Agenda packet — Modesto City Council, May 7, 2024 (part 1 of 5)

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MODESTO CITY COUNCIL
www.modestogov.com
AGENDA
City of Modesto

CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, May 07, 2024 at 5:30 PM
Roll Call - Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
* Public Comment will only be in-person. Members of the public who wish to address the Council, by providing public comment, during the meeting must do so in-person in the Council Chambers.

As an alternative, members of the public may also provide written public comment submitted via email as indicated in the Submitting Comments by Email instructions on this agenda. Zoom will still be available for viewing and Wordly translation.
*Members of the public will be allowed to provide public comment through Zoom if a Councilmember is participating remotely pursuant to the provisions of Assembly Bill 2449. *Effective March 1, 2023, if a technical issue arises with Zoom or the phone dial-in option, the Council meeting will continue unless the meeting is being held pursuant to the provisions of Assembly Bill 2449. Alternative viewing options are listed below, and the meeting is physically open to the public.
“Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.
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You may observe a livestream of the meeting at http://media.modestogov.com. You may also view or listen to the meeting as indicated below.

THE MEETING CAN BE VIEWED BY ZOOM VIDEO

CONFERENCING OR TELEPHONE
Joining the City Council meeting via Zoom
The City of Modesto is now offering the ability to view Council meetings via telephonic conferencing via “Zoom” video conferencing computer technology. The meeting may be accessed through the use of Zoom using the following options:
 Enter the following link into an Internet Browser
https://us02web.zoom.us/j/86945970570,
 Enter the following link into an Internet Browser https://zoom.us/ and using the Webinar ID 869 4597 0570
 Passcode 84326
To use Zoom, please visit: https://zoom.us/ and either sign-up for a free Zoom account or continue as a guest. Once you have downloaded the app onto your mobile device, joined from your web browser, or downloaded the Zoom software on your computer you will be ready for the upcoming Council meeting.

Joining the City Council meeting via Telephone
If you don’t have a smart phone or computer to access the meeting via Zoom, you can listen by phone, by calling 1-877-853-5257 (Toll Free) or 1-888-475-4499 (Toll Free) and enter the Webinar ID 869 4597 0570 Passcode 84326

SUBMITTING COMMENTS BY E-MAIL
Written comments may be submitted via email to: [email protected] (include Agenda Item Number in the subject line). All comments will be shared with the Councilmembers and placed in the record but will not be read aloud during the meeting. Written comments must be received two hours before the meeting.

This Agenda is on file in the City Clerk’s Office, Sixth Floor, 10th Street Place, Posting Board at entry of 10th Street Place, and is available on the City’s Web site at www.modestogov.com.

Materials related to an item on this Agenda submitted to the Council after distribution of the agenda packet are available for public inspection in the Clerk’s office during normal business hours. Such documents are also available online, subject to staff’s ability to post the documents before the meeting, at the following website https://www.modestogov.com/council-meetings In accordance with the requirements of Title II of the Americans with Disabilities Act (“ADA”) of 1990, the Fair Employment & Housing Act (“FEHA”), the Rehabilitation Act of 1973 (as amended), Government Code section 11135 and other applicable codes, the City of Modesto (“City”) will not discriminate against individuals on the basis of disability in the City’s services, - 2 -
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programs, or activities. For more information, please visit the City of Modesto website at https://www.modestogov.com/865/Americans-with-Disabilities-Act-ADA In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk (209) 577-5396. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

Pledge of Allegiance to the Flag
Invocation: Bill Kenoyer, Reedemer Church
City Clerk’s Announcements
Declaration of Conflicts of Interest
Reports from Closed Session

ACKNOWLEDGEMENTS AND PRESENTATIONS

1. Proclamation declaring May 5th - 11th as National Public Service Recognition Week. (Funding Source: Not Applicable)
CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-5597,
[email protected]

2. Proclamation declaring May as National Older Americans Month. (Funding Source:

Not Applicable)
CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-5597,
[email protected]

3. Proclamation declaring National Salvation Army Week of May 13th – May 19th. (Funding Source: Not Applicable)
CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-5597,
[email protected]

PUBLIC COMMENT IN PERSON
Three-minute time limit per speaker.

Only interested persons in the audience may present these matters. Under State law, Councilmembers may respond to matters being presented under this item only as follows:
a. Briefly respond to statements made or questions raised. b. Ask a question for clarification.
c. Provide a reference to staff or other resources for factual information. d. Request staff to report back at a subsequent meeting. - 3 -
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e. Finally, a Councilmember or the Council itself may take action to direct staff to place a matter of business on a future agenda.

CONSENT ITEMS – ROLL CALL VOTE REQUIRED
Information concerning the consent items listed below has been forwarded to each Councilmember prior to this meeting for study. Unless some member of the audience or Councilmember has a question concerning an item and asks that it be withdrawn from the consent list, the Council approves the items at one time. The action taken by the Council in approving consent items is set forth in the explanation of this individual item.

CONSENT
An item may be removed from consent and discussed at the request of an audience member or Councilmember.

Consent

4. Consider approving the minutes for the April 23, 2024 Council Meeting. (Funding Source: Not Applicable)
Staff Recommendation:
 Motion approving the minutes for the April 23, 2024 Council Meeting.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent

5. Consider approving Final Adoption of Ordinance 3778-C.S. repealing and replacing Modesto Municipal Code Title 5, Chapter 9 providing definitions, permitting requirements, and operating standards for adult-oriented businesses along with adding permitting provisions for adult performers and non-performers at adult-oriented businesses; and amending Title 10, Chapter 3, Article 3 regarding definitions for adultoriented businesses. (Funding Source: Not Applicable) Staff Recommendation:
 Motion approving Final Adoption of Ordinance 3778-C.S. repealing and replacing Modesto Municipal Code Title 5, Chapter 9 providing definitions, permitting requirements, and operating standards for adult-oriented businesses along with adding permitting provisions for adult performers and nonperformers at adult-oriented businesses; and amending Title 10, Chapter 3, Article 3 regarding definitions for adult-oriented businesses.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent

6. Consider the annexation of Assessor Parcel Number (APNs) 077-008-039 and 077- 008-040 totaling approximately 33.694 acres, to the City of Modesto Community Facilities District (CFD) No. 2004-1 (Village One #2) and authorization of the levy of special tax on the properties located within the annexation map. (Funding Source:

Developer Deposit)
Staff Recommendation:
 Resolution of Intention to annex Assessor Parcel Numbers (APNs) 077-008- 039 and 077-008-040 totaling approximately 33.694 acres, to the City of - 4 -
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Modesto Community Facilities District (CFD) No. 2004-1 (Village One #2) and to authorize the levy of special tax on the properties located within the annexation map (Annexation #20).

CED; Peter Ibrahim, 209-577-5211, [email protected] Consent

7. Consider accepting the Monthly Investment Report for February 2024. (Funding Source: Various Funds)
Staff Recommendation:
 Motion accepting the Monthly Investment Report for February 2024.

FINANCE DEPARTMENT; Calogero Maniscalco, 209-577-5219,
[email protected]
Consent

8. Consider accepting an informational report for the March 2024 Accounts Payable Payment Register and Void Report. (Funding Source: Not Applicable) Staff Recommendation:
 Motion accepting an informational report for the March 2024 Accounts Payable Payment Register and Void Report.

FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
Consent

9. Consider accepting an Informational Report on the January and February 2024 Grant Applications and Awards. (Funding Source: Not Applicable) Staff Recommendation:
 Motion accepting an Informational Report for the January and February 2024, Grant Applications and Awards.

FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
Consent

10. Consider approving the Second Amendment for Backflow Prevention Testing Services to a revised total amount not to exceed $650,000. (Funding Source: Various Funds) Staff Recommendation:
 Resolution approving the Second Amendment increasing the Agreement amount with Sameday Backflow Service, for Backflow Prevention Testing Services and Repairs by $425,000 from $225,000 to a new total amount not to exceed $650,000; and authorizing the City Manager, or his designee to execute the Amendment.

PRN; Kelly Gallagher, 209-342-2270, [email protected] Consent

11. Consider approving the First Amendment with HDR Engineering, Inc. for the Feasibility Study for the City of Modesto’s Compost Facility in the amount of $96,062, to a revised total amount not to exceed $193,117 over the term of the original - 5 -
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Agreement. (Funding Source: Compost Facility Improvement Fund) Staff Recommendation:
 Resolution approving the First Amendment with HDR Engineering, Inc. for the Feasibility Study for the City of Modesto’s Compost Facility, increasing the Agreement amount by $96,062 from $97,055 to a new revised total amount not to exceed $193,117 over the term of the original Agreement, and authorizing the City Manager, or his designee, to execute the Amendment.

PUBLIC WORKS; Rahimullah Sabur, 209-577-5145, [email protected] Consent

12. Consider approving the Plans and Specifications for the Jennings Well Treatment Improvements Project accepting the Bid and Awarding a Construction Contract to TNT Industrial Contractors Inc., of Sacramento, CA, in the amount of $1,135,700, authorizing 15% for contingency, if needed, for a total payment amount not to exceed $1,306,055 and approving an Agreement with West Yost Associates, of Sacramento, CA, for Engineering Support During Construction Services for a total amount not to exceed $86,570. (Funding Source: Wastewater Fund)
Staff Recommendation:
 Resolution approving the Plans and Specifications for the Jennings Well Treatment Improvements Project; accepting the Bid and Awarding a Construction Contract to TNT Industrial Contractors Inc., of Sacramento, CA, in the amount of $1,135,700, authorizing the Director of Engineering Services to approve Change Orders up to the cumulative amount of $170,355, 15% of the original contract price, for a total payment amount not to exceed $1,306,055 and authorizing the City Manager, or his designee, to execute the Contract.  Resolution approving an Agreement with West Yost Associates, of Sacramento, CA, for Engineering Support During Construction Services for the Jennings Well Treatment Improvements Project, in the amount of $78,700, plus $7,870 in additional services, if needed, for an Agreement total amount not to exceed $86,570 and authorizing the City Manager, or his designee, to execute the Agreement.
 Resolution amending the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $1,666,175 to fund the Construction Phase of the Jennings Well Treatment Improvements Project and authorizing the City Manager, or his designee, to implement the provisions of the resolution.

UTILITIES; Cristian Ciotau, 209-571-5175, [email protected] Consent

13. Consider accepting the Spencer/Marshall Neighborhood Sewer Improvements Pocket Area 7, Phases 1 & 2 as complete; approving the annexing of the improvements into Modesto Municipal Sewer District No. 1, and the issuance of a blanket Will Serve Letter. (Funding Source: Wastewater Fund)
Staff Recommendation:
 Resolution accepting the Spencer/Marshall Neighborhood Sewer Improvements (Pocket Area 7), Phases 1 & 2 as complete, and annexing the improvements into Modesto Municipal Sewer District No. 1.
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 Resolution approving a blanket Will Serve Letter for 44 parcels in the Spencer/Marshall Neighborhood, Pocket Area 7, Phases 1 & 2, allowing connection to the City of Modesto’s Sanitary Sewer System, and authorizing the City Manager, or his designee, to execute the Will Serve Letter.

UTILITIES; Jim Alves, 209-571-5557, [email protected] Consent

14. Consider approving a First Amendment to the Consultant Services Agreement with Trihydro Corporation, of Laramie, WY for the Nitrate/Arsenic/Uranium Remedial Investigation/Feasibility Study in the amount of $26,172 for an Agreement total revised amount not to exceed $2,162,570. (Funding Source: Water Fund) Staff Recommendation:
 Resolution approving a First Amendment to the Consultant Services Agreement with Trihydro Corporation, of Laramie, WY for the Nitrate/Arsenic/Uranium Remedial Investigation/Feasibility Study in the amount of $26,172, for an Agreement total revised amount not to exceed $2,162,570 and authorizing the City Manager, or his designee, to execute the Amendment.  Resolution amending the Fiscal Year 2023-24 Multi-Year Program Budget in the amount of $26,172 to be transferred into the Nitrate/Arsenic/Uranium Remedial Investigation/Feasibility Study Project from Water Fund Reserves and authorizing the City Manager, or his designee, to implement the provisions of the resolution.

UTILITIES; Jim Alves, 209-571-5557, [email protected]

COUNCIL COMMENTS & REPORTS

CITY MANAGER COMMENTS & REPORTS

UNFINISHED BUSINESS

15. Consider approving a Modesto Forward Grant Agreement with the Salvation Army for the operation of the Day Center program with a term of May 1, 2024 to September 30, 2024 for an amount not to exceed $262,680; approving a First Amendment for an extension to the Safe Parking program to September 30, 2024 in an additional amount not to exceed $103,033 for a total revised amount of $264,755; approving an Agreement with the Salvation Army for operation of the Berberian Shelter from January 1, 2024 to May 31, 2024 in an amount not exceed $375,000 in ESG-CV funds; and approving a Modesto Forward Grant Agreement with the Salvation Army for operation of the Berberian Shelter from June 1, 2024 to September 30, 2024 in amount not to exceed $300,000. (Funding Source: Cares Act Emergency Solutions Grant and American Rescue Plan Act Funds)
 Resolution approving a Modesto Forward Grant Agreement with the Salvation Army for the operation of the Day Center in the amount not to exceed $262,680 with a term of May 1, 2024, to September 30, 2024, and authorizing the City - 7 -
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Manager or his designee to negotiate and execute the Agreement for the continued operations of the program.
 Resolution approving a Modesto Forward Grant Agreement with the Salvation Army for the operation of the Berberian Shelter in the amount not to exceed $300,000, with a term of June 1, 2024, to September 30, 2024, and authorizing the City Manager or his designee to negotiate and execute an Agreement for the operations of the program.
 Resolution approving an Agreement with the Salvation Army for the operation of the Berberian Shelter in an amount not to exceed $375,000 in ESG-CV funds to support shelter operations with a term from January 1, 2024, through May 31, 2024, and authorizing the City Manager or his designee to negotiate and execute the Agreements.
 Resolution approving a First Amendment to the Agreement with The Salvation Army for the operation of the Safe Parking program in the amount not to exceed $103,033 for a grand total amount of $264,755, extending the term to September 30, 2024, and authorizing the City Manager or his designee to negotiate and execute any required an Agreement for the operations of the program and to take the necessary steps to implement the provisions of this resolution.
 Resolution amending the Fiscal Year 2023-2024 Multi-Year Fund Budget for project number 101460 for the Salvation Army’s Day Center, Berberian Shelter, and Safe Parking programs using Emergency Solutions Grant Cares Act (ESG-CV) reallocated funds and American Rescue Plan Act (ARPA) funds and authorizing the City Manager or his designee to take the necessary steps to implement the provisions of this resolution.

CED; Edgar Garcia, 209-577-5211, [email protected]

HEARINGS
Published in the Modesto Bee on April 26, 2024.

16. Hearing to consider an Ordinance amending Section 3-1.303 of the Modesto Municipal Code, titled “Administrative Penalties and Remedies,” to increase the administrative fines for violations of the Fire Code, including illegal fireworks violations, adding Section 3-1.304 related to Third Party Administrative Citations, adding Section 3-1.305 related to Response Costs and making other changes related to enforcement and administration of the Fire Code. (Funding Source: General Fund) Staff Recommendation:
 Motion introducing and waiving the first reading of an Ordinance amending Section 3-1.303 of the Modesto Municipal Code, titled “Administrative Penalties and Remedies,” to increase the administrative fines for violations of the Fire Code, including illegal fireworks violations, adding Section 3-1.304 related to Third Party Administrative Citations, adding Section 3-1.305 related to Response Costs and making other changes related to enforcement and administration of the Fire Code.

CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] - 8 -
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Published in the Modesto Bee on April 7, 2024.

17. Hearing to accept and approve the 2024-2025 Annual Action Plan, 2024-2025 annual U.S Department of Housing and Urban Development allocation in the estimated amount of $2,861,451, and to submit the 2024-2025 Annual Action Plan including applicable documentation, as required by U.S. Department of Housing and Urban Development. (Funding Source: HUD Entitlement Funding)
Staff Recommendation:
 Resolution approving the 2024-2025 Annual Action Plan, 2024-2025 annual U.S Department of Housing and Urban Development allocation in the estimated amount of $2,861,451, authorizing the City Manager, or his designee, to negotiate and execute any related program Agreements, Contracts, amend allocations, incorporate comments received prior to the close of the public comment period, make any other technical alterations as required by U.S.

Department of Housing and Urban Development, or other documentation required for implementation and acceptance of the Program Year 2024-2025 Annual Action Plan funding, and authorization to submit the 2024 Annual Action Plan including applicable documentation and to make the necessary steps to implement the provision of this resolution.
 Resolution approving the actual allocation of funds outlined in the final Program Year 2024-2025 Annual Action Plan budget to reflect the proposal submitted to the U.S. Department of Housing and Urban Development and authorizing the City Manager, or his designee, to take the necessary steps to implement the provisions of this resolution.

CED; Edgar Garcia, 209-577-5211, [email protected]

NEW BUSINESS

18. Consider approving a Resolution setting forth Modesto’s commitment to creating equitable parks, and protective and healthy environments. (Funding Source: Not Applicable)
Staff Recommendation:
 Resolution setting forth Modesto’s commitment to creating equitable parks, and protective and healthy environments.

PRN; Nathan Houx, 209-571-5526, [email protected]

19. Consider an Ordinance to renew the Modesto Tourism Marketing District pursuant to the Property and Business Improvement District Law of 1994 for the renewal of a special benefit assessment district for tourism marketing services with a ten-year term. (Funding Source: Modesto Tourism Marketing District)
Staff Recommendation:
 Motion introducing and waiving the first reading of an Ordinance declaring formation of the Modesto Tourism Marketing District pursuant to the Property and Business Improvement District Law of 1994 for a renewed ten-year term.

CED; Trevin Barber, 209-860-1251, [email protected]

MATTERS TOO LATE FOR THE AGENDA
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These may be presented by members of the City Council and staff upon determination by a majority vote that an emergency exists, as defined by State law, or by a 2/3 vote that (1) there is a need to take immediate action, and (2) that the need for action came to the City’s attention after the agenda was posted.

ADJOURNMENT

CLOSED SESSION
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on TUESDAY, MAY 7, 2024 @ 4:15 P.M.
and after the regularly scheduled meeting in the Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.

Any and all of the following agenda items are subject to action being taken by the Modesto City Council.

The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:

CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: City of Modesto v. Kimberly Soranno
Superior Court of California, County of Stanislaus
Case No.: CV-22-002099
CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCEA Negotiator: Christina Alger
Employee Organization: Modesto City Employees Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCMA Negotiator: Christina Alger
Employee Organization: Modesto Confidential & Management Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPOA Negotiator: Christina Alger
Employee Organization: Modesto Police Officers’ Association - 10 -
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CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MPNSA Negotiator: Christina Alger
Employee Organization: Modesto Police Non-Sworn Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) –MPMA Negotiator: Christina Alger
Employee Organization: Modesto Police Management Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – MCFFA Negotiator: Christina Alger
Employee Organization: Modesto City Firefighters Association CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – Unrepresented Negotiator: Christina Alger
Employee Organization: Unrepresented Management and Confidential Employees Posted pursuant to Government Code Section 54954.2 on the bulletin board at Tenth Street Place on
at by
date time signature
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MODESTO CITY COUNCIL
www.modestogov.com

MINUTES
City of Modesto

CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, April 23, 2024 at 5:30 PM
Roll Call – Present: Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen

Absent: None
Pledge of Allegiance to the Flag
Invocation: Councilmember Williams gave the invocation.

City Clerk’s Announcements: None
Declaration of Conflicts of Interest: None
Reports from Closed Session: City Attorney Sanchez reported there was No Reportable Action on the Closed Session item.

ACKNOWLEDGEMENTS AND PRESENTATIONS

1. Proclamation declaring April as Earth Month. (Funding Source: Not Applicable) CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-5597,
[email protected]
ACTION: Mayor Zwahlen presented proclamation declaring April as Earth Month. #4..
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2. Proclamation declaring May as National Mental Health Awareness Month. (Funding Source: Not Applicable)
CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-5597,
[email protected]
ACTION: Mayor Zwahlen presented proclamation declaring May as National Mental Health Awareness Month.

3. Proclamation declaring April as Autism Awareness Month and Presentation by Modesto Police Department. (Funding Source: Not Applicable) CITY COUNCIL; Ariana Harbottle-Jarrett, 209-571-5597,
[email protected]
ACTION: Mayor Zwahlen presented a proclamation declaring April as Autism Awareness Month. Modesto Police Department presented information regarding their recent Autism certification.

PUBLIC COMMENT IN PERSON
 John Frailing spoke about Johnson v. Grants Pass Supreme Court case regarding homelessness, expressing concerns about its potential impact on Modesto. He suggested proactive measures, such as repurposing vacant buildings as emergency shelters, to address the situation effectively, emphasizing the need for immediate action.  Derek Castle thanked Mayor Zwahlen and Council Member Williams for attending Earth Day event. He proposed repurposing commercial buildings or warehouses for noncongregate shelters, suggesting the construction of small bedrooms inside at a cost of less than $1,000 each. Castle urged the council to consider this cost-effective solution for bridge housing.
 Diane Kroeze appreciated various proclamations but urged action on homelessness, criticizing the rejection of inexpensive solutions. She suggested using vacant properties, particularly warehouses, as low-cost shelter options. Kroeze emphasized the need for effective action to address homelessness.
 Dylan expressed support for National Autism Awareness Month, commending the Modesto Police Department for their efforts in autism awareness. He emphasized the importance of police education in handling individuals with autism.  Katie Mingus, representing the Friends of the Library, requested $500,000 from the city to enhance the downtown library, emphasizing its role as a vital community resource.  Chris Murphy expressed concern about the lack of clear guidelines to protect historic buildings like the 833 Steakhouse. He advocated for support and staffing of commissions dedicated to preserving historic landmarks.
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 Harrison Power, from Modesto's Landmark Preservation Commission, advocated for historic preservation efforts in the city, emphasizing the importance of preserving Modesto's architectural diversity.
 Roy Bozarth, a West Modesto resident, opposed the proposed Peace Village project by the Church of the Brethren, citing concerns about its proximity to residential areas.  Zeff raised concerns about an $8 million deficit in the general fund, urging fiscal responsibility from the Council.
 Jerry Thompson supported Mr. Murphy's comments regarding the preservation of Modesto's architecture, emphasizing the importance of preserving historic buildings.  Etta Thompson opposed the proposal to build homes for the homeless at the Methodist church property, suggesting other vacant buildings or open fields as more suitable locations.

CONSENT ITEMS – ROLL CALL VOTE REQUIRED
ACTION CONSENT ITEMS 4-14: (Wright/Escutia-Braaton; 7/0)

CONSENT
Consent

4. Consider approving the minutes for the April 9, 2024 Council Meeting. (Funding Source: Not Applicable)
 Motion approving the minutes for the April 9, 2024 Council Meeting.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Motion approving the minutes for the April 9, 2024 Council Meeting.

Consent

5. Consider approving the establishment of inter-fund loans from the General Fund to Fund 3224, City-Led Specific Plans in an amount not to exceed $675,000 and approving the Consultant Services Agreement with De Novo Planning Group for Specific Plan Services for $650,000, over three years. (Funding Source: General Fund)  Resolution approving the establishment of inter-fund loans from the General Fund to Fund 3224- City-Led Specific Plan Fund, for City-Led Specific Plans in an amount not-to-exceed $675,000 for City-Led Specific Plans and authorizing the City Manager to carry out the necessary budget adjustments for up to the total amount of $675,000 to implement this action.  Resolution approving the Consultant Services Agreement with De Novo Planning Group for Specific Plan Services for a total amount not to exceed $650,000 over three years and authorizing the City Manager or his designee to execute the Agreement.

CED; Peter Ibrahim, 209-577-5211, [email protected] #4..
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ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-127 approving the establishment of inter-fund loans from the General Fund to Fund 3224- City-Led Specific Plan Fund, for City-Led Specific Plans in an amount not-to-exceed $675,000 for City-Led Specific Plans and authorizing the City Manager to carry out the necessary budget adjustments for up to the total amount of $675,000 to implement this action.

ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-128 approving the Consultant Services Agreement with De Novo Planning Group for Specific Plan Services for a total amount not to exceed $650,000 over three years and authorizing the City Manager or his designee to execute the Agreement.

Consent

6. Consider approving a Fourth Amendment to the Construction Management Services Agreement with WSP USA Inc. for the State Route 132 West Freeway/Expressway - Phase 1 Project, for a total amount not to exceed $13,289,933. (Funding Source: Streets Capital Facility Fees)
 Resolution approving the Fourth Amendment to the Construction Management Services Agreement with WSP USA Inc. for the State Route 132 West Freeway/Expressway - Phase 1 Project, increasing the Agreement amount by $149,697 from $13,140,236 for a new total amount not to exceed $13,289,933, and authorizing the City Manager, or his designee to execute the Fourth Amendment.

ENGINEERING SERVICES; Toby Wells, 209-571-5542, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-129 approving the Fourth Amendment to the Construction Management Services Agreement with WSP USA Inc. for the State Route 132 West Freeway/Expressway - Phase 1 Project, increasing the Agreement amount by $149,697 from $13,140,236 for a new total amount not to exceed $13,289,933, and authorizing the City Manager, or his designee to execute the Fourth Amendment.

Consent

7. Consider accepting an Informational Report for the February 2024 Accounts Payable Payment Register and Void Report. (Funding Source: Not Applicable)  Motion accepting an Informational Report for the February 2024 Accounts Payable Payment Register and Void Report.

FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
ACTION: (Wright/Escutia-Braaton; 7/0) Motion accepting an Informational Report for the February 2024 Accounts Payable Payment Register and Void Report.

Consent
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8. Consider approving the Agreement for Sewer & Storm Pipe and Fittings to Ferguson Waterworks, Modesto, CA for a total amount not to exceed $875,000 over five years. (Funding Source: Wastewater and Water Funds)
 Resolution approving the Award of Bid and Agreement for Sewer & Storm Pipe and Fittings to the Ferguson Waterworks, Modesto CA for a two-year Agreement with three one-year extension options at the sole discretion of the City, for an annual estimated cost of $175,000 and a total cost not to exceed $875,000 over five years and authorizing the Director of Finance, or her designee, to execute the Agreement.

FINANCE DEPARTMENT; Dianne Love, 209-571-5164, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-130 approving the Award of Bid and Agreement for Sewer & Storm Pipe and Fittings to the Ferguson Waterworks, Modesto CA for a two-year Agreement with three one-year extension options at the sole discretion of the City, for an annual estimated cost of $175,000 and a total cost not to exceed $875,000 over five years and authorizing the Director of Finance, or her designee, to execute the Agreement.

Consent

9. Consider approving a Second Amendment with Ferguson Waterworks, Modesto CA, for the purchase of circle clamps, gaskets, pipe couplings, tapping sleeves and sewer materials to a total revised amount of $2,995,000 over five years. (Funding Source:

Water Fund)
 Resolution approving a Second Amendment to the Purchasing Agreement with Ferguson Waterworks, Modesto, CA, for the purchase of circle clamps, gaskets, and pipe couplings by increasing the estimated annual amount by $295,000 to $870,000 annually, to a new total amount not to exceed $2,995,000 over five years and authorizing the Director of Finance, or her designee, to execute the Amendment.

FINANCE DEPARTMENT; Dianne Love, 209-571-5164, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-131 approving a Second Amendment to the Purchasing Agreement with Ferguson Waterworks, Modesto, CA, for the purchase of circle clamps, gaskets, and pipe couplings by increasing the estimated annual amount by $295,000 to $870,000 annually, to a new total amount not to exceed $2,995,000 over five years and authorizing the Director of Finance, or her designee, to execute the Amendment.

Consent

10. Consider approving the Agreement for Uniform and Laundry Services for Citywide locations to Aramark Uniform Services, Burbank, CA for a total amount not to exceed $1,120,000 over seven years. (Funding Source: Various Funds)  Resolution approving the Award of Proposal and Agreement for Uniform and Laundry Services to Aramark Uniform Services, Burbank CA for a three-year Agreement with four one-year extension options, for an annual estimated amount of $160,000 and a total amount not to exceed $1,120,000 over seven #4..
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years and authorizing the City Manager, or his designee, to execute the Agreement.

FINANCE DEPARTMENT; Dianne Love, 209-571-5164, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-132 approving the Award of Proposal and Agreement for Uniform and Laundry Services to Aramark Uniform Services, Burbank CA for a three-year Agreement with four one-year extension options, for an annual estimated amount of $160,000 and a total amount not to exceed $1,120,000 over seven years and authorizing the City Manager, or his designee, to execute the Agreement.

Consent

11. Consider approving an Agreement for Polling and Survey Administration services to Zencity Technologies, Inc. Wilmington, DE and the First Amendment to Probolsky Research, LLC, San Francisco, CA, for a combined amount not to exceed $839,900 over five years. (Funding Source: Various Funds)
 Resolution approving the Agreement for Polling and Survey Administration Services to Zencity Technologies, Inc. Wilmington, DE, and the First Amendment to Probolsky Research, San Francisco, CA, for a two-year Agreement with three one-year extension options, for an annual estimated amount of $175,200 and total amount not to exceed $839,900 over five years for the combined total of all agreements and authorizing the City Manager or his designee to execute the Agreement and Amendment.

HUMAN RESOURCES; Christina Alger, 209-571-5126, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-133 approving the Agreement for Polling and Survey Administration Services to Zencity Technologies, Inc. Wilmington, DE, and the First Amendment to Probolsky Research, San Francisco, CA, for a two-year Agreement with three one-year extension options, for an annual estimated amount of $175,200 and total amount not to exceed $839,900 over five years for the combined total of all agreements and authorizing the City Manager or his designee to execute the Agreement and Amendment.

Consent

12. Consider amending the Classification Plan to move the positions of Park Ranger from range 1114 to range 1119 and EMS Coordinator from range 437 to range 442. (Funding Source: American Rescue Grants Fund and Measure H)  Resolution amending the Classification Plan for the City of Modesto to amend the classifications of Police Park Ranger and Emergency Medical Services Quality Improvement Coordinator.

HUMAN RESOURCES; Christina Alger, 209-571-5126, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-134 amending the Classification Plan for the City of Modesto to amend the classifications of Police Park Ranger and Emergency Medical Services Quality Improvement Coordinator.

Consent
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13. Consider approving the Agreements for On-Call Plumbing Services to Mark III Construction, DBA M3 Services Sacramento, CA and Champion Industrial Contractors, Inc. Modesto, CA for a total combined amount not to exceed $593,127 over five years. (Funding Source: Building Maintenance Fund)  Resolution approving the Award of Bid and Agreements for On-Call Plumbing Services to Mark III Construction, DBA M3 Services Sacramento, CA and Champion Industrial Contractors, Inc. Modesto, CA for a three-Year Agreement with two one-year extension options, for a combined annual estimated amount of $115,000, and a combined total amount not to exceed $593,127 over five years between the two Agreements, authorizing the Director of Finance, or her designee, to adjust financial amounts between both providers without exceeding an estimated annual amount of $115,000 and overall cost of $593,127 and authorizing the City Manager, or his designee, to execute the Agreements.

PUBLIC WORKS; Gabe da Silva, 209-577-5319, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-135 approving the Award of Bid and Agreements for On-Call Plumbing Services to Mark III Construction, DBA M3 Services Sacramento, CA and Champion Industrial Contractors, Inc. Modesto, CA for a three-Year Agreement with two one-year extension options, for a combined annual estimated amount of $115,000, and a combined total amount not to exceed $593,127 over five years between the two Agreements, authorizing the Director of Finance, or her designee, to adjust financial amounts between both providers without exceeding an estimated annual amount of $115,000 and overall cost of $593,127 and authorizing the City Manager, or his designee, to execute the Agreements.

Consent

14. Consider accepting the State Water Resources Control Board Expedited Drinking Water Grant Program award of up to $7,115,592 for the Riverdale Park Tract Community Services District Consolidation Project and entering into a funding agreement. (Funding Source: Water Fund)
 Resolution accepting the State Water Resources Control Board Expedited Drinking Water Grant Program award of up to $7,115,592 for the Riverdale Park Tract Community Services District Consolidation Project and authorizing the City Manager, or his designee, to enter into a funding agreement.  Resolution amending the Fiscal Year 2023-24 Capital Improvement Program Revenue and Expense budgets in the combined amount of $11,273,412 to fund the Construction Phase of the Riverdale Park Tract Community Services District Consolidation Project and authorizing the City Manager, or his designee, to implement the provisions of the resolution.

UTILITIES; Jim Alves, 209-571-5557, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-136 accepting the State Water Resources Control Board Expedited Drinking Water Grant Program award of up to $7,115,592 for the Riverdale Park Tract Community Services District Consolidation #4..
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Project and authorizing the City Manager, or his designee, to enter into a funding agreement.

ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2024-137 amending the Fiscal Year 2023-24 Capital Improvement Program Revenue and Expense budgets in the combined amount of $11,273,412 to fund the Construction Phase of the Riverdale Park Tract Community Services District Consolidation Project and authorizing the City Manager, or his designee, to implement the provisions of the resolution.

COUNCIL COMMENTS & REPORTS
Councilmember Bavaro commended city employee Jose Magana for his exceptional service during a storm incident in the district. Despite adverse weather conditions, Magana went above and beyond his duties in the Department of Forestry, dedicating 3.5 hours to clearing a fallen tree and ensuring safety in the neighborhood. He highlighted Magana's compassion, efficiency, and dedication to providing outstanding customer service. Council Member Bavaro acknowledged Magana's efforts as a testament to the city's commitment to its residents' well-being.

Councilmember Ricci expressed gratitude to those who participated in the first Garage Sale Fest, highlighting its success in promoting community engagement and sustainability.

He praised Visit Modesto for their efforts in promoting the event and looked forward to making it an annual tradition. He emphasized the value of investing in the city's library as a vital public space for learning and gathering. Council Member Ricci advocated for collaboration with the county to enhance the library's quality and architectural significance. Lastly, he encouraged residents to utilize the ADU dashboard for building granny flats, emphasizing its role in increasing housing inventory and providing benefits such as lower fees and tax incentives.

Councilmember Williams expressed strong support for the library and emphasized its importance in providing learning opportunities for the community, particularly for those who are illiterate. He advocated for the city to contribute $500,000 to support the library's needs. Additionally, he highlighted upcoming community events such as Cinco de Mayo celebrations and Love Modesto, where volunteers will participate in projects to beautify the city. Williams encouraged community members to join efforts in beautifying Modesto, including participating in Love Modesto activities and the Beautify McHenry project, which has garnered support from local businesses like Walmart.

Mayor Zwahlen discussed the inauguration of Dos Rios State Park in Modesto, California, highlighting the presence of the governor, his partner, and Dolores Huerta at the dedication ceremony. The Mayor describes the park's location, its restoration efforts, and plans for educational development. The Mayor expressed excitement about the park's opening on June 12th, emphasizing its significance as a new addition to the limited number of state parks in the Central Valley. The Governor's remarks underscore California's diverse natural attractions, culminating in the creation of a state park within #4..
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Modesto itself. The Mayor encouraged others to visit and appreciate the park's beauty and tranquility.

CITY MANAGER COMMENTS & REPORTS
None.

HEARINGS
Published in the Modesto Bee on April 3, 2024

15. Hearing to consider an Ordinance repealing and replacing Modesto Municipal Code Title 5, Chapter 9 providing definitions, permitting requirements, and operating standards for adult-oriented businesses along with adding permitting provisions for adult performers and non-performers at adult-oriented businesses; and amending Title 10, Chapter 3, Article 3 regarding definitions for adult-oriented businesses. (Funding Source: General Fund)
 Motion introducing and waiving the first reading of an Ordinance repealing and replacing Modesto Municipal Code Title 5, Chapter 9 providing definitions, permitting requirements, and operating standards for adult-oriented businesses along with adding permitting provisions for adult performers and nonperformers at adult-oriented businesses; and amending Title 10, Chapter 3, Article 3 regarding definitions for adult-oriented businesses.

CED; Tristan Osborn, 209-577-5267, [email protected] ACTION: (Ricci/Williams; 7/0) Motion introducing and waiving the first reading of an Ordinance 3778-C.S. as amended repealing and replacing Modesto Municipal Code Title 5, Chapter 9 providing definitions, permitting requirements, and operating standards for adult-oriented businesses along with adding permitting provisions for adult performers and non-performers at adult-oriented businesses; and amending Title 10, Chapter 3, Article 3 regarding definitions for adult-oriented businesses.

NEW BUSINESS

16. Consider accepting the Citizens’ Salary Setting Commission 2024 Recommendations for the Mayor and Councilmembers’ salaries and setting a public hearing for the May 14, 2024 Council meeting to consider an Ordinance amending the salaries pursuant to Modesto Charter Section 703. (Funding Source: General Fund)  Motion accepting the Citizens’ Salary Setting Commission 2024 Recommendations for the Mayor and Councilmembers’ salaries.  Motion setting a Public Hearing for the May 14, 2024 Council Meeting and directing the City Attorney to draft an Ordinance amending the salaries for the Mayor and Council Members pursuant to Charter Section 703.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] #4..
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ACTION: (Alvarez/Bavaro; 7/0) Motion accepting the Citizens’ Salary Setting Commission 2024 Recommendations for the Mayor and Councilmembers’ salaries.

ACTION: (Bavaro/Alvarez; 7/0) Motion setting a Public Hearing for the May 14, 2024 Council Meeting and directing the City Attorney to draft an Ordinance amending the salaries for the Mayor and Council Members pursuant to Charter Section 703.

MATTERS TOO LATE FOR THE AGENDA
None.

ADJOURNMENT
This meeting adjourned at 7:42 P.M.

CLOSED SESSION
All Closed Session Matters heard prior to the meeting.

CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(a) of the Government Code) Name of case(s): Robert Berbena v. City of Modesto
California Workers Compensation Appeals Board
Nos. ADJ14483235
Attest:____________________________
Diane Nayares-Perez, City Clerk
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EFFECTIVE DATE: June 6, 2024
ORDINANCE NO. 3778-C.S.

AN ORDINANCE REPEALING AND REPLACING MODESTO MUNICIPAL CODE TITLE 5, CHAPTER 9 PROVIDING DEFINITIONS, PERMITTING REQUIREMENTS,

AND OPERATING STANDARDS FOR ADULT-ORIENTED BUSINESSES ALONG WITH ADDING PERMITTING PROVISIONS FOR ADULT PERFORMERS AND NONPERFORMERS AT ADULT-ORIENTED BUSINESSES; AND AMENDING TITLE 10, CHAPTER 3, ARTICLE 3 REGARDING DEFINITIONS FOR ADULT-ORIENTED

BUSINESSES

NOW, THEREFORE, THE COUNCIL OF THE CITY OF MODESTO DOES ORDAIN as follows:

SECTION 1. FINDINGS.

A. The City Council finds that it is necessary and appropriate to amend Chapter 9, in order to amend, add, refine and update the provisions providing: revised definitions; operational standards for adult-oriented businesses; and licensing standards for adult performers and nonperformers at adult oriented facilities operating within the City of Modesto (“the City” or “Modesto”). The public health, safety and welfare of Modesto and its residents require the enactment of this Ordinance and such operating standards for adult-oriented businesses in order to: (1) mitigate and reduce the judicially recognized potential adverse secondary effects of adultoriented businesses, including but not limited to crime, the prevention of blight in neighborhoods and the increased threat of the spread of sexually transmitted diseases; (2) protect the quality of life and neighborhoods in the City; (3) protect the City’s retail and commercial trade; (4) minimize the potential for nuisances related to the operation of adult-oriented businesses; and (5) protect the peace, welfare and privacy of persons who own, operate and/or patronize adultoriented businesses.

B. The City Council finds that the revisions to the City’s Municipal Code implemented by this Ordinance are necessary in order to respond to developments within the regulation of adult-oriented uses and the evolving case law and in order to preserve the City from the potential adverse secondary effects of adult-oriented businesses, including crime, the protection of the City’s retail trade, maintenance of property values, protecting and preserving the quality of the City’s neighborhoods and the City’s commercial districts, the protection of the City’s quality of life, and the increased threat of the spread of sexually transmitted diseases and the protection of the peace, welfare and privacy of persons who patronize adult-oriented businesses based on the referenced studies and the findings set forth in Paragraphs A-Z.

Specifically, the revisions and amendments to the City’s Municipal Code included in this Ordinance, are essential and necessary to ensure the orderly implementation of adult oriented use regulations within the City by amending and refining various permitting and operating provisions in the Municipal Code to improve the City’s regulation of adult-oriented businesses, and thereby ensure the immediate preservation of the public peace, health, safety and general welfare in the City of Modesto.

C. The City Council, in adopting this ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Adult-Oriented Businesses in other cities: Garden Grove, California (1991); Tucson, Arizona #5..
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(1990); Seattle, Washington (1989); Report of the Attorney General’s Working Group on the Regulation of Adult-Oriented Businesses, Attorney General, State of Minnesota (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1997); Beaumont, Texas (1982); Regulating Sex Business by William Toner, Report No. 327 Planning Advisory Service of American Society of Planning Officials, Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977); New York, New York (1994); Newport News, Virginia (1996); Times Square, New York City (1994); A Methodological Critique of the Linz-Paul Report: A Report to the San Diego City Attorney’s Office (2003); Adult-Oriented Businesses: An Insider’s View – Testimony of David Sherman before the Michigan House Committee on Ethics and Constitutional Law (2000); Closin’ Time: Effective Regulation of Adult-Oriented Businesses’ Hours of Operation, by Scott Bergthold (2000); Summaries of Key Reports Concerning the Negative Secondary Effects of Adult-Oriented Businesses, by Louis Comus III (2001); Peep Show Establishments, Police Activity, Public Place and Time: A Study of Secondary Effects in San Diego, California, by Daniel Linz et al. (2006); and Do Peep-shows “Cause” Crime? A response to Linz, Paul, and Yao, by Richard McCleary et al. (2006). The City Council finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of adult-oriented businesses, and more specifically finds that these studies provide convincing evidence that:

1. There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by adult-oriented businesses including, but not limited to, an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish by convincing evidence that adult-oriented businesses that are not regulated with operating standards often have a deleterious effect on nearby businesses and residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values.

2. Regulations for adult-oriented businesses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than waiting for problems to be created.

D. In developing this ordinance, the City Council is mindful of legal principles relating to regulation of adult-oriented businesses, and the City Council does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of adult-oriented businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of adult-oriented businesses including, but not limited to: City of Littleton, Colorado v.

Z.J. Gifts D-4, 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004); City of Los Angeles v.

Alameda Books, 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002); City of Erie v. Pap’s A.M. (“Kandyland”), 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); and Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); decisions of the United States Court of Appeals for the Ninth Circuit, including but not limited to: Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 374; Dream #5..
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EFFECTIVE DATE: June 6, 2024
Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004); World Wide Video v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Baby Tam & Co., Inc. v. City of Las Vegas (“Baby Tam I”), 154 F.3d 1097 (9th Cir. 1998); Baby Tam & Co., Inc. v. City of Las Vegas (“Baby Tam II”), 199 F.3d 1111 (9th Cir. 2000); Baby Tam & Co., Inc. v. City of Las Vegas (“Baby Tam III”), 247 F.3d 1003 (9th Cir. 2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053 (2000); and Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir. 1996); Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000); several California cases, including but not limited to: Tily B., Inc. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board of California (“Vicary”), 99 Cal.App.4th 880 (2002); and City of Vallejo v. Adult Books, 167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); and other federal cases, including but not limited to:

Doctor John’s, Inc. v. City of Roy, 465 F.3d 1150 (10th Cir. 2006); G.M. Enterprises v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003); SOB, Inc. v. County of Benton, 317 F.3d 856 (8th Cir. 2003); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999); Richland Bookmart, Inc. v.

Nichols, 137 F.3d 435 (6th Cir. 1998); Tee & Bee v. City of West Allis, 936 F.Supp. 1479 (E.D.

Wis. 1996); National Amusements, Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); TK’s Video, Inc. v. Denton County, Tex., 24 F.3d 705 (5th Cir. 1994); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jackson, 973 F.2d 1255 (5th Cir. 1992), cert. denied 507 U.S. 1030 (1993); International Eateries v. Broward County, 941 F.2d 1157 (11th Cir. 1991), cert. denied 503 U.S. 920 (1992); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986); N.W. Enterprises, Inc. v. City of Houston, 372 F.3d 333 (5th Cir. 2004); DLS, Inc. v.

City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); and N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5th Cir. 2003).

E. Each of the noted negative secondary effects constitutes a harm which the City has a substantial government interest in preventing and/or abating. Further, the City’s interest in regulating adult-oriented businesses extends to preventing future secondary effects of either current or future adult-oriented businesses that may locate in the City. The City finds that the cases and documentation relied on in this Ordinance are reasonably believed to be relevant to said secondary effects.

F. The City Council also finds that locational criteria alone do not adequately protect the health, safety, and general welfare of the citizens of Modesto, and thus certain requirements with respect to the ownership, operation and licensing of adult-oriented businesses are in the public interest. In addition to the findings and studies conducted in other cities regarding increases in crime rates, decreases in property values and the blighting of areas in which such businesses are located, the City Council takes legislative notice of the following: (1) the facts recited in the case of Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), regarding how live adult oriented entertainment results in secondary effects such as prostitution, drug dealing, and other law enforcement problems, and (2) the facts and holding of the case of Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 374, wherein the Ninth Circuit recognized that off stage performances by performers who also perform nude and/or semi-nude at an adult oriented establishment can cause the same secondary #5..
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EFFECTIVE DATE: June 6, 2024
effects as other activities documented in studies and case law regarding adult oriented establishments, even if the performer is clothed and the establishment does not serve alcohol.

G. Relying on the following, the City finds that adult-oriented businesses in its community may lead to detrimental secondary effects including prostitution and engagement in unlawful sexual activity. The City bases this conclusion on the experiences of Modesto, as well as that of other California communities, including the cities of Chula Vista, La Habra, Arcadia and San Bernardino, which the City has a reasonable basis to believe reflect the experiences of its own community, including numerous police reports and affidavits from those communities, and judicial decisions in the public record:

1. Evidence indicates that some dancers, models, entertainers, performers, and other persons who publicly perform specified sexual activities or publicly display specified anatomical areas in adult-oriented businesses (collectively referred to as “performers”) have been found to engage in sexual activities with patrons of adult-oriented businesses on the site of the adult-oriented business.

2. Evidence has demonstrated that performers employed by adult-oriented businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to observe and participate with the performers in live sex shows.

3. Evidence indicates that performers at adult-oriented businesses have been found to engage in acts of prostitution with patrons of the establishment.

4. Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as locations for engaging in unlawful sexual activity.

5. As a result of the above, and the increase in incidents of HIV, AIDS, and hepatitis B, which are sexually transmitted or blood borne diseases, the City has a substantial interest in adopting regulations that will reduce the possibility for the occurrence of prostitution and unlawful sex acts at adult-oriented businesses in order to protect the health, safety, and wellbeing of its citizens. The City finds this is relevant to Modesto and the need to regulate the secondary effects of adult-oriented businesses within the community.

6. The public health, safety, welfare, and morals of all persons in the City must be protected by the establishment of standards to diminish the possibility of infection of contagious diseases.

H. The City Council is cognizant of the specific dangers from the sexually transmitted disease AIDS, which despite advances in treatment, remains irreversible and fatal.

The City Council takes legislative notice of the reports prepared by the California Department of Public Health, the California HIV Surveillance Report – 2021, released May 3, 2023 (“HIV Surveillance Report,”) The HIV Surveillance Report indicates that in Stanislaus County in 2021, there were 254 cases of newly diagnosed HIV cases reported; a total of 4,918 cases of persons living with the HIV infection; and 99 deaths reported. The City also takes legislative notice of the Stanislaus County Community Health Assessment report issued in 2020, which listed the total number of HIV cases reported in the County in 2016 as 707. It was noted that the HIV #5..
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EFFECTIVE DATE: June 6, 2024
prevalence rates for Stanislaus County and California have slowly been rising from 2012 to 2016.

The City further takes legislative notice of the San Joaquin County Public Health Services, San Joaquin County Annual STDs and HIV/AIDS Report - 2015 (“SJC Health Status Report”), the Sacramento County HIV Annual Surveillance Report 2015 (“Sacramento HIV Surveillance Report”), Centers for Disease Control HIV Surveillance Report 2021, and the Fresno County Department of Public Health Report, A Summary of HIV/AIDS in Fresno County 2020 (“Fresno County HIVS/AIDS Summary”). The SJC Health Status Report states that the reported HIV cases increased 25% from 2014 to 2015 and that males have a higher burden of the disease. The Sacramento County HIV Surveillance Report indicates that from 2006 to 2015, the total number of newly diagnosed HIV cases increased by 69.7% from 89 cases in 2006 to 151 cases in 2015.

From 2006 to 2015, 479 cases were deceased. The Fresno County HIVS/AIDS Summary reports that in 2014, there were 701 people living with HIV, and 1,076 people living with AIDS.

I. The City is also concerned with preventing the spread of other sexually transmitted diseases such as syphilis, gonorrhea, chlamydia and hepatitis B. The City takes legislative notice of the California Department of Public Health, STDs in California by Disease, County, Year, and Sex, indicates that in 2021, Stanislaus County reported 2,413 cases of chlamydia, 954 cases of gonorrhea, and 378 cases of Primary and Secondary Syphilis and Early Latent Syphilis. Merced County reported 1,101 cases of chlamydia, 490 cases of gonorrhea, and 96 cases of Primary and Secondary Syphilis and Early Latent Syphilis; San Joaquin County reported 4,235 cases of chlamydia, 1,749 cases of gonorrhea, 360 cases of Primary and Secondary Syphilis and Early Latent Syphilis; Fresno reported 6,451 cases of chlamydia, 2,705 cases of gonorrhea, 447 cases of Primary and Secondary Syphilis and Early Latent Syphilis; and Sacramento reported 7,659 cases of chlamydia, 3,523 cases of gonorrhea, 723 cases of Primary and Secondary Syphilis and Early Latent Syphilis. The City also takes legislative notice of the California Department of Public Health, Chronic Hepatitis B Report 2016, which indicates that in Stanislaus County there were a total of 155 reported cases; in Merced County there were 118 reported cases; in San Joaquin County there were 379 reported cases; in Fresno County there were 465 reported cases; and, in Sacramento County there were 1,653 reported cases. It should also be noted that according to the AIDS Status Report, numerous studies have shown that sexually transmitted diseases such as syphilis, gonorrhea, and chlamydia facilitate the transmission of HIV.

The City Council has a reasonable basis to conclude that the experiences of the Stanislaus, San Joaquin, Merced, Fresno, and Sacramento Counties as to these HIV/AIDS, STD, and/or blood borne diseases are relevant to the experiences of Modesto.

J. In considering appropriate operational regulations for adult-oriented businesses, the City Council finds that:

1. Enclosed or concealed booths and dimly lit areas within adult-oriented businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmission of disease. Requiring all indoor areas to be open to view by management at all times and adequate lighting to be provided reduces the opportunity for, and therefore the incidence of illegal conduct within adult-oriented businesses, and further facilitates the inspection of the interior of the premises thereof by law enforcement personnel. #5..
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EFFECTIVE DATE: June 6, 2024

2. Preventing the exchange of money between performers and patrons also reduces the likelihood of drug and sex transactions occurring in adult-oriented businesses.

3. Requiring separations between performers and patrons precludes them from being within earshot to communicate and thereby reduces the likelihood that such persons will negotiate narcotics sales and/or transact sexual favors within the adult-oriented business.

K. The City Council recognizes and relies on the findings set forth in the 1986 Attorney General’s Report on Pornography in support of this ordinance including, but not limited to, its recommendations that local governments ban certain features of video booths that facilitate carnal sexual encounters. A copy of the Attorney General’s Report on Pornography is available online at: https://www.ojp.gov/ncjrs/virtual-library/abstracts/attorney-generals-commissionpornography-final-report.

1. With respect to booths, these findings include the following: The inside walls of the booth are typically covered with graffiti and messages, usually of a sexual nature and consisting of telephone numbers, names, requests and offers for sex acts, anatomical descriptions, and sketches. Some booths also contain a chart used as an appointment schedule that is utilized to schedule appointments for sex acts that take place in that particular booth. In some instances, this arrangement has been used for the solicitation of prostitutes. Many of these booths are equipped with a hole in the side wall between the booths to allow patrons to engage in anonymous sex including both oral and anal sex acts. Inside the booths, the floors and walls are often wet and sticky with liquid or viscous substances, including semen, urine, feces, used prophylactics, gels, saliva, or alcoholic beverages. The City concludes, based in part on the description of the illicit sexual activity as noted within the Attorney General’s Report, that the presence of closed doors and/or any obstruction of the video booth area is likely to lead to the above described secondary effects.

2. Likewise, the City Council recognizes and relies on the findings set forth in the May 1990 study conducted by the City of Tucson in support of this ordinance including, but not limited to, the following findings with respect to booths: Holes were present in the walls of adjoining booths within adult entertainment establishments. These holes were used by male patrons to facilitate sex acts with the occupant of the neighboring booth. The City Council reasonably believes that the Tucson experience, along with the Attorney General’s Report, is relevant to the problems associated with adult facilities in Modesto.

3. The City Council finds that requiring that adult booths be configured in such a manner so that there is an unobstructed view from the manager’s station(s) and prohibiting closed, concealed, or unobstructed booths that are occupied by no more than one person at a time reduces the secondary effects associated with closed booths. Specifically, the provisions pertaining to booths are necessary to eliminate the masturbation and sexual activity that are known to occur in closed booths and which present significant health and safety concerns with respect to communicable diseases, including AIDS. A number of courts have held that combating the spread of AIDS and STDs is a significant government interest, and that prohibiting concealed or enclosed booths in an adult use establishment is a narrowly tailored means of serving that interest. Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Cal.App.3d 980 (1985); Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir. 2002); Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123 (3rd Cir. 1993); #5..
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Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991); Doe v. City of Minneapolis, 898 F.2d 612 (8th Cir. 1990); Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165 (4th Cir. 1986). The City Council takes further note of the Ninth Circuit’s decision in Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982) and its finding that there is no constitutional right to unobserved masturbation in a public place. The City Council also recognizes the California case Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Cal.App.3d 980 (1985), which found that the right to privacy guaranteed by the California Constitution does not protect the right to unobserved masturbation in a public place. Further, the City takes note of the Eleventh Circuit’s validation of a restriction on the size of adult booths in Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999), including the Court’s finding that “[a]mple evidence … supports the … finding that illegal and unhealthy activities take place in small rooms at adult entertainment establishments.” L. In recognition of the negative secondary effects generated by live adult entertainment, a number of courts have upheld distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and precluded direct exchange of monies between performers and patrons at adult-oriented businesses that provide live entertainment including, but not limited to: Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 374; Tily B. v. City of Newport Beach, 69 Cal.App.4th 1 (1999); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); BSA, Inc. v. King County, 804 F.2d 1104 (9th Cir. 1986); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 1997 FED App. 0066P (6th Cir. 1997); Parker v. Whitfield County, 463 S.E.2d 116 (Ga. 1995); and Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995). Courts have found that dancers who perform nude or semi-nude on stage at adult oriented cabarets are the same individuals who then move off stage to offer lap dances, couch dances, or other similar off stage performances.

Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005). The lewd conduct of such performers was also documented at the totally nude facility called the Flesh Club in the City of San Bernardino where the evidence revealed lewd conduct including intercourse between performers and customers, quotations of price lists for different sex acts, regular contact between nude breasts of performers and faces of customers, and allowing patrons to peer into the females genitalia. This proposed Ordinance precludes this type of extreme “off-stage” activity, along with its companion noted secondary effects of prostitution and/or illegal drug transactions.

Therefore, Modesto reasonably believes it is necessary to impose distance limitations between performers and patrons and prohibit physical contact between performers and patrons during all performances, whether on or off stage, in order to guard against the documented secondary effects.

M. The City Council believes that prohibiting physical contact between performers and patrons at adult-oriented businesses, requiring separate entrances for performers from those used for patrons, requiring separate restrooms for opposite sexes, prohibiting performers from soliciting payment from patrons, and prohibiting the direct payment to performers by patrons are a reasonable and effective means of addressing the legitimate governmental interests of preventing prostitution, the spread of sexually transmitted diseases, and drug transactions. The case law and studies serve as a reasonable basis to establish this link.

N. In recognition of the negative secondary effects generated by live adult entertainment establishments, a number of courts have upheld ordinances which require that #5..
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employees, as well as the owners and managers of such establishments submit background information on criminal convictions related to relatively recent sexual offenses so that a public entity can assess an individual’s ability to function responsibly in the adult-oriented business setting. See TK’s Video, Inc. v. Denton County, Tex., 24 F.3d 705, 710 (5th Cir. 1994); and see Club Southern Burlesque, Inc. v. City of Carrollton, 265 Ga. 528, 532, 457 S.E.2d 816 (1995).

This includes not only the applicant for an adult-oriented business permit, but individuals who work in adult-oriented businesses during regular business hours as performers and nonperformers where the criminal background check is limited to a period of no more than five (5) years immediately preceding the date of application. See Doctor John’s, Inc. v. City of Roy, 465 F.3d 1150, 1171 (10th Cir. 2006); McCrothers Corp. d/b/a Tree City Bar, et al. v. City of Mandan, 728 N.W.2d 124 (2007); Tee & Bee v. City of West Allis, 936 F.Supp. 1479, 1487 (E.D.

Wis. 1996); Club Southern Burlesque, Inc., 265 Ga. at 532. In this regard, the City Council, in adopting operational standards, recognizes that the requirement for employee disclosure of recent criminal activity is to be narrowly tailored and to impose no greater restriction on First Amendment freedoms than is necessary to minimize the secondary harms stated in the ordinance.

See TK’s Video v. Denton County, 830 F.Supp. 335, 343 (E.D. Tex. 1993), vacated in part on other grounds, 24 F.3d 705 (5th Cir. 1994). When, as here, the civil disability provision of an adult-oriented business ordinance is tailored to apply to sex-related crimes only, the “relationship between the offense and the evil to be regulated is direct and substantial.” FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1305 (5th Cir. 1988) and affirmed in part and vacated in part in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); see also TK’s Video, 24 F.3d at 711 and see Déjà Vu of Nashville, Inc. v. Metro Gov’t of Nashville and Davidson County, 274 F.3d 377, 392 (6th Cir. 2001); Brownell v. City of Rochester, 190 F.Supp.2d 472, 494-96 (W.D.N.Y. 2001); Tee & Bee, 936 F.Supp. at 1490. Modesto adopts the reasoning of courts finding that “Certain employees of unregulated adult-oriented businesses ... engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments” and has a reasonable basis to believe this reasoning is applicable in the Modesto community. Further, the “fact that an applicant for an adult oriented use permit has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this ordinance.” Hence, “[t]he barring of such individuals from employment in adult-oriented businesses for a specified period of years serves to prevent distribution of illegal material, to prevent conduct which leads to the transmission of sexually transmitted diseases, and to preclude the establishment of criminal enterprises within the City.” Dr. John’s, 465 F.3d at 1171 n. 30.

O. The City Council also finds the establishment of an adult-oriented business regulatory licensing process and operational standards for adult-oriented businesses are legitimate and reasonable means of ensuring that:

1. Operators of and performers at adult-oriented businesses comply with the City’s regulations;

2. The recognized adverse secondary impacts of a proposed adult-oriented business are mitigated;

3. Adult-oriented business operators have specific guidelines with respect to the manner in which they can operate an adult-oriented business; and #5..
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4. The applications for adult-oriented business regulatory permits are handled fairly and expeditiously.

P. The City Council recognizes the possible harmful effects on children and minors exposed to the effects of adult-oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the California Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.). The City Council further takes legislative notice of the cases that recognize that protection of minors from sexually explicit materials is a compelling government interest, including Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Cal.App.4th 1075 (1995).

Q. While the City Council is obligated to protect the rights conferred by the United States Constitution to adult-oriented businesses, it does so in a manner that ensures the continued and orderly use and development of property within the City and diminishes, to the greatest extent feasible, those undesirable adverse secondary effects which the above mentioned studies have shown to be associated with the operation of adult-oriented businesses.

R. Licensing permits and operating standards are a legitimate and reasonable means of ensuring that adult-oriented businesses are conducted in a manner so as to minimize their adverse secondary effects and to help assure that such operators, businesses, licensees and permittees comply with reasonable regulations related to such requirements to minimize and control problems associated with such businesses and thereby protect the health, safety, and welfare of Modesto residents, protect citizens from increased crime, preserve the quality of life, and preserve the character of surrounding neighborhoods and businesses, and deter the spread of urban blight. The operational requirements contained in this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected adult-oriented businesses in Modesto.

S. The City Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication. For example, the closing hours requirement means that adult-oriented businesses are free to operate seven (7) days a week for seventeen (17) hours per day. The City Council takes note of the proliferation of adult material on the Internet, satellite television, direct television, CDs, DVDs, and that these various media provide alternative avenues of communication. Additionally, the City Council takes note that numerous web-based services, such as www.sugarinstant.com, formerly sugarDVD.com, deliver adult videos and DVDs directly to customers’ homes via the mail and subscription-based streaming services. The City Council recognizes the following review of one of these web-based services: “Sugarinstant has made it so easy to rent and view adult movies, you may never leave your house again … Sugarinstant is discreet with quick turnaround times and a massive selection … Sugarinstant offers six rental plans, catering to the casual porn viewer and diehards who can never get enough hard-core fare.” (Hustler Magazine, January 2006.) The City Council also considers and relies on published decisions examining the proliferation of communications on the Internet. (Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) [the principle channel through which many Americans now transmit and receive sexually explicit communication is the Internet]; Anheuser-Busch v.

Schmoke, 101 F.3d 325 (4th Cir. 1996), cert. denied 520 U.S. 1204 (1997) [the Fourth Circuit #5..
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rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the Internet is one available channel of communication]; U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); see also U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 519 U.S. 820 (1996) [recognizing the Internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].) The emergence of the Internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested persons in every community with a mere keystroke. An adult-oriented business no longer has to be “actually” physically located in a city to be available in the community.

T. The City Council recognizes that adult devices (i.e. adult oriented novelties and/or adult related products) such as dildos, fur-lined handcuffs, leather whips, anal beads, and devices that are physical representations of human genital organs, are not speech and enjoy no First Amendment protections. (See Ford v. State of Texas, 753 S.W.2d 451, 452-453 (1988); Sewell v.

State of Georgia, 233 S.E.2d 187, 188-189 (1977); Chamblee Visuals, LLC v. City of Chamblee, 506 S.E.2d 113, 115 (1998); and Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020 (5th Cir. 1981).)
U. The City Council has also determined that a closing hours requirement promotes the reduction of deleterious secondary effects from adult facilities and reasonably relies on prior court decisions on the need for closing hours including Center for Fair Public Policy v.

Maricopa County (“Maricopa”), 336 F.3d 1153 (9th Cir. 2003); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); Lady J. Lingerie, Inc. v. City of Jacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997), affirmed in part, reversed in part by Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); National Amusements Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995); Mitchell v. Comm’n on Adult Enter. Est. of the State of Delaware, 10 F.3d 123 (3rd Cir. 1993); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995). The City Council also takes legislative notice of (a) the Report of the Attorney General’s Working Group on the Regulation of Sexually-Oriented Businesses, Minnesota (1989), which concluded that surrounding communities are negatively impacted by 24-hour-a-day or late night operation of adult-oriented businesses; and (b) the analysis presented by Scott Bergthold in his report, Closin’ Time: Effective Regulation of Adult-Oriented Businesses’ Hours of Operation (2000). Additionally, the City Council takes legislative notice of Peep Show Establishments, Police Activity, Public Place and Time: A Study of Secondary Effects in San Diego, California, by Daniel Linz et al. (2004) and Do Peep-shows “Cause” Crime? A response to Linz, Paul, and Yao, by Richard McCleary et al. (2006). Based on these cases, reports and analyses, as well as the findings of this ordinance, the City Council has a reasonable basis to believe and does conclude that the hours of operation provision is necessary in light of the fact that adult-oriented businesses have been found to accompany and aggravate crime and to deplete police time and resources in the late night hours.

V. It is not the intent of the City Council of Modesto in enacting this ordinance or any provision thereof to condone or legitimize the distribution of obscene material, and the City and its Council recognize that state law prohibits the distribution of obscene materials and expect and encourage law enforcement officials to enforce state obscenity statutes against such illegal activities in Modesto.
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W. The City Council does not intend to regulate in any area preempted by California law including, but not limited to, regulation of obscene speech, nor is it the intent of the City Council to preempt regulations of the state Department of Alcoholic Beverage Control (“ABC”).

X. Nothing in this ordinance is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof.

Y. The City Council finds that licensing and operational standards are a legitimate and reasonable means of accountability to ensure that operators and performers and nonperformers employed at adult facilities comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation.

Z. The licensing and operation provisions adopted herein are necessary in order to protect the public health, safety and welfare by providing a mechanism to address the adverse secondary effects associated with the establishment and operation of unregulated or under-regulated adult use businesses.

SECTION 2. ADULT-ORIENTED BUSINESSES, DEFINITIONS
Title 5, Chapter 9 of the Modesto Municipal Code is renamed, “Adult-Oriented Businesses”. Article 1 of Title 5, Chapter 9 is repealed and replaced as set forth below.

TITLE 5
CHAPTER 9
Article 1. General Provisions
5-9.101 Purpose.
5-9.102 Definitions.
5-9.103 Permits required.
5-9.101 Purpose. It is the purpose and intent of this Chapter to regulate the operations of adult-oriented businesses, which tend to have judicially recognized adverse secondary effects on the community, including, but not limited to, increases in crime in the vicinity of adult-oriented businesses; increases in vacancies in residential and commercial areas in the vicinity of adult-oriented businesses; interference with residential property owners’ enjoyment of their properties when such properties are located in the vicinity of adult-oriented businesses as a result of increases in crime, litter, noise, and vandalism; and the deterioration of neighborhoods. Special regulation of these businesses is necessary to prevent these adverse secondary effects and the blighting or degradation of the neighborhoods in the vicinity of adultoriented businesses while at the same time protecting the First Amendment rights of those individuals who desire to own, operate, or patronize adult-oriented businesses. #5..
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It is, therefore, the purpose of this Chapter to establish reasonable and uniform operational standards for adult-oriented businesses.
5-9.102 Definitions. In addition to any other definitions contained in the Municipal Code, the following words and phrases shall, for the purpose of this Chapter, be defined as follows, unless it is clearly apparent from the context that another meaning is intended. Should any of the definitions be in conflict with any current provisions of the Municipal Code, these definitions shall prevail.

A. “Adult arcade” shall mean a business establishment to which the public is permitted or invited and where coin, card or slug operated or electronically, electrically or mechanically controlled devices, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing “specified sexual activities” or “specified anatomical areas.” Such devices shall be referred to as “adult arcade devices.” B. “Adult booth/individual viewing area” shall mean a partitioned or partially enclosed portion of an adult-oriented business used for any of the following purposes:

1. Where a live or taped performance is presented or viewed, where the performances and/or images displayed or presented are distinguished or characterized by their emphasis on matter depicting, describing, or relating to “specified sexual activities” or “specified anatomical areas;” or

2. Where “adult arcade devices” are located.

C. “Adult-oriented business” is synonymous with “adult entertainment business” and shall mean:

1. A business establishment or concern that as a regular and substantial course of conduct operates as an adult retail store, adult motion picture theater, adult arcade, adult cabaret, adult motel or hotel, adult modeling studio; or

2. A business establishment or concern which as a regular and substantial course of conduct offers, sells or distributes “adult-oriented material” or “sexually oriented merchandise,” or which offers to its patrons materials, products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing, or relating to “specified sexual activities” or “specified anatomical areas” but not including those uses or activities which are preempted by state law.

EFFECTIVE DATE: June 6, 2024
go-go dancer or similar dancer whose performance on a regular and substantial basis focuses on or emphasizes the adult cabaret dancer’s breasts, genitals, and/or buttocks, but does not involve exposure of “specified anatomical areas” or depicting or engaging in “specified sexual activities.” “Adult cabaret dancer” does not include a patron.

F. “Adult hotel/motel” shall mean a “hotel” or “motel” (as defined in the Municipal Code) that is used for presenting on a regular and substantial basis images through closed circuit television, cable television, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices that are distinguished or characterized by the emphasis on matter depicting or describing or relating to “specified sexual activities” or “specified anatomical areas.”
G. “Adult live entertainment” shall mean any physical human body activity, whether performed or engaged in, alone or with other persons including, but not limited to, singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, in which: (1) the performer (including, but not limited to, topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar performers) exposes to public view, without opaque covering, “specified anatomical areas;” and/or (2) the performance or physical human body activity depicts, describes, or relates to “specified sexual activities” whether or not the specified anatomical areas are covered.

H. “Adult modeling studio” shall mean a business establishment which provides for any form of consideration, the services of a live human model, who, for the purposes of sexual stimulation of patrons, displays “specified anatomical areas” to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying for such services. “Adult modeling studio” does not include schools maintained pursuant to standards set by the Board of Education of the State of California.

I. “Adult motion picture theater” shall mean a business establishment, with or without a stage or proscenium, where, on a regular and substantial basis and for any form of consideration, material is presented through films, motion pictures, video cassettes, slides, laser disks, digital video disks, holograms, virtual reality devices, or similar electronically-generated reproductions that is characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
J. “Adult-oriented material” shall mean accessories, paraphernalia, books, magazines, laser disks, compact discs, digital video disks, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas.” “Adult oriented material” shall include “sexually oriented merchandise.”
K. “Adult retail store” shall mean a business establishment having as a regular and substantial portion of its stock in trade, “Adult-Oriented material.” #5..
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L. “Establishment of an adult-oriented business” shall mean any of the following:

1. The opening or commencement of any “adult-oriented business” (as defined above) as a new business;

2. The conversion of an existing business, whether or not an “adult-oriented business,” to any “adult-oriented business;”

3. The addition of any “adult-oriented business” to any other existing “adultoriented business;”

4. The relocation of any “adult-oriented business;” or

5. Physical changes that expand the square footage of an existing “adultoriented business” by more than ten percent (10%).

M. “Non-performer” shall mean a person who is an employee or independent contractor of an adult-oriented business who works in that adult-oriented business during regular business hours. This shall not include after-hours workers providing janitorial, trash or similar after hours services.

N. “Owner/permit holder” shall mean any of the following: (1) the sole proprietor of an adult-oriented business; (2) any general partner of a partnership that owns and operates an adult-oriented business; (3) the owner of a controlling interest in a corporation or L.L.C. that owns and operates an adult-oriented business; or (4) the person designated by the officers of a corporation or the members of an L.L.C. to be the permit holder for an adult-oriented business owned and operated by the corporation.

O. “Performer” shall mean a person who is an employee or independent contractor of an adult-oriented business or any other person who, with or without any compensation or other form of consideration, provides “adult-oriented live entertainment” for patrons of an “adultoriented business.” P. “Religious facility” shall mean a structure or facility that is used primarily for religious worship and related religious activities.

Q. “School” shall mean any institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and/or which is maintained pursuant to standards set by the Board of Education of the State of California. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education under the jurisdiction of the California Department of Education. For the purposes of this Chapter, “school” does not include a vocational or professional institution of higher education, including a community or junior college, college, or university.
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R. “Sexually oriented merchandise” shall mean sexually oriented implements, paraphernalia, or novelty items such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity or distinguished or characterized by their emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas.” S. “Specified anatomical areas” shall mean and include any of the following:

1. Less than completely and opaquely covered, and/or simulated to be reasonably anatomically correct, even if completely and opaquely covered human:
(a) genitals, pubic region;
(b) buttocks, anus; or
(c) female breasts below a point immediately above the top of the areola; or

2. Human male genitals in a discernibly turgid state, even if completely or opaquely covered.

T. “Specified sexual activities” shall mean and include any of the following, irrespective of whether performed directly or indirectly through clothing or other covering:

1. Human genitals in a state of sexual stimulation or arousal; and/or

2. Acts of human masturbation, sexual stimulation or arousal; and/or

3. Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; and/or

4. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, or bondage and/or restraints; and/or

5. Human excretion, urination, menstruation, vaginal or anal irrigation; and/or

6. Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast.
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5-9.103. Permits required.

A. All adult-oriented businesses are subject to the adult-oriented business regulatory permit requirements, the adult-oriented business performer permit requirements, the adultoriented business non-performer permit and/or other permit requirements of this Chapter as well as all other applicable ordinances of the City and the laws of the State of California.

B. It shall be unlawful for any person to establish, operate, engage in, conduct, or carry on any adult-oriented business within Modesto unless the person first obtains, and continues to maintain in full force and effect all required permits, including but not limited to an adult-oriented business regulatory permit.

C. Any occurrence of the “establishment of an adult-oriented business,” as defined in this Chapter, shall require a new application for an adult-oriented business regulatory permit and any other applicable permits under this Chapter.

D. All permit requirements under this Chapter shall be subject to the development and operational standards of this Chapter and the underlying zone where the facility is located.

SECTION 3. ADULT ORIENTED BUSINESS OPERATING STANDARDS AND

ADULT-ORIENTED BUSINESS REGULATORY PERMIT
The prior provisions found in Title 5, Chapter 9, Article 2 are repealed and replaced as set forth below.

TITLE 5
CHAPTER 9
Article 2: Adult-Oriented Business Operating Standards and Adult-Oriented Business Regulatory Permit
Sections
5-9.201 Operating standards.
5-9.202 Adult-oriented business regulatory permit required. 5-9.203 Applications.
5-9.204 Investigation and action on application.
5-9.205 Basis for permit denial.
5-9.206 Transfer of adult-oriented business regulatory permit. 5-9.207 Suspension or revocation of permit.
5-9.208 Appeal procedures.
5-9.209 Violations.
5-9.210 Applicability of chapter to existing adult-oriented businesses. 5-9.211 Regulations non-exclusive.
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5-9.201 Operating standards.

A. Hours of operation. It shall be unlawful for any owner, operator, manager, employee or independent contractor of an adult-oriented business to allow such adult-oriented business to remain open for business, or to permit any employee, independent contractor or performer to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 12:00 a.m. (i.e. midnight) and 8:00 a.m. of any day excepting therefrom an “adult-oriented hotel/motel” and excepting therefrom an adultoriented business that has been issued a license from the California Department of Alcoholic Beverage Control (“ABC”) in which case the hours of operation on the ABC license shall govern.

B. Exterior lighting requirements. All exterior areas, including parking lots, of the adult-oriented business shall be illuminated at a minimum of 1.50 foot-candle, maintained and evenly distributed at ground level with appropriate devices to screen, deflect or diffuse the lighting in such manner as to prevent glare or reflected light from creating adverse impacts on adjoining and nearby public and private properties and to avoid night pollution. Inoperable and/or broken lights shall be replaced within twenty-four (24) hours.

C. Interior lighting requirements. All interior areas of the adult-oriented business excepting therefrom adult hotels/motels shall be illuminated at a minimum of 1.00 foot-candle, maintained, and evenly distributed at floor level. Inoperable and/or broken lights shall be replaced within twenty-four (24) hours, excepting therefrom an “adult hotel/motel.” D. Regulation of adult booth/individual viewing area.

1. No adult booth/individual viewing area shall be occupied by more than one individual at a time.

2. Each adult booth/individual viewing area within the adult-oriented business shall be visible from a continuous and accessible main aisle in a public portion of the establishment, and shall not be obscured by any door, curtain, wall, two-way mirror or other device which would prohibit a person from seeing the entire interior of the adult booth/individual viewing area from the main aisle. Any adult-oriented business may have more than one manager station in order to ensure compliance with this regulation. At all times, the manager station(s) shall be maintained to ensure a clear line of sight into the interior of the adult/booth individual viewing area. Further, no one shall maintain any adult booth/individual viewing area in any configuration unless the entire interior wherein the picture or entertainment that is viewed is visible from the manager station(s). The entire body of any patron in any adult booth/individual viewing area must be visible from the main aisle and the manager station(s) without the assistance of mirrors or any other device.

3. No doors are permitted on an adult individual viewing area. No partially or fully enclosed adult booth/individual viewing areas or partially or fully concealed adult booth/individual viewing areas shall be maintained.
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4. No holes or other openings shall be permitted between adult booths/individual viewing areas. Any such hole or opening shall be repaired within twenty-four (24) hours using “pop” rivets to secure metal plates over the hole or opening to prevent patrons from removing the metal plates.

5. No beds, couches, or chairs with a sitting area greater than twenty-four inches (24”) wide shall be permitted in an adult booth/individual viewing area.

E. On-site manager. All adult-oriented businesses shall have a responsible person who shall be at least 18 years of age and shall be on the premises to act as manager at all times during which the business is open. No performer may serve as the manager. The individual(s) designated as the on-site manager shall provide his/her name to the Chief of Police to receive all complaints and be given by the owner and/or operator the responsibility and duty to address and immediately resolve all violations taking place on the premises.

F. Interior of premises. No exterior door or window on the premises of an adultoriented business shall be propped or kept open at any time while the business is open and any exterior windows shall be covered with opaque coverings at all times.

G. Displays of adult materials. All displays of materials characterized or distinguished on matters describing or relating to “specified sexual activities” or “specified anatomical areas,” as defined in this code, shall be completely screened from public view as viewed from adjacent sidewalks or public rights-of-way.

H. Signs. All adult-oriented businesses shall comply with the following sign requirements, in addition to those of the Modesto Municipal Code. Should a conflict exist between the requirements of the Modesto Municipal Code and this subsection, the more restrictive shall prevail.

If an adult-oriented business does not serve alcohol, it shall post a notice prior to entry to the area of public assembly and within ten feet (10′) of every entrance used by customers for access to the establishment, stating that persons below the age of eighteen (18) years of age are prohibited from entering onto the premises or within the confines of the adult-oriented business.

This notice shall be posted on a wall in a place of prominence. The dimensions of the notice shall be no less than six inches (6”) by six inches (6”), with a minimum typeface of 25 points. If the adult-oriented business serves alcohol, it shall comply with all notice and posting requirements of the Alcoholic Beverage Control Department.

I. Regulation of public restroom facilities. If the adult-oriented business provides restrooms for patron use, it shall provide separate restroom facilities for male and female patrons.

The restrooms shall be free from adult material. Only one (1) person shall be allowed in each restroom at any time, unless otherwise required by law, in which case the adult-oriented business shall employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant shall insure that no person of the opposite sex is permitted into the restroom, and that not more than one (1) person is permitted to enter a restroom stall, unless otherwise required by law, and that the restroom #5..
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facilities are used only for their intended sanitary purposes. Access to restrooms for patron use shall not require passage through an area used as a dressing area by performers.

J. Trash. All interior trash cans shall be emptied into a single locked trash bin lined with a plastic bag or with individually bagged trash at least once a day. At least four (4) times a day, the front and rear exteriors of any adult-oriented business, along with the parking lot, shall be inspected for trash and debris and any trash and debris found shall be immediately removed and placed into a single locked trash bin lined with a plastic bag.

K. Adult-oriented business offering adult live entertainment – additional operating requirements. The following additional requirements shall apply to adult-oriented businesses providing adult live entertainment:

1. No person shall perform adult live entertainment for patrons of an adultoriented business except upon a permanently fixed stage at least eighteen inches (18″) above the level of the floor, and surrounded with a three foot (3’) high barrier or by a fixed rail at least thirty inches (30″) in height. No patron shall be permitted on the stage while the stage is occupied by a performer(s) and/or adult cabaret dancer(s). This provision shall not apply to an individual viewing area where the performer is completely separated from the area in which the performer is viewed by an individual by a permanent, floor to ceiling, solid barrier.

2. No performer or adult cabaret dancer shall be within six feet (6’) of a patron, measured horizontally, while the performer or adult cabaret dancer is performing adult live entertainment. While on stage, no performer or adult cabaret dancer shall have physical contact with any patron, and no patron shall have physical contact with any performer or adult cabaret dancer.

3. As to off stage performances, no performer or adult cabaret dancer shall perform “adult live entertainment” off stage. As to an adult cabaret dancer performing off stage, a distance of at least six feet (6’) shall be maintained between the adult cabaret dancer and the patron(s) at all times. During off stage performances, no adult cabaret dancer shall have physical contact with any patron, and no patron shall have physical contact with any adult cabaret dancer.

4. In addition, while on the premises, no performer or adult cabaret dancer shall have physical contact with a patron and no patron shall have physical contact with a performer or adult cabaret dancer, which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the buttocks, perineum, anal region, or female breast with any part or area of any other person’s body either before or after any adult live entertainment or off stage performances by such performer or adult cabaret dancer. Patrons shall be advised of the no touching requirements by signs and, if necessary, by employees, independent contractors, performers, or adult cabaret dancers of the establishment. This prohibition does not extend to incidental touching.

5. Patrons shall be advised of the separation and no touching requirements by signs conspicuously displayed and placed on the barrier between patrons and performers and utilizing red or black printing of letters not less than one inch (1″) in size. And, if necessary, #5..
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patrons shall also be advised of the separation and no touching requirements by employees or independent contractors of the establishment.

6. All employees and independent contractors of the adult-oriented facility, except therefrom performers while performing on the fixed stage, while on or about the premises or tenant space, shall wear at a minimum an opaque covering which covers their specified anatomical areas.

7. Patrons shall not throw money to performers, place monies in the performers’ costumes or otherwise place or throw monies on the stage. If patrons wish to pay or tip performers, payment or tips may be placed in containers. Patrons shall be advised of this requirement by signs conspicuously displayed and placed on the barrier between patrons and performers and utilizing red or black printing of letters not less than one inch (1″) in size. If necessary, patrons shall also be advised of the tipping and gratuity requirements by employees or independent contractors of the adult-oriented business.

8. The adult-oriented business shall provide dressing rooms for performers, that are separated by gender and exclusively dedicated to the performers’ use and which the performers shall use. Same gender performers may share a dressing room. Patrons shall not be permitted in dressing rooms.

9. The adult-oriented business shall provide for performers an entrance/exit to the establishment separate from the entrance/exit used by patrons, which the performers shall use at all times.

10. The adult-oriented business shall provide access for performers between the stage and the dressing rooms that is completely separated from the patrons. If such separate access is not physically feasible, the adult-oriented business shall provide a minimum three foot (3′) wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers capable of (and which actually results in) preventing any physical contact between patrons and performers and the patrons must also be three feet (3′) away from the walk aisle. Nothing in this Section is intended to exempt the adult-oriented business from compliance with the provisions of Title 24 of the California Code of Regulations pertaining to handicapped accessibility.

11. All adult-oriented businesses featuring live entertainment shall employ security guards licensed by the state in order to maintain the public peace and safety, based upon the following standards:
(a) Provide at least one security guard at all times while the business is open.
(b) Provide a minimum of two (2) security personnel or bouncers for each 100 patrons to be on duty at all times during the hours that performances occur. (c) Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of these regulations. Security #5..
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guard(s) shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed and bonded as a security guard as required by applicable provisions of state law. No security guard required pursuant to this subsection shall act as a door person, ticket seller, ticket taker, admittance person, or sole occupant of the manager’s station while acting as a security guard.
(d) Between the hours of 8:00 p.m. and thirty (30) minutes after the established closing time of the facility, security guard(s) shall regularly patrol the parking lot and adjacent outdoor areas of the facility to maintain order therein and prevent any illicit or nuisance activity.
(e) Security guard(s) shall be regularly posted at the doors used by the performers when said doors are in use.

12. The adult-oriented business shall provide a security system that visually records and monitors all parking lot areas.

L. Adult motion picture theater additional operating requirements. The following additional requirements shall apply to adult motion picture theaters:

1. If the theater contains a hall or auditorium area, the area shall comply with each of the following provisions:
(a) Have individual, separate seats, not couches, benches, or the like, to accommodate the maximum number of persons who may occupy the hall or auditorium area; (b) Have a continuous main aisle alongside the seating areas in order that each person seated in the hall or auditorium area shall be visible from the aisle at all times; and
(c) Have a sign posted in a conspicuous place at or near each entrance to the hall or auditorium area which lists the maximum number of persons who may occupy the hall or auditorium area, which number shall not exceed the number of seats within the hall or auditorium area.

M. Employment of and services rendered to persons under the age of eighteen (18) years prohibited; twenty-one (21) if liquor is served.

1. Employees/independent contractors. Employees and independent contractors of an adult-oriented business must be at least eighteen (18) years of age. It shall be unlawful for any owner, operator, manager, partner, director, officer, shareholder with a ten percent (10%) or greater interest, employees, or other person in charge of any adult-oriented business to employ, contract with, or otherwise retain any services in connection with the adultoriented business with or from any person who is not at least eighteen (18) years of age. If liquor is served at the adult-oriented business, employees and independent contractors of the adultoriented business must be at least twenty-one (21) years of age. If liquor is served at the adultoriented business, it shall be unlawful for any owner, operator, manager, partner, director, #5..
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officer, shareholder with a ten percent (10%) or greater interest, employee, or other person in charge of any adult-oriented business to employ, contract with, or otherwise retain any services in connection with the adult-oriented business with or from any person who is not at least twenty-one (21) years of age. And said persons shall exercise reasonable care in ascertaining the true age of persons seeking to contract with, be employed by, or otherwise service the adultoriented business.

2. Patrons. Patrons of an adult-oriented business must be at least eighteen (18) years of age. It shall be unlawful for any owner, operator, manager, partner, director, officer, shareholder with a ten percent (10%) or greater interest, employee, independent contractor, or other person in charge of any adult-oriented business to permit to enter or remain within the adult-oriented business any person who is not at least eighteen (18) years of age. If liquor is served at the adult-oriented business, patrons must be at least twenty-one (21) years of age. If liquor is served at the adult-oriented business, it shall be unlawful for any owner, operator, manager, partner, director, officer, shareholder with a ten percent (10%) or greater interest, employee, independent contractor, or other person in charge of any adult-oriented business to permit to enter or remain within the adult-oriented business any person who is not at least twenty-one (21) years of age. And said persons shall exercise reasonable care in ascertaining the true age of persons entering the adult-oriented business.

3. X-rated movies. The selling, renting and/or displaying of X-rated movies, videotapes, digital video disks (DVDs), compact disks (CDs) and laser disks shall be restricted to persons over eighteen (18) years of age. If an establishment that is not otherwise prohibited from providing access to the establishment to persons under eighteen (18) years of age sells, rents, or displays movies, videos, DVDs, CDs or laser disks that have been rated “X” or rated “NC-17” by the motion picture rating industry (“MPAA”), or which have not been submitted to the MPAA for a rating, and which consist of images that are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas, said movies, videos, DVDs, CDs, and laser disks shall be located in a specific Section of the establishment where these items are not visible to persons under the age of eighteen (18) and from which persons under the age of eighteen (18) shall be prohibited.

4. Inspections. Each owner, operator, manager, employee or independent contractor of an adult-oriented business or other person in charge of an adult-oriented business shall permit representatives of the police department, health department, fire department, community development department, business license division and other city departments, to inspect the adult-oriented business for the purpose of insuring compliance with the laws and operating standards applicable to adult-oriented businesses at any time it is occupied or open for business. Such inspections shall be conducted in a reasonable manner. #5..
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5-9.202 Adult-oriented business regulatory permit required. Every person who proposes to maintain, operate or conduct an adult-oriented business in the City of Modesto shall file an application with the Police Chief upon a form provided by the City of Modesto and shall pay a filing fee, as established by resolution adopted by the City Council from time to time, which shall not be refundable.
5-9.203 Applications.
(a) All applications for an adult-oriented business regulatory permit shall include the following information:
(i) If the applicant is an individual, the individual shall state his or her legal name, including any aliases, address, and submit satisfactory written proof that he or she is at least eighteen (18) years of age.
(ii) If the applicant is a partnership, the partners shall state the partnership's complete name, address, the names of all partners, whether the partnership is general or limited, and attach a copy of the partnership agreement, if any. (iii) If the applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of California, the names and capacity of all officers and directors, the name of the registered corporate agent and the address of the registered agent for service of process. (iv) If the applicant is an individual, he or she shall sign the application. If the applicant is other than an individual, an officer of the business entity or an individual with a ten (10) percent or greater interest in the business entity shall sign the application. (v) If the applicant intends to operate the adult-oriented business under a name other than that of the applicant, the applicant shall file the fictitious name of the adult entertainment business and show proof of registration of the fictitious name. (vi) A description of the type of adult-oriented business for which the permit is requested and the proposed address where the adult-oriented business will operate, plus the names and addresses of the owners and lessors of the adult entertainment business site. (vii) The address to which notice of action on the application is to be mailed. (viii) The names of all employees, independent contractors, and other persons who will perform and are required to obtain an Adult-Oriented Business Performer Permit under Article 3 of this Chapter.
(ix) A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the adult-oriented business. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches.
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(x) A certificate and straight-line drawing prepared within thirty (30) days prior to application depicting the building and the portion thereof to be occupied by the adultoriented business, and: (1) the property line of any other adult-oriented business within five hundred (500) feet of the primary entrance of the adult-oriented business for which a permit is requested; and (2) the property lines of any religious facility, school, park, residential zone or use within three hundred (300) feet of the primary entrance of the adult-oriented business. (xi) A diagram of the off-street parking areas and premises entries of the adultoriented business showing the location of the lighting system required by Section 5-9.201(b). (b) If the Police Chief determines that the applicant has completed the application improperly, the Police Chief shall promptly notify the applicant of such fact and on request of the applicant, grant the applicant an extension of time of ten (10) days or less to complete the application properly. In addition, the applicant may request an extension, not to exceed ten (10) days, of the time for the Police Chief to act on the application. The time period for granting or denying a permit shall be stayed during the period in which the applicant is granted an extension of time.
(c) The fact that an applicant possesses other types of state or City permits or licenses does not exempt the applicant from the requirement of obtaining an adult-oriented business regulatory permit.
5-9.204 Investigation and action on application.
(a) Upon receipt of a completed application and payment of the application and permit fees, the Police Chief shall immediately stamp the application as received and promptly investigate the information contained in the application to determine whether the applicant shall be issued an adult-oriented business regulatory permit. (b) Within thirty (30) days of receipt of the completed application, the Police Chief shall complete the investigation, grant or deny the application in accordance with the provisions of this section, and so notify the applicant as follows:
(i) The Police Chief shall write or stamp "Granted" or "Denied" on the application and date and sign such notation.
(ii) If the application is denied, the Police Chief shall attach to the application a statement of the reasons for denial.
(iii) If the application is granted, the Police Chief shall attach to the application an adult entertainment business regulatory permit.
(iv) The application as granted or denied and the permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the address stated in the application.
(c) The Police Chief shall grant the application and issue the adult-oriented business regulatory permit upon findings that the proposed business meets the locational criteria of #5..
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Section 10-3.303; and that the applicant has met all of the operational standards set forth in 5-

9.201, unless the application is denied for one or more of the reasons set forth in Section 5-9.205.

The permittee shall post the permit conspicuously in the adult-oriented business premises. (d) If the Police Chief grants the application or if the Police Chief neither grants nor denies the application within thirty (30) days after it is stamped as received (except as provided in Section 5-9.203(i)), the applicant may begin operating the adult-oriented business for which the permit was sought, subject to strict compliance with the operating standard. 5-9.205 Basis for permit denial.

The Police Chief shall deny the application for any of the following reasons:
(a) The building, structure, equipment, or location used by the business for which an adult-oriented business regulatory permit is required do not comply with the requirements and standards of the health, zoning, fire and safety laws of the City and State of California, or with the zoning requirements of the Modesto Municipal Code or the operational standards of this Chapter.
(b) The applicant, his or her employee, agent, partner, director, officer, shareholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for an adult entertainment business regulatory permit. (c) An applicant is under eighteen (18) years of age.
(d) The required application fee has not been paid.
5-9.206 Transfer of adult-oriented business regulatory permit. (a) A permittee shall not operate an adult-oriented business under the authority of an adult-oriented business regulatory permit at any place other than the address of the adult-oriented business stated in the application for the permit.
(b) A permittee shall not transfer ownership or control of an adult-oriented business or transfer an adult-oriented business regulatory permit to another person unless and until the transferee obtains an amendment to the permit from the Police Chief stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the Police Chief in accordance with Sections 5-9.202 and 5-9.203, accompanies the application with a transfer fee in an amount set by resolution of the City Council, the Police Chief determines in accordance with Section 5-9.204 that the transferee would be entitled to the issuance of an original permit and where the City’s zoning provisions continue to allow for an adult-oriented use at that business address.
(c) No permit may be transferred when the Police Chief has notified the permittee that the permit has been or may be suspended or revoked. (d) Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and the permit shall be deemed revoked. #5..
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5-9.207 Suspension or revocation of adult-oriented business regulatory permit.

A. On determining that grounds for permit suspension or revocation exist, the Police Chief shall furnish written notice of the proposed suspension or revocation to the permit holder.

Such notice shall set forth the time and place of a hearing and the ground or grounds upon which the hearing is based, the pertinent Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the permit holder, or shall be delivered to the permit holder personally, at least ten (10) days prior to the hearing date. Hearings pursuant to this Section shall be noticed in accordance with California Government Code §§ 65091 and 65905 and conducted by the Police Chief or his/her designee, which may include a third party hearing officer. Hearings pursuant to this Section shall be conducted in accordance with procedures established by the Police Chief or his/her designee but, at a minimum, shall include the following:

1. All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel.

2. The Police Chief or his/her designee shall not be bound by the formal rules of evidence.

3. Any hearing under this Section may be continued for a reasonable time for the convenience of a party or a witness at the request of the permit holder. Extensions of time or continuances sought by a permit holder shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on permit suspensions or revocations.

4. The Police Chief’s or his/her designee’s decision may be appealed in accordance with Section 5-9.209.

B. A permit may be suspended or revoked based on the following causes arising from the acts or omissions of the permit holder, or an employee, independent contractor, partner, director, or manager of the permit holder:

1. The building, structure, equipment, or location used by the adult-oriented business fails to comply with all provisions of these regulations and this Section relating to adultoriented businesses, including the adult-oriented business operational standards contained herein of Title 5, Chapter 9 and the zoning requirements of Section 10-3.303, Title 10, Chapter 3, Article 3, of the Modesto Municipal Code.

2. The permit holder has failed to obtain or maintain all required City licenses.

3. The permit holder has made any false, misleading, or fraudulent statement of material fact in the application for an adult-oriented business permit.

4. The permit is being used to conduct an activity different from that for which it was issued.
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5. That an individual employed by, or performing in, the adult-oriented business (whether classified as an employee or independent contractor) has been convicted of two (2) or more sex-related offenses that occurred in or on the permitted premises within a twelve (12) month period and was employed by, or performing in, the adult-oriented business at the time the offenses were committed.

6. That the use for which the approval was granted has ceased to exist or has been suspended for six (6) months or more.

7. That the transferee/new owner of an adult-oriented business or adultoriented business permit failed to comply with the requirements of this Chapter or is unable to meet the requirements to hold a permit.

8. The permit holder, partner, director, or manager has knowingly allowed or permitted, or has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the adult-oriented business; or a permittee has been convicted of violating any of the following state laws on the premises of the adult-oriented business:
(a) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation.
(b) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur. (c) Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code. (d) The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of sections 315, 316, 318 or subdivision (b) of the Section 647(b) of the California Penal Code.
(e) Any act constituting a violation of provisions in the California Penal Code relating to obscene matter or distribution of harmful matter to minors including, but not limited to sections 311 through 313.4.
(f) Any act constituting a felony involving the sale, use, possession, or possession for sale of any controlled substance specified in sections 11054, 11055, 11056, 11057, or 11058 of the California Health & Safety Code.
(g) An act or omission in violation of any of the requirements of this Chapter if such act or omission is with the knowledge, authorization, or approval of the permit holder or is as a result of the permit holder’s negligent supervision of the employees or independent contractors of the adult-oriented business. This includes the allowance of activities that are or become a public nuisance which includes the disruptive conduct of business patrons whether on or immediately off the premises where such patrons disturb the peace, obstruct #5..
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traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property.

C. After holding the hearing in accordance with the provisions of this section, if the Police Chief or his/her designee finds and determines that there are grounds for suspension or revocation, the Police Chief or his/her designee shall impose one of the following:

1. Suspension of the permit for a specified period not to exceed six (6) months; or

2. Revocation of the permit.

The Police Chief or his/her designee shall render a written decision that shall be hand delivered or overnight mailed to the permit holder within five (5) days of the public hearing.

D. In the event a permit is revoked pursuant to this section, another adult-oriented business permit to operate an adult-oriented business shall not be granted to the permittee or an entity related to the permittee within twelve (12) months after the date of such revocation. 5-9.208 Appeal procedures.

A. After approval, denial, suspension, or revocation of an adult-oriented business regulatory permit, any affected person may appeal the decision to the City Council in writing within ten (10) days after the written decision.

B. Consideration of an appeal of the decision shall be at a public hearing, notice of which shall be given pursuant to California Government Code §§ 65091 and 65905 and which hearing shall occur within thirty (30) days of the filing or initiation of the appeal.

C. The City Council action on the appeal of the decision shall be by a majority vote of the members present and upon the conclusion of the de novo public hearing, the City Council shall grant or deny the appeal. The City Council’s decision shall be final and conclusive and shall be rendered in writing within four (4) city business days of the hearing, such written decision to be mailed to the party appealing the Police Chief’s decision.

D. In reaching its decision, the City Council shall not be bound by the formal rules of evidence.

E. Notwithstanding any provisions in this Section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this Section or may request a continuance regarding any decision or consideration by the City of the pending appeal. Extensions of time sought by applicants shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on applications.
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F. Failure of the City Council to render a decision to grant or deny an appeal of a permit denial within the time frames established by this Section shall be deemed to constitute an approval of the adult-oriented business regulatory permit.

G. The time for a court challenge to a decision of the City Council is governed by California Code of Civil Procedure § 1094.8.

H. Notice of the City Council’s decision and its findings shall include citation to California Code of Civil Procedure § 1094.8.

I. Any applicant or permit holder whose permit has been denied pursuant to this Section shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure § 1094.8.
5-9.209 Violations.

A. Any owner, operator, manager, employee or independent contractor of an adultoriented business violating or permitting, counseling, or assisting the violation of any of these provisions regulating adult-oriented businesses shall be subject to any and all civil remedies, including revocation of its adult-oriented business regulatory permit. All remedies provided herein shall be cumulative and not exclusive. Any violation of these provisions shall constitute a separate violation for each and every day during which such violation is committed or continued.

B. In addition to the remedies set forth in subsection (a) above, any adult-oriented business that is operating in violation of these provisions regulating adult-oriented businesses is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation.

C. Notwithstanding any other provision of the Modesto Municipal Code, the City does not impose a criminal penalty for violations of the provisions of this ordinance related to sexual conduct or activities.
5-9.210 Applicability of chapter to existing adult-oriented businesses.

A. Licensing requirements. Any adult-oriented business operating in the City prior to the effective date of this Chapter must apply for a permit under this Chapter.

B. Interior configuration requirements. Any pre-existing adult-oriented business that is required to, but does not, have interior configurations or stages that meet at least the minimum requirements of Section 5-9.201 shall have ninety (90) days from the effective date of this Chapter to conform its premises to said requirements
5-9.211 Regulations non-exclusive. The provisions of this Chapter regulating adult-oriented businesses are not intended to be exclusive, and compliance therewith shall not excuse non-compliance with any other provisions of the Municipal Code and/or any other regulations pertaining to the operation of businesses as adopted by the City Council of Modesto. #5..
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SECTION 4. ADULT-ORIENTED BUSINESS PERFORMER PERMIT
The prior provisions found in Title 5, Chapter 9, Article 2 regulating adult-oriented business performer permits are hereby revised and renumbered into Article 3 and former Article 3 is repealed and replaced as set forth below.

TITLE 5
CHAPTER 9
Article 3: Adult-Oriented Business Performer Permit
Sections
5-9.301 Purpose.
5-9.302 Adult-oriented business performer permit.
5-9.303 Investigation and action on adult-oriented business performer permit. 5-9.304 Revocation/suspension/denial of adult-oriented business performer permit. 5-9.305 Display of identification cards.
5-9.306 Adult-oriented business performer permit non-transferable. 5-9.307 Violations.
5-9.308 Regulations non-exclusive.
5-9.301 Purpose. It is the purpose and intent of this Chapter to provide for the licensing of adult-oriented business performers in order to promote the health, safety, and general welfare of the City. The goals of the performer licensing provisions are (1) to protect minors by requiring that all performers be over the age of eighteen (18) years; (2) to assure the correct identification of persons performing in adult-oriented businesses; (3) to enable the City to deploy law enforcement resources effectively; and (4) to detect and discourage the involvement of crime in adult-oriented businesses by precluding the licensing of performers with certain sex related convictions within a prior time period. It is neither the intent nor the effect of these regulations to invade the privacy of performers or to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor the effect of these regulations to restrict or deny access by adult-oriented businesses to communicative materials or to deny access by the distributors or exhibitors of adult-oriented businesses to their intended lawful market.

Nothing in these regulations is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof.

The definitions contained in Chapter 5-9.102 of the Modesto Municipal Code, shall govern for purposes of these regulations.
5-9.302 Adult-oriented business performer permit.

A. No performer shall be employed, hired, engaged, or otherwise retained in an adult-oriented business to participate in or give any live performance displaying “specified anatomical areas” or “specified sexual activities” without first having a valid adult-oriented business performer permit issued by the City.
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B. The Police Chief or his/her designee shall issue, deny, and renew adult-oriented business performer permits in accordance with these regulations.

C. Permit applicants shall file a written, signed, and verified application or renewal application on a form provided by the Police Chief. Such application shall contain the following information:

1. The permit applicant’s legal name and any other names (including “stage names” and aliases) used by the applicant.

2. Principal place of residence.

3. Age, date, and place of birth.

4. Height, weight, hair and eye color, and tattoo descriptions and locations.

5. Each present and/or proposed business address(es) and telephone number(s) of the establishments at which the applicant intends to work.

6. Driver’s license or identification number and state of issuance.

7. Social security number.

8. Satisfactory written proof that the permit applicant is a least eighteen (18) years of age.

9. The permit applicant’s fingerprints on a Livescan form provided by the Modesto Police Department and two color two-by-two inch photographs clearly showing the applicant’s face. Any fees for the photographs and fingerprints shall be paid by the applicant.

Fingerprints and photographs shall be taken within six (6) months of the date of application.

10. Whether the permit applicant has pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of conviction, whichever is the later date, if the conviction is a felony; or (c) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four (24) month period.

11. If the application is made for the purpose of renewing a permit, the permit applicant shall attach a copy of the permit to be renewed. #5..
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D. The information provided above in subsection C of this Section, which is personal, private, confidential, or the disclosure of which could expose the applicant to the risk of harm, will not be disclosed under the California Public Records Act or the open government ordinance. Such information includes, but is not limited to, the applicant’s residence address, telephone number, date of birth, age, driver’s permit, and social security number. The City Council in adopting the application and licensing and/or permit system set forth herein has determined in accordance with Government Code § 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant’s privacy, confidentiality or security interests are protected. The City Clerk shall cause the same to be redacted from any copy of a completed application form made available to any member of the public, the above-mentioned information.

E. The completed application shall be accompanied by a non-refundable application fee and an annual permit fee. The amount of such fees shall be as set forth in the schedule of fees established by resolution from time to time by the City Council.

F. The completeness of an application shall be determined within six (6) business hours by the Police Chief. The Police Chief or his/her designee must be available during normal working hours Monday through Friday to accept adult-oriented business performer applications.

If the Police Chief determines that the application is incomplete, the Police Chief shall immediately inform the applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Upon receipt of a completed adultoriented business performer application and payment of the permit fee specified in Section e. above, the Police Chief shall immediately issue a temporary permit which shall expire of its own accord ten (10) business days from the date of issuance and shall only be extended as provided in Section 5-9.303(b).

G. This temporary adult-oriented business performer permit shall authorize a performer to commence performance at an adult-oriented business establishment that possesses a valid adult-oriented business permit authorized to provide live entertainment.

H. The fact that a permit applicant possesses other types of state or City permits or licenses does not exempt the permit applicant from the requirement of obtaining an adultoriented business performer permit. 5-9.303 Investigation and action on application for adult-oriented business performer permit.

A. Upon submission of a completed application, payment of permit fees, and issuance of a temporary adult-oriented business performer permit, the Police Chief shall immediately stamp the application “Received” and in conjunction with City staff, including members of the Police Department, shall promptly investigate the information contained in the application to determine whether the permit applicant should be issued an adult-oriented business performer permit.

B. Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The Police Chief’s decision to issue or deny the adult-oriented business #5..
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performer permit shall be made within ten (10) business days from the date the temporary permit was issued and in no case shall the decision to issue or deny the permit application be made after the expiration of the temporary permit. In the event the Police Chief is unable to complete the investigation within ten (10) business days, he/she shall promptly notify the permit applicant and extend the temporary permit for up to ten (10) additional business days. In no case shall the investigation exceed twenty (20) days, nor shall the decision to grant or deny the permit application be made after the expiration of the temporary permit.

C. The Police Chief shall render a written decision to issue or deny the permit within the foregoing ten (10) day time period set forth above. Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing ten (10) day period or twenty (20) day period if extended pursuant to Section b. above, and sent to the address provided by the applicant in the application.

D. The Police Chief shall notify the applicant as follows:

1. The Police Chief shall write or stamp “Issued” or “Denied” on the application and date and sign such notation.

2. If the application is denied, the Police Chief shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the permit applicant may appeal the denial to the City Manager. The City Manager or a designated hearing officer shall conduct a hearing as described in Section 5-9.304.

3. If the application is issued, the Police Chief shall attach to the application an adult-oriented business performer permit.

4. The application, as acted upon, and the permit, if any, shall be placed in the United States mail, first class postage prepaid, or hand delivered, addressed to the permit applicant at the residence address stated in the application in accordance with the time frames established herein.

E. The Police Chief shall issue the permit unless the application is denied based on one of the grounds set forth in subsection f. of this section.

F. The Police Chief shall deny the application based on any of the following grounds:

1. The permit applicant has made false, misleading, or fraudulent statements of material fact in the application for an adult-oriented business performer permit.

2. The permit applicant is under eighteen (18) years of age.

3. The adult-oriented business performer permit is to be used for performing in a business prohibited by laws of the state or city or a business that does not have a valid adultoriented business regulatory permit. #5..
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4. The permit applicant, has pled guilty, nolo contendere or been convicted of an offense classified by this or any other state as a sex related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor, or (b) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four (24) month period.

G. Failure of the Police Chief to render a decision on the permit within the time frames established by this Section shall be deemed to constitute an approval.

H. Each adult-oriented business performer permit, other than the temporary permit described in Section 5-9.302(f), shall expire one (1) year from the date of issuance and may be renewed only by filing with the Police Chief a written request for renewal, accompanied by the annual permit fee and a copy of the permit to be renewed. If said application conforms to the previously approved application and there has been no change with respect to the permit holder being convicted of any crime classified by this or any other state as a sex related offense, the Police Chief or his/her designee shall renew the permit for one (1) year. Any plea to or conviction of a sex related offense requires the renewal application to be set for hearing before the Police Chief in accordance with the provisions of this section. The request for renewal shall be made at least thirty (30) days before the expiration date of the permit. Applications for renewal shall be acted upon as provided herein for action upon applications for permit. The Police Chief’s denial of a renewal application is subject to the hearing provisions of Section 5-

9.304.
5-9.304 Revocation/suspension/denial of adult-oriented business performer permit.

A. On determining that grounds for denial of a permit, permit revocation or suspension exist, the Police Chief or his/her designee shall furnish written notice of the proposed action to the applicant/permit holder. Such notice shall set forth the time and place of a hearing before the City Manager or a designated hearing officer and the ground or grounds upon which the hearing is based, the pertinent Modesto Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant/permit holder, or shall be delivered to the permit holder personally, at least ten (10) days prior to the hearing date.

B. On determining that grounds for denial of a permit exist, the Police Chief shall furnish written notice of the proposed action to the applicant/permit holder. The decision of the Police Chief shall be appealable to the City Manager by filing a written request for a hearing with the City Clerk within fifteen (15) days following the day of mailing of the Police Chief’s decision and paying the fee for appeals provided under this code. All such appeals shall be filed with the City Clerk and shall be public records. The City Manager shall issue a notice which shall set forth the time and place of a hearing before the City Manager or a designated hearing officer which is within thirty (30) days from the date the appeal was filed and the ground or #5..
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grounds upon which the hearing is based, the pertinent Modesto Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant/permit holder, or shall be delivered to the permit holder personally, at least ten (10) days prior to the hearing date.

C. The applicant shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The City Manager or designated hearing officer shall not be bound by the formal rules of evidence. Any hearing under this Section may be continued for a reasonable time for the convenience of a party or a witness at the request of the permittee. Extensions of time or continuances sought by a permittee/appellant shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on permit suspensions or revocations.

D. A permit may be revoked, based on any of the following causes arising from the acts or omissions of the permit holder:

1. The permittee has made any false, misleading, or fraudulent statement of material fact in the application for a performer license.

2. The permittee has pled guilty, nolo contendere or been convicted of an offense classified by this or any other state as a sex related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor, or (b) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four (24) month period.

3. Failure to comply with the operating standards of Chapter 9, Article 2 or the requirements of this Chapter.

E. After holding the hearing in accordance with the provisions of this section, if the City Manager or designated hearing officer finds and determines that there are grounds for revocation or suspension, the City Manager or designated hearing officer shall revoke or suspend the permit. After holding the hearing in accordance with the provisions of this Section on the denial of a permit, the City Manager or designated hearing officer shall decide to sustain the decision, modify the decision or order the decision stricken and issue such order as the City Manager or designated hearing officer finds is supported by the entire record. The City Manager or designated hearing officer shall render a written decision that shall be hand delivered or overnight mailed to the applicant/permit holder within four (4) working days of the hearing. The City Manager or designated hearing officer’s failure to render such a decision within this time frame shall constitute an approval or reinstatement of the permit. #5..
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F. In the event a permit is revoked pursuant to this section, another adult-oriented business performer permit shall not be granted to the permittee within twelve (12) months after the date of such revocation.

G. The decision of the City Manager or designated hearing officer shall be final.

H. The time for a court challenge to a decision of the City Manager or designated hearing officer is governed by California Code of Civil Procedure § 1094.8.

Notice of the City Manager’s or designated hearing officer’s decision and his/her findings shall include citation to California Code of Civil Procedure § 1094.8.

I. Any applicant or permit holder whose permit has been denied, suspended, or revoked, pursuant to this Section shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure § 1094.8. 5-9.305 Display of identification cards. The Police Chief shall provide each adultoriented business performer required to have a permit pursuant to this Chapter with an identification card containing the name, address, photograph, and permit number of such performer. Every performer shall have such card available for inspection at all times during which he or she is on the premises of the adult-oriented business at which he or she performs. 5-9.306 Adult-oriented business performer permit non-transferable. No adultoriented business performer permit may be sold, transferred, or assigned by any permittee or by operation of law, to any other person, group, partnership, corporation, or any other entity. Any such sale, transfer, or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the adult-oriented business performer permit, and the permit thereafter shall be null and void.
5-9.307 Violations.

A. Any permittee violating or causing the violation of any of these provisions regulating adult-oriented business performer permits shall be subject to permit revocation/suspension pursuant to Section 5-9.304 above, a fine of not more than one thousand dollars ($1,000.00) pursuant to California Government Code §§ 36900 and 36901, and any and all other civil remedies. All remedies provided herein shall be cumulative and not exclusive.

Any violation of these provisions shall constitute a separate violation for each and every day during which such violation is committed or continued.

B. In addition to the remedies set forth in Section a., above, any violation of any of these provisions regulating adult-oriented business performer permits is hereby declared to constitute a public nuisance and may be abated or enjoined.

C. The restrictions imposed pursuant to this Chapter are part of a regulatory licensing process, and do not constitute a criminal offense. Notwithstanding any other provision of the Modesto Municipal Code, the City does not impose a criminal penalty for violations of the provisions of this ordinance related to sexual conduct or activities. #5..
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5-9.308 Regulations non-exclusive. The provisions of this Chapter regulating adult-oriented business performer permits are not intended to be exclusive, and compliance therewith shall not excuse non-compliance with any other regulations pertaining to the licensing provisions as adopted by the City Council of Modesto.

SECTION 5. ADULT-ORIENTED BUSINESS NON-PERFORMER PERMIT The prior provisions found in Title 5, Chapter 9, Article 4 (Miscellaneous Provisions) are hereby repealed and replaced with Article 4 (Adult-Oriented Business Non-Performer Permit) as set forth below.

TITLE 5
CHAPTER 9
Article 4: Adult-Oriented Business Non-Performer Permit Sections:
5-9.401 Purpose.
5-9.402 Adult-oriented business non-performer permit.
5-9.403 Investigation and action on adult-oriented business non-performer permit. 5-9.404 Denial of adult-oriented business non-performer permit. 5-9.405 Violations.
5-9.406 Regulations non-exclusive.
5-9.401 Purpose. It is the purpose and intent of this Chapter to require certain background checks on non-performers who work in adult-oriented businesses during regular business hours to promote the health, safety, and general welfare of the City. The goals of these non-performer employee provisions are (1) to protect minors by requiring that all non-performers regularly employed be over the age of eighteen (18) years; (2) to assure the correct identification of persons working in adult-oriented businesses; (3) to enable the City to deploy law enforcement resources effectively; and (4) to detect and discourage the involvement of crime in adult-oriented businesses by precluding the employment of non-performers with certain sex related convictions within a prior time period. It is neither the intent nor the effect of these regulations to invade the privacy of adult-oriented business employees or to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor the effect of these regulations to restrict or deny access by adult-oriented businesses to communicative materials or to deny access by the distributors or exhibitors of adult-oriented businesses to their intended lawful market. Nothing in these regulations is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof.

The definitions contained in Chapter 5-9.102 of the Modesto Municipal Code, shall govern for purposes of these regulations.
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5-9.402 Adult-oriented business non-performer permit.

A. No individual who works as a non-performer in an adult-oriented business shall be employed, hired, engaged, or otherwise retained in an adult-oriented business without first submitting to a background check as provided below.

B. Individuals who wish to work as non-performers in an adult-oriented business shall file a written, signed, and verified application or renewal application on a form provided by the Police Chief. Such application shall contain the following information:

1. The employee applicant’s legal name and all used aliases.

2. Date of birth.

3. Driver’s license or identification number and state of issuance or other state identification which confirms the name of the applicant.

4. The permit applicant’s fingerprints on a Livescan form provided by the Modesto Police Department. Any fees for fingerprints shall be paid by the applicant.

Fingerprints shall be taken within one (1) month of the date of application.

5. Whether the non-performer employee applicant has pled guilty or pled nolo contendere or been convicted of an offense classified by this or any other state as a sex related offense and (a) less than two (2) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) less than five (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of conviction, whichever is the later date, if the conviction is a felony; or (c) less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four (24) month period. Any applicant who admits of a recent prior sex related offense as specified above shall be denied employment in an adult-oriented business during the applicable time period for disqualification called out herein.

C. The information provided above in subsection b. of this Section which is personal, private, confidential, or the disclosure of which could expose the non-performer employee to the risk of harm will not be disclosed under the California Public Records Act. Such information includes, but is not limited to, the applicant’s mailing address, date of birth, age, driver’s license number, and social security number. The City Council in adopting the application system set forth herein has determined in accordance with Government Code § 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant’s privacy, confidentiality and/or security interests are protected. The City Clerk shall cause the above-mentioned information to be redacted from any copy of a completed application form made available to any member of the public.
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D. The Police Chief or his/her designee must be available during normal working hours Monday through Friday to accept adult-oriented business non-performer employee applications. The Police Chief or his/her designee shall determine if an application is complete within five (5) business days. If the Police Chief determines that the application is incomplete, the Police Chief shall immediately inform the applicant of such fact and the reasons therefore, including any additional information necessary to render the application complete. Upon receipt of a completed adult-oriented business non-performer employee application in which the applicant denies any recent conviction of a sexual offense as specified in Section 5-9.402(b)(v) above, the Police Chief or his/her designee shall permit temporary employment of such applicant in an adult-oriented business that possesses a valid adult-oriented business permit. 5-9.403 Investigation and action on adult-oriented business non-performer permit.

A. Upon submission of a completed non-performer work application, by an individual who wishes to work in an adult-oriented business during regular business hours, the Police Chief or his/her designee shall immediately stamp the application “Received” and in conjunction with City staff, including members of the Police Department, shall promptly investigate the information contained in the application to determine whether the non-performer employee applicant may be permitted to work in an adult-oriented business pursuant to the disqualifying terms of Section 5-9.402 above.

B. Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The Police Chief’s determination of any violation of Section 5-9.402 shall be made within ten (10) business days from the date the non-performer employment application is filed with the Police Chief. In the event the Police Chief is unable to complete the investigation within ten (10) business days, he/she shall promptly notify the non-performer employment applicant. In no case shall the investigation exceed thirty (30) days.

C. The Police Chief shall render a written decision to authorize or preclude a nonperformer employee’s employment in a validly permitted adult-oriented business during regular business hours within the foregoing ten (10) day time period set forth in Section b., above. Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing ten (10) day period or thirty (30) day period if extended, at the address provided by the applicant in the application. Notice of such decision shall also be mailed first class postage prepaid or hand delivered to the owner or management of any adult-oriented business a nonperformer employee has applied to for employment within the time frame specified above for notification to the applicant.

D. The Police Chief shall notify the applicant as follows:

1. The Police Chief shall write or stamp “Issued” or “Denied” on the application and date and sign such notation.

2. If the application for work in an adult-oriented business during regular business hours is denied, the Police Chief shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the applicant may appeal the denial to #5..
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the City Manager. The City Manager or a designated hearing officer shall conduct a hearing as described in Section 5-9.404.

E. The Police Chief shall issue the application for non-performer work in an adultoriented business unless the application is denied based on one of the grounds set forth in subsection f. of this section.

F. The Police Chief shall deny the application of a non-performer to work in an adult-oriented business based on any of the following grounds:

1. The non-performer work applicant has made a false, misleading, or fraudulent statement of material fact in the application for work in a validly permitted adultoriented business during regular business hours.

2. The non-performer work applicant is under eighteen (18) years of age.

3. The non-performer seeks work in a business prohibited by laws of the state or city or in a business that does not have a valid adult-oriented business permit.

4. The non-performer work applicant has pled guilty, or pled nolo contendere or been convicted of an offense classified by this or any other state as a sex related offense and (a) less than two (2) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor, or (b) less than five (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four (24) month period.

G. Failure of the Police Chief or his/her designee to render a decision on the application of a non-performer for work in an adult-oriented business within the time frames established by this Section shall be deemed to constitute an approval of the non-performer work application.

H. Each non-performer work applicant must annually renew his/her work application, with the Police Chief or his/her designee by a written request for work renewal. If said application conforms to the previously approved application and there has been no change with respect to the applicant having been convicted of any crime classified by this or any other state as a sex related offense, the Police Chief or his/her designee shall renew the applicant’s availability for work in an adult-oriented business during regular business hours for one (1) year.

Any plea to or conviction of a sex related offense requires the renewal application to be set for hearing before the Police Chief in accordance with the provisions of this section. The request for renewal shall be made at least thirty (30) days before the expiration date of the permit.

Applications for renewal shall be acted upon as provided herein for action upon an initial application for non-performer work in an adult-oriented business during regular business hours. #5..
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The Police Chief’s denial of a renewal application is subject to the hearing provisions of Section 5-9.404.
5-9.404 Denial of adult-oriented business non-performer permit.

A. On determining that grounds exist to deny work to a non-performer in an adultoriented business during regular business hours, the Police Chief or his/her designee shall furnish written notice of the proposed action to the applicant. The decision of the Police Chief shall be appealable to the City Manager by filing a written request for a hearing with the City Clerk within fifteen (15) days following the day of mailing of the Police Chief’s decision and paying the fee for appeals provided under this code. All such appeals shall be filed with the City Clerk and shall be public records. The City Manager shall issue a notice which shall set forth the time and place of a hearing before the City Manager or a designated hearing officer which is within thirty (30) days from the date the appeal was filed and the ground or grounds upon which the hearing is based, the pertinent Modesto Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant, or shall be delivered to the permit holder personally, at least ten (10) days prior to the hearing date.

B. The applicant shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The City Manager or designated hearing officer shall not be bound by the formal rules of evidence. Any hearing under this Section may be continued for a reasonable time for the convenience of a party or a witness at the request of the permittee. Extensions of time or continuances sought by an applicant/appellant shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on denial of an employment application of a non-performer employee.

C. The application/request of a non-performer to work in an adult-oriented business may be revoked, based on any of the following causes arising from the acts or omissions of the applicant:

1. The applicant has made any false, misleading, or fraudulent statement of material fact in the application for work as a non-performer in an adult-oriented business during regular business hours.

2. The applicant has pled guilty, pled nolo contendere or been convicted of an offense classified by this or any other state as a sex related offense and (a) less than two (2) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor, or (b) less than five (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four (24) month period. #5..
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EFFECTIVE DATE: June 6, 2024

3. Failure to comply with the operating standards of Chapter 9, Article 2 or the requirements of this Chapter.

D. After holding the hearing in accordance with the provisions of this section, if the City Manager or designated hearing officer finds and determines that there are grounds to deny a non-performer work in an adult-oriented business during regular business hours, the City Manager or designated hearing officer shall deny the applicant work in an adult-oriented business establishment. After holding the hearing in accordance with the provisions of this Section on renewal of a work application, the City Manager or designated hearing officer shall decide to sustain the decision, modify the decision or order the decision stricken and issue such order as the City Manager or designated hearing officer finds is supported by the entire record. The City Manager or designated hearing officer shall render a written decision that shall be hand delivered or overnight mailed to the applicant and any adult-oriented business where the applicant is working within four (4) working days of the hearing. The City Manager or designated hearing officer’s failure to render such a decision within this time frame shall constitute approved renewal of the applicant’s work during regular business hours in a validly permitted adultoriented business.

E. If the continuing work of a non-performer is denied pursuant to this section, the applicant may reapply for work with an adult-oriented business twelve (12) months after the date of such denial.

F. The decision of the City Manager or designated hearing officer shall be final. 5-9.405 Violations. Any violation of any of these provisions regulating adultoriented business non-performer work applications is hereby declared to constitute a public nuisance and may be abated or enjoined.
5-9.406 Regulations non-exclusive. The provisions of this Chapter regulating adult-oriented business non-performer employment applications are not intended to be exclusive, and compliance therewith shall not excuse non-compliance with any other regulations pertaining to the adult-oriented business licensing provisions as adopted by the City Council of Modesto.

SECTION 6. ESCORT PERMIT
The prior provisions found in Title 5, Chapter 9, Article 2 regulating escorts and figure models are hereby revised and renumbered into Article 5 as set forth below.

TITLE 5
CHAPTER 9
Article 5: Escort Permit
Sections:
5-9.501 Additional permits: escort.
5-9.502 Application for escort permit.
5-9.503 Issuance and denial of permit; appeal.
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5-9.504 Revocation or suspension of permit.
5-9.505 Term of permit.
5-9.501 Additional permits: escort.
(a) No person shall act as an escort unless an escort permit is first obtained. For purposes of this Article “escort” shall mean a person who for pecuniary compensation, monetary or other consideration, hire or reward, (1) escorts or accompanies others to or about social affairs, entertainment, or places of amusement, or (2) keeps company with others about any place or public resort or within any private quarters.
(b) The issuance of a business license pursuant to the Modesto Municipal Code shall not authorize acting as an escort until the necessary regulatory permit has been lawfully granted. 5-9.502 Application for escort permit.
(a) An applicant for an escort permit shall make an application under penalty of perjury to the Police Chief or his authorized representative upon a form provided by the City of Modesto. A nonrefundable fee, as established by resolution adopted by the City Council from time to time, shall be paid to the City of Modesto to reimburse the City for the cost of the investigation. A copy of the receipt issued by the City of Modesto Finance Department shall accompany the application. The permit fee required under this section is in addition to any other license or permit fee required by the Modesto Municipal Code. (b) The application for permit does not authorize the applicant to act as an escort until such permit has been granted.
(c) Every application submitted to the Police Chief shall include the following information:
(i) The applicant’s full name, any other names used, date of birth, California driver’s license number or California identification number, social security number, present residence address, telephone number, gender, height, weight, color of hair, and color of eyes.
(ii) Previous two (2) residence addresses of the applicant and the inclusive dates at each address.
(iii) The applicant’s business, occupation, and employment history for five (5) years preceding the date of application and inclusive dates of same. (iv) The permit history of the applicant; whether such person ever had any escort or adult performer permit or license issued to him or her by any other public entity in this state; the date of issuance of any such permit or license, whether any such permit or license has ever been revoked or suspended; and if any such license or permit has been revoked orsuspended, the reason therefor.
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EFFECTIVE DATE: June 6, 2024
(v) All convictions for any crimes involving conduct which requires registration under any state law similar to and including California Penal Code § 290, or of conduct which is a violation of the provisions of any state laws similar to and including, California Penal Code §§ 243.4, 261, 261.5, 262, 266a, 266b, 266c, 266d, 266e, 266f, 266g, 266h, 266i, 266j, 267, 309, 311.2, 311.3, 311.4, 311.5, 311.6, 311.10, 311.11, 313.1, 314, 315, 316, 318, 647(a), 647(b), 647(d), or 647.6.
(vi) Any offense requiring registration under provisions of Section 11590 of the California Health and Safety Code; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing, giving away, of a controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code, or as those sections may thereafter be amended or renumbered. (vii) Whether such person is or has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other jurisdiction to engage in prostitution in such other jurisdiction. If any person mentioned in this subsection has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other state to engage in prostitution, a statement shall be submitted giving the place of such registration, licensing or legal authorization, and the inclusive dates during which such person was so licensed, registered, or authorized to engage in prostitution. (viii) Written proofthat the applicant is at least eighteen (18) years of age. (ix) A complete set of fingerprints.
(x) A current photograph.
(xi) Authorization for the City of Modesto, its agents, and employees to seek information and conduct an investigation into the truth of the statements set forth in the application.
(d) The information provided above in subsection C of this Section, which is personal, private, confidential, or the disclosure of which could expose the applicant to the risk of harm, will not be disclosed under the California Public Records Act or the open government ordinance. Such information includes, but is not limited to, the applicant’s residence address, telephone number, date of birth, age, driver’s license number, and social security number. The City Council in adopting the application and licensing and/or permit system set forth herein has determined in accordance with Government Code § 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant’s privacy, confidentiality or security interests are protected. The City Clerk shall cause the same to be redacted from any copy of a completed application form made available to any member of the public, the above-mentioned information. 5-9.503 Issuance and denial of permit; appeal.
(a) The Police Chief or his authorized representative shall have thirty (30) days from the date the application is accepted as complete in which to investigate the application and #5..
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background of the applicant. Upon completion of the investigation, the Police Chief or his designated representative shall approve or deny the permit. The Police Chief may refuse to issue the escort permit for any of the following reasons, which reasons will be set forth fully in writing and delivered to the applicant:
(i) The applicant has been convicted of any of the offenses enumerated in paragraphs (c)(5) and (6) of Section 5-9.602, or convicted of an offense outside the State of California that would have constituted any of the described offenses if committed within the State of California. A permit may be issued to any person convicted of any of the crimes described if such conviction occurred more than five (5) years prior to the date of the application.
(ii) The applicant has been licensed or registered in any state as a prostitute.
(iii) Any false statements made in the initial application for the escort or “figure model” permit.
(iv) That the applicant has had an escort permit denied or revoked for cause by this City within the last five (5) years.
(v) That the applicant is not at least eighteen (18) years of age. (vi) That the applicant has not paid the required fee to the City of Modesto Finance Department.
(b) Any refusal to issue a permit pursuant to this section or the suspension, or revocation of a permit is appealable to the City Council in accordance with the provisions of Chapter 4 of Title 1 of the Modesto Municipal Code. After the denial of any such appeal, the applicant may seek prompt judicial review of such administrative action in any court of competent jurisdiction pursuant to California Code of Civil Procedure Section 1094.5. The court shall promptly review the action taken by the City Council. 5-9.504 Revocation or suspension of permit.

After following the procedure in Section 5-9.304, the Police Chief may revoke or suspend the escort permit for conviction of any crimes specified in Section 5-9-.502 (c)(v) and (vi). The decision of the Police Chief shall be in writing and shall be emailed postage prepaid to the escort. 5-9.505 Term of permit.
(a) Permits issued under the provisions of the section shall be valid for a period of one (1) year from the date of issuance and shall be renewable annually. (b) An application for renewal for an escort permit shall be accompanied by a nonrefundable filing fee, as established by resolution adopted by the City Council from time to time.
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EFFECTIVE DATE: June 6, 2024
SECTION 7. ZONING, DEFINITIONS ADULT-ORIENTED BUSINESSES Title 10 (Zoning Regulations), Chapter 3 (Land Use Regulations), Article 3 of the Modesto Municipal Code currently entitled “Adult Entertainment Businesses” is renamed as “Adult-Oriented Businesses”. The prior definitions found at Section 10-3.302 of Title 10, Chapter 3, Article 3 are repealed and replaced as set forth below.

TITLE 10
CHAPTER 3
Article 3: Adult-Oriented Businesses
10-3.302 – Definitions. In addition to any other definitions contained in the Municipal Code, the following words and phrases shall, for the purpose of this Article, be defined as follows, unless it is clearly apparent from the context that another meaning is intended. Should any of the definitions be in conflict with any current provisions of the Municipal Code, these definitions shall prevail for purposes of this Article.

2. Where “adult arcade devices” are located.

C. “Adult-oriented business” is synonymous with “adult entertainment business” and shall mean:

EFFECTIVE DATE: June 6, 2024
“specified sexual activities” or “specified anatomical areas” but not including those uses or activities which are preempted by state law.

D. “Adult cabaret” shall mean a business establishment (whether or not serving alcoholic beverages) that features “Adult live entertainment.” E. “Adult cabaret dancer” shall mean any person who is an employee or independent contractor of an “Adult cabaret” or “Adult business” and who, with or without any compensation or other form of consideration, performs as a sexually oriented dancer, exotic dancer, stripper, go-go dancer or similar dancer whose performance on a regular and substantial basis focuses on or emphasizes the adult cabaret dancer’s breasts, genitals, and/or buttocks, but does not involve exposure of “specified anatomical areas” or depicting or engaging in “specified sexual activities.” “Adult cabaret dancer” does not include a patron. “Adult hotel/motel” shall mean a “hotel” or “motel” (as defined in the Municipal Code) that is used for presenting on a regular and substantial basis images through closed circuit television, cable television, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices that are distinguished or characterized by the emphasis on matter depicting or describing or relating to “specified sexual activities” or “specified anatomical areas.” F. “Adult live entertainment” shall mean any physical human body activity, whether performed or engaged in, alone or with other persons including, but not limited to, singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, in which: (1) the performer (including, but not limited to, topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar performers) exposes to public view, without opaque covering, “specified anatomical areas;” and/or (2) the performance or physical human body activity depicts, describes, or relates to “specified sexual activities” whether or not the specified anatomical areas are covered.

G. “Adult modeling studio” shall mean a business establishment which provides for any form of consideration, the services of a live human model, who, for the purposes of sexual stimulation of patrons, displays “specified anatomical areas” to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying for such services. “Adult modeling studio” does not include schools maintained pursuant to standards set by the Board of Education of the State of California.

H. “Adult motion picture theater” shall mean a business establishment, with or without a stage or proscenium, where, on a regular and substantial basis and for any form of consideration, material is presented through films, motion pictures, video cassettes, slides, laser disks, digital video disks, holograms, virtual reality devices, or similar electronically-generated reproductions that is characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas.”
I. “Adult-oriented material” shall mean accessories, paraphernalia, books, magazines, laser disks, compact discs, digital video disks, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to #5..
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“specified sexual activities” or “specified anatomical areas.” “Adult oriented material” shall include “sexually oriented merchandise.”
J. “Adult retail store” shall mean a business establishment having as a regular and substantial portion of its stock in trade, “Adult-Oriented material.” K. “Church” as used in this Article shall mean a structure which is used primarily for religious worship and religious related activities and shall be synonymous with the definition of “religious facility”.

L. “Establishment of an adult-oriented business” shall mean any of the following:

1. The opening or commencement of any “adult-oriented business” (as defined above) as a new business;

2. The conversion of an existing business, whether or not an “adult-oriented business,” to any “adult-oriented business;”

3. The addition of any “adult-oriented business” to any other existing “adultoriented business;”

4. The relocation of any “adult-oriented business;” or

5. Physical changes that expand the square footage of an existing “adultoriented business” by more than ten percent (10%).

EFFECTIVE DATE: June 6, 2024
Q. “School” shall mean any institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and/or which is maintained pursuant to standards set by the Board of Education of the State of California. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education under the jurisdiction of the California Department of Education. For the purposes of this Chapter, “school” does not include a vocational or professional institution of higher education, including a community or junior college, college, or university.

R. “Sexually oriented merchandise” shall mean sexually oriented implements, paraphernalia, or novelty items such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity or distinguished or characterized by their emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas.” S. “Specified anatomical areas” shall mean and include any of the following:

2. Human male genitals in a discernibly turgid state, even if completely or opaquely covered.

T. “Specified sexual activities” shall mean and include any of the following, irrespective of whether performed directly or indirectly through clothing or other covering:

1. Human genitals in a state of sexual stimulation or arousal; and/or

2. Acts of human masturbation, sexual stimulation or arousal; and/or

3. Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; and/or

4. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, or bondage and/or restraints; and/or

5. Human excretion, urination, menstruation, vaginal or anal irrigation; and/or
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EFFECTIVE DATE: June 6, 2024

6. Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast.

SECTION 8. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) FINDINGS.

The City Council has reviewed the proposed activity for compliance with the California Environmental Quality Act (“CEQA”) and has determined that this proposed activity is not a “Project” as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical change to the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the action proposed is not subject to CEQA.

SECTION 9. SEVERABILITY.

If any section, subsection, paragraph, sentence, clause, or phrase of this ordinance, or any part thereof is held for any reason to be unconstitutional, invalid, or ineffective by any court of competent jurisdiction, the remaining sections, subsections, paragraphs, sentences, clauses, and phrases shall not be affected thereby.

The City Council hereby declares that it would have adopted these sections and the Ordinance to which they are a part regardless of the fact that one or more sections, subsections, paragraphs, sentences, clauses, or phrases may be determined to be unconstitutional, invalid, or ineffective.

SECTION 10. EFFECTIVE DATE.

This Ordinance shall be effective thirty (30) days after its adoption, and the City Clerk shall certify the adoption of this Ordinance and cause the same to be published in the manner prescribed by law.

SECTION 11. PUBLICATION.

At least two (2) days prior to its final adoption, copies of this Ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in the Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this Ordinance, the date of its introduction and the places where this ordinance is posted. #5..
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EFFECTIVE DATE: June 6, 2024
The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 23rd day of April, 2024, by Council Member Ricci, who moved its introduction and passage to print, which motion being duly seconded by Council Member Williams, was upon roll call carried and ordered printed and published by the following vote:

AYES: Councilmembers: Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
NAYS: Councilmembers: None

Absent: Councilmembers: None
APPROVED:_________________________
SUE ZWAHLEN, Mayor
ATTEST:

BY: __________________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: __________________________________
JOSE M. SANCHEZ, City Attorney
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EFFECTIVE DATE: June 6, 2024

FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the 7th day of May, 2024, Councilmember ?? moved its final adoption, which motion being duly seconded by Councilmember ??, was upon roll call carried and the ordinance adopted by the following vote:

AYES: Councilmembers: Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: ___________________________

SUE ZWAHLEN, MAYOR
ATTEST: ___________________________________
DIANE NAYARES-PEREZ, City Clerk
Effective Date: June 6, 2024
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CITY OF MODESTO
ORDINANCE NO. 3777-C.S.

The following Ordinance was introduced by the City Council of the City of Modesto at the meeting of April 23, 2024:

ORDINANCE REPEALING AND REPLACING MODESTO MUNICIPAL CODE TITLE 5, CHAPTER 9 PROVIDING DEFINITIONS, PERMITTING REQUIREMENTS, AND

OPERATING STANDARDS FOR ADULT-ORIENTED BUSINESSES ALONG WITH ADDING PERMITTING PROVISIONS FOR ADULT PERFORMERS AND NONPERFORMERS AT ADULT-ORIENTED BUSINESSES; AND AMENDING TITLE 10, CHAPTER 3, ARTICLE 3 REGARDING DEFINITIONS FOR ADULT-ORIENTED

BUSINESSES
Copies of the above-mentioned ordinance are posted at the following locations:
 Tenth Street Place, 1010 10th Street
 Maddux Youth Center, 615 Sierra Drive
 Senior Citizen Center, 211 Bodem Street
Diane Nayares-Perez
City Clerk
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

May 7, 2024
Date: April 8, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Annexation #20 to City of Modesto Community Facilities District No. 2004-1 (Village One #2)
CONTACT: Peter Ibrahim, Infrastructure Financing Program Supervisor [email protected], 209-577-5211
DESCRIPTION:

Consider the annexation of Assessor Parcel Number (APNs) 077-008-039 and 077-008-040 totaling approximately 33.694 acres, to the City of Modesto Community Facilities District (CFD) No. 2004-1 (Village One #2) and authorization of the levy of special tax on the properties located within the annexation map. (Funding Source: Developer Deposit) STRATEGIC PLAN ELEMENT:

The recommended action supports the City Council’s 2020-2025 Strategic Plan, Goal D:

Provide Safe, Efficient, and Reliable Infrastructure through proactive community investment, maintenance and sustainability efforts.

BACKGROUND:

In 1982, the Mello-Roos Community Facilities Act of 1982 (Act) was adopted by the State of California as a method for financing infrastructure improvements and services associated with new developments. The Act allows infrastructure improvements and services to be funded through a special tax paid by property owners.

On April 6, 2004, by Resolution No. 2004-199, the Council formed City of Modesto Community Facilities District No. 2004-1 (CFD No. 2004-1) to pay for various infrastructure improvements as well as the maintenance of parks, parkways and open space, storm drainage basin, and related facilities that serve the Village One Area.

On December 14, 2004, by Resolution No. 2004-681, the Council clarified the Rate and Method of Apportionment (RMA), approved on April 6, 2004, with respect to the Maximum Special Taxes to be generated by a parcel that has been rezoned. The Council also created by Resolution No. 2004-683, Tax Zone #2 within CFD No. 2004-1. #6..
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City Council, May 7, 2024
Annexation #20 to City of Modesto Community Facilities District No. 2004-1 (Village One #2)

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On November 9, 2005, by Resolution No. 2005-566, the Council directed that all prior boundary maps and amendments to CFD No. 2004-1 be consolidated into a single map. On November 23, 2005, all prior boundary maps and amendments were consolidated into a single map entitled "Consolidation of Boundary Maps of Community Facilities District No. 2004-1 (Village One #2)” and recorded with the County Recorder of the County of Stanislaus at Book 4 of Maps of Assessments and Community Facilities Districts, at page 33 (the “Consolidated Boundary Map”). Subsequent to the recordation of the Consolidated Boundary Map, additional territory was annexed to CFD No. 2004-1 through Annexations Nos. 11, 12, 13, 14, 15, 16, 17, 18 and

19. A list of the authorized services and facilities to be funded by CFD No. 2004-1 is provided as Attachment 2. The RMA, as provided as Attachment 3, provides additional information such as how the special taxes are calculated and collected.

Chapter 3.5 of Part 1 of Division 2 of Title 5, commencing with Section 53311, of the California Government Code (commonly known as the Mello-Roos Community Facilities Act of 1982), and more specifically Government Code Section 53339.2, allows landowners to request the legislative body (the Council) adopt a Resolution of Intention to annex additional property into an existing CFD.

DISCUSSION:

In November 2023, NRB Investments, LLC filed a completed application package requesting that the parcels be annexed into CFD No. 2004-1 (Village One #2).

Annexation #20 will consist of APNs 077-008-039 and 077-008-040 totaling approximately

33.69 acres. Modesto 92 LP and NRB Investments LLC are the owners. Since Committee, a lotline adjustment was carried out, reconfiguring the previous APNs (077-008-036 and 077-008- 037). The proposed annexation map reflecting the current APNs is provided as Attachment 4.

The properties shown on the proposed annexation map related to Annexation #20 to CFD No. 2004-1. The annexation boundary maps, which identifies the property to be annexed to CFD. 2004-1, have been filed with the City Clerk and all preliminary requirements of the Mello-Roos law have been met.

Following is a list of the properties that comprise the additional territory requesting annexation to CFD No. 2004-1.

APN Acreage Land Use
077-008-039 14.959 Village Residential
077-008-040 18.735 Village Residential
Total: 33.694 acres
The Resolution of Intention is the first step in annexing the Property to CFD No. 2004-1. If approved, the Council will then hold a public hearing, conduct an election, canvass the results of the election and order the annexation of the Property to CFD No. 2004-1. The public hearing #6..
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City Council, May 7, 2024
Annexation #20 to City of Modesto Community Facilities District No. 2004-1 (Village One #2)

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must be held more than 30 days, but no more than 60 days, after the City Council considers the proposed Resolution of Intention.

The public hearing will be scheduled for June 11, 2024. Modesto 92 LP and NRB Investments LLC are the only property owners participating in the annexation and will be asked to cast a ballot in favor of annexation of its Property to CFD No. 2004-1. The Property will annex to Tax Zone #2 of the CFD No. 2004-1.

FISCAL IMPACT:

Annexation expenses are paid by funds deposited by the developer. There is no impact to the General Fund.

Once the parcels are annexed to CFD No. 2004-1, the Maximum Village Residential Special Tax Rate for Fiscal Year 2023-2024 will be as follows:

Village One #2 – CFD No. 2004-1
Maximum Special Taxes
Special Tax Category
Tax Zone #2
Maximum Annual
Maintenance Special Tax
Fiscal Year 2023-24
Maximum One-Time
Facilities Special Tax
Fiscal Year 2023-24
Maximum Annual
Facilities Special Tax
Fiscal Year 2023-24
Village Residential $3,160.60/per net
taxable acre
$57,809.78/per net
taxable acre
$9,330.88/per net
taxable acre
COMMITTEE RECOMMENDATION:

This item was presented to the Economic Development Committee on April 8, 2024 and was approved and forwarded to Council for consideration and approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution of Intention to annex Assessor Parcel Numbers (APNs) 077-008-039 and 077-008- 040 totaling approximately 33.694 acres, to the City of Modesto Community Facilities District (CFD) No. 2004-1 (Village One #2) and to authorize the levy of special tax on the properties located within the annexation map (Annexation #20).
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City Council, May 7, 2024
Annexation #20 to City of Modesto Community Facilities District No. 2004-1 (Village One #2)

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Approved by:

Jessica Hill, Director of Community
and Economic Development
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. List of Facilities and Services

3. Rate and Method of Apportionment

4. Proposed Boundary Map for Annexation #20
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5/7/2024/CEDD/PIbrahim/Item # 1 2024-xxx

MODESTO CITY COUNCIL
RESOLUTION NO. 2024-XX

RESOLUTION OF INTENTION TO ANNEX ASSESSOR PARCEL NUMBERS (APNS) 077-008-039 AND 077-008-040 TOTALING APPROXIMATELY 33.694

ACRES, TO THE CITY OF MODESTO COMMUNITY FACILITIES DISTRICT (CFD) NO. 2004-1 (VILLAGE ONE #2) AND TO AUTHORIZE THE LEVY OF A

SPECIAL TAX ON THE PROPERTIES LOCATED WITHIN THE ANNEXATION MAP (ANNEXATION #20)
WHEREAS, pursuant to chapter 2.5 Division 2 of Title 5 (commencing with Section 5311) of the Californian Government Code, commonly known as the “MelloRoss Community Facilities Act of 1982” (the “Act”), proceedings for the annexation of territory to an existing community facilities district may, pursuant to Article 3.5 of the Act, be instituted by the adoption by the legislative body of a resolution of intention to annex such territory; and
WHEREAS, pursuant to the Act, this Council did, by its Resolution No. 2004- 199, adopted on April 6, 2004 (the “Resolution of Formation”), establish the City’s Community Facilities District No. 2004-1 (Village One #2) (the “District”), and WHEREAS, pursuant to the Act this Council did, by its Resolution No. 2004-681, adopted on December 14,2004, clarify the Rate and Method of Apportionment with respect to the Maximum Special taxes to be generated by a parcel that has been rezoned; and
WHEREAS, pursuant to the Act, this Council did, by its Resolution No. 2004- 686, adopted on December 14, 2004 (“Resolution of Creation of Tax Zone #2), create Tax Zone #2 within the District; and
WHEREAS, the One-Time Facilities Special Tax component of the special taxes is higher in Tax Zone #2 than in Tax Zone #1; and
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5/7/2024/CEDD/PIbrahim/Item # 2 2024-xxx
WHEREAS, pursuant to California Streets and Highways Code Section 3113.5, this Council did, by its Resolution No. 2005-566, adopted on November 9, 2005, direct that all prior modifications, amendments and annexations to the District be consolidated into a single map of the District, specifically all prior boundary maps and amendments thereto related to formation of the District and Annexation Nos. 1 through 10 to the District; and
WHEREAS, on November 23, 2005, said boundary maps were consolidated into a single map entitled “Consolidation of Boundary Maps of Community Facilities District No. 2004-1 (Village One #2)” and recorded with the County Recorder of the County of Stanislaus at Book 4 of Maps of Assessments and Communities Facilities Districts, at

Page 33 ends

WHEREAS, subsequent to the recordation of the Consolidated Boundary Map, additional territory was annexed to the District through Annexation Nos. 11, 12, 13, 14, 15, 16, 17, 18, and 19; and
WHEREAS, this Council hereby determines that the public convenience and necessity require the annexation of additional certain territory to the District; and WHEREAS, the territory to be annexed is within City limits; and WHEREAS, it is intended that the territory be annexed to Tax Zone #2.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that the Council finds and orders the following:

1. The above recitals are true and correct.

2. The current boundaries of the District are shown on the Consolidated Boundary Map as supplemented by the map entitled “Annexation Map No. 11 of Community Facilities District No. 2004-1 (Village One #2)” on file #6..
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5/7/2024/CEDD/PIbrahim/Item # 3 2024-xxx
with the County Recorder at Book 4 of Maps of Assessment and Community Facilities Districts, at Page 36, the map entitled “Annexation Map No. 12 of Community Facilities District No. 2004-1 (Village One #2)” on file with the County Recorder at Book 4 of Maps of Assessment and Community Facilities Districts, at Page 42, the map entitled “Annexation Map No. 13 of Community Facilities District No. 2004-1 (Village One #2)” on file with the County Recorder at Book 4 of Maps of Assessment and Community Facilities Districts at Page 57, the map entitled “Annexation Map No. 14 of Community Facilities District No. 2004-1 (Village One #2)” on file with the County Recorder at Book 4 of Maps of Assessment and Community Facilities Districts at Page 98, the map entitled “Annexation Map No. 15 of Community Facilities District No. 2004-1 (Village One #2)” on file with the County Recorder at Book 5 of Maps of Assessment and Community Facilities Districts at Page 52, the map entitled “Annexation Map No. 16 of Community Facilities District No. 2004-1 (Village One #2)” on file with the County Recorder at Book 5 of Maps of Assessment and Community Facilities Districts at page 67, the map entitled “Annexation Map No. 17 of Community Facilities District No. 2004-1 (Village One #2)” on file with the County Recorder at Book 5 of Maps of Assessment and Community Facilities Districts at page 87, and the map entitled “Annexation Map No. 18 of the Community Facilities District No. 2004-1 (Village One #2)” on file with the County Recorder at Book 6 of Maps of Assessment and Community Facilities Districts at page 5, the map entitled “Annexation No. 19 of Community Facilities District No. 2004-1 (Village One#2)” on file with the #6..
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5/7/2024/CEDD/PIbrahim/Item # 4 2024-xxx
County Recorder at Book 6 of Maps of Assessment and Community Facilities Districts at pages 19 and 20. The territory proposed to be annexed to the District (the “Territory”) is described in Exhibit A, attached hereto.

3. The boundaries of the Territory are also shown on the maps thereof, entitled “Annexation Map No. 20 of Community Facilities District No. 2004-1 (Village One #2)”, City of Modesto, County of Stanislaus, State of California,” on file in the office of the City Clerk, which map is hereby approved and adopted. Pursuant to Sections 3110.5 and 3113 of the California Streets and Highways Code, the City Clerk shall endorse her certificate on the original and one copy of the map evidencing the date and adoption of this Resolution, file the original in her office and, not later than fifteen (15) days after the adoption of this Resolution, file a copy of the map with the County Recorder of the County of Stanislaus. The maps shall contain the legends provided in Sections 3110 and 3110.5 of the California Streets and Highways Code; including a reference to the title, book, page and recording date of the original boundary map of the District.

4. The public facilities and services to be provided for the District are set forth in the Resolution of Formation. It is intended that these same facilities and services be provided to the Territory.

5. The special taxes to be levied in the District are set forth in the Resolution of Formation. It is intended that the same special taxes be levied in the Territory, except that the increase of the One-Time Facilities Special Tax component of the special taxes, as authorized by the Resolution of Creation of Tax Zone #2, shall be levied in the Territory.
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5/7/2024/CEDD/PIbrahim/Item # 5 2024-xxx

6. A public hearing on this Resolution will be held at 5:30 p.m., or as soon thereafter as practicable, on Tuesday June 11, 2024, at the regular meeting place of the City Council, City Council Chambers, Basement Level, 1010 Tenth Street, Modesto, California 95354, such time being not less than 30 or more than 60 days following the adoption hereof.

7. At the hearing, any interested persons for or against the annexation of the Territory to the District, and the levy of the special taxes therein, may appear and will be heard and considered. Any protest may be made orally or in writing. However, any protests pertaining to the regularity or sufficiency of the proceedings shall be in writing and clearly set forth the irregularities and defects to which the objection is made. All written protests shall be filed with the City Clerk on or before the time fixed for the public hearing.

Written protests may be withdrawn in writing at any time before the conclusion of the hearing.

8. The City Clerk is directed to publish, not later than seven days prior thereto, a notice of the hearing, in the form required by the Act, in a newspaper of general circulation published in the area of the District, being the Modesto Bee, and otherwise in accordance with Section 6061 of the California Government Code, stating (a) the text or a summary of this Resolution, (b) the time and place of the hearing, and (c) that all interested persons for or against the proposed annexation or the levying of the special tax therein will be heard.

9. If a majority (but at least six) of the registered voters residing within the District or a majority (but at least six) of the registered voters residing within #6..
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5/7/2024/CEDD/PIbrahim/Item # 6 2024-xxx
the Territory, or the owners of one-half or more of the area of the land in the District and not exempt from the special tax, or the owners of one-half or more of the Territory, file written protests against the proposed annexation, and the protests are not withdrawn so as to reduce the value of the protests to less than a majority, no further proceedings to annex the Territory to the District, or to levy in the Territory the special taxes to be levied in the District, shall be taken for a period of one year from the date of the decision of the Council on the issues discussed at the hearing.

10. At the conclusion of the hearing, if the Council determines to annex the Territory to the District, it will submit the levy of the special taxes to the qualified electors of the Territory in a special election. #6..
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5/7/2024/CEDD/PIbrahim/Item # 7 2024-xxx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 7th day of May, 2024, by Councilmember _____, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following vote:

AYES: Councilmembers: Name, Name, Name, Name, Name, Name, Mayor Name
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ATTEST: _____________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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5/7/2024/CEDD/PIbrahim/Item # 8 2024-xxx

EXHIBIT A
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LIST OF FACILITIES
All facilities described herein are as presented in the Village One Facilities Master Plan (“FMP”) update dated May 2003. Said master plan is incorporated herein by reference. The following descriptions summarize the facilities to be funded within CFD 2004-1.

A. Arterial Roads:

Included in the FMP are improvements to four arterial roads that will be funded by the CFD. They include Roselle Ave., from Briggsmore to the northern boundary of Village One (north of Sylvan), Floyd Ave. from Oakdale Rd. to Claus Rd., Oakdale Rd. from Briggsmore to Sylvan Ave., and Sylvan Ave. from Oakdale Rd. to Claus Rd. Also included in the CFD is partial funding for a pedestrian overcrossing on Sylvan Ave. to serve the new high school.

B. Storm Drain System:

The storm drainage system for Village One contains three detention basins:

1. West Basin: Dual-use basin that pumps water to the Central Basin.

2. Central Basin: Percolation/detention basin that pumps water to the MID Lateral#3 and may pump to Dry Creek via Claus Rd. at some time in the future.

3. East Basin: Dual-use basin that pumps water to Dry Creek via Claus Rd.

The facilities to be funded by the CFD include: basin property, trunk pipelines, force mains, pump stations, and other necessary appurtenances.

C. Parks:

Three neighborhood parks and one community park will be developed within the Village One Specific Plan area. The development of the parks will include the acquisition of land, park improvements and street frontage improvements for the Grogan Community Park, the Roselle Neighborhood Park, the Claus Neighborhood Park and the Merle Neighborhood Park.

In addition, buffer land for the community park is to be acquired, a bike trail is to be developed along MID Lateral No. 3, and a trail is to be developed along Claus Rd.

D. Public Facilities:

An area office for police is proposed within Village One. Funds are provided within the CFD for tenant improvements necessary to set up an area office.

E. Other:

Other costs associated with Village One include reimbursement to the City of Modesto for engineering of the Facilities Master Plan and planning related to the Village One Specific Plan, future annual administration costs for the CFD, and community signage for Village One.
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LIST OF SERVICES
Maintenance of the Grogan Community Park, Roselle Neighborhood Park, Merle Neighborhood Park, Claus Neighborhood Park, arterial road parkway, median and roundabout landscaping, connector street parkway, median and roundabout landscaping, bike trails and storm drain facilities. #6..
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City of Modesto CFD No. 2004-1 1 December 10, 2004

CITY OF MODESTO
COMMUNITY FACILITIES DISTRICT NO. 2004-1
(VILLAGE ONE #2)

UPDATED RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAXES ADDING TAX ZONE #2
Special Taxes applicable to each Assessor’s Parcel in Community Facilities District No. 2004-1 (Village One #2) [herein “CFD No. 2004-1” or “the CFD”] shall be levied and collected according to the tax liability determined by the City Council of the City of Modesto, through the application of the appropriate amount or rate for Taxable Property, as described below. All of the property in CFD No. 2004-1, unless exempted by law or by the provisions of Section G below, shall be taxed for the purposes, to the extent, and in the manner herein provided, including property subsequently annexed to CFD No. 2004-1 unless a separate Rate and Method of Apportionment is adopted for the annexation area.

A. DEFINITIONS
The terms hereinafter set forth have the following meanings:
“Acre” or “Acreage” means the land area of an Assessor’s Parcel as shown on an Assessor’s Parcel Map, or if the land area is not shown on an Assessor’s Parcel Map, the land area shown on the applicable Final Map or other Development Plan.
“Act” means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, (commencing with Section 53311), Division 2 of Title 5 of the California Government Code. “Administrative Expenses” means any or all of the following: the fees and expenses of any fiscal agent or trustee (including any fees or expenses of its counsel) employed in connection with any Bonds, and the expenses of the City carrying out its duties with respect to CFD No. 2004-1 and the Bonds, including, but not limited to, levying and collecting the Special Taxes, the fees and expenses of legal counsel, charges levied by the County Auditor’s Office, Tax Collector’s Office, and/or Treasurer’s Office, costs related to annexing property into the CFD, costs related to property owner inquiries regarding the Special Taxes, costs associated with complying with any continuing disclosure requirements for the Bonds and the Special Taxes, and all other costs and expenses of the City in any way related to the establishment or administration of the CFD. “Administrator” means the person or firm designated by the City to administer the Special Taxes according to this Rate and Method of Apportionment of Special Taxes. #6..
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City of Modesto CFD No. 2004-1 2 December 10, 2004
“Annual Facilities Special Tax” means a special tax levied in any Fiscal Year to pay the Annual Facilities Special Tax Requirement, as defined below.
“Annual Facilities Special Tax Requirement” means the amount necessary in any Fiscal Year (i) to pay principal and interest, including scheduled sinking fund payments, on Bonds, (ii) pay administrative expenses of CFD No. 2004-1 that have not been included in the Annual Maintenance Special Tax Requirement for the Fiscal Year, (iii) to create or replenish reserve funds, (iv) to cure any delinquencies in the payment of principal or interest on indebtedness of CFD No. 2004-1 which have occurred in the prior Fiscal Year or (based on delinquencies in the payment of the Annual Facilities Special Taxes which have already taken place) are expected to occur in the Fiscal Year in which the tax will be collected, and (v) to construct or acquire Authorized Facilities. The amounts referred to in clauses (i) and (iii) of the preceding sentence may be reduced in any Fiscal Year by: (i) interest earnings on or surplus balances in funds and accounts for the Bonds to the extent that such earnings or balances are available to apply against debt service pursuant to a Bond indenture, Bond resolution, or other legal document that sets forth these terms; (ii) proceeds received by CFD No. 2004-1 from the collection of penalties associated with delinquent Annual Facilities Special Taxes; and (iii) any other revenues available to pay debt service on the Bonds as determined by the Administrator.
“Annual Maintenance Special Tax” means a special tax levied in any Fiscal Year to pay the Maintenance Special Tax Requirement, as defined below.
“Annual Maintenance Special Tax Requirement” means that amount necessary in any Fiscal Year to (i) pay for Authorized Services, (ii) pay administrative expenses of CFD No. 2004-1 that have not been included in the Annual Facilities Special Tax Requirement for the Fiscal Year, and (iii) cure any delinquencies in the payment of Annual Maintenance Special Taxes levied in prior Fiscal Years or (based on delinquencies in the payment of Annual Maintenance Special Taxes which have already taken place) are expected to occur in the current Fiscal Year. “Assessor’s Parcel” or “Parcel” means a lot or parcel shown on an Assessor’s Parcel Map with an assigned Assessor’s Parcel number.
“Assessor’s Parcel Map” means an official map of the County Assessor designating parcels by Assessor’s Parcel number.
“Authorized Facilities”means those facilities that are authorized to be funded by CFD No. 2004-1. “Authorized Services” means those services that are authorized to be funded by CFD No. 2004-1. “Bonds” means bonds or other debt (as defined in the Act), whether in one or more series, issued, insured or assumed by CFD No. 2004-1 related to Authorized Facilities. “Capitalized Interest” means funds in any capitalized interest account available to pay debt service on Bonds.
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City of Modesto CFD No. 2004-1 3 December 10, 2004
“CFD Formation” means the date on which the Resolution of Formation to form CFD No. 2004-1 was adopted by the City Council.
“City” means the City of Modesto.
“City Council” means the City Council of the City of Modesto, acting as the legislative body of CFD No. 2004-1.
“Commercial Property” means all Parcels in CFD No. 2004-1 for which building permits have been or may be issued for construction of a commercial building based on reference to the Village One Specific Plan and/or the Parcel’s zoning designation. “County” means the County of Stanislaus.
“Developed Property” means, in any Fiscal Year, the following:

For purposes of levying the Annual Maintenance Special Tax, “Developed Property” means:
• for Low Density Residential Property and Village Residential Property, all Parcels for which a Final Map was recorded prior to June 30 of the preceding Fiscal Year but not prior to June 30, 2002,
• for Multi-Family Property, all Parcels for which a building permit for new construction of a residential structure was issued prior to June 30 of the preceding Fiscal Year, and
• for Commercial Property and Industrial Property, all Parcels for which a building permit for construction, reconstruction or expansion of a building structure was issued prior to June 30 of the preceding Fiscal Year. Notwithstanding the foregoing, Parcels of Commercial Property or Industrial Property on which a vacant building is located that cannot be occupied without demolition or reconstruction of the building shall not be categorized as Developed Property until a permit is issued for construction of a new building or reconstruction of the existing building.

For purposes of levying the Annual Facilities Special Tax, “Developed Property” means:
• for Low Density Residential Property and Village Residential Property, all Parcels for which a building permit for construction, or reconstruction of a unit was issued prior to June 30 of the preceding Fiscal Year but not prior to June 30, 2002, • for Multi-Family Attached Property, all Parcels for which a building permit for new construction of a residential structure was issued prior to June 30 of the preceding Fiscal Year, and
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City of Modesto CFD No. 2004-1 4 December 10, 2004
• for Commercial Property and Industrial Property, all Parcels for which a building permit for construction, reconstruction or expansion of a building structure was issued prior to June 30 of the preceding Fiscal Year. Notwithstanding the foregoing, Parcels of Commercial Property or Industrial Property on which a vacant building is located that cannot be occupied without demolition or reconstruction of the building shall not be categorized as Developed Property until a permit is issued for construction of a new building or reconstruction of the existing building. “Expected Land Uses” means the Net Taxable Acreage of each Land Use Class expected on an Original Parcel in CFD No. 2004-1 based on reference to the Expected Land Use Map. The Expected Land Uses for each Original Parcel in the CFD at the time of CFD Formation, and the corresponding Maximum Special Tax for each Parcel, are reflected in Attachment 2, which will be updated with each annexation of property into CFD No. 2004-1. “Expected Land Use Map” means the map entitled “Village One Zoning of Unvested Properties” and dated February 21, 2003, which is on file with the CFD Administrator at the City and the City Clerk and which identifies the Expected Land Uses on all Parcels within the Village One Specific Plan that either (i) are in CFD No. 2004-1 at CFD Formation, or (ii) may be annexed into the CFD in future Fiscal Years. The Expected Land Use Map may be updated in future years to add property within the Village One Specific Plan that was vested to develop when the map was prepared and, therefore, was not included in the map but subsequently has its vesting expire or for any other reason becomes subject to a condition of development that requires formation of, or annexation into, a CFD. “Final Map” means a final map, or portion thereof, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) that creates lots which do not need to be further subdivided prior to issuance of a building permit for a residential or nonresidential structure. The term “Final Map” shall not include any Assessor’s Parcel Map or subdivision map or portion thereof, that does not create lots that are in their final configuration, including Assessor’s Parcels that are designated as remainder parcels. “Fiscal Year” means the period starting July 1 and ending on the following June 30. “Improvement Area” means a geographic area that, upon annexation into CFD No. 2004-1, is identified as an improvement area as defined in the Act instead of a Tax Zone, as defined below.

Special Taxes collected within an Improvement Area will be the sole security for Bonds issued for that Improvement Area.
“Industrial Property” means all Parcels in CFD No. 2004-1 for which building permits have been or may be issued for construction of an industrial building based on reference to the Village One Specific Plan and/or the Parcel’s zoning designation.
“Land Use Class” means one of the five mutually-exclusive land use classes identified in Table 1 in Section C below and defined in this Section A. The City shall, in its sole discretion, determine the appropriate Land Use Class for Parcels on which a structure was built prior to CFD Formation. #6..
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City of Modesto CFD No. 2004-1 5 December 10, 2004
“Low Density Residential Property” means all Parcels in CFD No. 2004-1 for which a building permit has been or may be issued for construction of a residential unit on a Parcel with a maximum density of two or less dwelling units per gross acre based on reference to the Village One Specific Plan and/or the Parcel’s zoning designation.
“Maximum Annual Facilities Special Tax” means the greatest amount of Annual Facilities Special Tax that can be levied on an Assessor’s Parcel in any Fiscal Year determined in accordance with Sections C and D below.
“Maximum Annual Maintenance Special Tax”means the greatest amount of Annual Maintenance Special Tax that can be levied on an Assessor’s Parcel in any Fiscal Year determined in accordance with Sections C and D below.
“Maximum One-Time Facilities Special Tax” means the greatest amount of One-Time Facilities Special Tax that can be levied on an Assessor’s Parcel in any Fiscal Year determined in accordance with Sections C and D below.
“Maximum Special Taxes” means, collectively, the Maximum One-Time Facilities Special Tax, Maximum Annual Facilities Special Tax, and Maximum Annual Maintenance Special Tax. “Multi-Family Property” means all Parcels in CFD No. 2004-1 for which building permits have been or may be issued for construction of a residential structure consisting of two or more residential units that share common walls, including but not limited to, townhomes, condominiums, duplexes, triplexes, fourplexes, and apartment units. If a building permit has not yet been issued on the Parcel, the Administrator shall reference the Village One Specific Plan and/or the Parcel’s zoning designation to determine whether the Parcel is Multi-Family Property. “Net Taxable Acreage” or “Net Taxable Acre” means the total acreage within a Final Map or Parcel less arterial road right-of-ways and property that is defined in the Final Map for use as a park site, school site, or City-owned or CFD-owned storm drainage basin. If a Subdivision Map is recorded which is not a Final Map for some or all Parcels created by the subdivision, the Administrator shall calculate the Net Taxable Acreage of such unsubdivided Parcels by identifying the Acreage of the Parcel and (i) adding a portion of the acreage of any non-arterial right-of-way that fronts the Parcel determined by drawing lines at right angles to the right-of-way, and (ii) subtracting a portion of the acreage of any arterial right-of-way that fronts the Parcel determined by drawing lines at right angles to the right-of-way. The Net Taxable Acreage of a Parcel or Final Map shall be determined in the sole discretion of the City.
“One-Time Facilities Special Tax” means a Special Tax, levied and collected in full by the City prior to a structural building permit being issued for new construction on Taxable Property. “Original Parcel” means an Assessor’s Parcel in CFD No. 2004-1 at the time of CFD Formation or added to the CFD upon annexation, as identified in Attachment 2 (which shall be updated after each annexation). A Successor Parcel that is being further subdivided shall also be considered an #6..
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City of Modesto CFD No. 2004-1 6 December 10, 2004
Original Parcel for purposes of determining the Maximum Special Taxes pursuant to Section C below.
“Per-Acre Special Taxes” means the per-acre Special Taxes identified in Table 1 in Section C below.
“Proportionately” means, for Developed Property, that the ratio of the actual Annual Facilities Special Tax and Annual Maintenance Special Tax levied in any Fiscal Year to the Maximum Annual Facilities Special Tax and Maximum Annual Maintenance Special Tax authorized to be levied in that Fiscal Year is equal for all Assessor’s Parcels of Developed Property, respectively. In addition, for Undeveloped Property, “Proportionately” means that the ratio of the actual Annual Facilities Special Tax and actual Annual Maintenance Facilities Special Tax to the Maximum Annual Facilities Special Tax and Maximum Annual Maintenance Special Tax is equal for all Assessor’s Parcels of Undeveloped Property, respectively.
“Public Property” means any property within the boundaries of CFD No. 2004-1 that is owned by the federal government, State of California, County, City, or other public agency. “Single Family Detached Lot” means an individual numbered lot, which is in its final configuration and for which a building permit may be issued for a single family detached unit. “Special Taxes” means, collectively, the One-Time Facilities Special Tax, the Annual Facilities Special Tax, and the Annual Maintenance Special Tax.
“Special Tax Category” means, individually, the One-Time Facilities Special Tax, the Annual Facilities Special Tax, and the Annual Maintenance Special Tax. “Subdivision Map” means a Final Map, large lot subdivision map, or other map recorded with the County that results in the subdivision of an Original Parcel into two or more Successor Parcels. “Successor Parcel” means an Assessor’s Parcel of Taxable Property created by the subdivision or reconfiguration of an Original Parcel on which construction of a residential or non-residential structure is permitted.
“Taxable Property” means all of the Assessor’s Parcels within the boundaries of CFD No. 2004-1 which are not exempt from the Special Tax pursuant to law or Section G below. “Taxable Public Property” means, in any Fiscal Year, all Parcels of Public Property within CFD No. 2004-1 that, (i) based on the Village One Specific Plan, were expected to be Taxable Property and, (ii) based on this expectation, Maximum Special Taxes were assigned to the Parcels in a prior Fiscal Year.
“Tax Zone” means a mutually exclusive geographic area within which particular Special Tax rates may be levied pursuant to this Rate and Method of Apportionment of Special Taxes. Attachment 1 identifies the boundaries of Tax Zone #1 and Tax Zone #2 as of the date of adoption of this updated #6..
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City of Modesto CFD No. 2004-1 7 December 10, 2004
Rate and Method of Apportionment of Special Tax; additional Tax Zones may be created when property is annexed into the CFD. Alternatively, additional Original Parcels may be added to a Tax Zone with assigned Maximum Special Taxes based on the Expected Land Uses on each Original Parcel.
“Tax Zone #1” means the geographic area that is designated in Attachment 1 of this Rate and Method of Apportionment of Special Tax as Tax Zone #1. Tax Zone #1 may be expanded to include additional Original Parcels that annex to CFD No. 2004-1; Attachments 1 and 2 will be updated each time such an annexation takes place.
“Tax Zone #2” means the geographic area that is designated in Attachment 1 of this Rate and Method of Apportionment of Special Tax as Tax Zone #2. Tax Zone #2 may be expanded to include additional Original Parcels that annex to CFD No. 2004-1; Attachments 1 and 2 will be updated each time such an annexation takes place.
“Undeveloped Property” means, in any Fiscal Year, all Parcels of Taxable Property within CFD No. 2004-1 that are not Developed Property.
“Village One Specific Plan” means the specific plan for development within the Village One project in the City of Modesto adopted by the City Council on April 1, 2003, as amended from time to time.
“Village Residential Property” means, in any Fiscal Year, all Parcels in CFD No. 2004-1 for which a building permit has been or may be issued for construction of a residential unit on a Parcel with a maximum density greater than two dwelling units per gross acre based on reference to the Village One Specific Plan and/or the Parcel’s zoning designation.

B. DATA FOR ANNUAL ADMINISTRATION
On or about July 1 of each Fiscal Year, the Administrator shall identify the current Assessor’s Parcel numbers for all Parcels of Taxable Property in CFD No. 2004-1. The Administrator shall also determine: (i) the Tax Zone within which each Parcel of Taxable Property is located, (ii) whether each Assessor’s Parcel of Taxable Property is Developed Property or Undeveloped Property, (iii) which Parcels are Commercial Property, Industrial Property, Multi-Family Property, Low Density Residential Property, and Village Residential Property (the City shall, in its sole discretion, determine the appropriate Land Use Class for Parcels on which a structure was built prior to CFD Formation), (iv) the Net Taxable Acreage of each Parcel, and (v) the Annual Facilities Special Tax Requirement and the Annual Maintenance Special Tax Requirement.

In any Fiscal Year, if it is determined that (i) a parcel map for a portion of property in CFD No. 2004-1 was recorded after January 1 of the prior Fiscal Year (or any other date after which the Assessor will not incorporate the newly-created Parcels into the then current tax roll), (ii) because of the date the parcel map was recorded, the Assessor does not yet recognize the new Parcels created by the parcel map, and (iii) one or more of the newly-created Parcels meets the definition of #6..
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City of Modesto CFD No. 2004-1 8 December 10, 2004
Developed Property, the Administrator shall calculate the Special Tax for the property affected by recordation of the parcel map by determining the Special Tax that applies separately to each newlycreated Parcel, then applying the sum of the individual Special Taxes to the Original Parcel or Successor Parcel that was subdivided by recordation of the parcel map.

C. CALCULATING MAXIMUM SPECIAL TAXES
The Administrator shall use the procedures set forth below to calculate the Maximum Special Taxes for each Parcel in CFD No. 2004-1 in each Fiscal Year, including the Maximum One-Time Facilities Special Tax, Maximum Annual Facilities Special Tax, and Maximum Annual Maintenance Special Tax. A separate method of calculating the Maximum Special Taxes may be identified for Tax Zones or Improvement Areas added to CFD No. 2004-1 as a result of future annexations. The Per-Acre Special Taxes set forth in Table 1 below shall be used for purposes of Sections C.1 and C.2 below:

Table 1
Per-Acre Special Taxes
Fiscal Year 2004-05 *
Land Use
Class
Per-Acre Special
Tax: One-Time
Facilities
Special Tax
TAX ZONE #1
Per-Acre Special
Tax: One-Time
Facilities
Special Tax
TAX ZONE #2
Per-Acre Special
Tax: Annual
Facilities Special
Tax
Per-Acre Special
Tax: Annual
Maintenance
Special Tax
Low Density
Residential
Property
$13,342 per
Net Taxable Acre
$19,576 per
Net Taxable Acre
$3,517 per
Net Taxable Acre
$525 per
Net Taxable Acre
Village
Residential
Property
$30,281 per
Net Taxable Acre
$44,429 per
Net Taxable Acre
$6,405 per
Net Taxable Acre
$1,233 per
Net Taxable Acre
Multi-Family
Property
$101,437 per
Net Taxable Acre
$148,832 per
Net Taxable Acre
$7,222 per
Net Taxable Acre
$4,020 per
Net Taxable Acre
Commercial
Property
$52,102 per
Net Taxable Acre
$76,446 per
Net Taxable Acre
$3,570 per
Net Taxable Acre
$920 per
Net Taxable Acre
Industrial
Property
$13,103 per
Net Taxable Acre
$19,225 per
Net Taxable Acre
$2,550 per
Net Taxable Acre
$920 per
Net Taxable Acre
* All Per-Acre Special Taxes shown in Table 1 are subject to the annual adjustments described in Section D below.

1. Original Parcels
The Maximum Special Taxes for each Land Use Class in the Original Parcels in CFD No. 2004-1 as of the date of approval of this updated Rate and Method of Apportionment of Special Tax are identified in Attachment 2. Attachment 2 will be updated by the #6..
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City of Modesto CFD No. 2004-1 9 December 10, 2004
Administrator as needed to reflect Original Parcels added to the CFD due to additional annexations. Until an Original Parcel is subdivided, the Maximum Special Taxes shown in Attachment 2 (escalated as set forth herein) shall be the Maximum Special Taxes for the Parcel unless the zoning on the Original Parcel changes to a Land Use Class that has higher Per-Acre Special Taxes, as shown in Table 1 above. Upon approval of such change in zoning by the City Council, the Administrator shall multiply the applicable Per-Acre Special Taxes by the Net Taxable Acreage of each Land Use Class that is expected on the Parcel based on the rezone. The Administrator shall then update Attachment 2 to reflect the higher Maximum Special Taxes for the Parcel. If a rezone results in a Land Use Class that has a lower Per-Acre Special Tax than the previous Expected Land Uses, there shall be no corresponding reduction in the Maximum Special Taxes for the Parcel. The potential reduction in Maximum Special Tax revenues must be considered separately for each Special Tax Category. If the rezone would cause a reduction in the Maximum Special Tax revenues in any Special Tax Category, the Maximum Special Tax identified for that Special Tax Category shall remain the same as originally assigned to the Original Parcel.

2. Successor Parcels
a. All Successor Parcels are Single Family Detached Lots If the Parcels created by a recorded Subdivision Map are all Single Family Detached Lots, the Administrator shall apply the following steps to allocate the Maximum Special Taxes for the Original Parcel to each of the Successor Parcels created by the subdivision:

Step 1: Determine the greater of (i) the Maximum Special Taxes assigned to each Expected Land Use for the Original Parcel, or (ii) the Net Taxable Acreage of Low Density Residential Property and/or Village Residential Property within the Subdivision Map multiplied by the Per-Acre Special Taxes for such Land Use Classes from Table 1 above. If the Subdivision Map includes both Low Density Residential Property and Village Residential Property, separately calculate the amount that applies to each Land Use Class.

Step 2: Separately for any Low Density Residential Property and Village Residential Property created by the Subdivision Map, divide the Maximum Special Taxes from Step 1 by the number of Successor Parcels to determine the Maximum Special Taxes for each Single Family Detached Lot.
b. No Successor Parcels are Single Family Detached Lots If none of the Successor Parcels created by recordation of a Subdivision Map are Single Family Detached Lots, the Administrator shall apply the following steps to #6..
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City of Modesto CFD No. 2004-1 10 December 10, 2004
allocate the Maximum Special Taxes assigned to the Original Parcel to each of the Successor Parcels:

Step 1: Identify the Expected Land Uses for the Original Parcel.

Step 2: Determine the Net Taxable Acreage within each Land Use Class created by the Subdivision Map.

Step 3: If the Net Taxable Acreage of each Land Use Class from Step 2 is the same as the Expected Land Uses, the Maximum Special Taxes assigned to each of the Expected Land Uses on the Original Parcel shall be allocated to the Successor Parcels based on the Acreage of each Land Use Class that occurs on each Successor Parcel.

Step 4: If the Net Taxable Acreage within each Land Use Class from Step 2 is different than the Expected Land Uses for the Original Parcel, the Administrator shall apply the following steps separately for each Special Tax Category:

Step 4a. Multiply the applicable Per-Acre Special Tax by the Net Taxable Acreage of each Land Use Class created by the
Subdivision Map.

Step 4b. If the amount calculated in Step 4a is greater than the Maximum Special Tax assigned to the Original Parcel,
multiply the Net Taxable Acreage of each Land Use Class on each Successor Parcel by the applicable Per-Acre Special Tax from Table 1 above to determine the Maximum Special Tax for each Successor Parcel.

Step 4c. If the amount calculated in Step 4a is less than the Maximum Special Tax assigned to the Original Parcel: (i) identify the Maximum Special Tax that was assigned to each of the
Expected Land Uses on the Parcel, (ii) divide the Maximum Special Tax for each Land Use Class by the Net Taxable
Acreage of each Land Use Class actually created by the
Subdivision Map, and (iii) multiply the per-acre Maximum Special Tax calculated in (ii) by the Net Taxable Acreage of each Land Use Class on each Successor Parcel to determine the Maximum Special Tax for each Parcel.

If the Land Use Classes on a Successor Parcel or Parcels are different than the Expected Land Uses for that Parcel(s) and such difference would result in a reduction in the Maximum Special Tax assigned to the Original Parcel for any Special #6..
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City of Modesto CFD No. 2004-1 11 December 10, 2004
Tax Category, the Maximum Special Tax assigned to the
Original Parcel shall either be distributed equally on a peracre basis to the Successor Parcels or, if multiple Land Use Classes are created by the Subdivision Map, the Maximum Special Tax from the Original Parcel shall be distributed to each Land Use Class so that the per-acre tax for each Land Use Class has the same proportional relationship as the PerAcre Special Taxes in Table 1 above.

If, after subdivision of an Original Parcel, a Successor Parcel is further subdivided, the Successor Parcel shall be treated as an Original Parcel for purposes of allocating Maximum Special Taxes pursuant to Section C.2a, C.2b, or C.2c, as appropriate. c. Some, But Not All, Successor Parcels are Single Family Detached Lots If a Subdivision Map divides an Original Parcel into Successor Parcels, of which some are Single Family Detached Lots and some are not, the Administrator shall (i) break out the Net Taxable Acreage of Low Density Residential Property and/or Village Residential Property separately from the Net Taxable Acreage of other Land Use Classes, (ii) for the Low Density Residential Property and/or Village Residential Property created by the Subdivision Map, apply the steps in Section C.2a to determine the Maximum Special Taxes for each Single Family Detached Lot, and (iii) apply the steps in Section C.2b above to determine the Maximum Special Taxes for Land Use Classes other than Low Density Residential Property and Village Residential Property.

After each reallocation of the Maximum Special Taxes upon subdivision or reconfiguration of Original Parcels, the sum of the Maximum Special Taxes assigned to Successor Parcels shall never be less, but may be more, than the Maximum Special Taxes assigned to the Original Parcels prior to such reallocation.

D. ESCALATION OF MAXIMUM SPECIAL TAXES

1. One-Time Facilities Special Tax
Beginning in January 2005 and each January thereafter, the Maximum One-Time Facilities Special Tax assigned to each Parcel and the Per-Acre Special Tax shown in Table 1 above shall be adjusted annually by the greater of (i) the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source #6..
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City of Modesto CFD No. 2004-1 12 December 10, 2004
if the Engineering News Record is discontinued or otherwise not available, or (ii) four percent (4.0%). Each annual adjustment of the One-Time Facilities Special Tax shall become effective on the subsequent July 1.

2. Annual Facilities Special Tax
Beginning in Fiscal Year 2005-06, and each Fiscal Year thereafter, the Maximum Annual Facilities Special Tax assigned to each Parcel and the Per-Acre Special Tax shown in Table 1 above shall be increased by two percent (2%) of the amount in effect in the prior Fiscal Year.

3. Annual Maintenance Special Tax
Beginning in January 2005 and each January thereafter, the Maximum Annual Maintenance Special Tax assigned to each Parcel and the Per-Acre Special Tax shown in Table 1 above shall be adjusted annually by the greater of (i) the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or (ii) four percent (4.0%). Each annual adjustment of the Maximum Annual Maintenance Special Tax shall become effective on the subsequent July 1.

E. METHOD OF LEVY OF THE SPECIAL TAX

1. One-Time Facilities Special Tax
The Maximum One-Time Facilities Special Tax determined pursuant to Sections C and D above shall be levied on all Taxable Property in CFD No. 2004-1 and shall be collected as set forth in Section F below.

2. Annual Facilities Special Tax
Commencing with Fiscal Year 2004-05 and for each following Fiscal Year, the Administrator shall determine the Annual Facilities Special Tax Requirement for the Fiscal Year. The Annual Facilities Special Tax shall then be levied on all Parcels of Taxable Property in CFD No. 2004-1 as follows:

Step 1: The Annual Facilities Special Tax shall be levied Proportionately on each Parcel of Developed Property within the CFD up to 100% of the Maximum Annual Facilities Special Tax for each Parcel for such Fiscal Year until the amount levied on Developed Property is equal to the Special Tax Requirement prior to applying any Capitalized Interest that is available in the CFD accounts;
#6..
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City of Modesto CFD No. 2004-1 13 December 10, 2004
Step 2: If additional revenue is needed after Step 1, and after applying Capitalized Interest to the Annual Facilities Special Tax Requirement, the Annual Facilities Special Tax shall be levied Proportionately on each Assessor’s Parcel of Undeveloped Property within the CFD, up to 100% of the Maximum Annual Facilities Special Tax for each Parcel of Undeveloped Property for such Fiscal Year;
Step 3: If additional revenue is needed after applying the first two steps, the Annual Facilities Special Tax shall be levied Proportionately on each Assessor’s Parcel of Taxable Public Property, up to 100% of the Maximum Annual Facilities Special Tax assigned to each Parcel of Taxable Public Property.

3. Annual Maintenance Special Tax
Commencing with Fiscal Year 2004-05 and for each following Fiscal Year, the Administrator shall determine the Maintenance Special Tax Requirement for the Fiscal Year.

The Annual Maintenance Special Tax shall then be levied on all Parcels of Taxable Property as follows:

Step 1: The Annual Maintenance Special Tax shall be levied Proportionately on each Parcel of Developed Property within the CFD up to 100% of the Maximum Annual Maintenance Special Tax for each Parcel for such Fiscal Year; Step 2: If additional revenue is needed after Step 1, the Annual Maintenance Special Tax shall be levied Proportionately on each Assessor’s Parcel of Undeveloped Property within the CFD, up to 100% of the Maximum Annual Maintenance Special Tax for each Parcel of Undeveloped Property for such Fiscal Year;
Step 3: If additional revenue is needed after applying the first two steps, the Annual Maintenance Special Tax shall be levied Proportionately on each Assessor’s Parcel of Taxable Public Property, up to 100% of the Maximum Annual Maintenance Special Tax assigned to each Parcel of Taxable Public Property.

F. COLLECTION OF SPECIAL TAX
The Maximum One-Time Facilities Special Tax shall be collected prior to a building permit being issued for new construction of any residential or non-residential structure on Taxable Property within CFD No. 2004-1, and shall be immediately delinquent if not so paid.

The Annual Facilities Special Tax and Annual Maintenance Special Tax for CFD No. 2004-1 shall be collected in the same manner and at the same time as ordinary ad valorem property taxes, provided, however, that prepayments are permitted as set forth in Section H below and provided further that the City may directly bill, collect at a different time or in a different manner, and/or #6..
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City of Modesto CFD No. 2004-1 14 December 10, 2004
collect delinquent Annual Facilities Special Taxes and Annual Maintenance Special Taxes through foreclosure or other available methods.

The Annual Facilities Special Tax shall be levied and collected until principal and interest on Bonds have been repaid, costs of constructing or acquiring Authorized Facilities from Annual Facilities Special Tax proceeds have been paid, and all Administrative Expenses have been reimbursed.

However, in no event shall an Annual Facilities Special Tax be levied after Fiscal Year 2060-61.

The Annual Maintenance Special Tax will continue to be levied and collected unless and until the City determines that the Annual Maintenance Special Tax no longer needs to be levied to pay Authorized Services of the CFD and all Administrative Expenses have been reimbursed. Under no circumstances may the Annual Facilities Special Tax on one Parcel in the CFD be increased by more than ten percent (10%) as a consequence of delinquency or default in payment of the Annual Facilities Special Tax levied on another Parcel or Parcels in the CFD.

G. EXEMPTIONS
Notwithstanding any other provision of this Rate and Method of Apportionment of Special Taxes, no Special Taxes shall be levied on Public Property, except Taxable Public Property, as defined herein.

H. PREPAYMENT OF SPECIAL TAX
The following definitions apply to this Section H:
“Outstanding Bonds” means all Previously Issued Bonds which remain outstanding, with the following exception: if an Annual Facilities Special Tax has been levied against, or already paid by, an Assessor’s Parcel making a prepayment, and a portion of the Annual Facilities Special Tax will be used to pay a portion of the next principal payment on the Bonds that remain outstanding (as determined by the Administrator), that next principal payment shall be subtracted from the total Bond principal that remains outstanding, and the difference shall be used as the amount of Outstanding Bonds for purposes of this prepayment formula.
“Previously Issued Bonds” means all Bonds that have been issued on behalf of the CFD prior to the date of prepayment.
“Public Facilities Requirements” means either $14,100,000 in 2004 dollars, which shall increase on January 1, 2005, and on each January 1 thereafter by the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or such other number as shall be determined by the City as sufficient to fund Authorized Facilities. The Public Facilities Requirements shown above shall be adjusted or a separate Public Facilities #6..
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City of Modesto CFD No. 2004-1 15 December 10, 2004
Requirements identified each time property annexes into CFD No. 2004-1; at no time shall the added Public Facilities Requirement for the annexation area exceed the amount of public improvement costs that are expected to be supportable by the Maximum Annual Facilities Special Tax generated within that annexation area.
“Remaining Facilities Costs” means the Public Facilities Requirements (as defined above), minus costs of Authorized Facilities funded by Outstanding Bonds (as defined above), developer equity, and/or any other source of funding.

The Annual Facilities Special Tax obligation applicable to an Assessor’s Parcel in the CFD may be prepaid and the obligation of the Assessor’s Parcel to pay the Annual Facilities Special Tax permanently satisfied as described herein, provided that a prepayment may be made only if there are no delinquent Annual Facilities Special Taxes with respect to such Assessor’s Parcel at the time of prepayment. The Annual Maintenance Special Tax may not be prepaid. An owner of an Assessor’s Parcel intending to prepay the Annual Facilities Special Tax obligation shall provide the City with written notice of intent to prepay. Within 30 days of receipt of such written notice, the City or its designee shall notify such owner of the prepayment amount for such Assessor’s Parcel. Prepayment must be made not less than 75 days prior to any redemption date for Bonds to be redeemed with the proceeds of such prepaid Annual Facilities Special Taxes. The Prepayment Amount shall be calculated as follows: (capitalized terms as defined below):

Bond Redemption Amount
plus Remaining Facilities Amount
plus Redemption Premium
plus Defeasance Requirement
plus Administrative Fees and Expenses
less Reserve Fund Credit
equals Prepayment Amount
As of the proposed date of prepayment, the Prepayment Amount shall be determined by application of the following steps:

Step 1. Compute the total Maximum Annual Facilities Special Tax that could be collected from the Assessor’s Parcel prepaying the Annual Facilities Special Tax in the Fiscal Year in which prepayment would be received by the City.

Step 2. Divide the Maximum Annual Facilities Special Tax from Step 1 by the total amount that could be collected if the Maximum Annual Facilities Special Tax was levied on all Parcels of Taxable Property in the CFD.

Step 3. Multiply the quotient computed pursuant to Step 2 by the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the “Bond Redemption Amount”).

Step 4. Compute the current Remaining Facilities Costs (if any). #6..
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City of Modesto CFD No. 2004-1 16 December 10, 2004
Step 5. Multiply the quotient computed pursuant to Step 2 by the amount determined pursuant to Step 4 to compute the amount of Remaining Facilities Costs to be prepaid (the “Remaining Facilities Amount”).

Step 6. Multiply the Bond Redemption Amount computed pursuant to Step 3 by the applicable redemption premium, if any, on the Outstanding Bonds to be redeemed (the “Redemption Premium”).

Step 7. Compute the amount needed to pay interest on the Bond Redemption Amount starting with the first Bond interest payment date after which the prepayment has been received until the earliest redemption date for the Outstanding Bonds, which, depending on the Bond offering document, may be as early as the next interest payment date.

Step 8: Compute the amount of interest the City reasonably expects to derive from reinvestment of the Bond Redemption Amount plus the Redemption Premium from the first Bond interest payment date after which the prepayment has been received until the redemption date for the Outstanding Bonds.

Step 9: Take the amount computed pursuant to Step 7 and subtract the amount computed pursuant to Step 8 (the “Defeasance Requirement”).

Step 10. Determine the costs of computing the prepayment amount, the costs of redeeming Bonds, and the costs of recording any notices to evidence the prepayment and the redemption (the “Administrative Fees and Expenses”).

Step 11. If and to the extent so provided in the indenture pursuant to which the Outstanding Bonds to be redeemed were issued, a reserve fund credit shall be calculated as a reduction in the applicable reserve fund for the Outstanding Bonds to be redeemed pursuant to the prepayment (the “Reserve Fund Credit”).

Step 12. The Annual Facilities Special Tax prepayment is equal to the sum of the amounts computed pursuant to Steps 3, 5, 6, 9, and 10, less the amount computed pursuant to Step 11 (the “Prepayment Amount”).

If an owner that has prepaid the Annual Facilities Special Tax obligation assigned to a Parcel subsequently rezones the Parcel to a Land Use Class that has a higher Per-Acre Annual Facilities Special Tax, the City may in its sole discretion and as a condition of approval of the rezoning, collect the additional Annual Facilities Special Tax prepayment that would have applied had the Parcel been rezoned at the time of the original prepayment for the Parcel. #6..
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City of Modesto CFD No. 2004-1 17 December 10, 2004
I. INTERPRETATION OF SPECIAL TAX FORMULA
The City reserves the right to make minor administrative and technical changes to this document that does not materially affect the Rate and Method of Apportionment of Special Taxes. In addition, the interpretation and application of any section of this document shall be left to the City’s discretion.

Interpretations may be made by the City by ordinance or resolution for purposes of clarifying any vagueness or ambiguity in this Rate and Method of Apportionment of Special Taxes. #6..
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Enochs High Grogan Park
085-002-079
077-009-057
077-008-034
077-008-031
077-008-035
077-008-032
Central Basi
Ustach Middl
077-033-012
Ustach Park
West Basin
077-008-033
Freedom Park
085-009-004
Future Schoo
077-008-030
085-050-003
077-009-025
Sanders Scho
Freedom Scho
085-001-061
085-001-047
085-003-057
077-009-056
077-009-055
085-001-017
085-001-046
085-007-018
Sanders Park
085-009-005
085-001-026
085-050-001
077-033-011
084-002-041
077-009-014
077-033-013
085-033-068
085-001-010
085-018-060
085-033-066
077-033-002
085-033-067
077-033-009
085-034-080
085-013-067 085-013-069
085-001-045
®
Tax Zone #1
CFD Formation077-033-007077-033-009085-034-080Annexation #1085-002-034085-002-035 Annexation #2077-008-031077-008-034077-008-035077-009-014077-009-056077-009-057 Annexation #3085-013-067085-013-069Annexation #4077-033-002085-007-018 Annexation #5077-009-055
Annexation #6085-001-061Annexation #7085-002-079Annexation #8085-002-039084-002-041 Annexation #9077-008-032077-008-033085-001-047085-001-017085-001-046085-018-060085-009-004085-009-005 Tax Zone #2
ATTACHMENT 1
City of Modesto
Community Facilities District No. 2004-1
(Village One #2)

IDENTIFICATION OF TAX ZONES
Updated by PI 4/17/24
Floyd Ave.

Roselle Ave.

Oakdale Rd.

Sylvan Ave.

Fine Ave.

Claus Rd.

Litt Rd.

Millbrook Ave.

Esta Ave.

Sharon Ave.

Merle Ave.

Briggsmore Ave.

Dermond Rd.

Hillglen Ave.

Kodiak Dr.

Wood Sorrell Dr.

Aria Way
McReynolds Ave.

Maid Mariane Ln.

Annexation #10085-001-010
Annexation #11085-001-045
Annexation #12077-009-025085-001-026085-033-066085-033-067085-033-068 Non-taxable Property 085-003-057
Annexation #13077-008-030
Annexation #15
077-046-079
Annexation #16077-009-058
077-033-010
Annexation #19
085-040-063
085-007-009
085-040-063
085-007-009
Annexation #20
077-008-040077-008-039
077-008-040
077-008-039
#6..
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ATTACHMENT 2
City of Modesto Community Facilities District No. 2004-1 (Village One #2) Maximum Special Taxes Assigned to Expected Land Uses Within Each Original Parcel in Each Tax Zone Last updated 4/17/24 Tax
Zone Annexation Project Assessor's Parcel Number
Expected
Land
Uses *
Expected Net
Taxable
Acreage
Fiscal Year 2004-05
Maximum One-Time
Facilities Special Tax/1
Fiscal Year 2004-05
Maximum Annual Facilities
Special Tax/2
Fiscal Year 2004-05 Maximum
Annual Maintenance Special
Tax/3
1 Formation Oakcrest Subdivision 077-033-012 VR F 13.930 $421,814.33 $89,221.65 $17,175.69 1 Formation Oakdale Park Subdivision 077-033-013 VR F 2.220 $67,223.82 $14,219.10 $2,737.26 1 Formation 3400 Bobs Way 077-033-011 C F 3.050 $158,911.10 $10,888.50 $2,806.00 1 Formation Modesto Endoscopy
Center
077-033-009 C F 0.930 $48,454.86 $3,320.10 $855.60
1 Formation 3032 Merle (53-PM-57) 085-034-
081,082,084,085
VR F 0.740 $22,407.94 $4,739.70 $912.42
1 Formation Merle Ave. (53-PM-57) 085-034-083 VR F 0.260 $7,873.06 $1,665.30 $320.58 1 1 Shadow Creek
Apartments
085-002-034 MF F 4.620 $468,638.94 $33,365.64 $18,572.40 1 1 Shadow Creek
Apartments
085-002-035 MF F 4.880 $495,012.56 $35,243.36 $19,617.60 1 2 Village Ranch Unit #1 077-008-031(partial) VR F 12.253 $371,033.09 $78,480.47 $15,107.95 1 2 Village Ranch Unit #2 077-008-031(partial) VR F 12.248 $370,881.69 $78,448.44 $15,101.78 1 2 Hacienda Del Sol Unit #1 077-008-034, 35
(partial)
VR F 20.400 $617,732.40 $130,662.00 $25,153.20
1 2 Hacienda Del Sol Unit #2 077-008-034, 35
(partial)
VR F 16.125 $488,281.13 $103,280.63 $19,882.13
1 2 Hacienda Del Sol
Apartments
077-008-034 (partial) MF F 10.600 $1,075,232.20 $76,553.20 $42,612.00 1 2 Kodiak Village II
Subdivision
077-009-014,056 VR F 12.220 $370,033.82 $78,269.10 $15,067.26 1 2 Kodiak Village Subdivision 077-009-057 VR F 38.970 $1,180,050.57 $249,602.85 $48,050.01 1 3 Merle/Paramount
Apartments
085-013-067 MF F 0.570 $57,819.09 $4,116.54 $2,291.40
1 3 Merle/Paramount
Apartments
085-013-069 MF F 0.570 $57,819.09 $4,116.54 $2,291.40
1 4 3424 Oakdale Road 077-033-002 C F 1.120 $58,354.24 $3,998.40 $1,030.40 1 4 3837 Merle Avenue 085-007-018 VR e 3.060 $92,659.86 $19,599.30 $3,772.98 1 5 Kodiak Village III
Subdivision
077-009-055 VR F 6.450 $195,312.45 $41,312.25 $7,952.85 2 6 Burkshire Estates I
(Lagos)
085-001-061 VR F 8.450 $375,425.05 $54,122.25 $10,418.85 2 7 Falling Leaf Subdivision 085-002-079
VR F 27.230 $1,209,801.67 $174,408.15 $33,574.59
MF F 8.780 $1,306,744.96 $63,409.16 $35,295.60
C F 2.050 $156,714.30 $13,130.25 $2,527.65
2 8 Bhatti Estates Subdivision 085-050-001 VR e 3.480 $154,612.92 $22,289.40 $4,290.84 2 8 Sylvan Vet Clinic 084-002-041 C e 2.860 $218,635.56 $10,210.20 $2,631.20 2 9 The Plaza Subdivision 077-008-032,033 VR F 31.180 $1,385,296.22 $199,707.90 $38,444.94 2 9 Hillglen Subdivision 085-001-047 VR e 8.370 $371,870.73 $53,609.85 $10,320.21 2 9 Burkshire Estates II
(portion)
085-001-017,046 VR e 8.740 $388,309.46 $55,979.70 $10,776.42 2 9 Ramirez Estates 085-018-060 VR e 1.520 $67,532.08 $9,735.60 $1,874.16 2 9 V1 Commercial Center 085-009-004 C e 10.670 $815,678.82 $38,091.90 $9,816.40 2 9 Housing Authority
Apartments
085-009-005 MF e 5.000 $744,160.00 $36,110.00 $20,100.00 2 10 Tarantella Estates 085-001-010 VR F 1.419 $63,044.75 $9,088.70 $1,749.63 2 11 Burkshire Estates II
(portion)
085-001-045 VR e 0.490 $21,770.21 $3,138.45 $604.17
2 12 Graham Estates 085-033-066,067,068 VR e 4.030 $179,048.87 $25,812.15 $4,968.99 2 12 Hillglen Sunrise 077-009-025 VR e 9.630 $427,851.27 $61,680.15 $11,873.79 2 12 Pimentel Corners 085-001-026 C e 3.220 $246,156.12 $11,495.40 $2,962.40 2 12 Thomas Terrace 085-003-057 VR e 7.870 $349,656.23 $50,407.35 $9,703.71 2 13 Village Ranch Apartments 077-008-030 MF F 10.040 $1,494,273.28 $72,508.88 $40,360.80 2 14 Walgreens 085-050-006,7,8 MF F 1.658 $246,763.46 $11,974.08 $6,665.16 2 15 2500 Sylvan 077-046-079 VR e .495 $21,992.36 $3,170.48 $610.34 #6..
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ATTACHMENT 2
City of Modesto Community Facilities District No. 2004-1 (Village One #2) 2 16 Hillglen Parks Subdivision 077-009-058 VR F 11.04 $893,388.15 $91,472.47 $24,793.63 2 17 Villa D’Este 085-064-003 VR F 7.14 $600,906.40 $60,342.00 $16,767.47 2 18 Public Storage Modesto 077-033-010 C F 2.50 $198,759.70 $4,789.60 $12,252.13 2 19 Metro at the Village 085-040-063 MF F 5.35 $841,686.93 $53,041.29 $44,787.42 2 19 Icon at the Village 085-007-009 VR F 2.99 $140,423.02 $26,290.16 $7,677.30 2 20 NRB Investments/
Modesto 92 LP 077-008-039 VR e 18.735 $1,083,066.23 $174,814.04 $59,213.84 2 20 NRB Investments/
Modesto 92 LP 077-008-040 VR e 14.959 $864,776.50 $139,580.63 $47,279.42 $21,068,923.93 $2,572,770.14 $719,041.04
* This column denotes if this is an estimated taxable acreage(e) or a final calculated taxable acreage(F).

1. Beginning in January 2005 and each January thereafter, the Maximum One-Time Facilities Special Tax shall be adjusted by the greater of (i) the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or (ii) four percent (4.0%). Each annual adjustment of the Maximum One-Time Facilities Special Tax shall become effective on the subsequent July 1.

2. Beginning in Fiscal Year 2005-06 and each Fiscal Year thereafter, the Maximum Annual Facilities Special Tax shall escalate by 2.0% of the amount in effect in the prior Fiscal Year.

3. Beginning in January 2005 and each January thereafter, the Maximum Annual Maintenance Special Tax shall be adjusted by the greater of (i) the percentage increase, if any, in the construction cost index for the San Francisco region for the prior twelve (12) month period as published in the Engineering News Record or other comparable source if the Engineering News Record is discontinued or otherwise not available, or (ii) four percent (4.0%). Each annual adjustment of the Maximum Annual Maintenance Special Tax shall become effective on the subsequent July 1. #6..
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APN: 077-008-039
+/-14.959 AC NET
APN: 077-008-040
+/-18.735 AC NET
2315_ CFD _Village One Annexation 20_PPA-17.dwg
SHEET 1 OF 1 SHEET
DF ENGINEERING,INC. CIVIL ENGINEERING AND SURVEYING
3421 TULLY ROAD· SUITE J· MODESTO, CA 95350 TELEPHONE (209) 529-7450 · EMAIL [email protected] PROPOSED ANNEXATION BOUNDARY (+/- 33.694 AC NET TOTAL)

LINE LEGEND

PARCEL LINE WITHIN ANNEXATION BOUNDARY

ROAD RIGHT OF WAY

NEIGHBORS' PARCEL LINE
SCOTT THOMAS DELAMARE LS 8078
SIGNED:

DATE
March 26, 2024
PROPOSED BOUNDARIES OF ANNEXATION NO. 2 0
CITY OF MODESTO COMMUNITY FACILITIES DISTRICT NO. 2004-1 (VILLAGE ONE #2 )

CITY OF MODESTO, COUNTY OF STANISLAUS, STATE OF CALIFORNIA SCALE: 1" = 150' March 26, 2024

ORCHARD

KODIAK DRIVE

VENTANA VIEW WAY

LA PLAYA
LANE

FLOYD AVENUE

OAKDALE ROADPARK WAY

GRAPHIC SCALE
0 75 150 300 450
SCALE 1"= 150'

COUNTY RECORDER'S STATEMENT
FILED THIS ________ DAY OF ___________________ , 20_____ , AT ___________________ O'CLOCK ___. M. IN BOOK _____________ OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS AT PAGE _____________ IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF STANISLAUS, STATE OF CALIFORNIA.

FEE $ ___________________ PAID INSTRUMENT NO.: _____________________________________________ DONNA LINDER BY: _______________________________________________ , DEPUTY STANISLAUS COUNTY RECORDER PRINT NAME:________________________________________________

CITY CLERK'S STATEMENTS
I HEREBY CERTIFY THAT THIS MAP SHOWING THE PROPOSED BOUNDARIES OF ANNEXATION NO. 20 TO CITY OF MODESTO COMMUNITY FACILITIES DISTRICT NO. 2004-1 (VILLAGE ONE #2),

CITY OF MODESTO, COUNTY OF STANISLAUS, STATE OF CALIFORNIA, WAS APPROVED BY

THE CITY COUNCIL OF THE CITY OF MODESTO AT A REGULAR MEETING THEREOF, HELD ON THE ________ DAY OF ___________________ , 20_____ , BY ITS RESOLUTION NO. ___________________________________ . DIANE NAYARES-PEREZ, CITY CLERK BY: ___________________________________________ (SIGNATURE) ___________________________________________________________________________

PRINT NAME AND TITLE

FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF MODESTO IN RECORDABLE FORM THIS ________ DAY OF ___________________ , 20_____ , DIANE NAYARES-PEREZ, CITY CLERK BY: ___________________________________________ (SIGNATURE) ___________________________________________________________________________

PRINT NAME AND TITLE
N.T.S.

SITE

VICINITY MAP SALONIE LANE
NOTE
THIS IS A MAP OF THE AREA TO BE ANNEXED TO THE CITY OF MODESTO COMMUNITY FACILITIES DISTRICT NO. 2004-1 (VILLAGE ONE #2), CITY OF MODESTO, COUNTY OF STANISLAUS, STATE OF CALIFORNIA, THE CONSOLIDATION BOUNDARY MA FOR WHICH WAS RECORDED NOVEMBER 23, 2005, IN BOOK 4 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS AT PAGE 33, IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF STANISLAUS, STATE OF CALIFORNIA.

THE ORIGINAL DISTRICT BOUNDARY MAP WAS RECORDED ON MARCH 16, 2004, IN BOOK 3 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 85, IN THAT OFFICE.

A MAP OF ANNEXATION NO. 11 TO THE DISTRICT WAS RECORDED ON FEBRUARY 9, 2006, IN BOOK 4 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 36, IN THAT OFFICE.

A MAP OF ANNEXATION NO. 12 TO THE DISTRICT WAS RECORDED ON APRIL 26, 2006, IN BOOK 4 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 42, IN THAT OFFICE.

A MAP OF ANNEXATION NO. 13 TO THE DISTRICT WAS RECORDED ON SEPTEMBER 8, 2006, IN BOOK 4 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 57, IN THAT OFFICE.

A MAP OF ANNEXATION NO. 14 TO THE DISTRICT WAS RECORDED ON MAY 29, 2008, IN BOOK 4 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 98, IN THAT OFFICE.

A MAP OF ANNEXATION NO. 15 TO THE DISTRICT WAS RECORDED ON NOVEMBER 4, 2016, IN BOOK 5 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 52, IN THAT OFFICE.

A MAP OF ANNEXATION NO. 16 TO THE DISTRICT WAS RECORDED ON NOVEMBER 9, 2017, IN BOOK 5 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 67, IN THAT OFFICE.

A MAP OF ANNEXATION NO. 17 TO THE DISTRICT WAS RECORDED ON JUNE 11, 2019, IN BOOK 5 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 87, IN THAT OFFICE.

A MAP OF ANNEXATION NO. 18 TO THE DISTRICT WAS RECORDED ON JUNE 10, 2020, IN BOOK 6 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 5, IN THAT OFFICE.

A MAP OF ANNEXATION NO. 19 TO THE DISTRICT WAS RECORDED ON APRIL 16, 2021, IN BOOK 6 OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS, AT PAGE 19, IN THAT OFFICE. #6..
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CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

May 07, 2024
Date: April 11, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: DeAnna Christensen, Director of Finance
SUBJECT: Monthly Investment Report – February 2024
CONTACT: Calogero Maniscalco, Senior Financial Analyst
[email protected], 209-577-5219
DESCRIPTION:

Consider accepting the Monthly Investment Report for February 2024. (Funding Source:

Various Funds)
STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto 2020-2025 Strategic Plan focus of Governance and Service Delivery under Goal H: Achieve Financial Sustainability.

BACKGROUND:

The City’s Finance Department submits a monthly investment report to Council and the City Manager. Attached are the February investment reports (see attachment list below) generated by Public Financial Management, the City’s investment advisor. Investments in the portfolio (attachment 4) are for the City of Modesto, Modesto Public Financing Authority, Community Facilities Districts, Tuolumne River Regional Park, Successor Agency to the Redevelopment Agency, and the Modesto-Ceres Fire Protection Agency Joint Powers Authority.

DISCUSSION:

It is the function of the Finance Department to deposit and invest funds in accordance with sound treasury management and to safeguard the principal and maintain the liquidity needs of the City. The purpose of the Monthly Investment Report is to keep the City Council and City Manager informed of the City’s investment portfolio. As shown in Attachment 2, on February 29, 2024 the City had a closing market value of $480,934,673 in its investment portfolio. #7..
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City Council, May 7, 2024
Monthly Investment Report – February 2024

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FISCAL IMPACT:

In February, the approximate yield of the City’s combined investments was 3.57% (see attachment 3) on a weighted average. For the portfolio of securities alone, the yield to maturity on cost was 3.13%. For comparative purposes, the yields (as of February 29, 2024) of other investments commonly used by public agencies are listed below:

Local Agency Investment Fund: 4.12%
1-Year U.S. Treasury Note: 5.06%
2-Year U.S. Treasury Note: 4.63%

The Portfolio maintains sufficient liquidity to meet the City's projected expenditure requirements for at least the next six months.

COMMITTEE RECOMMENDATION:

This item has not gone before a committee.

CEQA/NEPA REQUIREMENTS:

N/A
RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Motion accepting the Monthly Investment Report for February 2024.

Approved by:

DeAnna Christensen, Director of Finance
Joseph P. Lopez, City Manager
Attachments:

1. Monthly Investment Report

2. Account Statement

3. Combined Yields

4. Portfolio Holdings and Earnings Projections

5. Cash with Fiscal Agent
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PORTFOLIO HOLDINGS
Attachment 1
Percentages may not total to 100% due to rounding.

Investment Type No. of Investments Amount Invested
CAMP 1 49,765,332
Federal Agency 20 36,697,313
Federal Home Loan Bank 1 2,256,622
Federal Home Loan Mortgage Co. 4 6,006,628
Federal Nat’l Mortgage Assc. 15 28,434,063
Federal Agency CMO 22 61,205,901
U.S. Treasury 53 218,874,242
Commercial Paper 1 10,743,952
Negotiable CD 2 6,842,694
Corporate Note 25 61,089,667
Asset-Backed 22 29,677,763
Municipal 9 5,035,183
Supranational 1 1,002,627
Total Invested 156 480,934,673
Sector Allocation
February 29, 2024 versus January 31, 2024
Sector February 29, 2024 January 31, 2024 Change in Allocation Permitted by Policy
U.S. Treasury 45.5% 43.8% 1.73% 100%
Federal Agency 7.6% 7.7% -0.04% 100%
Federal Agency CMO 12.7% 10.9% 1.85% 100%
Commercial Paper 2.2% 4.4% -2.21% 25%
Negotiable CD 1.4% 1.4% -0.01% 30%
Corporate Note 12.7% 13.3% -0.62% 30%
Asset-Backed 6.2% 6.3% -0.10% 20%
Municipal 1.0% 1.1% 0.00% 100%
Supranational 0.2% 0.8% -0.62% 30%
CAMP 10.3% 10.3% 0.01% 100%
* Total invested includes only the bolded numbers
* * Amount invested are market values excluding accrued interest Additional, detailed information regarding security types and investment activity may be found in Attachment 2 accompanying this memo. Moreover, the addendum data will confirm continued compliance with the investment policy as well as with California Government Code.

RECENT ACTIVITY & CORPORATE EXPOSURE
The market spent the majority of February adjusting its expectations after a higher-than-expected inflation reading and Federal Reserve (Fed) commentary pushed back on the notion that a rate cut was imminent.

U.S. Treasury yields on maturities greater than one year increased through February as markets adjusted their rate cut assumptions. While inflation, as measured by the change in the Personal Consumption Expenditures Price Index (PCE), fell on a year-over-year (YoY) basis to 2.4% in January, the month-overmonth (MoM) reading of 0.3% showed prices increasing at a faster pace relative to the prior month. In the Long-Term portfolio we utilized the proceeds of maturing and sold securities to purchase three 5-year agency CMBS. In the Short-Term portfolio we utilized the proceeds of a maturing commercial paper to purchase an 8-month US Treasury note.
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PERFORMANCE
We continue to prefer a neutral duration stance relative to benchmarks as the risk from falling yields now outweighs the potential for further yield increases. Spreads on federal agencies and supranationals remained anchored over the month. While agency debt issuance has been light over the past several months, record issuance from supranationals to kickstart the year was met with strong demand. Momentum from the broader positive sentiment continued in investment grade corporates as the sector generated positive excess returns and benefited portfolio performance. Spreads on most corporate issuers have now broken through their 12-month lows. Asset-backed securities (ABS) performed exceedingly well as spreads continued to grind tighter. For the month, rising interest rates resulted in negative total return performance for both the portfolio and its benchmark, but the portfolio outperformed the benchmark by 15 basis points. Over longer periods, the portfolio continues to produce strong performance and to outperform the benchmark.

1. Performance is calculated on trade-date basis, gross (i.e., before fees) in accordance the CFA Institute's Global Investment Performance Standards (GIPS).

2. Performance numbers for periods greater than 1 year are presented on an annualized basis unless otherwise noted.

3. The performance calculation excludes any funds not invested in the 1-5 year strategy.

4. Performance benchmark through December 31, 2018 was the ICE BofAML 1-3 Year U.S. Treasury Index, and is now the ICE BofAML 1-5 Year U.S. Treasury Index, sourced from Bloomberg.

5. Inception date is 3/31/04.

Percentages may not add due to rounding.

Long-Term Portfolio Total Return
February 29, 2024
1 Month Trailing
12 Months
Trailing 36
Months
Trailing 60
Months
Since
Inception5
City of Modesto Investment Portfolio1,2,3-0.58% 4.45% -0.38% 1.43% 2.03% Modesto Performance Benchmark4-0.73% 4.08% -0.74% 1.06% 1.73% Average Portfolio Yields
February 29, 2024
Past
Month
Past 3
Months
Past
Year
Past 3
Years
Past 5
Years
City of Modesto Investment Portfolio 3.13% 3.08% 2.59% 2.11% 2.01% City of Modesto Short-Term Portfolio 5.45% 5.55% 5.38% - - $91.9
$28.5
$114.0
$84.5
$55.5
$106.5
$-
$30.0
$60.0
$90.0
$120.0
$150.0
Under 6
Months
6-12
Months
1-2 Years 2-3 Years 3-4 Years 4-5 Years
Millions
Maturity Distribution
February 29, 2024
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INVESTMENT POLICY
The City’s investment policy embraces the following standards: the prudent investor rule, requiring the safety of principal, through prudent and safe investments; sufficient liquidity to meet expected and unforeseen cash flows; generation of an above-market, risk-adjusted rate of return (meaning, returnsexpectations taking safety and liquidity into account). No investments longer than five years are permitted.

Some investments have maturity limits of 270 days or less. The table below details the City’s permitted investments.

Investment Type
Maximum
Maturity
Maximum Specified
% of Portfolio
Maximum
% per
Issuer
Minimum Quality
Requirements
Local Agency Bonds 5 Years None None None
Treasury Obligations 5 Years None None None
State Obligations 5 Years None None A rating
CA Local Agency Obligations 5 Years None None A rating
Federal Agencies 5 Years None None None
Supranationals 5 Years 30 percent 5 percent AA
Banker’s Acceptances 180 days 40 percent 5 percent Federal Reserve eligible Commercial Paper 270 days 25 percent 5 percent A1/P1 rating Negotiable Certificates of Deposit 5 Years 30 percent 5 percent A rating Certificates of Deposit 1 Year 20 percent 5 percent FDIC insured or collateralized Repurchase Agreements 90 days None 5 percent None
Reverse Repurchase Agreements 92 days 20 percent of
combined base value 5 percent None
Medium Term Notes 5 Years 30 percent 5 percent A rating Money Market Mutual Funds N/A 20 percent 10 percent Multiple Mortgage and Asset-backed Securities 5 Years 20 percent 5 percent AA Rating CAMP N/A None None N/A
LAIF N/A N/A None N/A
The City is not required to include a list of investments held by our bond trustees; however, staff believes the City Council should be kept informed of these investments. These investments are identified on Attachment A.

LONG TERM PORTFLIO INCOME RETURN
Monthly Income Return

0.20%
Fiscal Year-to-Date Income Return

1.01%
Prior 12 Months Income Return

1.99%
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Source: Bloomberg, Federal Reserve, and U.S. Bureau of Economic Analysis as of February 2024.

Economic Summary
CPI Continues Trend of Coming in Above Expectations
0%
2%
4%
6%
8%
10%
12%
2016 2017 2018 2019 2020 2021 2022 2023
Wage Growth vs. Inflation
Year-over-year
Atlanta Fed Wage Growth Tracker Consumer Price Index
Feb-24

3.2%
-2%
0%
2%
4%
6%
8%
10%
Feb-21 Aug-21 Feb-22 Aug-22 Feb-23 Aug-23 Feb-24
Consumer Price Index (CPI)
Top-Line Contributions, Year-over-Year Changes
Services (Ex Food & Energy) Goods (Ex Food & Energy)
Food Energy
Headline YoY%
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Source: Bureau of Economic Analysis, U.S. Department of Commerce; as of February 2024.

Economic Summary
Consumer Spending Still Supporting GDP Growth

7.0%
-2.0%
-0.6%

2.7% 2.6%

2.2% 2.1%

4.9%

3.2%
-2%
-1%
0%
1%
2%
3%
4%
5%
6%
7%
8%
2021Q4 2022Q1 2022Q2 2022Q3 2022Q4 2023Q1 2023Q2 2023Q3 2023Q4 GDP
QoQ% Change Annualized
23Q3 First Estimate
23Q4
Second Estimate
23Q4
GDP 4.9% 3.28% 3.20%
Consumer Spending 2.11% 1.91% 2.00%
Fixed Investment 0.46% 0.31% 0.43%
Gov’t Expenditure 0.99% 0.56% 0.73%
Net Export 0.03% 0.43% 0.32%
Private Inventories 1.27% 0.07% -0.27%
Contribution to GDP by Category
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Source: ICE BofAML 1-5 year Indices via Bloomberg, MarketAxess and PFMAM as of 02/29/2024. Spreads on ABS are option-adjusted spreads of 0-5 year indices based on weighted average life; spreads on agencies are relative to comparable maturity Treasuries.

Economic Summary
Agency Spreads, Corporates, and ABS Spreads Trend
Downward

0.00%

0.10%

0.20%

0.30%

0.40%
Feb-23 May-23 Aug-23 Nov-23 Feb-24
Federal Agency Yield Spread

0.00%

0.20%

0.40%

0.60%

0.80%

1.00%

1.20%
Feb-23 May-23 Aug-23 Nov-23 Feb-24
Corporate Notes A-AAA Yield Spreads

0.00%

0.20%

0.40%

0.60%

0.80%

1.00%

1.20%
Feb-23 May-23 Aug-23 Nov-23 Feb-24
Asset-Backed Securities AAA Yield Spreads
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Modesto City CouncilMay 7, 2024

Modesto City Council
May 7, 2024