F. DiCami llo
Amy DeVau dreui l
Barbara E. Kautz
Ra fael Yaqui6n
Celia W. Lee
Dolores Bastian Dalton
Joshua J. Mason
Jeffrey A. Streiffer
Eliz.obeth R. Klueck
Jha ila R. Brown
Gabriel le B. Janssens
Rye P. Murphy
Beniami n Funk
Aileen T. Nguyen
Katie Dahlinghaus
Matthew S. Heaton
Naz.anin Sa lehi
Eri n C. Lapeyrolerie
Minda Bautisla Hickey
Connor T. Kratz
Los Angeles
2 13 62 7-6336
San Diego
6 1 9 239-633 6
Goldfa rb & Li pma n LLP
1300 Cloy Street, Eleventh Floor
Oakland, Ca lifornia 94612
510 836-6336
July 21, 2022
Gabrielle Whelan, Town Attorney
Town of Los Gatos
110 East Main Street
Los Gatos, CA 95030
[email protected]
Re: Legal Services -Town of Los Gatos - Land Use Assistance Dear Gabrielle:
via e-mail
Goldfarb & Lipman LLP would be pleased to provide legal services to the Town of Los Gatos (the "Town") in connection with various land use matters relating to housing law, including those related to the Town's housing element, general plan, and development projects and related matters as authorized in writing by the City. However, Goldfarb & Lipman will not advise the City regarding matters related to the North Forty property because of our past representation of the developers.

I will have primary responsibility for our work with you on this matter. Our goal is to provide you with quality legal services, on schedule and at a reasonable cost. To that end, we may also draw on the services of other colleagues as needed to provide the most cost-effective services.

Our fees will be billed on an hourly basis at the rates set forth in the attached Rate Schedule, and payable monthly based on the number of hours expended on the matter.

Our billing rates for this matter reflect our discounted rates for legal advice and representation for public entity clients and are subject to the increases described in attached Goldfarb & Lipman's Legal Representation Policies and Procedures. Our hourly rates are adjusted from time to time and may change during the course of our engagement upon sixty (60) days prior written notice to you. If you choose not to consent to the increased rates, you may terminate our services by written notice effective when received by us. The time charged will include, but is not limited to, the time spent on telephone calls, emails and other electronic communications relating to the transaction, including calls and emails with Town staff and other parties and attorneys. The legal personnel 99005 1 \0 I \3334498.1
7/21/2022

EXHIBIT A

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PREPARED BY: Bridgette Falconio
Administrative Technician
Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov

TOWN OF LOS GATOS

COUNCIL AGENDA REPORT
MEETING DATE: 12/03/2024
ITEM NO: 15
DATE: November 21, 2024
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Direct Staff to Exercise the Option to Purchase the Below Market Rate (BMR) Unit at 653 Blossom Hill Road and Take Necessary Steps
RECOMMENDATION:

Direct Staff to exercise the option to purchase the Below Market Rate (BMR) Unit at 653 Blossom Hill Road and direct staff to take necessary steps .

BACKGROUND:
lnclusionary Zoning Regulations and Resale Restriction Agreement To further the Town's goal of increasing the production of affordable units, the Town’s Below Market Rate Policy requires developers of residential development projects to provide a specified percentage of units in projects as below market-rate units ("BMR Units"). The BMR Units must be reserved for occupancy by, and at prices affordable to, low- and moderateincome households for 55 years. Purchasers of ownership BMR Units are subject to Deed Restriction Agreements, which are recorded against the BMR Units. As discussed in more detail below, the Deed Restriction Agreement imposes occupancy and resale restrictions on the BMR Unit to prevent initial and subsequent purchasers from using the BMR Unit for purposes incompatible with the Inclusionary Ordinance and realizing unwarranted gains from sales of the BMR Unit at unrestricted prices. In addition, the Deed Restriction Agreement (Attachment 1) grants the Town an option to purchase the BMR Unit upon the occurrence of certain events.

Deed Restriction Agreement and Town’s Option to Purchase Pursuant to the Deed Restriction Agreement, a BMR Owner may sell his or her BMR Unit only to, depending on the income level of the Unit, another very low-, low-, or moderate-income

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ITEM NO. 15.

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SUBJECT: Exercising the Option to Purchase BMR Unit at 653 Blossom Hill Road DATE: November 21, 2024
household at a restricted price. The restricted price is the lower of the (a) the fair market value as determined by an appraiser or (b) the original price paid by the Owner for the BMR Unit, increased by (1) the percentage increase in the median household income for Santa Clara County between the effective date of the Deed Restriction Agreement and the date the Town receives notification of the BMR Owner's intent to sell his or her Unit; or (c) the original purchase price plus the percentage increase in the cost of living as determined by the Consumer Price Index for the San Francisco-Oakland-San Jose area.

To ensure that the BMR Units remain affordable, the Resale Restriction Agreement grants the Town an option to purchase the BMR Unit for the restricted price. The Town has the right to exercise the option upon the occurrence of any of the following events: (1) receipt of notification of the Owner's intent to sell the BMR Unit; (2) any actual, attempted, or pending sale, lease or other transfer of the Unit; (3) any actual, attempted, or pending encumbrance of the Unit; (4) recordation of a Notice of Default and/or a Notice of Sale; (5) commencement of a judicial foreclosure proceeding or execution by the Owner of a Deed in lieu of foreclosure; (6) commencement of a bankruptcy proceeding or action; or (7) a violation by the Owner of any provision of the Resale Restriction Agreement. The Town may assign its option to a low- or moderate-income household.

DISCUSSION:

BMR Unit at 653 Blossom Hill Road
The property, 653 Blossom Hill Road, is a 3-bedroom 3-bath townhome within the Town’s BMP Housing Program inventory. The property is subject to an existing first right of refusal option in a Deed Restriction recorded on February 13, 2014. The unit was purchased for $402,100.00.

The Town has received a Notice of Default from the owner’s lender. In the event of foreclosure, the Deed Restriction Agreement gives the Town an option to purchase the property. While staff recommends that the Town exercise its purchase option in order to preserve the BMR Unit in the Town’s inventory of affordable units, the Town’s other options are also set forth below.

Town's Options if BMR Unit Goes into Foreclosure Proceedings The Town has the following options with regard to 653 Blossom Hill Road:

1. No Action; Allow the Unit to Be Sold at Foreclosure Sale: The Town could take no action and allow the Lender to foreclose on the BMR Unit. Because the Town’s Deed Restriction is not recorded in first position, the Town would lose the BMR Unit because the BMR restrictions would terminate upon the foreclosure sale. Therefore, if the unit was sold at foreclosure, the purchaser at the sale (most likely the lender but possibly an investor) would own the unit free of the BMR restrictions.

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ITEM NO. 15.

PAGE 3 OF 4
SUBJECT: Exercising the Option to Purchase BMR Unit at 653 Blossom Hill Road DATE: November 21, 2024
This option would have no financial impact on the Town. However, this option is not recommended because a foreclosure sale would have consequences on the Town's Inclusionary Program, since it would result in the loss of a BMR Unit, and it would also have the potential to result in a windfall to the Owner of the BMR Unit. Under the foreclosure law, the proceeds of the foreclosure sale, after costs have been paid and the Lender's debt is satisfied, go to the Owner.

2. Pay Amount Required to Cure the Default: The Town could pay the lender the amount required to cure the default or provide the BMR Owner with financial assistance so that he or she can cure the default. Any financial assistance to the BMR Owner could be structured in a way to allow the Inclusionary In-Lieu Fee Fund to be repaid in the future. The financial impact of this option would be the amount necessary to cure the default.

This option is not recommended, because it is possible that the BMR unit could be foreclosed upon again in the future.

3. Exercise Option (Recommended): The Town could exercise its option to purchase the BMR Unit from the BMR Owner. The Town’s purchase price is dictated by the deed restriction. Pursuant to the terms of the proposed purchase and sale agreement, the Town will expend approximately $476,154 from the BMP Housing In-Lieu Fund to purchase this unit. After the Town purchased the unit, the Town would sell the unit to a new income-qualified buyer at the allowable purchase price, which will be the same as the Town’s purchase price. The purchase price paid by the Town would be used to pay off all liens and encumbrances recorded against the BMR Unit. The Town would then resell the Unit to an income-eligible household at the restricted moderate-income price. (If the Town is able to identify an eligible purchaser before escrow closes, the Town can also assign its purchase right to that eligible purchaser.) CONCLUSION:

Staff recommends that the Town Council exercise its option to purchase the BMR Unit located at 653 Blossom Hill Road from the BMR owner and direct staff to deliver a Notice of Exercise of Option to Purchase.

COORDINATION:

This report was in Coordination with the Town Attorney and Community Development Department.

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ITEM NO. 15.

PAGE 4 OF 4
SUBJECT: Exercising the Option to Purchase BMR Unit at 653 Blossom Hill Road DATE: November 21, 2024

FISCAL IMPACT
The Town will need to expend funds from its affordable housing fund to purchase the property, but will recover that amount when the property is resold to an eligible buyer.

ENVIRONMENTAL ASSESSMENT:

This is not a project defined under CEQA, and no further action is required.

Attachments:

1. Deed Restriction Agreement

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ATTACHMENT 1

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ITEM NO. 15.

PREPARED BY: Robert Gray
Building Official
Reviewed by: Town Manager, Town Attorney, and Finance Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov

TOWN OF LOS GATOS

COUNCIL AGENDA REPORT
MEETING DATE: 12/03/2024
ITEM NO: 16
DATE: November 27, 2024
TO: Mayor and Town Council
FROM: Chris Constantin, Town Manager
SUBJECT: Introduce An Ordinance to Repeal Town Code Sections 6.120.060, 6.120.070, and 6.120.080 (All Electric Construction Requirements).

Ordinance Title: An Ordinance of the Town Council of the Town of Los Gatos Repealing Section 6.120.060, “All Electric Construction Definitions,” Section

6.120.070, “Residential All Electric Construction,” and Section 6.120.080, “Nonresidential All Electric Construction” of the Town Code.

RECOMMENDATION:

Introduce an ordinance to repeal Town Code Sections 6.120.060, 6.120.070, and 6.120.080, which codify all-electric construction requirements.

BACKGROUND:

On November 15, 2022, the Town Council adopted the 2022 California Building and Fire Codes as required by state law. As part of this adoption, the Town Council chose to address greenhouse gas emissions by approving specific amendments, known as Reach Codes, that created higher environmental standards in building construction, by requiring all new construction and qualifying major remodels to be fully electric. This Reach Code also requires additional Electric Vehicle (EV) charging requirements. These Codes became effective January 1, 2023.

The Reach Code applies to new construction and major remodels for residential and commercial buildings, with exemptions for commercial cooking, gas-dependent processes, emergency services, and if all-electric equipment was deemed cost-prohibitive.

Ninth Circuit Ruling on Berkeley’s Gas Ban and Electrification Reach Codes In April of 2023, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the plain text and structure of the Energy Policy and Conservation Act (EPCA) preempts state

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ITEM NO. 16.

PAGE 2 OF 3
SUBJECT: Reach Code Amendments
DATE: November 27, 2024
and local building codes concerning the energy use of natural gas appliances, including Berkeley’s building code which prohibits natural gas piping into new buildings and thereby prevents those appliances from using natural gas. On January 2, 2024, the U.S. Court of Appeals for the Ninth Circuit denied Berkeley’s request for review by the full Ninth Circuit and the panel’s decision was reaffirmed.

On July 31, 2024, the Town received correspondence from the California Restaurant Association’s legal counsel regarding the ruling by the U.S. Court of Appeals for the Ninth Circuit. The letter requested that the Town Council repeal or suspend enforcement of the Ordinance, make a public announcement of that decision, and direct relevant officials not to apply the Ordinance to building permit applications. It is important to note that the Town’s adopted Ordinance includes exceptions for tenant improvement projects and non-residential cooking facilities. However, these were both found to be preempted by the EPCA language referenced by the letter.

On October 15, 2024, the Council directed Staff to develop a report that rescinds the all-electric construction requirements of our currently adopted Reach Codes and then develop an air quality ordinance that targets the elimination of nitrogen oxide (NOx) emitting appliances in new construction and major remodels.

DISCUSSION:

This item rescinds the all-electric construction requirements as directed by Council and removes the threat of possible litigation by the California Restaurant. Staff is working closely with Silicon Valley Clean Energy (SVCE) and TRC Consultants to develop a previously referenced air quality ordinance for Council’s consideration at the December 17, 2024, meeting.

CONCLUSION:

Staff recommends modifying the Town Code by adoption of an Ordinance (Attachment 1), rescinding Town Code Sections 6.120.060, 6.120.070, and 6.120.080, which codify the Town’s all-electric construction requirements.

COORDINATION:

The Community Development Department coordinated with the Town Attorney’s Office in the preparation of this report.

FISCAL IMPACT:

There is no fiscal impact to the Town associated with adoption of an ordinance to rescind the all-electric construction requirements.

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ITEM NO. 16.

PAGE 3 OF 3
SUBJECT: Reach Code Amendments
DATE: November 27, 2024
ENVIRONMENTAL ASSESSMENT:

Adoption of this ordinance is exempt pursuant to the “common sense” exemption in that the Town is already subject to the 9th Circuit’s ruling in the Berkeley decision and amending the Town Code to comport with that ruling will not impact the physical environment (CEQA Guidelines Section 15061(b)(3)).

Attachment:

1. Draft Ordinance repealing the Town’s all-electric construction requirements

2. Redline Code

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ITEM NO. 16.
1 of 2
Draft Ordinance Adoption Date

DRAFT ORDINANCE

AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS REPEALING SECTION 6.120.060, “ALL ELECTRIC CONSTRUCTION DEFINITIONS,” SECTION 6.120.070, “RESIDENTIAL ALL ELECTRIC CONSTRUCTION,” AND SECTION

6.120.080, “NONRESIDENTIAL ALL ELECTRIC CONSTRUCTION” OF THE TOWN CODE WHEREAS, on November 15, 2022, the Town adopted the California Building and Fire Codes as required by state law; and
WHEREAS, as part of this adoption, the Town Council chose to address greenhouse gas emissions by approving specific amendments, known as Reach Codes, that required all new construction and qualifying major remodels to be fully electric; and WHEREAS, on January 2, 2024, the Court of Appeals ruled that all-electric ordinances are preempted by the federal Environmental Policy and Conservation Act; and WHEREAS, in July of 2024, the Restaurant Association contacted the Town regarding the Ninth Circuit ruling and requested that the Town repeal its all-electric ordinance in conformance with the decision; and
WHEREAS, in light of the Ninth Circuit decision, it is recommended that the Town Council repeal the Town’s all-electric ordinance;
NOW, THEREFORE, BE IT ORDAINED by the Town Council of the Town of Los Gatos as follows:

SECTION I. Town Code Section 6.120.060, “All Electric Construction Definitions,” is repealed.

SECTION II. Town Code Section 6.120.070, “Residential All Electric Construction,” is repealed.

SECTION III. Town Code Section 6.120.080, “Nonresidential All Electric Construction” is repealed.

SECTION IV. Severability.

In the event that a court of competent jurisdiction holds any Section, subsection, paragraph, sentence, clause, or phrase in this Ordinance unconstitutional, preempted, or otherwise invalid, the invalid portion shall be severed from this Section and shall not affect the validity of the remaining portions of this Section. The Town hereby declares that it would have adopted each Section, subsection, paragraph, sentence, clause, or phrase in this Section ATTACHMENT 1

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Draft Ordinance Adoption Date
irrespective of the fact that any one or more Sections, subsections, paragraphs, sentences, clauses, or phrases in this Section might be declared unconstitutional, preempted, or otherwise invalid.

SECTION V. CEQA.

Adopting this Ordinance is not a project subject to CEQA because it can be seen with certainty that it will not impact the environment (CEQA Guidelines Section 15378).

SECTION VI. Publication.

The Town Council hereby directs the Town Clerk to cause this Ordinance or a summary thereof to be published or posted in accordance with Section 36933 of the Government Code of the State of California.

SECTION VII. Effective Date.

This Ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on the _____day of ____, 2024, and adopted by the following vote as an ordinance of the Town of Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on the _________, 2024. This ordinance takes effect 30 days after it is adopted.

COUNCIL MEMBERS:

AYES:

NAYS:

ABSENT:

ABSTAIN:

SIGNED:
_______________________________

MAYOR OF THE TOWN OF LOS GATOS

LOS GATOS, CALIFORNIA
ATTEST:
____________________________________

TOWN CLERK OF THE TOWN OF LOS GATOS

LOS GATOS, CALIFORNIA

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ITEM NO. 16.
(Supp. No. 95)

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Sec. 6.120.060. All electric construction definitions.

Section 202 Definitions are amended as follows:

ADDITION. An extension or increase in floor area of an existing building or structure.

ALL-ELECTRIC BUILDING. A building that contains no combustion equipment or plumbing for combustion equipment serving space heating (including fireplaces), water heating (including pools and spas), cooking appliances (including barbeques), and clothes drying, within the building or building property lines, and instead uses electric heating appliances for service.

ALTERATION OR ALTER. Any construction or renovation to an existing structure other than repair for the purpose of maintenance or addition.

COMBUSTION EQUIPMENT. Any equipment or appliance used for space heating, water heating, cooking, clothes drying and/or lighting that uses fuel gas.

COMMERCIAL FOOD HEAT-PROCESSING EQUIPMENT. Equipment used in a food establishment for heatprocessing food or utensils and that produces grease vapors, steam, fumes, smoke, or odors that are required to be removed through a local exhaust ventilation system, as defined in the California Mechanical Code.

ELECTRIC HEATING APPLIANCE. A device that produces heat energy to create a warm environment by the application of electric power to resistance elements, refrigerant compressors, or dissimilar material junctions, as defined in the California Mechanical Code.

FUEL GAS. A gas that is natural, manufactured, liquefied petroleum, or a mixture of these.

NEWLY CONSTRUCTED (or NEW CONSTRUCTION). A newly constructed building (or new construction) does not include additions, alterations, or repairs.
(Ord. No. 2335, § 2, 11-15-22)
Sec. 6.120.070. Residential all electric construction.

SECTION 4.106 SITE DEVELOPMENT
Section 4.106.5, 4.106.5.1, and 4.106.5.2 are added as follows:

4.106.5 All-electric buildings. New construction buildings and qualifying alteration projects shall comply with Section 4.106.5.1 or 4.106.5.2 so that they do not use combustion equipment or are ready to accommodate installation of electric heating appliances.

4.106.5.1. New construction and qualifying alteration projects. All newly constructed buildings shall be allelectric buildings. Substantial renovations/alterations that include replacement of over 50 percent of the existing foundation for purposes other than a repair or reinforcement as defined in California Existing Building Code Section 202; or where over 50 percent of the existing framing above the sill plate is removed or replaced for purposes other than repair, shall be all-electric buildings, and shall meet the new construction requirements of California Code of Regulations, Title 24, as modified by the Town of Los Gatos, including Reach Codes. If either of these criteria are met within a three-year period, measured from the date of the most recent previously obtained permit final date, the project shall be subject to the all-electric building and all new construction requirements.

Tenant improvements shall not be considered new construction. The final determination whether a project meets the definition of substantial reconstruction/alteration shall be made by the local enforcing agency.

ATTACHMENT 2

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ITEM NO. 16.
(Supp. No. 95)

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Exceptions:

1. If the applicant establishes that there is not an all-electric prescriptive compliance pathway for the building system under the California Building Energy Efficiency Standards, and that the building is not able to achieve the performance compliance standard applicable to the building under the Energy Efficiency Standards using commercially available technology and an approved calculation method, then the local enforcing agency may grant a modification. The applicant shall comply with Section

4.106.5.2.

Inactive Fuel Gas Infrastructure may be extended to spaces that are anticipated to qualify for the exceptions contained in this chapter. The inactive Fuel Gas Infrastructure shall not be activated, have a meter installed, or otherwise used unless the exemptions specified in this chapter have been confirmed as part of the issuance of a building permit. If the Fuel Gas Infrastructure is no longer serving one of the exceptions contained in this chapter, it shall either be capped, otherwise terminated, or removed by the entity previously entitled to the exemption, in a manner pursuant to all applicable Codes.

The local enforcing authority shall have the authority to approve alternative materials, design and methods of construction or equipment per California Building Code Section 104.

4.106.5.2 Requirements for combustion equipment.

Where combustion equipment is allowed per Exceptions under 4.106.5.1, the construction drawings shall indicate electrical infrastructure and physical space accommodating the future installation of an electrical heating appliance in the following ways, as certified by a registered design professional or licensed electrical contractor:

1. Branch circuit wiring, electrically isolated and designed to serve all electrical heating appliances in accordance with manufacturer requirements and the California Electrical Code, including the appropriate voltage, phase, minimum amperage, and an electrical receptacle or junction box within five feet of the appliance that is accessible with no obstructions. Appropriately sized conduit may be installed in lieu of conductors; and

2. Labeling of both ends of the unused conductors or conduit shall be with "For Future Electrical Appliance"; and

3. Reserved circuit breakers in the electrical panel for each branch circuit, appropriately labeled (e.g. "Reserved for Future Electric Range"), and positioned on the opposite end of the panel supply conductor connection; and

4. Connected subpanels, panelboards, switchboards, busbars, and transformers shall be sized to serve the future electrical heating appliances. The electrical capacity requirements shall be adjusted for demand factors in accordance with the California Electric Code; and

5. Physical space for future electrical heating appliances, including equipment footprint, and if needed a pathway reserved for routing of ductwork to heat pump evaporator(s), shall be depicted on the construction drawings. The footprint necessary for future electrical heating appliances may overlap with non-structural partitions and with the location of currently designed combustion equipment. (Ord. No. 2335, § 2, 11-15-22)
Sec. 6.120.080. Nonresidential all electric construction.

SECTION 5.106 SITE DEVELOPMENT
Section 5.106.13, 5.106.13.1, and 5.106.13.2 are added as follows:

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(Supp. No. 95)

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5.106.13 All-electric buildings. New construction buildings and qualifying alteration projects shall comply with Section 5.106.13.1 or 5.106.13.2 so that they do not use combustion equipment or are ready to facilitate future electrification.

5.106.13.1. New construction and qualifying alteration projects. All newly constructed buildings shall be allelectric buildings. Substantial renovations/alterations that include replacement of over 50 percent of the existing foundation for purposes other than a repair or reinforcement as defined in California Existing Building Code Section 202; or where over 50 percent of the existing framing above the sill plate is removed or replaced for purposes other than repair, shall be all-electric buildings, and shall meet the new construction requirements of California Code of Regulations, Title 24, as modified by the Town of Los Gatos, including Reach Codes. If either of these criteria are met within a three-year period, measured from the date of the most recent previously obtained permit final date, the project shall be subject to the all-electric building and all new construction requirements.

Exceptions:

1. Nonresidential buildings containing kitchens located in a place of public accommodation, as defined in the California Building Code Chapter 2, may apply to the local enforcing agency for a modification to install commercial food heat-processing equipment served by fuel gas. The local enforcing agency may grant the modification if they find:
a. A business-related need to cook with combustion equipment; and b. The need cannot be achieved equivalently with an electric heating appliance; and c. The applicant has installed energy efficient equipment based on Energy Star or California Energy Wise qualifications, as available.
d. The applicant shall comply with Section 5.106.13.2.

2. If the applicant establishes that there is not an all-electric prescriptive compliance pathway for the building system under the California Building Energy Efficiency Standards, and that the building is not able to achieve the performance compliance standard applicable to the building under the Energy Efficiency Standards using commercially available technology and an approved calculation method, then the local enforcing agency may grant a modification. The applicant shall comply with Section

5.106.13.2.

3. Non-residential buildings that will be constructed to Office of Statewide Health Planning and Development (OSHPD) Hospital standards ("OHSPD 1" as described in California Building Code Vol. 1, section 1224) may contain non-electric space-conditioning, water-heating, and process load systems.

Inactive Fuel Gas Infrastructure may be extended to spaces that are anticipated to qualify for the exceptions contained in this chapter. The inactive Fuel Gas Infrastructure shall not be activated, shall not have a meter installed, and/or shall not otherwise be used unless the exemptions specified in this chapter have been confirmed as part of the issuance of a building permit. If the Fuel Gas Infrastructure is no longer serving one of the exceptions contained in this chapter, it shall either be capped, otherwise terminated, or removed by the entity previously entitled to the exemption, in a manner pursuant to all applicable Codes.

The local enforcing agency shall have the authority to approve alternative materials, design and methods of construction or equipment per California Building Code Section 104.

5.106.13.2. Requirements for combustion equipment.

Where combustion equipment is allowed per exceptions under Section 5.106.13.1, the construction drawings shall indicate electrical infrastructure and physical space accommodating the future installation of

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ITEM NO. 16.
(Supp. No. 95)

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an electrical heating appliance in the following ways, as certified by a registered design professional or licensed electrical contractor:

2. Labeling of both ends of the unused conductors or conduit shall be with "For Future Electrical Appliance"; and

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ITEM NO. 16.

Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, Community Development Director, and Finance Director
110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov

TOWN OF LOS GATOS

COUNCIL AGENDA REPORT
MEETING DATE: 12/03/2024
ITEM NO: 17
DATE: November 20, 2024
TO: Mayor and Town Council
FROM: Gabrielle Whelan, Town Attorney
SUBJECT: Introduce an Ordinance Amending Chapter 29 (Zoning Regulations) of the Town Code Regarding State Mandated Density Bonuses, Pursuant to Implementation Program R of the 2023-2031 Housing Element. Adoption of This Ordinance is Exempt Pursuant to CEQA, Section 15061(b)(3) in That It Can be Seen with Certainty That It Will Not Impact the Environment, Because the Town is Already Subject to Government Code Sections 65915 and Following. Town Code Amendment Application A-24-005. Project Location:

Town Wide. Applicant: Town of Los Gatos.

Ordinance Title: An Ordinance of the Town Council of the Town of Los Gatos Amending Chapter 29, “Zoning,” of the Town Code to Update the Town's Density Bonus Ordinance to Reflect Changes Made in State Law.

RECOMMENDATION:

Introduce an ordinance amending Chapter 29 (Zoning Regulations) of the Town Code regarding State mandated density bonuses, pursuant to Implementation Program R of the 2023-2031 Housing Element.

BACKGROUND:

Implementation Program R of the Housing Element requires an update of the Town’s density bonus ordinance to comply with state law.

State law, codified in Government Code Sections 65915 and following, aims to encourage the development of affordable housing by providing housing developers who provide specified levels of affordable housing with density bonuses and other incentives such as reductions in local parking standards, concessions to reduce project costs, and reductions or waivers of

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ITEM NO. 17.

PAGE 2 OF 4
SUBJECT: Density Bonus Ordinance
DATE: November 20, 2024
applicable development standards. The level of the density bonus and the number of incentives or concessions increase as the percentage of affordable housing provided increases.

A copy of Government Code Sections 65915-65918, as currently enacted, is attached as Attachment 2.

Government Code Section 65915(k) defines an “incentive or concession” as:
1) A reduction in site development standards or a modification of zoning code requirements or architectural design elements;
2) Approval of mixed-use zoning; and
3) Requested regulatory incentives or concessions that result in identifiable and actual cost reductions to provide for affordable housing costs.

With regard to requested waivers of “development standards,” Government Code Section 65915(o) defines “development standard” as “a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an on-site open space requirement minimum, lot area per unit requirement, or a parking ratio.” A local jurisdiction can deny requested incentives or concessions if there is substantial evidence of any of the following:
1) The concession or incentive does not result in identifiable and actual cost reductions; 2) Based on a uniform, identifiable standard, the concession or incentive would have a specific, adverse impact on public health and safety; or 3) The requested incentive would be contrary to state or federal law.

With regard to waivers, a local jurisdiction can only deny them if it can be demonstrated that the development standard would not physically preclude construction of the project as proposed.

Local jurisdictions are required to enact local ordinances to implement State Density Bonus law.

The Town’s existing density bonus ordinance (Attachment 1) is codified in Section 29.10.405 through 29.10.440 of the Town Code. A copy of the Town’s existing density bonus ordinance is included as Attachment 1.

Over the past several years, the State Legislature has amended Government Code Section 65915 several times. As a result, the Town is obligated to update its ordinance to bring it into compliance with state law. This update is also in response to Implementation Program R of the

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ITEM NO. 17.

PAGE 3 OF 4
SUBJECT: Density Bonus Ordinance
DATE: November 20, 2024
Town’s 2023-2031 Housing Element. Pending adoption of an updated density bonus ordinance, state law overrides the Town’s existing density bonus ordinance and governs the Town’s processing of density bonus projects.

On November 13, 2024, the Planning Commission voted unanimously to recommend to the Town Council the adoption of the updated density bonus ordinance.

DISCUSSION:

The proposed ordinance is based on a template developed by the Association of Bay Area Governments (ABAG) and incorporates all recent revisions to State Density Bonus law. The changes include:
1) Requiring that applicants submit an application form showing the following items:
a. The number of proposed affordable units by income level, the number of density bonus units proposed, the total number of dwelling units proposed on the site, and resulting density per acre;
b. A tentative map or preliminary site plan;
c. Zoning and General Plan designations and assessor’s parcel numbers of the site; d. A description of all dwelling units existing on the site in the five-year period preceding submittal of the application, including income and household size of renters; e. The proposed phasing of affordable units in relation to market rate units; and f. The marketing plan for the affordable units.
2) When an applicant seeks an incentive, the applicant shall explain and provide and the following items:
a. Detailing what the requested incentive is;
b. Reasonable documentation to show that the requested incentive will result in identifiable and actual cost reductions to provide for affordable housing costs or rents; c. If a waiver is sought, documentation that the Town’s development standard will physically preclude construction of the project as proposed; and d. Requests for any parking reductions sought.
3) Requiring that listed elements be included in the staff report accompanying a planning application;
4) Setting forth the grounds for denying a requested incentive; 5) Setting forth the grounds for denying a requested waiver; and 6) Requiring that the Town and the applicant enter into an affordable housing agreement.

CONCLUSION:

If the Town Council introduces the proposed ordinance (Attachment 3), it will be placed on the December 17, 2024, Town Council agenda for adoption and the ordinance will take effect 30 days after adoption.

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ITEM NO. 17.

PAGE 4 OF 4
SUBJECT: Density Bonus Ordinance
DATE: November 20, 2024
COORDINATION:

This report was coordinated with the Community Development Department and the Town Attorney’s Office.

FISCAL IMPACT:

Adoption of this ordinance will not have a fiscal impact in that the Town is already required to comply with Government Code Sections 65915 and following.

ENVIRONMENTAL ASSESSMENT:

Adoption of this ordinance is subject to the “common sense” exemption from CEQA in that it can be seen with certainty that it will not impact the environment, because the Town is already subject to Government Code Sections 65915 and following.

Attachments:

1. Existing Density Bonus Ordinance

2. Current Version of Government Code 65915-65918

3. Draft Density Bonus Ordinance

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ITEM NO. 17.
- CODE
Chapter 29 - ZONING REGULATIONS
ARTICLE I. - IN GENERAL
DIVISION 8. STATE MANDATED DENSITY BONUS
Los Gatos, California, Code of Ordinances Created: 2024-03-29 13:44:27 [EST] (Supp. No. 94)

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DIVISION 8. STATE MANDATED DENSITY BONUS
Sec. 29.10.405. Intent and authority.

The density bonus ordinance in this chapter is intended to comply with the State Density Bonus Law codified in California Government Code Section 65915 et seq., which provides that a local government shall grant a density bonus and an additional concession, or financially equivalent incentive(s), to a qualified housing development agreeing to construct a specific percentage of housing for lower income households, very low income households, or senior housing as defined by state law.
(Ord. No. 2209, § 1, 6-18-12)
Sec. 29.10.410. Applicability of regulations.
(a) In addition to providing a density bonus and additional concession or equivalent incentives to a qualified housing development for lower income and very low income households or senior housing, it is the intent to apply the state law density bonus to qualified physically handicapped persons. The term "physically handicapped" shall be defined pursuant to California Health and Safety Code Section 50070 and the Density Bonus Program Guidelines initially adopted by Town Council in 2012 and amended from time to time thereafter.
(b) Applicant who elects to proceed with a housing development using the state law density bonus shall not be eligible for any density increases under the Town's General Plan Density Bonus Policy or the General Plan Below Market Price (BMP) Program as set forth in the Town's Housing Element portion of the General Plan. (Ord. No. 2209, § 1, 6-18-12)
Sec. 29.10.415. General requirements.

Applicants who voluntarily agree to develop a housing development project that complies with the affordability requirements referenced in Government Code 65915 et seq. shall conform to the Density Bonus Program Guidelines adopted by Town Council (initial adopted in 2012) and as may be amended from time to time. (Ord. No. 2209, § 1, 6-18-12)
Sec. 29.10.420. Grounds for denial of a project.
(a) Nothing in Division 8 of this Chapter 29 limits the Town's right to deny an affordable housing project electing to proceed under the state law density bonus provisions, if the Council makes written findings, based on substantial evidence, any of the following:

1. The Town has adopted a housing element as part of the general plan, and the Town has met or exceeded its share of the regional housing needs for the income category proposed for the development project;
ATTACHMENT 1 Page 242
ITEM NO. 17.

Created: 2024-03-29 13:44:27 [EST]
(Supp. No. 94)

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2. The project as proposed would have a specific, adverse impact upon the public health or safety which cannot be satisfactorily mitigated without rendering it unaffordable to lower-income households;

3. The denial of the project or imposition of conditions is required in order to comply with State or Federal law and there is no feasible method to comply without rendering the development unaffordable to lower-income households;

4. The development project is proposed on land zoned for agriculture or resource preservation which is surrounded on at least two sides by land being used for agricultural or resource preservation purposes, and which does not have adequate water or wastewater facilities to serve the project.

5. The development project is inconsistent with the Town's general plan land use designation as it existed on the date the application was deemed complete, and the town has adopted a housing element pursuant to state law.
(b) Nothing in this chapter limits the Town's right to deny a senior housing project if the Town finds, based on substantial evidence, that the project would have a specific, adverse impact upon the public health or safety; and there is no feasible method to satisfactorily mitigate or avoid the adverse impact identified. (Ord. No. 2209, § 1, 6-18-12)
Sec. 29.10.425. Housing agreement.

Applicant requesting a state law density bonus on any rental or for sale project shall agree to enter into a density bonus housing agreement with the Town as required under the density bonus program guidelines. This housing agreement shall be made a condition of the planning permits for all residential developments pursuant to this division and shall be recorded as a restriction on any parcels on which the density bonus units will be constructed.
(Ord. No. 2209, § 1, 6-18-12)
Sec. 29.10.430. Requirements to maintain the affordable units. (a) All affordable units shall be occupied by the household type specified in the written housing agreement required under this division. The applicant's obligation to maintain these units as affordable housing shall be evidenced by the housing agreement which shall be recorded as a deed restriction running with the land. (b) The Town may establish fees associated with the setting up and monitoring of affordable units. (c) The owner shall submit an annual report to the Town, on a form provided by the Town. The report shall include for each affordable unit the rent, income, and family size of the household occupying the unit. (d) The owner shall provide to the Town any additional information required by the Town to insure the longterm affordability of the affordable units by eligible households. (Ord. No. 2209, § 1, 6-18-12)
Sec. 29.10.435. Administrative fee.

An administrative fee shall be charged to the applicant for the review of all materials submitted in accordance with this division and for future monitoring of the affordability of the project. The fee amount shall be established and will be included in the Town's Master Fee Schedule. Fees will be charged for staff and consultant time associated with the development review process, project marketing and leasing, and compliance with the affordability requirements of the project.

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ITEM NO. 17.

Created: 2024-03-29 13:44:27 [EST]
(Supp. No. 94)

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(Ord. No. 2209, § 1, 6-18-12)
Sec. 29.10.440. Appeals.

Any person aggrieved by the denial, conditioning, suspension, or revocation of a density bonus housing development in compliance with the provisions of this division may appeal such action or determination to the Council in compliance with Chapter 29, Article II (Administration and Enforcement) of the Town Code. (Ord. No. 2209, § 1, 6-18-12)
Secs. 29.10.445—29.10.500. Reserved.

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ITEM NO. 17.

Cal Gov Code § 65915
Deering's California Codes are current through the 2024 Regular Session Ch 268.

Deering’s California Codes Annotated > GOVERNMENT CODE (§§ 1 — 500000–500049) > Title 7 Planning and Land Use (Divs. 1 — 3) > Division 1 Planning and Zoning (Chs. 1 — 13) > Chapter

4.3 Density Bonuses and Other Incentives (§§ 65915 — 65918) Notice
This section has more than one version with varying effective dates. § 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
(a)
(1) When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the jurisdiction of a city, county, or city and county, that local government shall comply with this section. A city, county, or city and county shall adopt an ordinance that specifies how compliance with this section will be implemented. Except as otherwise provided in subdivision (s), failure to adopt an ordinance shall not relieve a city, county, or city and county from complying with this section.
(2) A local government shall not condition the submission, review, or approval of an application pursuant to this chapter on the preparation of an additional report or study that is not otherwise required by state law, including this section. This subdivision does not prohibit a local government from requiring an applicant to provide reasonable documentation to establish eligibility for a requested density bonus, as described in subdivision (b), and parking ratios, as described in subdivision (p). (3) In order to provide for the expeditious processing of a density bonus application, the local government shall do all of the following:
(A) Adopt procedures and timelines for processing a density bonus application. (B) Provide a list of all documents and information required to be submitted with the density bonus application in order for the density bonus application to be deemed complete. This list shall be consistent with this chapter.
(C) Notify the applicant for a density bonus whether the application is complete in a manner consistent with the timelines specified in Section 65943. (D)
(i) If the local government notifies the applicant that the application is deemed complete pursuant to subparagraph (C), provide the applicant with a determination as to the following matters:
(I) The amount of density bonus, calculated pursuant to subdivision (f), for which the applicant is eligible.

ATTACHMENT 2

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
(II) If the applicant requests a parking ratio pursuant to subdivision (p), the parking ratio for which the applicant is eligible.
(III) If the applicant requests incentives or concessions pursuant to subdivision (d) or waivers or reductions of development standards pursuant to subdivision (e), whether the applicant has provided adequate information for the local government to make a determination as to those incentives, concessions, waivers, or reductions of development standards.
(ii) Any determination required by this subparagraph shall be based on the development project at the time the application is deemed complete. The local government shall adjust the amount of density bonus and parking ratios awarded pursuant to this section based on any changes to the project during the course of development. (b)
(1) A city, county, or city and county shall grant one density bonus, the amount of which shall be as specified in subdivision (f), and, if requested by the applicant and consistent with the applicable requirements of this section, incentives or concessions, as described in subdivision (d), waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in subdivision (p), if an applicant for a housing development seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this section, that will contain at least any one of the following:
(A) Ten percent of the total units of a housing development, including a shared housing building development, for rental or sale to lower income households, as defined in Section 50079.5 of the Health and Safety Code.
(B) Five percent of the total units of a housing development, including a shared housing building development, for rental or sale to very low income households, as defined in Section 50105 of the Health and Safety Code.
(C) A senior citizen housing development, as defined in Sections 51.3 and 51.12 of the Civil Code, or a mobilehome park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code. For purposes of this subparagraph, “development” includes a shared housing building development. (D) Ten percent of the total dwelling units of a housing development are sold to persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code, provided that all units in the development are offered to the public for purchase. (E) Ten percent of the total units of a housing development for transitional foster youth, as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in Section 18541, or homeless persons, as defined in the federal McKinney-Vento Homeless Assistance Act (42 U.S.C.

Sec. 11301 et seq.). The units described in this subparagraph are subject to a recorded affordability restriction of 55 years and shall be provided at the same affordability level as very low income units.
(F)
(i) Twenty percent of the total units for lower income students in a student housing development that meets the following requirements:
(I) All units in the student housing development shall be used exclusively for undergraduate, graduate, or professional students enrolled full time at an institution of higher education accredited by the Western Association of Schools and Colleges or the Accrediting Commission for Community and Junior Colleges. In order to be eligible under this subclause, the developer shall, as a condition of receiving a certificate of occupancy, provide evidence to the city, county, or city and county that the developer has entered into

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
an operating agreement or master lease with one or more institutions of higher education for the institution or institutions to occupy all units of the student housing development with students from that institution or institutions. An operating agreement or master lease entered into pursuant to this subclause is not violated or breached if, in any subsequent year, there are insufficient students enrolled in an institution of higher education to fill all units in the student housing development.
(II) The applicable 20-percent units shall be used for lower income students. (III) The rent provided in the applicable units of the development for lower income students shall be calculated at 30 percent of 65 percent of the area median income for a single-room occupancy unit type.
(IV) The development shall provide priority for the applicable affordable units for lower income students experiencing homelessness. A homeless service provider, as defined in paragraph (3) of subdivision (e) of Section 103577 of the Health and Safety Code, or institution of higher education that has knowledge of a person’s homeless status may verify a person’s status as homeless for purposes of this subclause. (ii) For purposes of calculating a density bonus granted pursuant to this subparagraph, the term “unit” as used in this section means one rental bed and its pro rata share of associated common area facilities. The units described in this subparagraph are subject to a recorded affordability restriction of 55 years.
(G) One hundred percent of all units in the development, including total units and density bonus units, but exclusive of a manager’s unit or units, are for lower income households, as defined by Section 50079.5 of the Health and Safety Code, except that up to 20 percent of the units in the development, including total units and density bonus units, may be for moderate-income households, as defined in Section 50053 of the Health and Safety Code. For purposes of this subparagraph, “development” includes a shared housing building development. (2) For purposes of calculating the amount of the density bonus pursuant to subdivision (f), an applicant who requests a density bonus pursuant to this subdivision shall elect whether the bonus shall be awarded on the basis of subparagraph (A), (B), (C), (D), (E), (F), or (G) of paragraph (1). (c)
(1)
(A) An applicant shall agree to, and the city, county, or city and county shall ensure, the continued affordability of all very low and low-income rental units that qualified the applicant for the award of the density bonus for 55 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. (B)
(i) Except as otherwise provided in clause (ii), rents for the lower income density bonus units shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code. (ii) For housing developments meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b), rents for all units in the development, including both base density and density bonus units, shall be as follows:
(I) The rent for at least 20 percent of the units in the development shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code. (II) The rent for the remaining units in the development shall be set at an amount consistent with the maximum rent levels for lower income households, as those rents and incomes are determined by the California Tax Credit Allocation Committee.

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
(2)
(A) An applicant shall agree to ensure, and the city, county, or city and county shall ensure, that a for-sale unit that qualified the applicant for the award of the density bonus meets one of the following conditions:
(i) The unit is initially sold to and occupied by a person or family of very low, low, or moderate income, as required, and it is offered at an affordable housing cost, as that cost is defined in Section 50052.5 of the Health and Safety Code and is subject to an equity sharing agreement. (ii) If the unit is not purchased by an income-qualified person or family within 180 days after the issuance of the certificate of occupancy, the unit is purchased by a qualified nonprofit housing corporation that meets all of the following requirements pursuant to a recorded contract that satisfies all of the requirements specified in paragraph (10) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code:
(I) The nonprofit corporation has a determination letter from the Internal Revenue Service affirming its tax-exempt status pursuant to Section 501(c)(3) of the Internal Revenue Code and is not a private foundation as that term is defined in Section 509 of the Internal Revenue Code.
(II) The nonprofit corporation is based in California.
(III) All of the board members of the nonprofit corporation have their primary residence in California.
(IV) The primary activity of the nonprofit corporation is the development and preservation of affordable home ownership housing in California that incorporates within their contracts for initial purchase a repurchase option that requires a subsequent purchaser of the property that desires to resell or convey the property to offer the qualified nonprofit corporation the right to repurchase the property prior to selling or conveying that property to any other purchaser pursuant to an equity sharing agreement or affordability restrictions on the sale and conveyance of the property that ensure that the property will be preserved for lower income housing for at least 45 years for owner-occupied housing units and will be sold or resold only to persons or families of very low, low, or moderate income, as defined in Section 50052.5 of the Health and Safety Code.
(B) For purposes of this paragraph, a “qualified nonprofit housing corporation” is a nonprofit housing corporation organized pursuant to Section 501(c)(3) of the Internal Revenue Code that has received a welfare exemption under Section 214.15 of the Revenue and Taxation Code for properties intended to be sold to low-income families who participate in a special no-interest loan program.
(C) The local government shall enforce an equity sharing agreement required pursuant to clause (i) or (ii) of subparagraph (A), unless it is in conflict with the requirements of another public funding source or law or may defer to the recapture provisions of the public funding source. The following apply to the equity sharing agreement:
(i) Upon resale, the seller of the unit shall retain the value of any improvements, the downpayment, and the seller’s proportionate share of appreciation. (ii) Except as provided in clause (v), the local government shall recapture any initial subsidy, as defined in clause (iii), and its proportionate share of appreciation, as defined in clause (iv), which amount shall be used within five years for any of the purposes described in subdivision (e) of Section 33334.2 of the Health and Safety Code that promote homeownership. (iii) For purposes of this subdivision, the local government’s initial subsidy shall be equal to the fair market value of the home at the time of initial sale minus the initial sale price to the moderate-income household, plus the amount of any downpayment assistance or mortgage

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
assistance. If upon resale the market value is lower than the initial market value, then the value at the time of the resale shall be used as the initial market value. (iv) For purposes of this subdivision, the local government’s proportionate share of appreciation shall be equal to the ratio of the local government’s initial subsidy to the fair market value of the home at the time of initial sale.
(v) If the unit is purchased or developed by a qualified nonprofit housing corporation pursuant to clause (ii) of subparagraph (A) the local government may enter into a contract with the qualified nonprofit housing corporation under which the qualified nonprofit housing corporation would recapture any initial subsidy and its proportionate share of appreciation if the qualified nonprofit housing corporation is required to use 100 percent of the proceeds to promote homeownership for lower income households as defined by Section 50079.5 of the Health and Safety Code within the jurisdiction of the local government. (3)
(A) An applicant shall be ineligible for a density bonus or any other incentives or concessions under this section if the housing development is proposed on any property that includes a parcel or parcels on which rental dwelling units are located or, if the dwelling units have been vacated or demolished in the five-year period preceding the application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very low income; subject to any other form of rent or price control through a public entity’s valid exercise of its police power; or occupied by lower or very low income households, unless the proposed housing development replaces those units, and either of the following applies:
(i) The proposed housing development, inclusive of the units replaced pursuant to this paragraph, contains affordable units at the percentages set forth in subdivision (b). (ii) Each unit in the development, exclusive of a manager’s unit or units, is affordable to, and occupied by, either a lower or very low income household. (B) For the purposes of this paragraph, “replace” shall mean either of the following:
(i) If any dwelling units described in subparagraph (A) are occupied on the date of application, the proposed housing development shall provide at least the same number of units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those households in occupancy. If the income category of the household in occupancy is not known, it shall be rebuttably presumed that lower income renter households occupied these units in the same proportion of lower income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy database. For unoccupied dwelling units described in subparagraph (A) in a development with occupied units, the proposed housing development shall provide units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as the last household in occupancy. If the income category of the last household in occupancy is not known, it shall be rebuttably presumed that lower income renter households occupied these units in the same proportion of lower income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2).

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
(ii) If all dwelling units described in subparagraph (A) have been vacated or demolished within the five-year period preceding the application, the proposed housing development shall provide at least the same number of units of equivalent size as existed at the highpoint of those units in the five-year period preceding the application to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those persons and families in occupancy at that time, if known. If the incomes of the persons and families in occupancy at the highpoint is not known, it shall be rebuttably presumed that low-income and very low income renter households occupied these units in the same proportion of low-income and very low income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2). (C) Notwithstanding subparagraph (B), for any dwelling unit described in subparagraph (A) that is or was, within the five-year period preceding the application, subject to a form of rent or price control through a local government’s valid exercise of its police power and that is or was occupied by persons or families above lower income, the city, county, or city and county may do either of the following:
(i) Require that the replacement units be made available at affordable rent or affordable housing cost to, and occupied by, low-income persons or families. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2).
(ii) Require that the units be replaced in compliance with the jurisdiction’s rent or price control ordinance, provided that each unit described in subparagraph (A) is replaced. Unless otherwise required by the jurisdiction’s rent or price control ordinance, these units shall not be subject to a recorded affordability restriction.
(D) For purposes of this paragraph, “equivalent size” means that the replacement units contain at least the same total number of bedrooms as the units being replaced. (E) Subparagraph (A) does not apply to an applicant seeking a density bonus for a proposed housing development if the applicant’s application was submitted to, or processed by, a city, county, or city and county before January 1, 2015.
(d)
(1) An applicant for a density bonus pursuant to subdivision (b) may submit to a city, county, or city and county a proposal for the specific incentives or concessions that the applicant requests pursuant to this section, and may request a meeting with the city, county, or city and county. The city, county, or city and county shall grant the concession or incentive requested by the applicant unless the city, county, or city and county makes a written finding, based upon substantial evidence, of any of the following:
(A) The concession or incentive does not result in identifiable and actual cost reductions, consistent with subdivision (k), to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c).
(B) The concession or incentive would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon public health and safety or on any real property that is listed in the California Register of Historical Resources and for which there is no feasible method

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
to satisfactorily mitigate or avoid the specific, adverse impact without rendering the development unaffordable to low-income and moderate-income households. (C) The concession or incentive would be contrary to state or federal law. (2) The applicant shall receive the following number of incentives or concessions:
(A) One incentive or concession for projects that include at least 10 percent of the total units for lower income households, at least 5 percent for very low income households, or at least 10 percent for persons and families of moderate income in a development in which the units are for sale. (B) Two incentives or concessions for projects that include at least 17 percent of the total units for lower income households, at least 10 percent for very low income households, or at least 20 percent for persons and families of moderate income in a development in which the units are for sale.
(C) Three incentives or concessions for projects that include at least 24 percent of the total units for lower income households, at least 15 percent for very low income households, or at least 30 percent for persons and families of moderate income in a development in which the units are for sale.
(D) Five incentives or concessions for a project meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b). If the project is located within one-half mile of a major transit stop or is located in a very low vehicle travel area in a designated county, the applicant shall also receive a height increase of up to three additional stories, or 33 feet. (E) One incentive or concession for projects that include at least 20 percent of the total units for lower income students in a student housing development. (F) Four incentives or concessions for projects that include at least 16 percent of the units for very low income households or at least 45 percent for persons and families of moderate income in a development in which the units are for sale.
(3) The applicant may initiate judicial proceedings if the city, county, or city and county refuses to grant a requested density bonus, incentive, or concession. If a court finds that the refusal to grant a requested density bonus, incentive, or concession is in violation of this section, the court shall award the plaintiff reasonable attorney’s fees and costs of suit. This subdivision shall not be interpreted to require a local government to grant an incentive or concession that has a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. This subdivision shall not be interpreted to require a local government to grant an incentive or concession that would have an adverse impact on any real property that is listed in the California Register of Historical Resources. The city, county, or city and county shall establish procedures for carrying out this section that shall include legislative body approval of the means of compliance with this section. (4) The city, county, or city and county shall bear the burden of proof for the denial of a requested concession or incentive.
(e)
(1) In no case may a city, county, or city and county apply any development standard that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted by this section. Subject to paragraph (3), an applicant may submit to a city, county, or city and county a proposal for the waiver or reduction of development standards that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted under this section, and may request a meeting with the city, county, or city and county. If a court finds that the refusal to grant a waiver or reduction of development standards is in violation of this section, the court shall award the plaintiff reasonable attorney’s fees and costs of suit.

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
This subdivision shall not be interpreted to require a local government to waive or reduce development standards if the waiver or reduction would have a specific, adverse impact, as defined in paragraph (2) of subdivision (d) of Section 65589.5, upon health or safety, and for which there is no feasible method to satisfactorily mitigate or avoid the specific, adverse impact. This subdivision shall not be interpreted to require a local government to waive or reduce development standards that would have an adverse impact on any real property that is listed in the California Register of Historical Resources, or to grant any waiver or reduction that would be contrary to state or federal law. (2) A proposal for the waiver or reduction of development standards pursuant to this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d).
(3) A housing development that receives a waiver from any maximum controls on density pursuant to clause (ii) of subparagraph (D) of paragraph (3) of subdivision (f) shall only be eligible for a waiver or reduction of development standards as provided in subparagraph (D) of paragraph (2) of subdivision (d) and clause (ii) of subparagraph (D) of paragraph (3) of subdivision (f), unless the city, county, or city and county agrees to additional waivers or reductions of development standards. (f) For the purposes of this chapter, “density bonus” means a density increase over the otherwise maximum allowable gross residential density as of the date of application by the applicant to the city, county, or city and county, or, if elected by the applicant, a lesser percentage of density increase, including, but not limited to, no increase in density. The amount of density increase to which the applicant is entitled shall vary according to the amount by which the percentage of affordable housing units exceeds the percentage established in subdivision (b).
(1) For housing developments meeting the criteria of subparagraph (A) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows:

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
Percentage Low-Income Units Percentage Density Bonus
10 20
11 21.5
12 23
13 24.5
14 26
15 27.5
16 29
17 30.5
18 32
19 33.5
20 35
21 38.75
22 42.5
23 46.25
24 50

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
(2) For housing developments meeting the criteria of subparagraph (B) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows:

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
Percentage Very Low Income Units Percentage Density Bonus 5 20
6 22.5
7 25
8 27.5
9 30
10 32.5
11 35
12 38.75
13 42.5
14 46.25
15 50

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
(3)
(A) For housing developments meeting the criteria of subparagraph (C) of paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the number of senior housing units. (B) For housing developments meeting the criteria of subparagraph (E) of paragraph (1) of subdivision (b), the density bonus shall be 20 percent of the number of the type of units giving rise to a density bonus under that subparagraph.
(C) For housing developments meeting the criteria of subparagraph (F) of paragraph (1) of subdivision (b), the density bonus shall be 35 percent of the student housing units. (D) For housing developments meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b), the following shall apply:
(i) Except as otherwise provided in clauses (ii) and (iii), the density bonus shall be 80 percent of the number of units for lower income households.
(ii) If the housing development is located within one-half mile of a major transit stop, the city, county, or city and county shall not impose any maximum controls on density. (iii) If the housing development is located in a very low vehicle travel area within a designated county, the city, county, or city and county shall not impose any maximum controls on density. (4) For housing developments meeting the criteria of subparagraph (D) of paragraph (1) of subdivision (b), the density bonus shall be calculated as follows:

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
Percentage Moderate-Income Units Percentage Density Bonus 10 5
11 6
12 7
13 8
14 9
15 10
16 11
17 12
18 13
19 14
20 15
21 16
22 17
23 18
24 19
25 20
26 21
27 22
28 23
29 24
30 25
31 26
32 27
33 28
34 29
35 30
36 31
37 32
38 33
39 34
40 35
41 38.75
42 42.5
43 46.25
44 50

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
(5) All density calculations resulting in fractional units shall be rounded up to the next whole number.

The granting of a density bonus shall not require, or be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. (g)
(1) When an applicant for a tentative subdivision map, parcel map, or other residential development approval donates land to a city, county, or city and county in accordance with this subdivision, the applicant shall be entitled to a 15-percent increase above the otherwise maximum allowable residential density for the entire development, as follows:

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
Percentage Very Low Income Percentage Density Bonus
10 15
11 16
12 17
13 18
14 19
15 20
16 21
17 22
18 23
19 24
20 25
21 26
22 27
23 28
24 29
25 30
26 31
27 32
28 33
29 34
30 35

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
(2) This increase shall be in addition to any increase in density mandated by subdivision (b), up to a maximum combined mandated density increase of 35 percent if an applicant seeks an increase pursuant to both this subdivision and subdivision (b). All density calculations resulting in fractional units shall be rounded up to the next whole number. Nothing in this subdivision shall be construed to enlarge or diminish the authority of a city, county, or city and county to require a developer to donate land as a condition of development. An applicant shall be eligible for the increased density bonus described in this subdivision if all of the following conditions are met:
(A) The applicant donates and transfers the land no later than the date of approval of the final subdivision map, parcel map, or residential development application. (B) The developable acreage and zoning classification of the land being transferred are sufficient to permit construction of units affordable to very low income households in an amount not less than 10 percent of the number of residential units of the proposed development. (C) The transferred land is at least one acre in size or of sufficient size to permit development of at least 40 units, has the appropriate general plan designation, is appropriately zoned with appropriate development standards for development at the density described in paragraph (3) of subdivision (c) of Section 65583.2, and is or will be served by adequate public facilities and infrastructure. (D) The transferred land shall have all of the permits and approvals, other than building permits, necessary for the development of the very low income housing units on the transferred land, not later than the date of approval of the final subdivision map, parcel map, or residential development application, except that the local government may subject the proposed development to subsequent design review to the extent authorized by subdivision (i) of Section 65583.2 if the design is not reviewed by the local government before the time of transfer. (E) The transferred land and the affordable units shall be subject to a deed restriction ensuring continued affordability of the units consistent with paragraphs (1) and (2) of subdivision (c), which shall be recorded on the property at the time of the transfer. (F) The land is transferred to the local agency or to a housing developer approved by the local agency. The local agency may require the applicant to identify and transfer the land to the developer.
(G) The transferred land shall be within the boundary of the proposed development or, if the local agency agrees, within one-quarter mile of the boundary of the proposed development. (H) A proposed source of funding for the very low income units shall be identified not later than the date of approval of the final subdivision map, parcel map, or residential development application. (h)
(1) When an applicant proposes to construct a housing development that conforms to the requirements of subdivision (b) and includes a childcare facility that will be located on the premises of, as part of, or adjacent to, the project, the city, county, or city and county shall grant either of the following:
(A) An additional density bonus that is an amount of square feet of residential space that is equal to or greater than the amount of square feet in the childcare facility. (B) An additional concession or incentive that contributes significantly to the economic feasibility of the construction of the childcare facility.
(2) The city, county, or city and county shall require, as a condition of approving the housing development, that the following occur:
(A) The childcare facility shall remain in operation for a period of time that is as long as or longer than the period of time during which the density bonus units are required to remain affordable pursuant to subdivision (c).

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
(B) Of the children who attend the childcare facility, the children of very low income households, lower income households, or families of moderate income shall equal a percentage that is equal to or greater than the percentage of dwelling units that are required for very low income households, lower income households, or families of moderate income pursuant to subdivision (b). (3) Notwithstanding any requirement of this subdivision, a city, county, or city and county shall not be required to provide a density bonus or concession for a childcare facility if it finds, based upon substantial evidence, that the community has adequate childcare facilities. (4) “Childcare facility,” as used in this section, means a child daycare facility other than a family daycare home, including, but not limited to, infant centers, preschools, extended daycare facilities, and schoolage childcare centers.
(i) “Housing development,” as used in this section, means a development project for five or more residential units, including mixed-use developments. For the purposes of this section, “housing development” also includes a subdivision or common interest development, as defined in Section 4100 of the Civil Code, approved by a city, county, or city and county and consists of residential units or unimproved residential lots and either a project to substantially rehabilitate and convert an existing commercial building to residential use or the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of Section 65863.4, where the result of the rehabilitation would be a net increase in available residential units. For the purpose of calculating a density bonus, the residential units shall be on contiguous sites that are the subject of one development application, but do not have to be based upon individual subdivision maps or parcels. The density bonus shall be permitted in geographic areas of the housing development other than the areas where the units for the lower income households are located. (j)
(1) The granting of a concession or incentive shall not require or be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, study, or other discretionary approval. For purposes of this subdivision, “study” does not include reasonable documentation to establish eligibility for the concession or incentive or to demonstrate that the incentive or concession meets the definition set forth in subdivision (k). This provision is declaratory of existing law.
(2) Except as provided in subdivisions (d) and (e), the granting of a density bonus shall not require or be interpreted to require the waiver of a local ordinance or provisions of a local ordinance unrelated to development standards.
(k) For the purposes of this chapter, concession or incentive means any of the following:
(1) A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required that results in identifiable and actual cost reductions, to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c).
(2) Approval of mixed-use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located. (3) Other regulatory incentives or concessions proposed by the developer or the city, county, or city and county that result in identifiable and actual cost reductions to provide for affordable housing costs,

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c).
(l) Subdivision (k) does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the city, county, or city and county, or the waiver of fees or dedication requirements.
(m) This section does not supersede or in any way alter or lessen the effect or application of the California Coastal Act of 1976 (Division 20 (commencing with Section 30000) of the Public Resources Code). Any density bonus, concessions, incentives, waivers or reductions of development standards, and parking ratios to which the applicant is entitled under this section shall be permitted in a manner that is consistent with this section and Division 20 (commencing with Section 30000) of the Public Resources Code. (n) If permitted by local ordinance, nothing in this section shall be construed to prohibit a city, county, or city and county from granting a density bonus greater than what is described in this section for a development that meets the requirements of this section or from granting a proportionately lower density bonus than what is required by this section for developments that do not meet the requirements of this section.
(o) For purposes of this section, the following definitions shall apply:
(1) “Designated county” includes the Counties of Alameda, Contra Costa, Los Angeles, Marin, Napa, Orange, Riverside, Sacramento, San Bernardino, San Diego, San Mateo, Santa Barbara, Santa Clara, Solano, Sonoma, and Ventura, and the City and County of San Francisco. (2) “Development standard” includes a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, a minimum lot area per unit requirement, or a parking ratio that applies to a residential development pursuant to any ordinance, general plan element, specific plan, charter, or other local condition, law, policy, resolution, or regulation that is adopted by the local government or that is enacted by the local government’s electorate exercising its local initiative or referendum power, whether that power is derived from the California Constitution, statute, or the charter or ordinances of the local government. (3) “Located within one-half mile of a major transit stop” means that any point on a proposed development, for which an applicant seeks a density bonus, other incentives or concessions, waivers or reductions of development standards, or a vehicular parking ratio pursuant to this section, is within onehalf mile of any point on the property on which a major transit stop is located, including any parking lot owned by the transit authority or other local agency operating the major transit stop. (4) “Lower income student” means a student who has a household income and asset level that does not exceed the level for Cal Grant A or Cal Grant B award recipients as set forth in paragraph (1) of subdivision (k) of Section 69432.7 of the Education Code. The eligibility of a student to occupy a unit for lower income students under this section shall be verified by an affidavit, award letter, or letter of eligibility provided by the institution of higher education in which the student is enrolled or by the California Student Aid Commission that the student receives or is eligible for financial aid, including an institutional grant or fee waiver from the college or university, the California Student Aid Commission, or the federal government.
(5) “Major transit stop” has the same meaning as defined in subdivision (b) of Section 21155 of the Public Resources Code.
(6) “Maximum allowable residential density” or “base density” means the greatest number of units allowed under the zoning ordinance, specific plan, or land use element of the general plan, or, if a range of density is permitted, means the greatest number of units allowed by the specific zoning range, specific plan, or land use element of the general plan applicable to the project. Density shall be determined using dwelling units per acre. However, if the applicable zoning ordinance, specific plan, or

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
land use element of the general plan does not provide a dwelling-units-per-acre standard for density, then the local agency shall calculate the number of units by:
(A) Estimating the realistic development capacity of the site based on the objective development standards applicable to the project, including, but not limited to, floor area ratio, site coverage, maximum building height and number of stories, building setbacks and stepbacks, public and private open-space requirements, minimum percentage or square footage of any nonresidential component, and parking requirements, unless not required for the base project. Parking requirements shall include considerations regarding number of spaces, location, design, type, and circulation. A developer may provide a base density study and the local agency shall accept it, provided that it includes all applicable objective development standards. (B) Maintaining the same average unit size and other project details relevant to the base density study, excepting those that may be modified by waiver or concession to accommodate the bonus units, in the proposed project as in the study.
(7)
(A)
(i) “Shared housing building” means a residential or mixed-use structure, with five or more shared housing units and one or more common kitchens and dining areas designed for permanent residence of more than 30 days by its tenants. The kitchens and dining areas within the shared housing building shall be able to adequately accommodate all residents. If a local ordinance further restricts the attributes of a shared housing building beyond the requirements established in this section, the local definition shall apply to the extent that it does not conflict with the requirements of this section.
(ii) A “shared housing building” may include other dwelling units that are not shared housing units, provided that those dwelling units do not occupy more than 25 percent of the floor area of the shared housing building. A shared housing building may include 100 percent shared housing units.
(B) “Shared housing unit” means one or more habitable rooms, not within another dwelling unit, that includes a bathroom, sink, refrigerator, and microwave, is used for permanent residence, that meets the “minimum room area” specified in Section R304 of the California Residential Code (Part

2.5 of Title 24 of the California Code of Regulations), and complies with the definition of “guestroom” in Section R202 of the California Residential Code. If a local ordinance further restricts the attributes of a shared housing building beyond the requirements established in this section, the local definition shall apply to the extent that it does not conflict with the requirements of this section. (8)
(A) “Total units” or “total dwelling units” means a calculation of the number of units that:
(i) Excludes a unit added by a density bonus awarded pursuant to this section or any local law granting a greater density bonus.
(ii) Includes a unit designated to satisfy an inclusionary zoning requirement of a city, county, or city and county.
(B) For purposes of calculating a density bonus granted pursuant to this section for a shared housing building, “unit” means one shared housing unit and its pro rata share of associated common area facilities.
(9) “Very low vehicle travel area” means an urbanized area, as designated by the United States Census Bureau, where the existing residential development generates vehicle miles traveled per capita that is below 85 percent of either regional vehicle miles traveled per capita or city vehicle miles traveled per capita. For purposes of this paragraph, “area” may include a travel analysis zone, hexagon, or grid.

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
For the purposes of determining “regional vehicle miles traveled per capita” pursuant to this paragraph, a “region” is the entirety of incorporated and unincorporated areas governed by a multicounty or singlecounty metropolitan planning organization, or the entirety of the incorporated and unincorporated areas of an individual county that is not part of a metropolitan planning organization. (p)
(1) Except as provided in paragraphs (2), (3), and (4), upon the request of the developer, a city, county, or city and county shall not require a vehicular parking ratio, inclusive of parking for persons with a disability and guests, of a development meeting the criteria of subdivisions (b) and (c), that exceeds the following ratios:
(A) Zero to one bedroom: one onsite parking space.
(B) Two to three bedrooms: one and one-half onsite parking spaces. (C) Four and more bedrooms: two and one-half parking spaces. (2)
(A) Notwithstanding paragraph (1), if a development includes at least 20 percent low-income units for housing developments meeting the criteria of subparagraph (A) of paragraph (1) of subdivision (b) or at least 11 percent very low income units for housing developments meeting the criteria of subparagraph (B) of paragraph (1) of subdivision (b), is located within one-half mile of a major transit stop, and there is unobstructed access to the major transit stop from the development, then, upon the request of the developer, a city, county, or city and county shall not impose a vehicular parking ratio, inclusive of parking for persons with a disability and guests, that exceeds 0.5 spaces per unit. Notwithstanding paragraph (1), if a development includes at least 40 percent moderateincome units for housing developments meeting the criteria of subparagraph (D) of paragraph (1) of subdivision (b), is located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code, and the residents of the development have unobstructed access to the major transit stop from the development then, upon the request of the developer, a city, county, or city and county shall not impose a vehicular parking ratio, inclusive of parking for persons with a disability and guests, that exceeds 0.5 spaces per bedroom. (B) For purposes of this subdivision, “unobstructed access to the major transit stop” means a resident is able to access the major transit stop without encountering natural or constructed impediments. For purposes of this subparagraph, “natural or constructed impediments” includes, but is not limited to, freeways, rivers, mountains, and bodies of water, but does not include residential structures, shopping centers, parking lots, or rails used for transit. (3) Notwithstanding paragraph (1), if a development meets the criteria of subparagraph (G) of paragraph (1) of subdivision (b), then, upon the request of the developer, a city, county, or city and county shall not impose vehicular parking standards if the development meets any of the following criteria:
(A) The development is located within one-half mile of a major transit stop and there is unobstructed access to the major transit stop from the development. (B) The development is a for-rent housing development for individuals who are 55 years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code and the development has either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.
(C) The development is either a special needs housing development, as defined in Section 51312 of the Health and Safety Code, or a supportive housing development, as defined in Section 50675.14 of the Health and Safety Code. A development that is a special needs housing development shall have either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.

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(4) If the total number of parking spaces required for a development is other than a whole number, the number shall be rounded up to the next whole number. For purposes of this subdivision, a development may provide onsite parking through tandem parking or uncovered parking, but not through onstreet parking.
(5) This subdivision shall apply to a development that meets the requirements of subdivisions (b) and (c), but only at the request of the applicant. An applicant may request parking incentives or concessions beyond those provided in this subdivision pursuant to subdivision (d). (6) This subdivision does not preclude a city, county, or city and county from reducing or eliminating a parking requirement for development projects of any type in any location. (7) Notwithstanding paragraphs (2) and (3), if a city, county, city and county, or an independent consultant has conducted an areawide or jurisdictionwide parking study in the last seven years, then the city, county, or city and county may impose a higher vehicular parking ratio not to exceed the ratio described in paragraph (1), based upon substantial evidence found in the parking study, that includes, but is not limited to, an analysis of parking availability, differing levels of transit access, walkability access to transit services, the potential for shared parking, the effect of parking requirements on the cost of market-rate and subsidized developments, and the lower rates of car ownership for low-income and very low income individuals, including seniors and special needs individuals. The city, county, or city and county shall pay the costs of any new study. The city, county, or city and county shall make findings, based on a parking study completed in conformity with this paragraph, supporting the need for the higher parking ratio.
(8) A request pursuant to this subdivision shall neither reduce nor increase the number of incentives or concessions to which the applicant is entitled pursuant to subdivision (d). (q) Each component of any density calculation, including base density and bonus density, resulting in fractional units shall be separately rounded up to the next whole number. The Legislature finds and declares that this provision is declaratory of existing law. (r) This chapter shall be interpreted liberally in favor of producing the maximum number of total housing units.
(s) Notwithstanding any other law, if a city, including a charter city, county, or city and county has adopted an ordinance or a housing program, or both an ordinance and a housing program, that incentivizes the development of affordable housing that allows for density bonuses that exceed the density bonuses required by the version of this section effective through December 31, 2020, that city, county, or city and county is not required to amend or otherwise update its ordinance or corresponding affordable housing incentive program to comply with the amendments made to this section by the act adding this subdivision, and is exempt from complying with the incentive and concession calculation amendments made to this section by the act adding this subdivision as set forth in subdivision (d), particularly subparagraphs (B) and (C) of paragraph (2) of that subdivision, and the amendments made to the density tables under subdivision (f).
(t) When an applicant proposes to construct a housing development that conforms to the requirements of subparagraph (A) or (B) of paragraph (1) of subdivision (b) that is a shared housing building, the city, county, or city and county shall not require any minimum unit size requirements or minimum bedroom requirements that are in conflict with paragraph (7) of subdivision (o). (u)
(1) The Legislature finds and declares that the intent behind the Density Bonus Law is to allow public entities to reduce or even eliminate subsidies for a particular project by allowing a developer to include more total units in a project than would otherwise be allowed by the local zoning ordinance in exchange for affordable units. It further reaffirms that the intent is to cover at least some of the financing gap of affordable housing with regulatory incentives, rather than additional public subsidy.

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(2) It is therefore the intent of the Legislature to make modifications to the Density Bonus Law by the act adding this subdivision to further incentivize the construction of very low, low-, and moderateincome housing units. It is further the intent of the Legislature in making these modifications to the Density Bonus Law to ensure that any additional benefits conferred upon a developer are balanced with the receipt of a public benefit in the form of adequate levels of affordable housing. The Legislature further intends that these modifications will ensure that the Density Bonus Law creates incentives for the construction of more housing across all areas of the state. (v)
(1) Provided that the resulting housing development would not restrict more than 50 percent of the total units to moderate-income, lower income, or very low income households, a city, county, or city and county shall grant an additional density bonus calculated pursuant to paragraph (2) when an applicant proposes to construct a housing development that conforms to the requirements of paragraph (1) of subdivision (b), agrees to include additional rental or for-sale units affordable to very low income households or moderate income households, and meets any of the following requirements:
(A) The housing development conforms to the requirements of subparagraph (A) of paragraph (1) of subdivision (b) and provides 24 percent of the total units to lower income households. (B) The housing development conforms to the requirements of subparagraph (B) of paragraph (1) of subdivision (b) and provides 15 percent of the total units to very low income households. (C) The housing development conforms to the requirements of subparagraph (D) of paragraph (1) of subdivision (b) and provides 44 percent of the total units to moderate-income households. (2) A city, county, or city and county shall grant an additional density bonus for a housing development that meets the requirements of paragraph (1), calculated as follows:

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(3) The increase required by paragraphs (1) and (2) shall be in addition to any increase in density granted by subdivision (b).
(4) The additional density bonus required under this subdivision shall be calculated using the number of units excluding any density bonus awarded by this section.

History
Added Stats 1979 ch 1207 § 10, effective October 2, 1979. Amended Stats 1982 ch 1263 § 2, effective September 22, 1982; Stats 1983 ch 634 § 1; Stats 1984 ch 1333 § 2; Stats 1989 ch 842 § 3; Stats 1990 ch 31 § 3 (AB 1259), effective March 26, 1990; Stats 1991 ch 1091 § 64 (AB 1487); Stats 1998 ch 689 § 6 (SB 1362); Stats 1999 ch 968 § 7 (SB 948); Stats 2000 ch 556 § 1 (AB 2755); Stats 2002 ch 1062 § 3 (AB 1866); Stats 2003 ch 430 § 1 (AB 305); Stats 2004 ch 724 § 5 (AB 2348), ch 928 § 1 (SB 1818); Stats 2005 ch 496 § 2 (SB 435), effective January 1, 2006; Stats 2008 ch 454 § 1 (AB 2280), effective January 1, 2009; Stats 2012 ch 181 § 53 (AB 806), effective January 1, 2013, operative January 1, 2014; Stats 2013 ch 76 § 102 (AB 383), effective January 1, 2014; Stats 2014 ch 682 § 1 (AB 2222), effective January 1, 2015; Stats 2015 ch 699 § 2 (AB 744), effective January 1, 2016; Stats 2016 ch 756 § 1 (AB 2442), effective January 1, 2017; Stats 2016 ch 758 § 1 (AB 2501), effective January 1, 2017; Stats 2016 ch 761 § 1.7 (AB 2556), effective January 1, 2017; Stats 2018 ch 904 § 2 (AB 2797), effective January 1, 2019; Stats 2018 ch 921 § 1 (AB 2753), effective January 1, 2019; Stats 2018 ch 937 § 1.3 (SB 1227), effective January 1, 2019 (ch 937 prevails); Stats 2019 ch 497 § 148 (AB 991), effective January 1, 2020; Stats 2019 ch 666 § 1 (AB 1763), effective January 1, 2020 (ch 666 prevails); Stats 2020 ch 197 § 2 (AB 2345), effective January 1, 2021; Stats 2021 ch 340 § 2 (SB 290), effective January 1, 2022; Stats 2021 ch 365 § 1.5 (SB 728), effective January 1, 2022 (ch 365 prevails); Stats 2022 ch 634 § 1 (AB 682), effective January 1, 2023; Stats 2022 ch 634 §

1.5 (AB 682), effective January 1, 2023; Stats 2022 ch 653 § 1 (AB 2334), effective January 1, 2023; Stats 2022 ch 653 § 1.5 (AB 2334), effective January 1, 2023 (ch 653 prevails); Stats 2023 ch 738 § 2 (AB 323), effective January 1, 2024; Stats 2023 ch 755 § 1 (AB 1287), effective January 1, 2024; Stats 2023 ch 784 § 1.3 (SB 713), effective January 1, 2024 (ch 784 prevails); Stats 2024 ch 80 § 77 (SB 1525), effective January 1, 2025; Stats 2024 ch 278 § 1 (AB 2694), effective January 1, 2025; Stats 2024 ch 432 § 1.5 (AB 3166), effective January 1, 2025 ) (ch 432 prevails).

Annotations
Notes
Editor's Notes—
Amendments:

Note—
Editor's Notes—
Assembly Bill 805 was enacted as Stats 2012 ch 180 and becomes operative January 1, 2014.

Amendments:
1982 Amendment:

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(1) Amended the first paragraph by (a) adding “or 10 percent of the total units of a housing development for lower income households, as defined in Section 50079.5 of the Health and Safety Code,”; and (b) substituting “either (1) grant a density bonus or (2) provide other incentives of equivalent financial value” for “enter into an agreement with the developer to either grant a density bonus or provide not less than two other bonus incentives for the project”; (2) added the second paragraph; (3) amended the third paragraph by (a) adding “maximum”, and “and land use element of the general plan” in the first sentence; (b) substituting “number of housing units which is equal to 10 or 25 percent of the total” for “otherwise allowable density” in the second sentence; and (c) deleting the former fourth sentence which read: “Other bonus incentives which a city, county or city and county may agree to provide under this section include the following: (a) Exemption of the development from the requirements of Section 66477 and any local ordinance adopted pursuant thereto. (b) Construction of public improvements appurtenant to the proposed housing development, which may include, but shall not be limited to, streets, sewers and sidewalks. (c) Utilization of federal or state grant moneys or local revenues to provide the land on which the housing development will be constructed at a reduced cost. (d) Exemption of the development from any provision of local ordinances which may cause an indirect increase in the cost of the housing units to be developed.”; and (4) substituted the fourth paragraph for the former fourth paragraph which read: “Nothing in this section shall preclude a city, county, or city and county from taking any additional actions which will aid housing developers to construct housing developments with 25 percent or more of the total units of a housing development for persons and families of low or moderate income. The determination of the means by which a city, county, or city and county will comply with this chapter shall be in the sole discretion of the city, county, or city and county; provided, that no developer shall be required to enter into an unacceptable agreement as a prerequisite to approval of a housing development.” 1983 Amendment:

Added subdivision designations.
1984 Amendment:

Amended subd (a) by adding (1) “(1)” and “(2)” before “25 percent” and before “10 percent”; and (2) “(3) 50 percent of the total dwelling units of a housing development for qualifying residents, as defined in Section 51.2 of the Civil Code,” before “a city”.
1989 Amendment:
(1) Added subd (a); (2) redesignated former subd (a) to be subd (b); (3) substituted subd (b) for the former subdivision (b) which read: “(b) A developer may submit to a city, county, or city and county a preliminary proposal for the development of housing pursuant to this section prior to the submittal of any formal requests for general plan amendments, zoning amendments, or subdivision map approvals. The city, county, or city and county shall, within 90 days of receipt of a written proposal, notify the housing developer in writing of the manner in which it will comply with this section. The city, county, or city and county shall establish procedures for carrying out this section, which shall include legislative body approval of the means of compliance with this section.”; (4) added subd (c); (5) redesignated former subd (c) to be subd (d); (6) amended subd (d) by (a) substituting “procedures under” for “manner in” in the second sentence; and (b) adding the fourth and fifth sentences; (7) added subd (e); (8) redesignated former subds (c) and (d) to be subds (f) and (h); (9) added “as of the date of application by the developer to the city, county, or city and county” at the end of the first sentence of subd (f); (10) added subd (g); and (11) amended subd (h) by (a) substituting “20 percent” for “25 percent”; (b) substituting “lower income households” for “persons and families of low or moderate income”; (c) substituting “very low income” for “lowerincome”; and (d) adding “and at least one additional concession or incentive identified in Section 65913.4”. 1990 Amendment:
(1) Amended subd (b) by (a) substituting “subdivision (h)” for “Section 65913.4”; and (b) adding “to provide for affordable housing costs as defined in Section 50052.5 of the Health and Safety Code or”; (2) amended subd (c) by (a) adding “or a longer period of time if required by the construction or mortgage financing assistance program,

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mortgage insurance program, or rental subsidy program”; at the end of the first sentence; (b) substituting “lower income households, as defined in Section 50079.5 of the Health and Safety Code” for “persons and families with incomes at or below 80 percent of area median income” in the second sentence; (c) substituting “very low income households, as defined in Section 50105 of the Health and Safety Code” for “persons and families with incomes at or below 50 percent of area median income” in the third sentence; and (d) adding “additional” after “least one” in the last sentence; (3) added subd (h); and (4) redesignated former subd (h) to be subd (i). 1991 Amendment:

Routine code maintenance.
1998 Amendment:

Substituted (1) “Section 51.3” for “Section 51.2” before “of the Civil Code” in subd (b); and (2) “California Building Standards Commission” for “State Building Standards Commission” in subd (h)(1). 1999 Amendment:

Amended subd (f) by adding (1) “, unless a lesser percentage is elected by the developer,” in the first sentence; and (2) the second sentence.
2000 Amendment:

In addition to technical changes, added the second sentence in subd (g). 2002 Amendment:

Substituted the section for the former section which read: “(a) When a developer of housing proposes a housing development within the jurisdiction of the local government, the city, county, or city and county shall provide the developer incentives for the production of lower income housing units within the development if the developer meets the requirements set forth in subdivisions (b) and (c). The city, county, or city and county shall adopt an ordinance that shall specify the method of providing developer incentives. (b) When a developer of housing agrees or proposes to construct at least (1) 20 percent of the total units of a housing development for lower income households, as defined in Section 50079.5 of the Health and Safety Code, or (2) 10 percent of the total units of a housing development for very low income households, as defined in Section 50105 of the Health and Safety Code, or (3) 50 percent of the total dwelling units of a housing development for qualifying residents, as defined in Section

51.3 of the Civil Code, a city, county, or city and county shall either (1) grant a density bonus and at least one of the concessions or incentives identified in subdivision (h) unless the city, county, or city and county makes a written finding that the additional concession or incentive is not required in order to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c), or (2) provide other incentives of equivalent financial value based upon the land cost per dwelling unit. (c) A developer shall agree to and the city, county, or city and county shall ensure continued affordability of all lower income density bonus units for 30 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program. Those units targeted for lower income households, as defined in Section 50079.5 of the Health and Safety Code, shall be affordable at a rent that does not exceed 30 percent of 60 percent of area median income. Those units targeted for very low income households, as defined in Section 50105 of the Health and Safety Code, shall be affordable at a rent that does not exceed 30 percent of 50 percent of area median income. If a city, county, or city and county does not grant at least one additional concession or incentive pursuant to paragraph (1) of subdivision (b), the developer shall agree to and the city, county, or city and county shall ensure continued affordability for 10 years of all lower income housing units receiving a density bonus. (d) A developer may submit to a city, county, or city and county a preliminary proposal for the development of housing pursuant to this section prior to the submittal of any formal requests for general plan amendments, zoning amendments, or subdivision map approvals. The city, county, or city and county shall, within 90 days of receipt of a written proposal, notify the housing developer in writing of the

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procedures under which it will comply with this section. The city, county, or city and county shall establish procedures for carrying out this section, which shall include legislative body approval of the means of compliance with this section. The city, county, or city and county shall also establish procedures for waiving or modifying development and zoning standards that would otherwise inhibit the utilization of the density bonus on specific sites.

These procedures shall include, but not be limited to, such items as minimum lot size, side yard setbacks, and placement of public works improvements. (e) The housing developer shall show that the waiver or modification is necessary to make the housing units economically feasible. (f) For the purposes of this chapter, ‘density bonus’ means a density increase of at least 25 percent, unless a lesser percentage is elected by the developer, over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the general plan as of the date of application by the developer to the city, county, or city and county. The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, zoning change, or other discretionary approval. The density bonus shall not be included when determining the number of housing units which is equal to 10 or 20 percent of the total. The density bonus shall apply to housing developments consisting of five or more dwelling units. (g) ‘Housing development,’ as used in this section, means one or more groups of projects for residential units constructed in the planned development of a city, county, or city and county.

For the purposes of this section, 'housing development' also includes either (1) a project to substantially rehabilitate and convert an existing commercial building to residential use, or (2) the substantial rehabilitation of an existing multifamily dwelling, as defined in subdivision (d) of Section 65863.4, where the result of the rehabilitation would be a net increase in available residential units. For the purpose of calculating a density bonus, the residential units do not have to be based upon individual subdivision maps or parcels. The density bonus shall be permitted in geographic areas of the housing development other than the areas where the units for the lower income households are located. (h) For the purposes of this chapter, concession or incentive means any of the following:
(1) A reduction in site development standards or a modification of zoning code requirements or architectural design requirements that exceed the minimum building standards approved by the California Building Standards Commission as provided in Part 2.5 (commencing with Section 18901) of Division 13 of the Health and Safety Code, including, but not limited to, a reduction in setback and square footage requirements and in the ratio of vehicular parking spaces that would otherwise be required. (2) Approval of mixed use zoning in conjunction with the housing project if commercial, office, industrial, or other land uses will reduce the cost of the housing development and if the commercial, office, industrial, or other land uses are compatible with the housing project and the existing or planned development in the area where the proposed housing project will be located. (3) Other regulatory incentives or concessions proposed by the developer or the city, county, or city and county that result in identifiable cost reductions. This subdivision does not limit or require the provision of direct financial incentives for the housing development, including the provision of publicly owned land, by the city, county, or city and county, or the waiver of fees or dedication requirements. (i) If a developer agrees to construct both 20 percent of the total units for lower income households and 10 percent of the total units for very low income households, the developer is entitled to only one density bonus and at least one additional concession or incentive identified in Section 65913.4 under this section although the city, city and county, or county may, at its discretion, grant more than one density bonus.” 2003 Amendment:
(1) Amended subd (a) by adding (a) “and child care facilities as prescribed in this chapter” at the end of the first sentence; and (b) the second sentence; (2) substituted “subdivision (k)” for “subdivision (j)” in subd (b); (3) added subd (h); (4) redesignated former subds (h)–(n) to be subds (i)–(o); and (5) substituted “under this section although the city, county, or city and county may” for “under this section although the city, city and county, or county may” in subd (l).
2004 Amendment:

Added subds (a)–(p). (As amended Stats 2004 ch 928, compared to the section as it read prior to 2004. This section was also amended by an earlier chapter, ch 724. See Gov C § 9605.) 2005 Amendment:

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(1) Designated former subd (b) to be subd (b)(1); (2) redesignated former subds (b)(1)–(b)(4) to be subds (b)(1)(A)– (b)(1)(D); (3) substituted “one density bonus, the amount of which shall be as specified in subdivision (g), and incentives or concessions, as described in subdivision (d), when an applicant for a housing development seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this section, that will contain” for “a density bonus and incentives or concessions described in subdivision (d) when the applicant for the housing development seeks and agrees to construct” in subd (b)(1); (4) added “, or mobilehome park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code.” to the end of subd (b)(1)(C); (5) amended subd (b)(1)(D) by (a) substituting “common interest development as defined in Section 1351 of the Civil Code” for “condominium project as defined in subdivision (f) of, or in a planned development as defined in subdivision (k) of, Section 1351 of the Civil Code,”; (b) substituting the comma for the period after “Health and Safety Code; and (c) adding “provided that all units in the development are offered to the public for purchase.” to the end of the subd; (6) added subd (b)(2); (7) amended subd (c)(1) by (a) substituting “low-and very low income units that qualified the applicant for the award of the density bonus” for “lower income density bonus units”; and (b) substituting the last two sentences for the former last two sentences which read: “Those units targeted for lower income households, as defined in Section 50079.5 of the Health and Safety Code, shall be affordable at a rent that does not exceed 30 percent of 60 percent of area median income. Those units targeted for very low income households, as defined in Section 50105 of the Health and Safety Code, shall be affordable at a rent that does not exceed 30 percent of 50 percent of area median income.”; (8) added subd designations (c)(2)(A)–(c)(2)(C); (9) substituted current subd (c)(2)(A)–(c)(2)(C) for former subd (c)(2) which read: “(2) An applicant shall agree to, and the city, county, or city and county shall ensure that, the initial occupant of the moderate-income units that are directly related to the receipt of the density bonus in the condominium project as defined in subdivision (f) of, or in the planned unit development as defined in subdivision (k) of, Section 1351 of the Civil Code, are persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code. Upon resale, the seller of the unit shall retain the value of any improvements, the downpayment, and the seller’s proportionate share of appreciation. The local government shall recapture its proportionate share of appreciation, which shall then be used within three years for any of the purposes described in subdivision (e) of Section 33334.2 of the Health and Safety Code that promote homeownership. For purposes of this subdivision, the local government’s proportionate share of appreciation shall be equal to the percentage by which the initial sale price to the moderate-income household was less than the fair market value of the home at the time of initial sale.”; (10) added “for a density bonus pursuant to subdivision (b)” after “applicant” near the beginning of subd (d)(1); (11) amended subd (d)(2)(A)–(d)(2)(C) by substituting “common interest development” for “condominium or planned development” the three times it appears; (12) substituted subd (g) for former subd (g) which read: “(g)(1) For the purposes of this chapter, except as provided in paragraph (2), ‘density bonus’ means a density increase of at least 20 percent, unless a lesser percentage is elected by the applicant, over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use to the city, county, or city and county. The amount of density bonus to which the applicant is entitled shall vary according to the amount by which the percentage of affordable housing units exceeds the percentage established in subdivision (b). For each 1 percent increase above 10 percent in the percentage of units affordable to lower income households, the density bonus shall be increased by 1.5 percent up to a maximum of 35 percent. For each 1 percent increase above 5 percent in the percentage of units affordable to very low income households, the density bonus shall be increased by 2.5 percent up to a maximum of 35 percent. All density calculations resulting in fractional units shall be rounded up to the next whole number. The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. The density bonus shall not be included when determining the number of housing units that is equal to 5 or 10 percent of the total. The density bonus shall apply to housing developments consisting of five or more dwelling units. (2) For the purposes of this chapter, if a development does not meet the requirements of paragraph (1), (2), or (3) of subdivision (b), but the applicant agrees or proposes to construct a condominium project as defined in subdivision (f) of, or a planned development as defined in subdivision (k) of, Section 1351 of the Civil Code, in which at least 10 percent of the total dwelling units are reserved for persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code, a “density bonus” of at least5 percent shall be granted, unless a lesser percentage is elected by the applicant, over the otherwise maximum allowable residential density under the applicable zoning ordinance and land use element of the general plan as of the date of application by the applicant

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to the city, county, or city and county. For each 1 percent increase above 10 percent of the percentage of units affordable to moderate-income households, the density bonus shall be increased by 1 percent up to a maximum of 35 percent. All density calculations resulting in fractional units shall be rounded up to the next whole number. The granting of a density bonus shall not be interpreted, in and of itself, to require a general plan amendment, local coastal plan amendment, zoning change, or other discretionary approval. The density bonus shall not be included when determining the number of housing units that is equal to 10 percent of the total. The density bonus shall apply to housing developments consisting of five or more dwelling units.”; (13) designated former subd (h) to be subds (h)(1)–(h)(2); (14) amended subd (h)(1) by (a) substituting “15-percent” for “15 percent”; (b) substituting “development, as follows:” for “development.” after “plan for the entire”; and (c) adding the table at the end of subd (h)(1); (15) redesignated former subds (h)(1)–(h)(6) to be subds (h)(2)(A)–(h)(2)(F); and (16) substituted “common interest development” for “a planned unit development or condominium project” in the second sentence of subd (j). 2008 Amendment:
(1) Amended subd (a) by adding (a) “with” after “provide the applicant” in the first sentence; and (b) the last sentence; (2) substituted “subdivision (f)” for “subdivision (g)” in the introductory clause of subd (b)(1); (3) added the comma after “housing development” in subd (b)(1)(C); (4) added subds (b)(3), (d)(1)(C), (g)(2)(C), and (g)(2)(H); (5) substituted “low- and very low income” for “low-and very low income” in the first sentence of subd (c)(1); (6) substituted “equity sharing” for “equity-sharing” in the second and last sentences of the introductory paragraph of subd (c)(2); (7) amended the last sentence of subd (c)(2)(A) by (a) adding “, as defined in subparagraph (B),”; (b) substituting “as defined in subparagraph (C), which amount shall be used within five years” for “which shall then be used within three years”; and (c) substituting “home ownership” for “homeownership” at the end; (8) added “local government’s” after “the ratio of the” in subd (c)(2)(C); (9) substituted “any of the following” for “either of the following” at the end of the introductory paragraph of subd (d)(1); (10) deleted the former last two sentences of subd (d)(3) which read: “The city, county, or city and county shall also establish procedures for waiving or modifying development and zoning standards that would otherwise inhibit the utilization of the density bonus on specific sites.

These procedures shall include, but not be limited to, such items as minimum lot size, side yard setbacks, and placement of public works improvements.” (11) designated former subd (e) to be subd (e)(1); (12) amended subd (e)(1) by (a) substituting “effect of physically precluding” for “effect of precluding” in the first sentence; (b) adding “that will have the effect of physically precluding the construction of a development meeting the criteria of subdivision (b) at the densities or with the concessions or incentives permitted under this section,” in the second sentence; and (c) adding “, or to grant any waiver or reduction that would be contrary to state or federal law” in the last sentence; (13) added subd (e)(2); (14) deleted former subd (f) which read: “(f) The applicant shall show that the waiver or modification is necessary to make the housing units economically feasible.”; (15) redesignated former subds (g)–(l) to be subds (f)–(k); (16) deleted “under the applicable zoning ordinance and land use element of the general plan” after “allowable residential density” in the first sentence of subd (f); (17) added “of the number of senior housing units” in subd (f)(3); (18) deleted the former last two sentences of subd (f)(5) which read: “As used in subdivision (b), ‘total units’ or ‘total dwelling units’ does not include units permitted by a density bonus awarded pursuant to this section or any local law granting a greater density bonus. The density bonus provided by this section shall apply to housing developments consisting of five or more dwelling units.”; (19) amended the introductory clause of subd (g)(1) by (a) substituting “in accordance with this subdivision” for “as provided for in this subdivision”; and (b) deleting “under the applicable zoning ordinance and land use element of the general plan” after “allowable residential density”; (20) substituted “an increase pursuant to both this subdivision” for “both the increase required pursuant to this subdivision” in the first sentence of the introductory paragraph of subd (g)(2); (21) redesignated former subds (g)(2)(C)–(g)(2)(F) to be subds (g)(2)(D)–(g)(2)(G); (22) amended subd (g)(2)(D) by (a) deleting the former first and second sentences which read: “The transferred land is at least one acre in size or of sufficient size to permit development of at least 40 units, has the appropriate general plan designation, is appropriately zoned for development as affordable housing, and is or will be served by adequate public facilities and infrastructure. The land shall have appropriate zoning and development standards to make the development of the affordable units feasible.”; (b) substituting “The transferred” for “No later than the date of approval of the final subdivision map, parcel map, or of the residential development, transferred”; and (c) adding “not later than the date of approval of the final subdivision map, parcel map, or residential development application,”; (23) substituted “the

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transfer” for “dedication” at the end of subd (g)(2)(E); (24) amended subd (i) by (a) substituting “a development project for five or more residential units” for “one or more groups of projects for residential units constructed in the planned development of a city, county, or city and county” in the first sentence; and (b) adding “shall be on contiguous sites that are the subject of one development application, but” in the third sentence; (25) substituted “Subdivision (k)” for “This subdivision” in subd (l); (26) added “If permitted by local ordinance,” in subd (n); (27) amended subd (o)(1) by (a) substituting “a site or construction condition, including, but not limited to, a height limitation, a setback requirement, a floor area ratio, an onsite open-space requirement, or a parking ratio that applies” for “site or construction conditions that apply”; and (b) deleting “amendment” after “specific plan, charter”; (28) amended subd (o)(2) by adding (a) “and land use element of the general plan” both times it appears in the first sentence; and (b) the last sentence; (29) substituted “bedroom” for “bedrooms” in subd (p)(1)(A); and (30) amended the last sentence of subd (p)(3) by (a) deleting “additional” after “applicant may request”; and (b) substituting “subdivision pursuant to subdivision (d)” for “section, subject to subdivision (d)”. 2012 Amendment:
(1) Substituted “Section 4100” for “Section 1351” in subd (b)(1)(D), in the first sentence of the introductory paragraph of subd (c)(2) and in the second sentence of subd (i); and (2) deleted “a” before “city and county” in subd (h)(3).
2013 Amendment:
(1) Substituted “mixed-use” for “mixed use” in subd (k)(2); and (2) amended subd (m) by (a) substituting “This section shall not” for “Nothing in this section shall”; and (b) adding “of 1976”. 2014 Amendment:
(1) Amended the first sentence of subd (c)(1) by substituting (a) “very low and low-income rental” for “low- and very low income”; and (b) “55 years” for “30 years”; (2) deleted the former last sentence of subd (c)(1) which read:
“Owner-occupied units shall be available at an affordable housing cost as defined in Section 50052.5 of the Health and Safety Code.”; (3) amended the first sentence of the introductory paragraph of subd (c)(2) by (a) substituting “all for-sale units that qualified the applicant for the award” for “the moderate-income units that are directly related to the receipt”; (b) deleting “in the common interest development, as defined in Section 4100 of the Civil Code,” after “density bonus”; and (c) substituting “very low, low, or moderate income, as required” for “moderate income, as defined in Section 50093 of the Health and Safety Code”; (4) added subds (c)(3) and (j)(2); and (5) added subdivision designation (j)(1).
2015 Amendment:
(1) Added “a” before “mobilehome park” in subd (b)(1)(C); (2) added the commas around “as defined in Section 4100 of the Civil Code” in subd (b)(1)(D); (3) substituted “an applicant” for “the applicant” in subd (b)(2); (4) added “the” after “shall ensure,” in the first sentence of subd (c)(1); (5) substituted “his or her” for “their” in subd (c)(3)(C); (6) substituted “does not” for “shall not be construed to” in subd (m); (7) amended the introductory clause of subd (p)(1) by (a) adding “Except as provided in paragraphs (2) and (3),”; (b) substituting “a city” for “no city”; and (c) substituting “subdivisions (b) and (c)” for “subdivision (b)”; (8) added subds (p)(2), (p)(3), (p)(6), and (p)(7); (9) redesignated former subds (p)(2) and (p)(3) to be subds (p)(4) and (p)(5); (10) amended the second sentence of subd (p)(4) by substituting (a) “on-site parking” for “‘onsite parking’”; and (b) “on-street” for “onstreet”; and (11) substituted “subdivisions (b) and (c),” for “subdivision (b)” in the first sentence of subd (p)(5). 2016 Amendment:
(1) Added subdivision designations (a)(1) and (f)(3)(A); (2) amended subd (a)(1) by substituting (a) “comply with this section” for “provide the applicant with incentives or concessions for the production of housing units and child care facilities as prescribed in this section” in the first sentence; and (b) “A city, county, or city and county” for “All cities, counties, or cities and counties” in the second sentence; (3) added subds (a)(2), (a)(3), (b)(1)(E), (c)(3)(C),

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(c)(3)(D), (d)(4), (f)(3)(B), (p)(8), (q), and (r); (4) amended the introductory clause of subd (b)(1) by adding (a) “, if requested by the applicant and consistent with the applicable requirements of this section,”; and (b) “waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in subdivision (p),”; (5) substituted “subparagraph (A), (B), (C), (D), or (E)” for “subparagraph (A), (B), (C), or (D)” in subd (b)(2); (6) deleted “or type, or both,” after “equivalent size” in the first sentence of subds (c)(3)(B)(i) and (c)(3)(B)(ii); (7) amended subd (c)(3)(B)(i) by (a) adding the second sentence; and (b) substituting the third sentence for the former third sentence which read: “For unoccupied dwelling units described in subparagraph (A) in a development with occupied units, the proposed housing development shall provide units of equivalent size or type, or both, to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category in the same proportion of affordability as the occupied units.”; (8) substituted the second sentence of subd (c)(3)(B)(ii) for the former second sentence of subd (c)(3)(B)(ii) which read:
“If the incomes of the persons and families in occupancy at the highpoint is not known, then one-half of the required units shall be made available at affordable rent or affordable housing cost to, and occupied by, very low income persons and families and one-half of the required units shall be made available for rent at affordable housing costs to, and occupied by, low-income persons and families.”; (9) redesignated former subd (c)(3)(C) to be subd (c)(3)(E); (10) substituted “Subparagraph (A)” for “Paragraph (3) of subdivision (c)” in subd (c)(3)(E); (11) substituted “does not result in identifiable and actual cost reductions, consistent with subdivision (k),” for “is not required in order” in subd (d)(1)(A); (12) amended subd (d)(1)(B) by (a) adding the comma after “specific” both times it appears; and (b) substituting “low-income” for “low-”; (13) amended the first sentence of the first paragraph of subd (f) by (a) adding “gross”; (b) substituting “, or, if elected by the applicant,” for “. The applicant may elect to accept”; and (c) substituting “increase, including, but not limited to, no increase in density” for “bonus”; (14) substituted “increase” for “bonus” in the second sentence of the first paragraph of subd (f); (15) added “require, or” in the second sentence of subd (f)(5); (16) added “, including mixed-use developments” in the first sentence of subd (i); (17) amended the first sentence of subd (j)(1) by adding (a) “require or”; and (b) “study,”; (18) added the second sentence of subd (j)(1); (19) added “require or” in subd (j)(2); (20) amended subds (k)(1) and (k)(3) by (a) deleting “, financially sufficient,” after “results in identifiable”; and (b) adding “, to provide for affordable housing costs, as defined in Section 50052.5 of the Health and Safety Code, or for rents for the targeted units to be set as specified in subdivision (c)”; (21) added the comma after “general plan, or” in the first sentence of subd (o)(2); (22) substituted “low-income” for “low-” in the first sentence of subds (p)(2) and (p)(7); and (23) amended the second sentence of subd (p)(4) by substituting (a) “onsite” for “on-site”; and (b) “onstreet” for “on-street”. (As amended Stats 2016 ch 761, compared to the section as it read prior to 2016. This section was also amended by two earlier chapters, chs 756, 758. See Gov C § 9605.)
2018 Amendment (ch 937):

Added “the timelines specified in” in (a)(3)(C); added (a)(3)(D) and (b)(1)(F); substituted “(E), or (F)” for “or (E)” in (b)(2); substituted “ ‘total units,’ ‘total dwelling units,’ or ‘total rental beds’ for “ ‘total units’ or ‘total dwelling units’ ” in (b)(3); added (f)(3)(C); substituted “before” for “prior to” in (g)(2)(D); added the second sentence of (m); substituted “If” for “Where” in the last sentence of (o)(2); and deleted the comma following “and (3)” in (p)(1). 2019 Amendment (ch 666):

Substituted “and county” for “or county” in the second sentence of (b)(1)(F)(i)(I); added (b)(1)(G); substituted “(F), or (G) of paragraph (1)” for “or (F) of paragraph (1)” in (b)(2); added designation (c)(1)(A); deleted the former second sentence of (c)(1)(A) which read: “Rents for the lower income density bonus units shall be set at an affordable rent as defined in Section 50053 of the Health and Safety Code.”; added (c)(1)(B); substituted “the applicant’s” for “his or her” in (c)(3)(E); added (d)(2)(D); deleted the comma following “section” in the last sentence of (d)(3); added “Subject to paragraph (3),” in the second sentence of (e)(1); added (e)(3); added (f)(3)(D); substituted “childcare” for “child care” wherever it appears in (h); substituted “daycare” for “day care” three times in (h)(4); substituted “paragraphs (2), (3), and (4),” for “paragraphs (2) and (3)” in the introductory language of (p)(1); redesignated and rewrote former (p)(3)(C) as (p)(4) which read: “If the development is a special needs housing development, as defined in Section 51312 of the Health and Safety Code, the ratio shall not exceed 0.3 spaces per unit. The

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development shall have either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.”; and redesignated former (p)(4)–(p)(8) as (p)(5)–(p)(9). 2020 Amendment (ch 197):

Added “Except as otherwise provided in subdivision (s),” in the last sentence of (a)(1); substituted “subdivision (e)” for “subdivision (d)” in the second sentence of (b)(1)(F)(IV); in (b)(1)(G), substituted “all units in the development, including total units and density bonus units, but” for “the total units,” and “units in the development, including total units and density bonus units,” for “total units in the development”; substituted “17 percent” for “20 percent” in (d)(2)(B); substituted “24 percent” for “30 percent” in (d)(2)(C); deleted “as defined in subdivision (b) of Section 21155 of the Public Resources Code,” following “transit stop,” in the second sentence of (d)(2)(D); in (e)(3), substituted “only be eligible for” for “not be eligible for, and shall not receive,”, “as provided” for “pursuant to this subdivision, other than as expressly provided”, and added “, unless the city, county, or city and county agrees to additional waivers or reductions of development standards”; added “Percentage Low-Income Units Percentage Density Bonus 16 2921 38.7522 42.523 46.2524 50” in the table in (f)(1); added “Percentage Very Low Income Units Percentage Density Bonus 12 38.7513 42.514 46.2515 50” in the table in (f)(2); deleted “as defined in subdivision (b) of Section 21155 of the Public Resources Code,” following “transit stop,” in (f)(3)(D)(ii); added “Percentage Moderate-Income Units Percentage Density Bonus 41 38.7542 42.543 46.2544 50” in the table in (f)(4); added (o)(3) and (o)(3); redesignated former (o)(2) as (o)(4); substituted “parking for persons with a disability and guests” for “handicapped and guest parking” in the introductory language of (p)(1); substituted “one and onehalf onsite” for “two onsite” in (p)(1)(B); redesignated and rewrote former (p)(2) as (p)(2)(A) which read:
“Notwithstanding paragraph (1), if a development includes the maximum percentage of low-income or very low income units provided for in paragraphs (1) and (2) of subdivision (f) and is located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code, and there is unobstructed access to the major transit stop from the development, then, upon the request of the developer, a city, county, or city and county shall not impose a vehicular parking ratio, inclusive of handicapped and guest parking, that exceeds 0.5 spaces per bedroom. For purposes of this subdivision, a development shall have unobstructed access to a major transit stop if a resident is able to access the major transit stop without encountering natural or constructed impediments.”; added (p)(2)(B); substituted “vehicular parking standards if the development meets either of the following criteria” for “a vehicular parking ratio, inclusive of handicapped and guest parking, that exceeds the following ratios” in the introductory language of (p)(3); rewrote former (p)(3)(A) and (p)(3)(B) which read: “(A) If the development is located within one-half mile of a major transit stop, as defined in subdivision (b) of Section 21155 of the Public Resources Code, and there is unobstructed access to the major transit stop from the development, the ratio shall not exceed 0.5 spaces per unit. (B) If the development is a for-rent housing development for individuals who are 62 years of age or older that complies with Sections 51.2 and 51.3 of the Civil Code, the ratio shall not exceed 0.5 spaces per unit. The development shall have either paratransit service or unobstructed access, within one-half mile, to fixed bus route service that operates at least eight times per day.”; and added (s).
2021 Amendment (ch 365):

Substituted “if an applicant” for “when an applicant” in the introductory language of (b)(1); added “rental or sale to” in (b)(1)(A) and (b)(1)(B); substituted “of a housing development are sold to” for “in a common interest development, as defined in Section 4100 of the Civil Code, for” (b)(1)(D); deleted former second sentence of (b)(1)(F)(i)(II) which read: “For purposes of this clause, ‘lower income students’ means students who have a household income and asset level that does not exceed the level for Cal Grant A or Cal Grant B award recipients as set forth in paragraph (1) of subdivision (k) of Section 69432.7 of the Education Code. The eligibility of a student under this clause shall be verified by an affidavit, award letter, or letter of eligibility provided by the institution of higher education that the student is enrolled in, as described in subclause (I), or by the California Student Aid Commission that the student receives or is eligible for financial aid, including an institutional grant or fee waiver, from the college or university, the California Student Aid Commission, or the federal government shall be sufficient to satisfy this subclause.”; deleted former (b)(3) which read: “For the purposes of this section, ‘total units,’ ‘total dwelling units,’ or ‘total rental beds’ does not include units added by a density bonus awarded pursuant to this section or any local law granting a

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greater density bonus.”; added (c)(2); added designation (c)(2)(C); added “required pursuant to clause (i) or (ii) of subparagraph (A)” in the first sentence of the introductory paragraph of (c)(2)(C); added designation (c)(2)(C)(i); redesignated former (c)(2)(A)–(c)(2)(B) as (c)(2)(C)(ii)–(c)(2)(C)(iv); added (c)(2)(C)(v); deleted “the physical environment or” following “safety or” in (d)(1)(B); substituted “in which the units are for sale” for “common interest” in (d)(2)(A)–(d)(2)(C); substituted “a project” for “projects” in the first sentence of (d)(2)(D); added (d)(2)(E); in (d)(3), substituted “This subdivision shall not be” for “Nothing in this subdivision shall be” in the third and fourth sentences and substituted “or safety” for “, safety, or the physical environment” in the third sentence; in (e)(1), substituted “This subdivision shall not be” for “Nothing in this subdivision shall be” in the fourth and fifth sentences and substituted “or safety” for “, safety, or the physical environment” in the fourth sentence; added (o)(3); redesignated former (o)(3) and (o)(4) as (o)(4) and (o)(5); added (o)(6); added the second sentence of (p)(2)(A); in (p)(2)(B), deleted “a development shall have” preceding “unobstructed” and substituted “the major transit stop means” for “a major transit stop if”; substituted “(B) and (C)” for “(C) and (D)” in (s); and added (t). 2022 Amendment (ch 653):

Rewrote the section.
2023 Amendment (ch 784):

Rewrote the section.
2024 Amendment (ch 432):

Rewrote the section.

Note—
Stats 2024 ch 274 provides:

SEC. 2. The Legislature finds and declares that a special statute is necessary and that a general statute cannot be made applicable within the meaning of Section 16 of Article IV of the California Constitution because of the unique amount of vacant commercial space within the City and County of San Francisco. The Legislature additionally finds and declares all of the following:
(a) The commercial vacancy rate in the City and County of San Francisco is acute among downtown areas in California and the nation.
(b) From March 2020 to June 2021, office vacancy rates in the City and County of San Francisco increased from 5 percent to 20 percent as offices adopted hybrid and fully remote reporting schedules. (c) According to data from the City and County of San Francisco, as of April 15, 2024, 32 percent of the City and County of San Francisco’s office space is vacant.
(d) The City and County of San Francisco’s vacancy rate is higher than other major metropolitan areas such as the cities of New York City, Los Angeles, Austin, and Seattle. (e) This bill addresses a crisis in commercial vacancy in downtown San Francisco that is unmatched by other major metropolitan areas.
(f) Therefore, while public funds for housing development should prioritize the funding of affordable housing, on a limited and temporary basis, it is appropriate to authorize the City and County of San Francisco to provide funding to market rate developments through the use of tax increment financing tools to help abate the crisis.

Stats 2015 ch 699 provides:

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
SECTION 1. The Legislature finds and declares all of the following:
(a) Having a healthy housing market that provides an adequate supply of homes that are affordable to Californians at all income levels is critical to the economic prosperity and quality of life in the state. (b) There exists a severe shortage of affordable housing, especially for persons and families of extremely low, very low, and low income, and there is an immediate need to encourage the development of new housing, not only through the provision of financial assistance but also through reforms to regulation. (c) Affordable housing is expensive to build in California. (d) The cost of building affordable housing in California is impacted by local opposition, changes imposed by local design and review, and requirements for on-site parking. (e) The average construction cost per space, excluding land cost, in a parking structure in the United States is about $24,000 for aboveground parking and $34,000 for underground parking. In an affordable housing project with a fixed budget, every $24,000 spent on a required parking space is $24,000 less to spend on housing.
(f) The biggest single determinant of vehicle miles traveled and therefore greenhouse gas emissions is ownership of a private vehicle.
(g) A review of developments funded through the Department of Housing and Community Development's Transit-Oriented Development Implementation Program (TOD program) shows that lower income households drive 25 to 30 percent fewer miles when living within one-half mile of transit than those living in non-TOD program areas. When living within one-quarter mile of frequent transit, they drove nearly 50 percent less.
(h) When cities require off-street parking with all new residential construction, they shift what should be the cost of driving, the cost of parking a car, into the cost of housing, which artificially increases the cost of housing.
(i) Increases in public transportation and shared mobility options and the development of more walkable and bikeable neighborhoods reduce the demand for parking. (j) Consistent with Chapter 488 of the Statues of 2006 (AB 32) and Chapter 728 of the Statutes of 2008 (SB 375), it is state policy to promote transit-oriented infill development to reduce greenhouse gas emissions. (k) The high cost of the land and improvements required to provide parking significantly increases the cost of transit-oriented development, making lower cost and affordable housing development financially infeasible and hindering the goals of SB 375.
(l) Eliminating minimum parking requirements will allow the limited funding available for affordable housing to support more housing for more Californians. A given housing subsidy fund can benefit about 6.5 times more households with no parking spaces than households with 2 spaces per unit. (m) Minimum parking requirements provide large subsidies for parking, which in turn encourage more people to drive cars.
(n) Minimum parking requirements create a barrier to effective use of the density bonus law contained in Section 65915 of the Government Code. The parking required for the extra units adds construction and land costs that may be prohibitive and requires vacant land that may be unavailable, especially in locations near transit.
(o) Increasing the supply of affordable housing near transit helps achieve deeper affordability through reduced transportation costs, in addition to reduced housing costs. (p) Governmental parking requirements for infill and transit-oriented development reduce the viability of transit by limiting the number of households or workers near transit, increasing walking distances, and degrading the pedestrian environment.

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(q) Reducing or eliminating minimum parking requirements for infill and transit-oriented development and allowing builders and the market to decide how much parking is needed can achieve all of the following:
(1) Ensure sufficient amounts of parking at almost all times. (2) Reduce the cost of development and increase the number of transit-accessible and affordable housing units.
(3) Allow for more effective use of the density bonus law. (4) Increase density in areas with the most housing demand, and improve the viability of developing alternate modes of transportation, such as public transit, ridesharing, biking, and walking. (5) Reduce greenhouse gas emissions and vehicle miles traveled by removing an incentive to drive. (r) It is the intent of the Legislature to reduce the cost of development by eliminating excessive minimum parking requirements for transit-oriented developments that includes affordable housing, senior housing, and special needs housing.
(s) The Legislature further declares that the need to address infill development and excessive parking requirements is a matter of statewide concern and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this act shall apply to all cities, including charter cities.

Stats 2018 ch 937 provides:

SEC. 2. The Legislature finds and declares that Section 1 of this act amending Section 65915 of the Government Code addresses a matter of statewide concern rather than a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, Section 1 of this act applies to all cities, including charter cities.

Stats 2012 ch 181 provides:

SEC. 86. This act shall become operative on January 1, 2014, but only if Assembly Bill 805 of the 2011-12 Regular Session becomes operative on or before January 1, 2014.

Stats 2005 ch 496 provides:

SECTION 1. It is the intent of the Legislature that local governments encourage, to the maximum extent practicable, the location of housing developed pursuant to Section 65915 of the Government Code in urban areas with adequate infrastructure to serve the housing.

Stats 1999 ch 968 provides:

SEC. 9. The Legislature finds and declares both of the following:
(a) The amendments made by this act to subdivision (c) of Section 65009 of the Government Code, excluding the portion of the amendment related to middle-income households, are declaratory of existing law.
(b) The amendments made by this act to Section 65915 of the Government Code are declaratory of existing law.

Stats 1998 ch 689 provides:

SECTION 1. (a) This act shall be known and may be cited as the Housing and Land Use Omnibus Act of 1998.
(b) The Legislature finds and declares that Californians desire their government to be run efficiently and economically, and that public officials should avoid waste and duplication whenever possible. The Legislature further finds and declares that it desires to control its own operating costs by reducing the

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number of separate bills affecting housing, land use, and related topics. Therefore, it is the intent of the Legislature in enacting this act to combine several minor, noncontroversial statutory changes relating to housing, land use, and related topics into a single measure.

Notes to Decisions

1.Generally

2.Construction with Other Law

3.Applicability

4.Legislative Intent

5.Waiver

6.Particular Determinations

1. Generally
Although a local land use planning initiative intended to protect open space limited, in part of the county, the amount of land and number of development projects that would be able to qualify for a density bonus, it was valid because it did not preclude accommodation of the state policy of promoting low income housing construction in other regions of the county. Shea Homes Limited Partnership v. County of Alameda (Cal. App. 1st Dist. 2003), 110 Cal. App. 4th 1246, 2 Cal. Rptr. 3d 739, 2003 Cal. App. LEXIS 1152.

In a case in which plaintiffs challenged a city’s approval of use permits and zoning variances for a mixed-use development project consisting of residential units and retail commercial space, plaintiffs failed to demonstrate that the city’s actions constituted a change in policy or that its action in interpreting and complying with Gov C § 65915, was a “project” to which the California Environmental Quality Act, Pub Res C §§ 21000 et seq., applied. Wollmer v.

City of Berkeley (Cal. App. 1st Dist. 2009), 179 Cal. App. 4th 933, 102 Cal. Rptr. 3d 19, 2009 Cal. App. LEXIS 1896.

Affordable housing project was in compliance with the general plan density standard and was consistent with Gov C § 65915(o)(2). Wollmer v. City of Berkeley (Cal. App. 1st Dist. 2011), 193 Cal. App. 4th 1329, 122 Cal. Rptr. 3d 781, 2011 Cal. App. LEXIS 375.

2. Construction with Other Law
In contrast to Gov C § 65915, which requires concessions when an applicant seeks a density bonus unless findings are made, the Los Angeles Municipal Code prohibits concessions unless strict application of the land use regulations on the subject property would result in practical difficulties or unnecessary hardships inconsistent with the general purpose and intent of the zoning regulations. Walnut Acres Neighborhood Assn. v. City of Los Angeles (Cal. App. 2d Dist. 2015), 235 Cal. App. 4th 1303, 185 Cal. Rptr. 3d 871, 2015 Cal. App. LEXIS 317.

Density Bonus Act and Mello Act are subordinate to the Coastal Act; thus, a city could reject a housing project in the coastal zone for aesthetic reasons even if a density bonus would have applied. Kalnel Gardens, LLC v. City of Los Angeles (Cal. App. 2d Dist. 2016), 208 Cal. Rptr. 3d 114, 3 Cal. App. 5th 927, 2016 Cal. App. LEXIS 804.

3. Applicability

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
Density bonus of over 40 percent, approved on the basis of construction of senior citizen housing as defined in CC § 51.3, was authorized by Gov C § 65915(n). Friends of Lagoon Valley v. City of Vacaville (Cal. App. 1st Dist. 2007), 154 Cal. App. 4th 807, 65 Cal. Rptr. 3d 251, 2007 Cal. App. LEXIS 1424.

Pursuant to Gov C § 65915(n), a municipality may grant a density bonus greater than the 35 percent that can be required. Friends of Lagoon Valley v. City of Vacaville (Cal. App. 1st Dist. 2007), 154 Cal. App. 4th 807, 65 Cal.

Rptr. 3d 251, 2007 Cal. App. LEXIS 1424.

Density bonus did not preclude fair market rents under the federal Section 8 housing program, 42 U.S.C. § 1437f, in excess of maximum rents under H & S C §§ 50053(b)(2), 50098, because affordable rent under Gov C § 65915(c)(1), pertains to the amount paid by the tenant and does not limit rent subsidies. Gov C § 65917, does not display any legislative intent to make developers choose between regulatory incentives and rental subsidies.

Wollmer v. City of Berkeley (Cal. App. 1st Dist. 2011), 193 Cal. App. 4th 1329, 122 Cal. Rptr. 3d 781, 2011 Cal.

App. LEXIS 375.

4. Legislative Intent
This provision is neither inconsistent with nor intended to preempt local mandatory inclusionary housing ordinances.

California Building Industry Assn. v. City of San Jose (Cal. 2015), 61 Cal. 4th 435, 189 Cal. Rptr. 3d 475, 351 P.3d 974, 2015 Cal. LEXIS 3905, cert. denied, (U.S. 2016), 577 U.S. 1179, 136 S. Ct. 928, 194 L. Ed. 2d 239, 2016 U.S.

LEXIS 1010.

5. Waiver
Waiver of development standards to accommodate project amenities in a density-bonus qualifying project was permissible under Gov C § 65915(e)(1), and the standards thus waived were inapplicable for purposes of the 14 Cal Code Reg § 15332(a), in-fill development exemption established under the authority of Pub Res C § 21084(a).

No unusual circumstances precluded the exemption. Mammoth Lakes Land Acquisition, LLC v. Town of Mammoth Lakes (Cal. App. 3d Dist. 2010), 191 Cal. App. 4th 435, 120 Cal. Rptr. 3d 797, 2010 Cal. App. LEXIS 2172.

City did not abuse its discretion by approving a mixed-use project that included affordable housing units because the project qualified for the benefits of the Density Bonus Law, the city council expressly found that there was no substantial evidence that would support denying a requested deviation from setback requirements, and the city was obligated to waive conflicting development standards in the absence of a showing that any exception to the Density Bonus Law applied. Bankers Hill 150 v. City of San Diego (Cal. App. 4th Dist. 2022), 289 Cal. Rptr. 3d 268, 74 Cal.

App. 5th 755, 2022 Cal. App. LEXIS 83.

6. Particular Determinations
In a case in which plaintiffs challenged a city’s approval of use permits and zoning variances for a mixed-use development project consisting of residential units and retail commercial space, plaintiffs failed to establish that the city had not proceeded in the manner required by law, that the city’s decision was not supported by the findings, or that the findings were not supported by the evidence. Because additional residential units awarded by the city pursuant to Gov C § 65915(n), were excluded from the calculation of the base number of residential units under § 65915(b)(1), the city correctly determined the number of residential units for the base project, and there was therefore no error in its calculation of the number of density bonus units. Wollmer v. City of Berkeley (Cal. App. 1st Dist. 2009), 179 Cal. App. 4th 933, 102 Cal. Rptr. 3d 19, 2009 Cal. App. LEXIS 1896.

Density bonus law requires that cities and counties allow increased building density, and grant concessions and waivers of permit requirements, in exchange for an applicant’s agreement to dedicate a specified number of

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective until January 1, 2025]
dwelling units to low income or very low income households. Neither the statute nor the Los Angeles City ordinance implementing it required an applicant to provide financial documentation to prove that the requested concessions would render the development economically feasible. Schreiber v. City of Los Angeles (Cal. App. 2d Dist. 2021), 284 Cal. Rptr. 3d 587, 69 Cal. App. 5th 549, 2021 Cal. App. LEXIS 800.

Research References & Practice Aids
Legal Periodicals:

Review of Selected 1979 California Legislation. 11 Pac. L.J. 573.

Review of Selected 1984 Legislation. 16 Pac. L.J. 706.

Unintended Consequences: Eminent Domain and Affordable Housing. 46 Santa Clara L. Rev. 841.

Zone Defense: Developers Should Consider More Legally Defensible Alternatives to Zoning Variances. 32 Los Angeles Lawyer 31 (July/August 2009).

Ballot Blues: Los Angeles Voters Confront Ballot Issues That May Affect Housing And Land Development For Decades. 39 Los Angeles Lawyer 16.
1989 legislative summary. 8 Cal Real Prop J No. 1 p 1.

Treatises:

Cal. Forms Pleading & Practice (Matthew Bender) ch 303 “Injunctions”.

Cal. Legal Forms, (Matthew Bender) §§ 30B.22, 39.20.

Affordable Housing & Growth Management. 1 CEB Land Use Forum 12.

Miller & Starr, Cal Real Estate 3d §§ 25:125, 25:171, 25:174. 8 Witkin Summary (11th ed) Constitutional Law §§ 1136, 1137. 12 Witkin Summary (11th ed) Real Property § 824.

Hierarchy Notes:

End of Document

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ITEM NO. 17.

Bridgette Falconio
Cal Gov Code § 65915
Deering's California Codes are current through the 2024 Regular Session Ch 268.

Deering’s California Codes Annotated > GOVERNMENT CODE (§§ 1 — 500000–500049) > Title 7 Planning and Land Use (Divs. 1 — 3) > Division 1 Planning and Zoning (Chs. 1 — 13) > Chapter

4.3 Density Bonuses and Other Incentives (§§ 65915 — 65918) Notice
This section has more than one version with varying effective dates. § 65915. Local government incentives or concessions where applicant seeks density bonus [Effective January 1, 2025]
(a)
(1) When an applicant seeks a density bonus for a housing development within, or for the donation of land for housing within, the jurisdiction of a city, county, or city and county, that local government shall comply with this section. A city, county, or city and county shall adopt an ordinance that specifies how compliance with this section will be implemented. Except as otherwise provided in subdivision (s), failure to adopt an ordinance shall not relieve a city, county, or city and county from complying with this section.
(2) A local government shall not condition the submission, review, or approval of an application pursuant to this chapter on the preparation of an additional report or study that is not otherwise required by state law, including this section. This subdivision does not prohibit a local government from requiring an applicant to provide reasonable documentation to establish eligibility for a requested density bonus, as described in subdivision (b), and parking ratios, as described in subdivision (p). (3) In order to provide for the expeditious processing of a density bonus application, the local government shall do all of the following:
(A) Adopt procedures and timelines for processing a density bonus application. (B) Provide a list of all documents and information required to be submitted with the density bonus application in order for the density bonus application to be deemed complete. This list shall be consistent with this chapter.
(C) Notify the applicant for a density bonus whether the application is complete in a manner consistent with the timelines specified in Section 65943. (D)
(i) If the local government notifies the applicant that the application is deemed complete pursuant to subparagraph (C), provide the applicant with a determination as to the following matters:
(I) The amount of density bonus, calculated pursuant to subdivision (f), for which the applicant is eligible.

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective January 1, 2025]
(II) If the applicant requests a parking ratio pursuant to subdivision (p), the parking ratio for which the applicant is eligible.
(III) If the applicant requests incentives or concessions pursuant to subdivision (d) or waivers or reductions of development standards pursuant to subdivision (e), whether the applicant has provided adequate information for the local government to make a determination as to those incentives, concessions, waivers, or reductions of development standards.
(ii) Any determination required by this subparagraph shall be based on the development project at the time the application is deemed complete. The local government shall adjust the amount of density bonus and parking ratios awarded pursuant to this section based on any changes to the project during the course of development. (b)
(1) A city, county, or city and county shall grant one density bonus, the amount of which shall be as specified in subdivision (f), and, if requested by the applicant and consistent with the applicable requirements of this section, incentives or concessions, as described in subdivision (d), waivers or reductions of development standards, as described in subdivision (e), and parking ratios, as described in subdivision (p), if an applicant for a housing development seeks and agrees to construct a housing development, excluding any units permitted by the density bonus awarded pursuant to this section, that will contain at least any one of the following:
(A) Ten percent of the total units of a housing development, including a shared housing building development, for rental or sale to lower income households, as defined in Section 50079.5 of the Health and Safety Code.
(B) Five percent of the total units of a housing development, including a shared housing building development, for rental or sale to very low income households, as defined in Section 50105 of the Health and Safety Code.
(C) A senior citizen housing development, as defined in Sections 51.3 and 51.12 of the Civil Code, or a mobilehome park that limits residency based on age requirements for housing for older persons pursuant to Section 798.76 or 799.5 of the Civil Code. For purposes of this subparagraph, “development” includes a shared housing building development development and a residential care facility for the elderly, as defined in Section 1569.2 of the Health and Safety Code. (D) Ten percent of the total dwelling units of a housing development are sold to persons and families of moderate income, as defined in Section 50093 of the Health and Safety Code, provided that all units in the development are offered to the public for purchase. (E) Ten percent of the total units of a housing development for transitional foster youth, as defined in Section 66025.9 of the Education Code, disabled veterans, as defined in Section 18541, or homeless persons, as defined in the federal McKinney-Vento Homeless Assistance Act (42 U.S.C.

Sec. 11301 et seq.). The units described in this subparagraph are subject to a recorded affordability restriction of 55 years and shall be provided at the same affordability level as very low income units.
(F)
(i) Twenty percent of the total units for lower income students in a student housing development that meets the following requirements:
(I) All units in the student housing development shall be used exclusively for undergraduate, graduate, or professional students enrolled currently or in the past six months in at least six units at an institution of higher education accredited by the Western Association of Schools and Colleges or the Accrediting Commission for Community and Junior Colleges. In order to be eligible under this subclause, the developer shall, as a

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective January 1, 2025]
condition of receiving a certificate of occupancy, provide evidence to the city, county, or city and county that the developer has done any one of the following:
(ia) Entered into an operating agreement or master lease with one or more institutions of higher education for the institution or institutions to occupy all units of the student housing development with students from that institution or institutions. An operating agreement or master lease entered into pursuant to this subclause is not violated or breached if, in any subsequent year, there are insufficient students enrolled in an institution of higher education to fill all units in the student housing development. (ib) Established a system for confirming its renters’ status as students to ensure that all units of the student housing development are occupied with students from an institution of higher education.
(II) The applicable units in the student housing development for lower income students shall be used for and occupied by lower income students. (III) The rent provided in the applicable units of the development for lower income students shall be calculated at 30 percent of 65 percent of the area median income for a single-room occupancy unit type.
(IV) The development shall provide priority for the applicable affordable units for lower income students experiencing homelessness. A homeless service provider, as defined in paragraph (3) of subdivision (e) of Section 103577 of the Health and Safety Code, or institution of higher education that has knowledge of a person’s homeless status may verify a person’s status as homeless for purposes of this subclause. (V) The student housing development is not located on a site that pursuant to paragraph (3) of subdivision (c) would require replacement units for projects with greater than a 35 percent density bonus.
(ii) For purposes of calculating a density bonus granted pursuant to this subparagraph, the term “unit” as used in this section means one rental bed and its pro rata share of associated common area facilities. The units described in this subparagraph are subject to a recorded affordability restriction of 55 years, which shall not tie any rental bed reserved for lower income students to a specific bedroom. Notwithstanding any other law, an affordability restriction provision, state or county law or policy, or property management policy shall not prevent a lower income student from sharing a room or unit with a nonlower income student. Any attempted waiver of the requirements of this clause is void as against public policy. (G) One hundred percent of all units in the development, including total units and density bonus units, but exclusive of a manager’s unit or units, are for lower income households, as defined by Section 50079.5 of the Health and Safety Code, except that up to 20 percent of the units in the development, including total units and density bonus units, may be for moderate-income households, as defined in Section 50053 of the Health and Safety Code. For purposes of this subparagraph, “development” includes a shared housing building development. (2) For purposes of calculating the amount of the density bonus pursuant to subdivision (f), an applicant who requests a density bonus pursuant to this subdivision shall elect whether the bonus shall be awarded on the basis of subparagraph (A), (B), (C), (D), (E), (F), or (G) of paragraph (1). (c)
(1)
(A) An applicant shall agree to, and the city, county, or city and county shall ensure, the continued affordability of all very low and low-income rental units that qualified the applicant for the award of the density bonus for 55 years or a longer period of time if required by the construction or mortgage financing assistance program, mortgage insurance program, or rental subsidy program.

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective January 1, 2025]
(B)
(i) Except as otherwise provided in clause (ii), rents for the lower income density bonus units shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code. (ii) For housing developments meeting the criteria of subparagraph (G) of paragraph (1) of subdivision (b), rents for all units in the development, including both base density and density bonus units, shall be as follows:
(I) The rent for at least 20 percent of the units in the development shall be set at an affordable rent, as defined in Section 50053 of the Health and Safety Code. (II) The rent for the remaining units in the development shall be set at an amount consistent with the maximum rent levels for lower income households, as those rents and incomes are determined by the California Tax Credit Allocation Committee. (2)
(A) An applicant shall agree to ensure, and the city, county, or city and county shall ensure, that a for-sale unit that qualified the applicant for the award of the density bonus meets one of the following conditions:
(i) The unit is initially sold to and occupied by a person or family of very low, low, or moderate income, as required, and it is offered at an affordable housing cost, as that cost is defined in Section 50052.5 of the Health and Safety Code and is subject to an equity sharing agreement. (ii) If the unit is not purchased by an income-qualified person or family within 180 days after the issuance of the certificate of occupancy, the unit is purchased by a qualified nonprofit housing corporation that meets all of the following requirements pursuant to a recorded contract that satisfies all of the requirements specified in paragraph (10) of subdivision (a) of Section 402.1 of the Revenue and Taxation Code:
(I) The nonprofit corporation has a determination letter from the Internal Revenue Service affirming its tax-exempt status pursuant to Section 501(c)(3) of the Internal Revenue Code and is not a private foundation as that term is defined in Section 509 of the Internal Revenue Code.
(II) The nonprofit corporation is based in California.
(III) All of the board members of the nonprofit corporation have their primary residence in California.
(IV) The primary activity of the nonprofit corporation is the development and preservation of affordable home ownership housing in California that incorporates within their contracts for initial purchase a repurchase option that requires a subsequent purchaser of the property that desires to resell or convey the property to offer the qualified nonprofit corporation the right to repurchase the property prior to selling or conveying that property to any other purchaser pursuant to an equity sharing agreement or affordability restrictions on the sale and conveyance of the property that ensure that the property will be preserved for lower income housing for at least 45 years for owner-occupied housing units and will be sold or resold only to persons or families of very low, low, or moderate income, as defined in Section 50052.5 of the Health and Safety Code.
(B) For purposes of this paragraph, a “qualified nonprofit housing corporation” is a nonprofit housing corporation organized pursuant to Section 501(c)(3) of the Internal Revenue Code that has received a welfare exemption under Section 214.15 of the Revenue and Taxation Code for properties intended to be sold to low-income families who participate in a special no-interest loan program.

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective January 1, 2025]
(C) The local government shall enforce an equity sharing agreement required pursuant to clause (i) or (ii) of subparagraph (A), unless it is in conflict with the requirements of another public funding source or law or may defer to the recapture provisions of the public funding source. The following apply to the equity sharing agreement:
(i) Upon resale, the seller of the unit shall retain the value of any improvements, the downpayment, and the seller’s proportionate share of appreciation. (ii) Except as provided in clause (v), the local government shall recapture any initial subsidy, as defined in clause (iii), and its proportionate share of appreciation, as defined in clause (iv), which amount shall be used within five years for any of the purposes described in subdivision (e) of Section 33334.2 of the Health and Safety Code that promote homeownership. (iii) For purposes of this subdivision, the local government’s initial subsidy shall be equal to the fair market value of the home at the time of initial sale minus the initial sale price to the moderate-income household, plus the amount of any downpayment assistance or mortgage assistance. If upon resale the market value is lower than the initial market value, then the value at the time of the resale shall be used as the initial market value. (iv) For purposes of this subdivision, the local government’s proportionate share of appreciation shall be equal to the ratio of the local government’s initial subsidy to the fair market value of the home at the time of initial sale.
(v) If the unit is purchased or developed by a qualified nonprofit housing corporation pursuant to clause (ii) of subparagraph (A) the local government may enter into a contract with the qualified nonprofit housing corporation under which the qualified nonprofit housing corporation would recapture any initial subsidy and its proportionate share of appreciation if the qualified nonprofit housing corporation is required to use 100 percent of the proceeds to promote homeownership for lower income households as defined by Section 50079.5 of the Health and Safety Code within the jurisdiction of the local government. (3)
(A) Except as provided in subclause (V) of clause (i) of subparagraph (F) of paragraph (1) of subdivision (b), an applicant shall be ineligible for a density bonus or any other incentives or concessions under this section if the housing development is proposed on any property that includes a parcel or parcels on which rental dwelling units are located or, if the dwelling units have been vacated or demolished in the five-year period preceding the application, have been subject to a recorded covenant, ordinance, or law that restricts rents to levels affordable to persons and families of lower or very low income; subject to any other form of rent or price control through a public entity’s valid exercise of its police power; or occupied by lower or very low income households, unless the proposed housing development replaces those units, and either of the following applies:
(i) The proposed housing development, inclusive of the units replaced pursuant to this paragraph, contains affordable units at the percentages set forth in subdivision (b). (ii) Each unit in the development, exclusive of a manager’s unit or units, is affordable to, and occupied by, either a lower or very low income household. (B) For the purposes of this paragraph, “replace” shall mean either of the following:
(i) If any dwelling units described in subparagraph (A) are occupied on the date of application, the proposed housing development shall provide at least the same number of units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those households in occupancy. If the income category of the household in occupancy is not known, it shall be rebuttably presumed that lower income renter households occupied these units in the same

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§ 65915. Local government incentives or concessions where applicant seeks density bonus [Effective January 1, 2025]
proportion of lower income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy database. For unoccupied dwelling units described in subparagraph (A) in a development with occupied units, the proposed housing development shall provide units of equivalent size to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as the last household in occupancy. If the income category of the last household in occupancy is not known, it shall be rebuttably presumed that lower income renter households occupied these units in the same proportion of lower income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2).
(ii) If all dwelling units described in subparagraph (A) have been vacated or demolished within the five-year period preceding the application, the proposed housing development shall provide at least the same number of units of equivalent size as existed at the highpoint of those units in the five-year period preceding the application to be made available at affordable rent or affordable housing cost to, and occupied by, persons and families in the same or lower income category as those persons and families in occupancy at that time, if known. If the incomes of the persons and families in occupancy at the highpoint is not known, it shall be rebuttably presumed that low-income and very low income renter households occupied these units in the same proportion of low-income and very low income renter households to all renter households within the jurisdiction, as determined by the most recently available data from the United States Department of Housing and Urban Development’s Comprehensive Housing Affordability Strategy database. All replacement calculations resulting in fractional units shall be rounded up to the next whole number. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2). (C) Notwithstanding subparagraph (B), for any dwelling unit described in subparagraph (A) that is or was, within the five-year period preceding the application, subject to a form of rent or price control through a local government’s valid exercise of its police power and that is or was occupied by persons or families above lower income, the city, county, or city and county may do either of the following:
(i) Require that the replacement units be made available at affordable rent or affordable housing cost to, and occupied by, low-income persons or families. If the replacement units will be rental dwelling units, these units shall be subject to a recorded affordability restriction for at least 55 years. If the proposed development is for-sale units, the units replaced shall be subject to paragraph (2).
(ii) Require that the units be replaced in compliance with the jurisdiction’s rent or price control ordinance, provided that each unit described in subparagraph (A) is replaced. Unless otherwise required by the jurisdiction’s rent or price control ordinance, these units shall not be subject to a recorded affordability restriction.
(D) For purposes of this paragraph, “equivalent size” means that the replacement units contain at least the same total number of bedrooms as the units being replaced.

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Los Gatos City CouncilDecember 3, 2024

Los Gatos City Council
December 3, 2024